author: McCALEB, Justice.

text:
    232 La. 1059
    Michael THEODOS and Stork Club, Inc., v. BOSSIER CITY et al.
    No. 43044.
    Supreme Court of Louisiana.
    May 6, 1957.
    Rehearing Denied June 10, 1957.

      Ferris & Achee, Shreveport, for plaintiffs-appellants.
    J. L. Thomas, Jr., Bossier City, for defendants-appellees.
   McCALEB, Justice.

Michael Theodos is the owner of all of the outstanding stock of Stork Club, Inc., which operates a cabaret known as the “Stork Supper Club” and “Stork Theatre Restaurant”, presently located within the corporate limits of Bossier City, Louisiana. In his capacity as owner and operator of this establishment, Theodos joined with Stork Club, Inc. in the institution of this suit under the Uniform Declaratory Judgments Act (R.S. 13 :4231-4236) to have the business declared to be a “restaurant” within the meaning of two municipal closing ordinances of Bossier.City (Ordinance No. 367 of 1946 and Ordinance No. 201 of 1932) and’ the State Sunday Law (R.S. 51:191-192) and that it is expressly exempted from the closing provisions of those enactments.

In addition to the defendant municipality, plaintiffs directed the action against the Mayor, Burges E. McCranie, the Chief of Police, James L. Cathey and the City Attorney, J. L. Thomas, Jr.

The facts of the case, which are undisputed, are substantially detailed in the petition. They are as follows:

On August 14, 1955, the property upon which the Stork Club is located became part of the corporate limits of Bossier City by virtue of an annexation ordinance. At that time, there were in effect two city ordinances, No. 201 of 1932, which is substantially a counterpart of the State Sunday Closing Law (R.S. 51 ¡191-192) and provides for the closing on Sundays of all places of business save certain specified establishments, i. e., restaurants, hotels, boarding houses, drug stores, etc., and No. 367 of 1946, a more extensive closing ordinance, which, in addition to providing for the closing on Sundays of taverns, houses of public entertainment and shops for retailing liquors, declared that such establishments be closed from twelve o’clock midnight until 7:00 a. m. on all other days of the week and made it unlawful for any liquor to be sold, bartered, exchanged or consumed on the premises during those specified periods. Section 2 of the ordinance, however, contained an exception that the closing provisions were not to apply to “restaurants, drug stores or hotels which shall be allowed to remain open but shall not be allowed to sell alcoholic liquor or beverages during the restricted hours.”

Shortly after the annexation ordinance became effective, the Chief of Police of Bossier City informed plaintiff Theodos that he would arrest him if the Stork Club’ was not promptly closed at midnight. Theodos replied that the Stork Club was a restaurant and, since no liquor was being sold or consumed on the premises after midnight, the club would remain open after that hour for the purpose of serving food. At about 12:10 o’clock on the morning of August 17, 1955, Theodos was arrested and charged with violation of Ordinance No. 367 of 1946. He was thereafter tried and convicted in the City Court of Bossier City and sentenced to pay a fine of $100 and to' serve 15 days in jail. He appealed to the District Court for the Parish of Bossier, his contention being that the operations-conducted by the Stork Club were exempted from the ordinance because the Stork Club was operating a restaurant business.

While this appeal was pending, Theodos and the Stork Club, Inc. brought the present suit for a declaratory judgment to have determined the legal status of the Stork Club within the meaning of the above mentioned closing ordinances and the State Sunday Law and requested, as an adjunct to the declaratory judgment, that they be given injunctive relief. On the rule nisi for a preliminary injunction, defendants filed an exception of no right or cause of action and also answered, admitting the salient facts, but denying plaintiffs’ contention that the Stork Club was exempted from the provisions of the laws or otherwise entitled to a declaratory judgment.

After a hearing on these issues, the judge sustained the exception of no right or cause of action but only insofar as plaintiffs’ request for injunctive relief was concerned. The case was thereafter tried on the merits on the petition for a declaratory judgment. Plaintiffs introduced much evidence at the hearing in an attempt to show that the Stork Club was, in fact, a restaurant and that the only feature which distinguished it from other restaurants in Bossier City was that it provided an orchestra for dancing and nightly floor shows. After completion of this evidence, the case was submitted to the judge for his decision and, on October 11, 1955, while the case was under advisement, the Council of Bossier City adopted a new ordinance, No. 581 of 1955, which repealed Ordinance 367 of 1946. In view of this development, the case was reopened by agreement of counsel for all parties for the specific purpose of making the new ordinance part of the record. Simultaneously with the reopening of the case, counsel for defendants filed another exception of no right or cause of action alleging that, by reason of the repeal of Ordinance 367 of 1946, the case was now moot. The judge sustained this exception and dismissed plaintiffs’ suit. Plaintiffs have appealed, contending that the judge improperly denied their request for injunc-tive relief; that he erred in dismissing the suit for a declaratory judgment since the new ordinance, No. 581 of 1955, is substantially the same as the repealed ordinance and that he also erred in neglecting to consider their demand for a declaratory judgment with respect to Ordinance 201 of 1932 and the State Sunday Closing Law.

We think it evident from the above stated facts that the judge was correct in denying plaintiffs’ demand for injunctive relief and that he also reached the proper result in subsequently refusing a declaratory judgment after the hearing on the merits. However, it is our opinion that he should have sustained defendants’ exception of no right or cause of action as to the entire demand, in limine litis, when the case was heard on the rule nisi for a preliminary injunction.

At the outset, it is perceived that plaintiffs, in their demand for a declaration that the establishment known as “Stork Supper Club” is a restaurant and, as such, exempt from the penal provisions of a municipal closing ordinance, are attempting to bypass the ordinary processes of the criminal laws and require enforcement of the claimed exemption by use of the equitable writ of injunction. Such a request appears to be wholly at variance with the jurisprudence of this Court — certainly, so far as injunc-tive relief is concerned.

It has many times been held that a district court, proceeding as a court of equity, is without right to interfere with the enforcement of penal laws and that an injunction should not be granted save in exceptional circumstances, that is, where not only an invasion of a property right and irreparable injury is clearly shown but also that the statute or ordinance is manifestly on its face unconstitutional. LeBlanc v. City of New Orleans, 138 La. 243, 70 So. 212; State v. City of New Orleans, 141 La. 788, 75 So. 683 and Godfrey v. Ray, 169 La. 77, 124 So. 151. Compare Olan Mills, Inc., v. City of Bogalusa, 225 La. 648, 73 So.2d 791.

In the case at bar, plaintiffs do not contend that the ordinances or the State Sunday Law are unconstitutional but merely that the closing provisions are inapplicable because the business of the Stork Club has been specifically exempted by the enactments. Accordingly, it is clear that the judge was correct in sustaining the exception of no right or cause of action as to plaintiffs’ demand for injunctive relief.

But, further than this, we doubt that the Court had discretion to entertain plaintiffs’ petition for declaratory relief under the facts of this case. The jurisprudence throughout this country on declaratory judgments is far from uniform as to whether a declaration will be given by a court of equity when a plaintiff is contending that he is exempt from the provisions of a criminal law. However, conceding that the action will lie, relief will not be granted in the absence of certain clearly defined conditions and circumstances. Professor Borchard, a leading authority and proponent for the use of declaratory judgments, sets forth the general rule in cases such as this as follows:

“On the other hand, not every doubter of his rights under a law carrying a criminal penalty should be permitted to invoke the protection of a civil adjudication. If the District Attorney actually obtains an indictment or begins his prosecution, the rules of equity should limit the occasion for the court’s exercise of its power of restraint, and the prosecuting officer must have considerable leeway in selecting the offense and offenders to be indicted. Where the prosecution is imminent but not yet begun, equity exercises more latitude in protecting property or a business against the impending prosecution. Only where the District Attorney fails to initiate the suit, or where he threatens to prosecute or charges a violation of law and then fails to follow up the threat or charge, is the foundation laid for an action by the party charged for a declaration either that the statute or regulation is invalid or that his conduct is privileged, i. e., not within the terms of the prohibitory statute. Mention has already been made of the fact that a statute imposing new and heavy burdens on a business should be challengeable for unconstitutionality or construction and interpretation, regardless of what the Attorney General may think of these matters.” Borchard, Declaratory Judgments, p. 1022 (2d Ed.).

In Louisiana, this Court has in no uncertain terms limited the use of the declaratory judgment act stating that “ * * * the statute should not be employed as a substitute for the well-defined actions provided for in our Code of Practice or those which have been established by jurisprudence unless, by reason of the special circumstances of the case, the codal procedure does not furnish an adequate remedy.” See Burton v. Lester, 227 La. 347, 79 So.2d 333.

Whether an action for a declaratory judgment will be countenanced in any instance where the plaintiff is seeking to have his rights or liabilities determined under a penal statute, without a claim of invalidity of the law, we need not here determine. It suffices to say that, despite the variegated opinions of the courts with) respect to the use of the declaratory judgment act in numerous and sundry situations, it is settled in a majority of, if not all, jurisdictions that a civil court abuses its discretion in entertaining a suit for a declaratory judgment when a criminal action is pending against the plaintiff in the State courts involving the identical question on which the plaintiff asks a declaratory judgment. Spence v. Cole, 4 Cir., 137 F.2d 71; Updegraff v. Attorney General, 298 Mich. 48, 298 N.W. 400, 135 A.L.R. 931; Woollard v. Schaffer Stores Co., 272 N.Y. 304, 5 N.E.2d 829, 109 A.L.R. 1262; Borchard, Declaratory Judgments (2d Ed.) pp. 312, 653, 1022; Anderson, Actions for Declaratory Judgments (2d Ed.) Sec. 209, p. 443 and Sec. 210, p. 457; 23 Cornell Law Quarterly, 314, 318. But see Ostander v. Linn, 237 Iowa 694, 22 N.W.2d 223; Watson v. Centro Espanol De Tampa, 158 Fla. 796, 30 So.2d 288.

Thus, in view of the prior prosecution and conviction of Theodos for violating Ordinance No. 367 of 1946, which was pending on appeal in the district court at the time this suit was brought, the trial judge should have refused to take cognizance of this case and dismissed the suit in its entirety on the exception of no right or cause of action presented in limine on the rule nisi.

Counsel for plaintiffs in their brief, in complaining of the action of the judge in subsequently dismissing the suit on the ground that it became moot upon the repeal of Ordinance No. 367 of 1946 when the new ordinance (No. 581 of 1955) was enacted, maintain that this was error because the new ordinance was substantially the same as the 1946 ordinance and, further, that the judge failed to take into consideration the fact that plaintiffs were seeking a declaratory judgment with respect to whether the Stork Club was exempt from the provisions of Ordinance No. 201 of 1932 and the State Sunday Law, R.S. 51:191-192.

There is no merit in these contentions. If the judge had sustained the exception of no right or cause of action in limine litis, as we believe he should have done, the case would have been dismissed prior to the repeal of the 1946 ordinance and there would have been no occasion to determine whether the new ordinance, enacted on October 11, 1955, was substantially the same as the former one or whether such ordinance could have been considered under plaintiffs’ prayer for general relief.

Insofar as plaintiffs’ prayer for a declaratory judgment as to the State Sunday Closing Law (R.S. 51:191-192) is concerned, the petition shows no basis for relief. Plaintiffs were not being prosecuted under this statute nor does it appear that there was ever a threat of criminal prosecution. Obviously, then, there was no justiciable controversy; plaintiffs were merely seeking an advisory opinion as to the status of the Stork Club under the State statute. See Tugwell v. Members of the Board of Highways, 228 La. 662, 83 So.2d 893.

The same may be said of plaintiffs’ demand for a declaratory judgment as to their status under Ordinance No. 201 of 1932 of the City of Bossier. This ordinance, as we have above pointed out, is practically a counterpart of the State Sunday Closing Law and is not as onerous as Ordinance No. 367 of 1946, under which Theodos had been charged and convicted. There was no prosecution pending or contemplated under the 1932 ordinance; any action thereunder was merely a contingency which might or might not have arisen. In such circumstances, there is no justiciable controversy. See Tugwell v. Members of the Board of Highways, supra, and authorities there cited.

The judgment appealed from is affirmed.

HAMITER, J., concurs in the decree.

      . In that matter, we approved the dismissal of a suit for a declaratory judgment brought by a physician and her liability insurance carrier against the defendant who was claiming damages for personal injuries sustained as a result of the alleged malpractice and negligence of the physician and had previously filed a tort action against the physician’s insurance carrier in the Federal Court.

      . In any event, we are informed by defendants in their brief that plaintiffs have filed another suit in the district court in which they are requesting the same relief under Ordinance No. 581 of 1955 which was prayed for in this suit involving the repealed ordinance. Whatever rights plaintiffs may have can be fully determined in that matter.


source: Caselaw Access Project

author: TATE, Judge.

license: Public Domain

text:
    Lincoln RICHARD, Plaintiff-Appellant, v. LAKE CHARLES STEVEDORES, Inc., et al., Defendants-Appellees.
    No. 4434.
    Court of Appeal of Louisiana. First Circuit.
    June 4, 1957.
    Bass & Nichols, Lake Charles, for appellant.
    Lawes, Cavanaugh, Plickman & Brame, Lake Charles, for appellees.
   TATE, Judge.

This suit for workmen’s compensation was dismissed upon an exception of no cause of action. Defendants are the injured workingman’s employer and its compensation insurer.

The allegations of the petition show that plaintiff was injured in the course of his employment as a “longshoreman”, “while working in the hold of the vessel, S. S. Seagate, which was moored to the dock in the Lake Charles harbor.”

Upon these allegations that the plaintiff H was a longshoreman injured while working upon the navigable waters of the United States, the District Court dismissed plaintiff’s suit upon the ground that the federal government, with exclusive constitutional jurisdiction over maritime law and maritime injuries, has provided the exclusive remedy for longshoremen by the federal “Longshoremen’s and Harbor Workers’ Compensation Act”, 33 U.S.C.A. § 901 et seq., especially 33 U.S.C.A. § 905. See jurisprudence following Southern Pacific Co. v. Jensen, 1917, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086, such as Rhinehart v. T. Smith & Son, La.App.Orleans, 14 So.2d 287. H

Conceding that at one time these au-H thorities would have governed in the pres-H ent situation, plaintiff-appellant earnestly* urges that by Davis v. Department of Labor, 1942, 317 U.S. 249, 63 S.Ct. 225, 87 L.Ed. 246, and the succeeding jurisprudence, the United States Supreme Court has decisively re-established the rule that employees injured in connection with maritime work are not barred by the federal Constitution from remedies provided for them by the State legislatures, in the absence of material prejudice to any feature of the general admiralty law.

In the absence of such prejudice, this Court recently sustained a widow’s action under the Louisiana workmen’s compensation statute for the death of her husband, a seaman. Beadle v. Massachusetts Bonding & Ins. Co., La.App., 87 So.2d 339.

In the course of that opinion, we had occasion to discuss fairly extensively the course of the jurisprudence since the ill-starred Jensen doctrine. It was our conclusion that, allowing for the presumption of constitutionality attaching to enactments of State legislatures, the federal maritime and the State compensation remedies “may overlap; and when they do, as in the present instance, the employee’s choice of either will be upheld,” 87 So.2d 343.

We have been reenforced in our belief that these conclusions are correct by the scholarly and comprehensive summary of the jurisprudence found in the authoritative treatise by Dean Larson, Workmen’s Compensation Law, Sections 89.10 through 89.60, Volume 2, pp. 408-420 (hereinafter cited as Larson). Dean Larson summarizes the present status of the law as having evolved after passing through five phases:

First, unqualified federal pre-eminence and pre-emption, as initiated and exemplified by the Jensen decision;

Second, an exception permitting State remedies for injuries arising in maritime employments primarily local in character, as exemplified by Grant Smith-Porter Ship Co. v. Rhode, 1922, 257 U.S. 469, 42 S.Ct. 157, 66 L.Ed. 321, 25 A.L.R. 1008;

Third, the Longshoremen’s Act phase, during which longshoremen and other harbor workers injured on navigable waters were relegated to the Longshoremen’s Act, although if injured on land or by a blow from the land they were permitted to retain their State compensation remedy, as exemplified by- a case arising in Louisiana and permitting the State remedy, T. Smith & Son, Inc. v. Taylor, 276 U.S. 179, 48 S.Ct. 228, 72 L.Ed. 520;

Fourth, the “twilight zone” phase initiated by the Davis case, where the employee’s choice of either State or federal remedy would be sustained in borderline cases; and,

Fifth, the present stage of concurrent jurisdiction exercised by both State and federal tribunals, each jurisdiction deciding for itself whether it shall apply its own law, such determination being relatively final.

As did this court in its Beadle decision, Dean Larson’s conclusion that there is concurrent jurisdiction for both State and federal remedies was reached on the basis of the United States Supreme Court’s-rulings in Bethelehem Steel Co. v. Moore, 1948, 335 U.S. 874, 69 S.Ct. 239, 93 L.Ed. 417 (affirming 323 Mass. 462, 80 N.E.2d 478) and Baskin v. Industrial Acc. Comm., 1949, 338 U.S. 854, 70 S.Ct. 99, 94 L.Ed. 523 (reversing 89 Cal.App.2d 632, 201 P.2d 549).

Both the Moore and Baskin cases involved workers hurt while on board and' repairing a completed vessel on navigable-waters; it having formerly been firmly decided that such injuries were exclusively within the federal maritime jurisdiction, and were beyond the protection of the State compensation remedy, John Baizley Iron Works v. Span, 281 U.S. 222, 50 S.Ct. 306, 74 L.Ed. 819; Robins Dry Dock & Repair Co. v. Dahl, 266 U.S. 449, 45 S.Ct. 157, 69 L.Ed. 372, see Messel v. Foundation Co., 274 U.S. 427, 47 S.Ct. 695, 71 L.Ed. 1135 — no less firmly than the similar decisions relating to other harbor workers in the category of “longshoremen” such as the present plaintiff. (See 2 Larson 415.)

Nevertheless, the Supreme Court affirmed the State court’s award of State •compensation in the Moore case; and reversed the California commission’s denial of State compensation in the Baskin case to such an employee, which had been based upon the alleged exclusiveness of the federal remedy provided by the Longshoremen’s Act.

We think the rulings in those cases to he determinative in the present. Louisiana has endeavored to extend the protection of lier compensation act to longshoremen such as plaintiff by providing as among the occupations specifically covered by the act, the “loading or unloading of cargoes of vessels,” LSA-R.S. 23:1035. This solemn •enactment of our legislature is presumed to be constitutional. Under the Davis, Moore, and Baskin cases, the election of this workingman injured in Louisiana to apply in the courts of Louisiana for a remedy provided for him by the legislature •of Louisiana cannot be rejected, unless it should work material prejudice to the general maritime law.

And how can the sustaining of plaintiff’s election work material prejudice or ■disrupt the uniformity of the general maritime law?

Had this same longshoreman plaintiff been injured in the same manner, in the course of his employment with the same employer, having reported for work the same day, his employer subjected to the same risks and paying the same insurance premiums, plaintiff would undoubtedly have been entitled to recovery under the Louisiana compensation law, even before the Davis case, had he been injured on land or on the gangplank a few feet distant from the present accident aboard ship, as specifically held in a case arising in Louisiana, T. Smith & Sons, Inc. v. Taylor, 1930, 276 U.S. 179, 48 S.Ct. 228, 72 L.Ed. 520.

That the amount of compensation subsistence payable might vary somewhat from State to State affords no more reason for declaring these variations so disruptive of the necessary uniformity of the federal maritime law as to be unconstitutional than does the fact that the daily rate of “maintenance” payable to injured seamen varies greatly (i. e., from $2.50 to $8 per day) from port to port and jurisdiction to jurisdiction in the various States of the federal union (see 2 Norris, Law of Seamen 235—237, Section 603 “Amount” of maintenance and cure), or that some harbor workers in the Davis, Moore, and Baskin situations will recover under the federal remedy and others by application to the States.

Almost all the cases cited to us by defendant-appellee concern cases decided in the various phases of the jurisprudence preceding the present, which is that governed by the Davis, Moore, and Baskin j decisions. But able counsel relies with some confidence on some dicta in Pennsylvania R. Co. v. O’Rourke, 344 U.S. 334, 73 S.Ct. 302, 97 L.Ed. 367, which dicta is indeed! somewhat favorable to its position. How-1 ever, the court therein was addressing it-l self exclusively to the question of whether! an injured brakeman’s remedy was under the Federal Employers’ Liability Act, 45 U.S.C.A. § 51 et seq., or whether it was under the federal Longshoremen’s Act, since O’Rourke, a railroad employee, had been injured while aboard a car float. The U. S. Supreme Court, over the dissent of four members, decided that of the two federal remedies, the Longshoremen’s Act provided the remedy.

But the O’Rourke case constituted simply an exercise in statutory construction to determine which of two federal remedies applied in the federal forum. For instance, had the employee in the Davis case brought suit in the federal forum seeking a federal remedy, he would have been similarly relegated to the Longshoremen’s Act, as a structural steel worker killed on a barge in the navigable waters.

The court in O’Rourke was not concerned .with the constitutionality of an attempted exercise of its powers by a State to afford a remedy to working people injured in connection with amphibious-land employments. Under the Davis, Moore, and Baskin cases, O’Rourke’s choice of a State compensation remedy would apparently have been sustained as against a contention that the federal Longshoremen’s Act provided the exclusive remedy, despite the fact that he like those plaintiffs (and also the present plaintiff) was a harbor worker injured on the navigable waters of the United States.

Lastly, defendant-appellee argues that Congress, by enacting the Longshoremen’s and Harbor Workers’ Act pursuant to its constitutional power over commerce, has preempted this field to the exclusion of the States. But Congress in enacting the statute specifically provided that compensation should be payable under that Act only “if recovery for the disability or death through workmen’s compensation proceedings may not validly be provided by State law”, 33 U.S.C.A. § 903.

Admitting that at the time of enactment of the Longshoremen’s Act, the judicial creation of the Jensen doctrine had created a bar to the remedy Louisiana attempted to provide, and which Congress was willing to afford Louisiana workers in their own courts, it is plain that under the Davis, Moore, and Baskin cases such artificial barrier no longer exists when the employee has elected to pursue his State compensation remedy instead of a federal maritime remedy.

We think very appropriate Dean Larson’s concluding remarks in his summary of the present jurisprudence, found at 2 Larson 419:

“While the Supreme Court’s handling of this problem has been criticized as confusing and contradictory, the working rule that' emerges is perhaps as practical as any rule could be that attempts to sort out the intricately intertwined activities of amphibious workers with a minimum of litigation. After all, a slight error in respect to the extent of maritime power in a particular case will neither ruin an employer nor shatter the federal constitution if it merely gives the employee the .benefit of the act which happens to be the more favorable to him. The Supreme Court’s lack of enthusiasm for investigating the constitutional minutiae of each attempt to classify a borderline water front worker no doubt stems partly from a general feeling that all the trouble is traceable to the artificial doctrine of the Jensen case, without which all this would have been avoided. If amphibious workers had simply remained under their respective state acts, just like their neighbors who work exclusively on shore, no one could have dreamed of suggesting that the result would be unfair to employer or employee, or inconsistent with the spirit and objectives of compensation legislation. If, then, approximately the same result comes about as a consequence of the Davis, Moore, and Baskin cases, while it may occasion concern to students of constitutional law, there is no cause for consternation in compensation circles.”

For the above and foregoing reasons, the judgment of the District Court dismissing this compensation suit is reversed, and the matter is remanded for further proceedings according to law.

Reversed and remanded.

      . Although denoted as an exception of no right and no cause of action.

      . The Jensen decision was criticized by virtually all commentators and many subsequent decisions. See both the concurring opinion of Mr. Justice Frankfurter, and the dissenting opinion of Chief Justice Stone in Davis case; 2 Larson, Workmen’s Compensation Law 409—410; summary of criticisms in Swan v. Baton-Rouge Transportation Co., La.App., 197 So. 191, particularly at page 193, wherein this court reluctantly followed the case, referring to the “harsh and unsatisfactory results caused by the decision in the Jensen case”, 197 So. 194.

      . In a subsequent Baskin case, tlie Supremo Court specifically affirmed the award of State compensation despite the • attempted defense that the employee’s acceptance of payments under the Longshoremen’s Act (without an award) had amounted to an election to come under tlie federal, rather than State, remedy, Kaiser Co., Inc., v. Baskin, 340 U.S. 886, 71 S.Ct. 208, 95 L.Ed. 643, affirming Baskin v. Industrial Acc. Comm., 89 Cal.App.2d 632, 201 P.2d 549.


text:
    Fred SULLIVAN, Plaintiff-Appellant, v. TRAVELERS INSURANCE COMPANY et al., Defendant-Appellee.
    No. 4433.
    Court of Appeal of Louisiana. First Circuit.
    June 4, 1957.
    Bass & Nichols, Lake Charles, for appellant.
    Lawes, Cavanaugh, Hickman & Brame, Lake Charles, for appellees.
   TATE, Judge.

This workmen’s compensation suit by a longshoreman injured while working on a vessel in navigable waters involves the same legal question as that involved in Richard v. Lake Charles Stevedores, Inc., La.App., 95 So.2d 830. For the reasons assigned in that case, the District Court judgment herein sustaining defendant’s exceptions and dismissing plaintiff’s action is reversed, and this suit is remanded for further proceedings according to law.

Reversed and remanded.


author: HARDY, Judge.

text:
    Robert PRICE, Plaintiff-Appellant, v. GENERAL MOTORS ACCEPTANCE CORPORATION et al., Defendants-Appellees.
    No. 8623.
    Court of Appeal of Louisiana. Second Circuit.
    May 27, 1957.
    Rehearing Denied June 28, 1957.

      Gravel, Humphries, Sheffield & Mansour, Alexandria, for appellant.
    Stafford & Pitts; Polk, Foote & Neblett, Alexandria, for appellees.
   HARDY, Judge.

' Plaintiff brought this suit for damages resulting from the alleged wrongful and illegal repossession of plaintiff’s automobile, without resort to legal process and without plaintiff’s consent. Named as defendants were General Motors Acceptance Corporation, which actually repossessed the automobile as the holder of a chattel mortgage thereon, and Southern Chevrolet Company, plaintiff’s vendor of the vehicle on terms of credit under which the chattel mortgage in question was taken as security and transferred to GMAC. The basis of liability alleged against the Southern Chevrolet Company is that it accepted the automobile from GMAC, with knowledge of the wrongful repossession thereof, and subsequently sold it to a third party.

After trial there was judgment in favor of plaintiff and against the General Motors Acceptance Corporation in the principal sum of $150, together with interest and costs, and plaintiff’s demands against Southern Chevrolet Company were rejected. From this judgment plaintiff has appealed, seeking an increase in the amount of damages and also praying that Southern Chevrolet Company be held in judgment. Defendant, General Motors Acceptance Corporation has answered the appeal, praying that judgment of the district court be set aside and plaintiff’s demands be dismissed in their entirety.

The issues presented on this appeal are briefly and correctly stated in brief of counsel for plaintiff-appellant, in effect as follows: Whether the taking and retention of plaintiff’s vehicle was wrongful and without resort to legal process. Assuming the first issue is answered in the affirmative, the second issue concerns the quantum of damages.

We undertake consideration and discussion of the issues in the order presented.

The first point, of course, involves a finding of fact as to whether the vehicle was actually repossessed without the voluntary consent of plaintiff. On this question the district judge found in favor of plaintiff, and, in a written opinion, carefully recapitulated and analyzed the testimony of the witnesses. Without the necessity for so detailed a discussion, we need only say that we concur in the finding of the district judge, although we are impressed that this case presents an unusually close question of fact. It suffices to say that plaintiff testified that he did not agree to, although he did not oppose, the taking of the vehicle, and, as an affirmative proposition, he further swore that he refused to sign an agreement of voluntary repossession, which fact is conclusively established.

The principal witness for defendant, one Jack Butler, who was the agent in charge of the repossession, testified that, under his instructions, it was his responsibility to either collect plaintiff’s two delinquent installments’ or take possession of the automobile. In other words, Butler was instructed to, and did, advise plaintiff that he must have the money or the automobile, a demand strangely reminiscent of the highwayman’s demand “Your money or your life”.

However, in the instant case we find there was no use of force, coercion or threat on the part of defendant’s agent. The crucial point, as far as the defense is concerned, lies in the fact that plaintiff permitted the repossession without any show of active opposition. We think it appropriate to call attention to the fact that lack of opposition, under the facts' of this case, cannot be construed as voluntary acquiescence, and, as a result, it must be concluded that defendant was guilty of a wrongful act in taking the automobile.

Repossession activities without- resort to legal process, and allegedly without voluntary acquiescence on the part of the debtor, have brought about a constantly increasing number of court actions which now constitute a rather substantial body of jurisprudence. We note among the more recent cases Robinson v. Hook, La.App., 1 So.2d 336; Dandry v. Cooper, La.App., 61 So.2d 750; Grandeson v. International Harvester Credit Corp., 223 La. 504, 66 So.2d 317 (affirming La.App., 61 So.2d 550); Dorsey v. Central Finance Co., La.App., 65 So.2d 137; Gasquet v. General Contract Corp., La.App., 68 So.2d 141; Johnson v. Modern Furniture & Appliance Co., La.App., 76 So.2d 338; Wilson v. Brian, La.App., 81 So.2d 142; Brian v. Wilson, La.App., 81 So.2d 145.

In the Dandry and Johnson cases recovery was denied the respective plaintiffs on the grounds that they had failed to prove protests against the repossession. The holdings were predicated solely upon factual findings, and the opinions of the court indicate that the attitude of the plaintiffs influenced the conclusion reached. These cases might be considered as authority for the reversal of the instant case on the ground that this plaintiff did not object to the repossession. Such a conclusion, however, is unjustified in view of the consideration that he was not asked for permission nor acquiescence but was simply told to pay or surrender the car. Additionally, it must be noted that plaintiff refused to execute the written acquiescence and surrender.

Although, as we have stated above, the factual issue in the instant case presents a close question, we think a fair interpretation preponderates in favor of the finding of the trial judge, and, accordingly, the question must be so resolved.

As to the quantum, counsel for plaintiff earnestly contends that the judgment should be increased to the total sum of $1,150, and he itemizes the damages claimed as follows:

“a. Deprivation and retention of plaintiff's said automobile, valued at $275.00 $275.00
b. Humiliation, embarrassment and damage to reputation. 500.00
c. Loss of personal use of said vehicle, 5 days at $5.00 per day. 25.00
d. Loss of use and service of vehicle for employment, 5 days at $10.00 per day.. 50.00
e. Attorney's fee . 300.00
Total Itemized Damages.$1,150.00"

In connection with a consideration of the question of damages, one pertinent fact was established on trial. The repossession took place at noon on Friday, November 26, 1954. On the following Tuesday morning plaintiff, who had obtained the money therefor, started down to the office of the defendant, GMAC, for the purpose of making his payments on the automobile and recovering possession thereof. En route to his destination plaintiff saw the automobile on the used car lot of the Pearce Motor Company, negotiated for and purchased the vehicle for a consideration of $50.00 cash. Proceeding to a consideration of the itemized demand for damage, we think the first item for deprivation and retention of the car, in the sum of $275, which was the claimed value of the car, was properly disallowed. The district judge held that there was no basis for recovery of this amount for the reason that plaintiff reacquired the automobile, by purchase, for $50 cash, which sum was allowed as the measure of damage. Unquestionably this finding was correct.

The amount of $500 claimed for “humiliation, embarrassment and damage to reputation” is grossly exaggerated. Defendant’s agent used no force, threat, intimidation nor form of coercion; plaintiff’s premises were not invaded, and only one person, beside members of plaintiff’s family, observed the incident, and this individual did not hear what was said nor know what transpired. Under these facts the allowance of $100 was adequate for the degree of humiliation and embarrassment suffered by plaintiff. There is nothing in the record which indicates any damage to plaintiff’s reputation.

On this point we are constrained to observe that the allowance of damages for humiliation and embarrassment might very easily become subject to abuse, and thus result, in effect, in the assessment of what would constitute punitive damages. It is quite true, as observed by our courts in a number of cases, that a certain degree of humiliation and embarrassment is implicit under the circumstances of repossession of property; that damages of this nature are vague and indefinite and hardly susceptible to exact determination; that humiliation and embarrassment are somewhat synonymous with pain, which cannot be seen but which is nonetheless a matter of subjective suffering to the individual involved. On these grounds the courts have assessed and approved an allowance of damages, even without exact and definite proof. But it must be observed that such allowances have invariably been fixed in nominal amounts, and we unreservedly concur in this established custom. To do otherwise would be to open the door to the infliction of unjust and unwarranted penalties. However, it must be considered that these observations are not intended to serve as a guide nor as a pronouncement with respect to those cases where the taking of property, under the guise of repossession, has been accompanied by flagrant circumstances of violence or threats, or has been attended by actions calculated to inflict definite evidence of humiliation and embarrassment resulting therefrom.

Proceeding to a consideration of plaintiff’s claims, we think the items for loss of personal and employment use of the automobile were properly rejected, in view of the fact that plaintiff was permitted to use an automobile or truck belonging to his employer during the time intervening between repossession and his reacquisition of his own vehicle. Nor is it established, except on the basis of conjecture, that plaintiff would have suffered any real loss chargeable to these purposes.

Finally, the claim for attorney’s fees has no slightest justification. As we stated in Wilson v. Brian, La.App., 81 So. 142, such fees are generally awarded under contractual agreement or as the result of statutory enactment. Claims for attorney’s fees in prosecuting claims for damages have been uniformly disallowed. Davis-Wood Lbr. Co. v. Canulette Shipbuilding Co., 164 La. 301; 113 So. 855 (citing Chapuis v. Waterman, 34 La.Ann. 58, 61; Roos v. Goldman, 36 La.Ann. 132; Manning v. Cohen, 124 La. 869, 870, 50 So. 778); Robinson v. Hook, La.App., 1 So.2d 336.

For the reasons set forth we think the allowance of the total sum of $150, as damages, is adequate under the proof established.

Counsel for plaintiff contends that the defendant, Southern Chevrolet Company, was guilty of aiding and abetting the wrongful conversion, performed by its co-defendant, in that it took the car without a surrender form and without plaintiff’s transfer. Cited in support of this position is Edwards v. Max Thieme Chevrolet Co., La.App., 191 So. 569.

As observed by the district judge, the facts of the cited case do not apply, inasmuch as the evidence in the instant case does not establish the bad faith or the knowledge of any wrongful acts on the part of Southern Chevrolet Company. It follows that judgment discharging the latter from plaintiff’s demands was correct.

For the reasons assigned the judgment appealed from is affirmed at appellant’s cost.


author: AYRES, Judge.

text:
    Verlon L. WRIGHT, Plaintiff-Appellant, v. URANIA LUMBER COMPANY, Ltd., Defendant-Appellee.
    No. 8662.
    Court of Appeal of Louisiana. Second Circuit.
    May 27, 1957.
    Rehearing Denied June 28, 1957.

      W. T. McCain, Colfax, Harry Fuller, Winnfield, for appellant.
    Gaharan & Richey, Jena, for appellee.
   AYRES, Judge.

Plaintiff, a former employee of the defendant, instituted this action to recover compensation provided for total and permanent disability as the result of accidental injuries allegedly sustained by him October 8, 1954, while performing services in the course of his employment in hauling logs by truck for the defendant. The accident occurred while plaintiff was engaged in unloading logs from a truck to a skid-way by means or use of a cant hook. While so engaged one of the logs, as it rolled from the truck, struck the cant hook, the handle of which, in turn, struck plaintiff’s knee, as the result of which plaintiff claims that he sustained injuries to his back of such a nature and to such an extent as to render him permanently and totally incapacitated to do work of the same or similar character.

In response to plaintiff’s demands defendant admitted that plaintiff was injured in an accident but contends that the injury sustained was only slight and confined to the left knee, and that the injury consisted of a mere contusion and swelling of the knee. Defendant further avers that plaintiff received all medical attention necessary for the treatment of the injury sustained and was discharged from further treatment after October 27, 1954, as having fully recovered, and, that at all times since, plaintiff has been fully able to resume the duties of his employment. In the alternative, it was claimed by defendant that, if plaintiff had any further disability, such disability had no causal connection with the accident sustained by him in its employ. During the trial it was stipulated that plaintiff was paid four weeks compensation at the rate of $30 per week.

The trial court concluded that plaintiff had not established his claim by a preponderance of the evidence and found that whatever disability plaintiff continued to suffer could not be attributed to the accident. Accordingly, plaintiff’s demands were rejected and he has appealed. The question for determination is, therefore, one of fact.

The injury suffered by plaintiff appears to have been of a minor nature. Following the accident plaintiff returned with his truck to the woods for another load of logs, the loading of which was apparently done by fellow employees. After returning to the mill with the load plaintiff reported to the clinic of Drs. Thomas and Tannehill in Urania, physicans of the defendant. He was hospitalized for about three days. During that time swelling and tenderness were in evidence over the patella of the left knee. X-rays as to fractures or dislocations were negative. Plaintiff’s knee, however, sustained abrasions or brush burns.

Following his discharge from the clinic on October 11, 1954, plaintiff returned two days later complaining of pain in his knee and again returned on the 19th, complaining additionally that he could not bend his knee, a demonstration of which disproved the complaint.

Because of plaintiff’s continued complaints of pain in his knee he was referred by his local doctors to Dr. T. E. Banks, an orthopedist of Alexandria, Louisiana, who made an examination on October 22, 1954, as the result of which the doctor expressed an opinion that, although plaintiff was able to return to work, due to the fact of the recent injury two additional weeks was advisable for complete recovery before resuming labor. Continuing to complain of pain in the area of his knee, plaintiff reported to Dr. Thomas at Urania and was again treated in the clinic at Urania from October 28th to October 30, 1954. During thÍ9 time plaintiff carried a slightly abnormal temperature and was given sedatives for pain and was administered penicillin and streptomycin. After plaintiff’s fever subsided he was again referred to Dr. Banks for re-examination and, on November 1, 1954, was referred to Dr. P. M. Davis, also an orthopedist, to whom plaintiff made no complaints nor gave any history of pain in his back. The examination revealed no pain suffered by plaintiff in his back, and that his back was straight with no evidence of any list. The doctor was of the opinion that plaintiff was fully able to pursue his occupation.

Drs. Thomas and Tannehill found no disabling injuries of a permanent nature. Neither did the two orthopedists find any such disabling injuries. Both orthopedists were of the opinion that plaintiff was able to resume his occupation at the time of their examinations. At no time did plaintiff complain to either of these four doctors of an injury to or a pain in his back.

Plaintiff, however, was, at his own instance, examined by Dr. A. Scott Hamilton, an orthopedist of Monroe, Louisiana, on December 3, 1954, when he caused plaintiff to be admitted to a hospital in Monroe for the application of pelvic traction, pursued during a course of several days. Further visits to Dr. Hamilton’s office were made on December 29, 1954, and January 11 and 31, 1955. On the last of these visits plaintiff was again admitted to the hospital for the performance of a myelogram. Other visits were made March 4 and 7, 1955, when Dr. Altenberg, another orthopedist, was called for consultation, following which an operation was determined for the correction or removal of a herniated disc. This operation was performed about April 11, 1955, from which it was disclosed that plaintiff was not suffering from a herniated disc. There was found, however, a thickened ligament, “presumably” pressing upon one part of the sciatic nerve, and another ligament less involved. Both ligaments, as was a small amount of bone, were removed to prevent any pressure upon the nerve.

Apparently following the operation plaintiff received some relief but continued to complain that because of the condition of his back he was totally disabled. Unquestionably, plaintiff continued, for some period of time, to suffer pain from some post operative condition in his back.

The record establishes that between the time plaintiff was examined by Dr. Davis on November 1, 1954, and by Dr. Hamilton on December 3, 1954, most probably during the Thanksgiving holidays, plaintiff, while visiting a residence under construction, fell face forward to the floor level while walking the floor joists. In that accident plaintiff sustained injuries to his face and possibly an injury to his back. There is no proof, however, that the condition of plaintiff’s back, as revealed by Dr. Hamilton’s operation, was traumatic in origin, or that, if it was, it did not as likely happen in one of the accidents in which plaintiff was involved as the other.

Dr. Hamilton and Dr. O. P. Mauterer were of the opinion that plaintiff was disabled from the performance of manual labor. Dr. Mauterer testified that plaintiff was so disabled at the time of his examination of May 19, 1956, but that he was unable to attribute the disability to the accident sustained by plaintiff in defendant’s employ. Unquestionably, the weight of the medical testimony is that the original complaint of plaintiff was confined and restricted to his left knee and that such injury was, in all probability, of a minor nature.

It is contended, however, that plaintiff’9 back injury did not manifest itself until after plaintiff was first examined by Dr. Hamilton on December 3, 1954. The conclusion, however, is inescapable that plaintiff has not shown any causal connection or relationship between the accident sustained in defendant’s employ and the injury claimed to his back, in the treatment of which an operation was performed by Dr. Hamilton. That such causal connection was not established clearly appears not only in the testimony of Dr. Hamilton but from the other expert witnesses testifying in the case. By no means could it be held that plaintiff has established this fact by a clear preponderance of the evidence.

Although it is well established in the jurisprudence and by statutory requirements that we liberally construe the Workman’s Compensation Act, LSA-R.S. 23:-1021 et seq., in favor of the injured workman, it has been repeatedly held by this and the other appellate courts of this state that plaintiff carries the burden of proof to establish his claim in a workman’s compensation suit, and that conjecture and probability are insufficient as a basis upon which a judgment may be predicated. Roberts v. M. S. Carroll Co., Inc., La.App., 68 So.2d 689; Davis v. Swift & Co., La.App., 68 So.2d 670, 673; Driggers v. Coal Operators Casualty Co., La.App., 73 So.2d 602; Smith v. International Paper Co., La.App., 73 So.2d 652, 658; Robbins v. Chicago Mill & Lumber Co., La.App., 76 So.2d 635, 638; Henderson v. New Amsterdam Casualty Co., La.App., 80 So.2d 438; Braziel v. Pope, La.App., 86 So.2d 717.

To hold, under the proof contained in the present record, that plaintiff sustained injuries to his back on October 8, 1954, would be indulging in conjecture and speculation.

Plaintiff further submits that he was not fully recovered from the first injury when he was involved in the second accident, which may have produced the back injury, and that as a result of which defendant is responsible for any injury and disability resulting therefrom which may occur during total disability suffered from compensable injuries sustained in an accident. This contention is likewise untenable.

There is no contention made, nor proof showing, that the second accident was in any way superinduced or caused by any effect produced by the first accident. As shown hereinabove, at the time of the second accident plaintiff had recovered from the effects of the first accident. There is, therefore, and could be, no connection between the two accidents. Neither could there be any connection between injuries sustained in the second accident with those sustained in the first. It could not, therefore, be said that the second accident arose out of and in the course of plaintiff’s employment. Not being in the employ of the defendant at the time the second accident occurred, there is no liability on the part of the employer.

However, in support of this latter contention, plaintiff cites the following cases: Perkins v. Long Bell Lbr. Co., 8 La.App. 403; Coon v. Germany Iron Works, La.App. 81 So.2d 83; Nash v. Wyatt Lumber Co., La.App., 183 So. 72; Brock v. Jones & Laughlin Supply Co., La.App., 39 So.2d 904; Stansbury v. National Auto & Cas. Ins. Co., La.App., 52 So.2d 300; White v. Taylor, La.App., 5 So.2d 337.

A casual reading of these authorities demonstrates they are inapposite. For instance, in the Perkins case plaintiff sustained a broken leg in a compensable accident. While undergoing treatment in the hospital, on instruction from his physican to exercise his leg to a limited extent in order to gain strength, he fell and rebroke his leg.

In the Coon case plaintiff sustained fractures to the second, third, fourth and fifth metatarsal shafts of his right foot when struck by a falling pipe. While recuperating from this injury he sustained a bruise or injury to his foot while spading in a garden. This second injury is not shown to have aggravated his previous injury or to have prolonged his recovery. Therefore, no serious consideration was given it in disposing of the claim made on account of the first injury.

In the Nash case the evidence shows that plaintiff sustained an injury in April, 1918, while working for W. R. Pickering Lumber Company, wherein his right arm was accidently caught in some machinery and severe injuries resulted, from the effect of which the thumb and fingers of his right hand were considerably distorted. 'Compensation was paid for said injuries. Subsequently, while employed by the defendant Wyatt Lumber Company, eighteen years later, plaintiff sustained injuries to his hand when a belt broke and struck the palm of his right hand. The record disclosed that he sustained only a flesh wound and, after healing, his hand and fingers were in the same condition they were in prior to the latter accident. It was held that the disability claimed on account of injuries to plaintiff’s hand was due to the previous injury and, accordingly, recovery was denied.

In the Brock case plaintiff’s disability was caused by a hernia produced by accidental injuries while working for one employer and an aggravation thereof by hard manual labor continued to be performed by him while working for another employer. Both employers were held equally responsible to plaintiff for compensation.

In the Stansbury case plaintiff sustained a break in his leg above the knee. From this injury he was totally incapacitated. He was hospitalized for treatment and, after wearing a cast for some time, he was fitted with a brace. In this condition he became ambulatory and was instructed by his physician to take exercise. He accordingly resumed work for his employer at the same wages, and while pushing a cart weighing approximately 750 pounds, loaded with shrimp, his leg “gave way”. A re-fracture of the previous injury had occurred. Although the same employer was involved, different insurers carried the workman’s compensation insurance. Recovery was allowed and prorated against both insurers.

In the White case plaintiff sustained an injury while working for one employer. Two days later, while engaged by another employer, he sustained the second accident which accelerated the prior injury. Both employers were held liable.

In the instant case, so far as the evidence establishes, plaintiff sustained an injury only to his knee while in the service of the defendant, from which he recovered, at least to the extent, according to the medical reports, that he was able to resume his work. Subsequently, while visiting a residence under construction, he sustained a fall which, in the opinion of the medical experts, was sufficient to produce a back injury — not that it did actually produce such injury.

There was no proof, however, that plaintiff’s complaints in his back resulted from the first accident. Neither was there any showing that the previous injury was accelerated or aggravated by the second fall 'or that there was any prolongation of his recovery from the disability resulting from the first injury. The accidents were separate and distinct, as were the alleged injuries and the portions or areas of the body involved. Particularly there was no claim that the second accident prolonged or aggravated the injury to plaintiff’s- knee.

The trial court, in a well considered opinion, reviewed the testimony and resolved the factual issues and denied plaintiff recovery. From our review and appreciation of the record we are unable to find any manifest error in his Honor’s conclusions. His findings of fact are supported by a preponderance of the evidence. We have likewise reached the same conclusion that plaintiff has failed to establish his claim by adequate and sufficient proof, by a preponderance of the evidence, and to that degree of legal certainty upon which a judgment might be predicated in his favor.

Accordingly, finding no error in the judgment appealed, it is affirmed.

Affirmed.


text:
    Chester D. WELLS, Plaintiff-Appellee, v. Eva JOSEPH et al., Defendants-Appellant.
    No. 8670.
    Court of Appeal of Louisiana. Second Circuit.
    May 27, 1957.
    Rehearing Denied June 28, 1957.
    Peterman & Burden, Holt, Garrett & Holt, Alexandria, for appellant.
    Gravel, Humphries, Sheffield & Mansour, Downs & Gremillion, Alexandria, for ap-pellee.
   HARDY, Judge.

This suit was instituted by plaintiff to quiet and confirm a tax title to a tract of land in Rapides Parish in accordance with Article X, Section 11 of the Constitution of 1921, LSA-Const., and the provisions of LSA-R.S. 47:2228 et seq. Defendants answered plaintiff’s petitions, and, additionally, filed an exception of no right and no cause of action which was referred to the merits, with the provision that the right be reserved to the court “to decide exceptions independent of the suit”. The trial of the case on the merits consisted of a stipulation of fact and the introduction of numerous exhibits. After trial there was judgment in favor of plaintiff confirming and quieting title to the property particularly described and perpetually enjoining defendants from setting up any right, title or interest to the property. From this judgment defendants have appealed.

Before this court counsel for defendants insistently re-urges the exception of no right and no cause of action. It is noted in the written opinion of the district judge that he disposed of the issue raised by the exception on the ground that the conclusion on the merits of the case necessarily comprehended a resolution of the issues tendered by the exception. While this is true, we are disposed to feel that defendants are entitled to an independent consideration of the issues raised by their exception, and, if their arguments prove to be well founded, it follows that they are likewise entitled to a definitive ruling based upon such exception.

The facts were established without dispute, and we set forth those which are material and pertinent to a consideration of the issues of law. Henry Joseph purchased the property in dispute from the Willow Glen Land Company on July 30, 1940, at which time he was living with Lelia Johnson, his common-law wife. The property was occupied by the couple as a residence until the death of Henry Joseph, which occurred on October 20, 1943. At tax sale on September 25, 1943, Gus Killen purchased the property. By judgment dated December 3, 1943, Eva Joseph, daughter of Henry Joseph by a previous marriage, was recognized as his sole and only heir and placed in possession of the subject property. Eva Joseph redeemed the tax sale, and a tax redemption certificate was executed by the Sheriff & Ex-Officio Tax Collector of Rapides Parish in favor of Eva Joseph, on March 5, 1946, but this certificate was not recorded until July 24, 1954.'

By instrument dated July 30, 1953, Eva Joseph sold the property to James A. Bennett for a recited cash consideration of $4,000, and by instrument dated January 30, 1954, Bennett sold the property to Neal Daspit for a recited cash consideration of $4,500.

After the death of Henry Joseph, and up to the time of the sale to Bennett, Lelia Johnson, the surviving common-law wife of Henry Joseph, had continued to occupy the residence with the permission and by the sufferance of the owner, Eva Joseph. Following the sale to Bennett, Lelia Johnson refused to vacate the premises and Bennett instituted an eviction suit, which was countered by a possessory action filed by Lelia Johnson in September of 1953, in connection with which suit a notice of lis pendens was filed.

By instrument dated March 23, 1954, Mrs. Ada S. Killen, therein described as the widow of Gus K. Killen, deceased, sold and conveyed to Woodrow W. Killen “all of her right, title and interest in and to” the property in dispute for a recited cash consideration of $25.

Similarly, by instrument dated April 1, 1954, Willie W. Killen and Mrs. Estelle K. Stevens, represented therein as being a son and daughter of Gus K. Killen, deceased, sold and conveyed .“all of their right, title and interest in and to” the property in dispute to Woodrow W. Killen for a recited cash consideration of $25.

By another instrument dated April 1, 1954, Mrs. Maude K. Sharbono, Mrs. Pauline K. Williams, Loyd E. Killen, Mrs. Inez K. Marler and Mrs. Hazel K. Casey, recited in the instrument as being the daughters and son of Gus K. Killen, deceased, sold and conveyed “all of their right, title and interest in and to” the property in dispute to Woodrow W. Killen for a recited consideration of $50 cash.

By instrument dated April 12, 1954, Woodrow W. Killen sold and conveyed to Chester D. Wells, plaintiff herein, for a recited consideration of $425 cash, the property which was described as follows:

A certain piece, parcel or lot of ground, together with all buildings and improvements thereon, and all rights, ways and privileges thereunto belonging or in anywise appertaining, being, lying and situated in the Parish of Rapides, State of Louisiana, and being 4.35 acres 100' on Fairgrounds Rd. Being the same property acquired by Gus K. Killen at tax sale in the name of Henry Joseph, of date Sept. 25, 1943, recorded in Conveyance Book 177, page 377, of the records of Rapides Parish, Louisiana, acquired by this vendor by inheritance from his said Father, Gus K. Killen, and by purchase by said vendor from the widow of said Killen, and the other heirs, all as shown by deed recorded among the conveyance records of Rapides Parish, La.

Following judgments in favor of Bennett in both the eviction suit and the possessory action, plaintiff instituted this suit for the purpose of quieting and confirming the alleged tax title which he claims to have purchased from the Killens.

Taxes on the property for the years 1944 to 1953, inclusive, are shown to have been paid by Eva Joseph, and the taxes for 1954 were paid by James A. Bennett.

Named as defendants in this action are Eva Joseph (Keesee), James A. Bennett and Neal Daspit.

As we have above observed, counsel for defendants charge error in the failure of the district judge to sustain the exception of no right of action. The contentions made by counsel, which succinctly state the basis and burden of their arguments, are set forth in brief as follows:

“1. The inchoate right which Gus Killen had to confirm a tax title was extinguished prior to his death, so he could not bring this suit.
“2. There was no property right which Gus Killen could or did pass on to his heirs pertaining to this property, hence Gus Killen’s heirs acquired nothing.
“3. Plaintiff Wells acquired only such litigious rights as his vendors had, and since they could not bring this suit, neither can Wells.
“4. Therefore, Wells has no right of action.”

Reducing the argument to its barest fundamental proposition, counsel urges that this plaintiff purchased only a litigious right, which right had been extinguished prior to such purchase. If this be true, it would necessarily follow that plaintiff has acquired no rights which can be enforced in this suit.

The nature of the rights acquired by a purchaser at tax sale appears to have been first defined by our Supreme Court in Thibodaux v. Keller, 29 La.Ann. 508, in which the opinion declared that the rights of a tax purchaser, pending the lapse of the redemptive period, are inchoate. This characterization has been many times repeated.

Reference to Black’s Law Dictionary, Fourth Edition, discloses the following pertinent definitions:

“Inchoate. Imperfect; partial; unfinished; begun, but not completed; * % **
“Inchoate Interest. An interest in real estate which is not a present interest, but which may ripen into a vested estate, if not barred, extinguished or divested.”

In connection with defendant’s exception we are called upon to determine the resultant effects of such right as was acquired by Gus Killen under his purchase of the property involved in this suit at tax sale.

Obviously, Gus Killen acquired an inchoate interest, that is, a contingent interest. We have carefully examined the jurisprudence with reference to interpretations placed upon the nature and effects of such an interest by our courts. In Moore v. Boagni, 111 La. 490, 35 So. 716, the court cited Thibodaux v. Keller, supra, Cooley on Taxation, and the Pennsylvania case of Singer’s Appeal, 7 A. 800, 4 Sadler 430, to the effect that a tax adjudicatee acquires only an inchoate title which has no practical results or effects until after the redemptive period has lapsed.

In Spears v. Spears, 173 La. 294, 136 So. 614, 617, the opinion contained this statement:

“It is urged that this [tax] sale had the effect of divesting plaintiffs of their interest in the property. This contention, however, is not well founded.” (Emphasis supplied.) And further:
“ * * * the sale back to Spears amounted to nothing more than a redemption of the land reconveyed, which necessarily destroyed the effects of the tax sale to the extent of the recon-veyance.” (Emphasis supplied.)

In Blocker v. Continental Securities Corp., 157 So. 155, 156, this court declared:

“The title acquired by an adjudicatee at a tax sale is an inchoate one during the year for redemption and is defeated by the exercise of that right; * * * ” (Emphasis supplied.)

The latest pronouncement is to be found in Kelso v. Caffery, 221 La. 1, 58 So.2d 402, 406. The opinion by Mr. Justice Hamiter contains the following pertinent statement:

" * * * since the interest was timely redeemed those defendants were legally divested of title by the tax sale. Under our jurisprudence the title acquired by an adjudicatee at a tax sale is an inchoate one during the period for redemption and is defeated by the exercise of that right.” (Emphasis supplied.)

In other words, an inchoate right is the direct opposite of a vested right, which was clearly defined by Mr. Justice Moise in Tennant v. Russell, 214 La. 1046, 39 So.2d 726, 728, as follows:

“A right is vested when ‘the right to enjoyment, present or prospective, has become the property of some particular person or persons as a present interest. The right must be absolute, complete, and unconditional, independent of a contingency, and a mere expectancy of future benefit, or a contingent interest in property * * * does not constitute a vested right’.”' (Emphasis supplied.)

The conclusion, therefore, is inescapable that when Gus Killen became the tax purchaser he acquired an inchoate or contingent right. It is further indisputable,, on the basis of the above authorities, that the redemption by Eva Joseph “defeated” and “destroyed” the effect of the tax adjudication.

With respect to the property in dispute, at the time of his death Gus Killen could have claimed nothing. As a consequence he transmitted nothing to his heirs.

We must now concern ourselves with rights acquired by this plaintiff through the several Killen conveyances, which we have above detailed. By the-instruments themselves the plaintiff, Wells,, acquired only such rights, title and interest as the self-styled Killen heirs possessed.. As we have above attempted to demonstrate,, they possessed nothing. We think plaintiff’s knowledge of the frailty of his claim, is implicit in the instrument by which he-acquired, not the least of which circumstances would be the nominal consideration which was paid for whatever right, if any, he acquired. It seems obvious to us that plaintiff acquired only a possible litigious claim. He was put on notice by an examination of the public records, if any was made, that there had been no transmission of title from Gus Killen to his heirs. This circumstance brings this case within the definite principles enunciated by the Supreme Court in Otis v. Texas Company, 153 La. 384, 96 So. 1, 7. We quote from the opinion of the court, on rehearing, the following pertinent pronouncements:

“In our former opinion we held that as good faith was presumed, and as there was nothing in the record to impugn the good faith of the plaintiffs, they were in the position of innocent third persons dealing upon the faith •of the public records, and were entitled to recover on the strength of their title. We were in error in so holding. All that plaintiffs acquired were the rights, whatever they might he, of the heirs of Jerry Lewis in the property in •controversy, plus a law suit to establish those rights. They do not show ■that they acquired from a derivative .title of record in the name of their vendors or of Jerry Lewis, the father •of their vendors, but they rely solely upon the record of the ex parte judgment of possession rendered in the succession of Jerry Lewis.
* * * * * *
“Had the plaintiffs used but ordinary •care and diligence in having the records searched, they could have easily ascertained the defects in the title and that they could not acquire the property from the heirs of Jerry Lewis for the simple reason that these heirs had no right, title, or interest in said property.
“Nor for a further reason can the plaintiffs be considered as innocent third persons purchasing in good faith. Their very act of purchase in express terms shows that they were ptirchasing a litigious right-, that they were acquiring with knowledge that the title was in dispute and that they would have to resort to a law suit to establish their ownership. Hence, they ac-q^lired no greater right than their vendors 'had.” (Emphasis supplied.)

We wish it understood in connection with this opinion and its interpretation that none of our pronouncements are to be considered as having any bearing upon the so-called “law of registry” which, on the merits, constitutes plaintiff’s principal reliance. Our development of this opinion has been intended to apply solely to defendants’ rights under the exception of no right of action which was interposed. The facts recounted and the effect of these facts are to be considered only with relationship to the exception. The effect of the “law of registry” is not at issue in the consideration of defendants’ exception. For this reason we find it unnecessary to enter into a detailed discussion of the case of Blanchard v. Estate of Hy Garland, 6 La.App. 508, which the district judge accepted as authority for his holdings on the merits.

Defendants take the position that it was incumbent upon plaintiff to show that he acquired an existing and enforceable right to the relief sought, and that this essential requirement had not been established. We think this position is correct and, for the reasons above assigned, we are of the opinion that the exception of no right of action should have been separately considered and sustained. Accordingly, the judgment appealed from is annulled and set aside and there is now judgment in favor of defendants sustaining their exception of no right of action and dismissing plaintiff’s suit at his cost


text:
    LOUISIANA STATE BOARD OF MEDICAL EXAMINERS, Plaintiff-Appellee, v. H. C. SLOAT, Defendant-Appellant.
    No. 8676.
    Court of Appeal of Louisiana. Second Circuit.
    May 27, 1957.
    Rehearing Denied June 28, 1957.
    See also La.App., 91 So.2d 412.
    Harvey G. Fields, Farmerville, for appellant.
    Hayes, Harkey & Smith, Monroe, Adams & Reese, Robert E. LeCorgne, Jr., New Orleans, James T. Adams, Shreveport, for appellee.
   AYRES, Judge.

The object of this action is stated in our original opinion, wherein we sustained exceptions of no right of action and of the want or lack of legal authority in the president of plaintiff Board to institute and prosecute this action to the extent of permitting plaintiff to establish, if it could, by legal and competent evidence, the requisite authority in the president of the Board, and accordingly remanded the' cause for that purpose. On the remand trial was had and evidence adduced on the aforesaid issues, which established that the resolution of the Board authorizing this action and directing its president to file, institute and prosecute the same, was duly and properly adopted at a meeting attended by all members of the Board, who voted unanimously in favor of the resolution. This action of the Board is established not only by the original resolution and minutes of the Board meeting, copies of which were duly certified by the Secretary of the Board and filed in evidence, but by the testimony of both the President and Secretary of the Board. Therefore, the trial court properly overruled the aforesaid exceptions.

On the Merits.

The issue is whether defendant is engaged in the practice of medicine without first having obtained a license or certificate authorizing him to do so, as required by LSA-R.S. 37:1261 et seq. Defendant does not claim to have obtained such authority and the evidence establishes that he was not so authorized. Therefore, the issue is one of fact. The defendant admitted he had no license to practice medicine, that he was a graduate Chiropractor and that he was practicing the profession or avocation of Chiropractic at 115 Dalton Street in the City of Bastrop, Louisiana, where he received patients for Chiropractic treatments and adjustments, in the course of which he used a neurocalograph to determine nerve pressure and took X-rays for “analytical purposes”. The defendant for a period of time had a sign in front of his office, reading: “Dr. H. C. Sloat, Chiropractor, 115 Dalton, Ph. 2591.” Additionally an advertisement was carried by him in the Bastrop Daily Enterprise announcing the opening on October 17, 1955, of his Chiropractic office at his aforesaid address, listing his telephone number and office hours. The record leaves no doubt but that defendant is and was pursuing the avocation of a Chiropractor. Several witnesses testified of examinations made by him of them for various and sundry complaints and of receiving from defendant Chiropractor treatments and adjustments. For these services defendant charged and was paid certain fees.

It is well established in the jurisprudence of this state that the practices shown to be engaged in by defendant, including the practice of Chiropractic, constitute the practice of medicine. Louisiana State Board of Medical Examiners v. Mooring, La.App.1956, 86 So.2d 641; Louisiana State Board of Medical Examiners v. Wimberly, La.App.1956, 85 So.2d 679; Louisiana State Board of Medical Examiners v. Adams, La.App.1955, 84 So.2d 282, and authorities cited therein.

The conclusion is, therefore, inescapable from the facts clearly established in the record that defendant is engaged in a practice constituting the practice of medicine within the provisions of the Medical Practice Act and that he is engaged in such practice notwithstanding his failure to first obtain a license or certificate authorizing him to do so. Accordingly, it appears that the judgment appealed is eminently correct and it, therefore, should be, and it is hereby affirmed at appellant’s cost.

Affirmed.


text:
    Wayland KEENE, Plaintiff-Appellant, v. CARRAWAY and McDOUGALD LUMBER COMPANY et al., Defendants-Appellees.
    No. 8679.
    Court of Appeal of Louisiana. Second Circuit.
    May 27, 1957.
    Rehearing Denied June 28, 1957.

      Julius T. Long, Shreveport, for appellant.
    Martin S. Sanders, Jr., Olla, for ap-pellees.
   HARDY, Judge.

This is a suit for compensation in which plaintiff claimed total permanent disability resulting from an accidental injury sustained while in the course and scope of his employment. After trial there was judgment in favor of the defendant-employer rejecting plaintiff’s demands, from which plaintiff has appealed.

Plaintiff was employed as a winch truck operator by Carraway & McDougald Lumber company, a commercial partnership composed of Thomas Carraway and Allen T. McDougald, which operated a sawmill near the Town of Jena in LaSalle Parish. The alleged accident and injury occurred on August 2, 1956, at which time plaintiff was not engaged in operating the winch truck, but was assisting the “tong-hooker” in rolling logs down the skidway. In this operation plaintiff was using a cant hook. It was alleged in plaintiff’s petition that while so engaged plaintiff fell backward in a sitting position, and the handle of the cant hook struck his left leg in the area of the knee, “resulting in the serious and perm-nent impairment of his heart and his left leg * * and that, as a result of his injuries and “impairments”, he was totally and permanently disabled to do work of any reasonable kind.

In answer, defendants admitted the employment of plaintiff at a rate of $1 per hour for 40 hours per week; denied the occurrence of any accident or injuries, and specifically averred that they had been given no notice.

On trial, in support of his claim of an accident and injury, plaintiff called as witnesses a fellow employee, Butler Hicks, and his brother, Jerome Keene, also a fellow .employee. Both of these witnesses testified that they saw plaintiff fall and that the fall was caused by the cant hook slipping out of a log. According to these witnesses plaintiff fell backward in a sitting position to the ground, which was covered with soft bark, and neither of the witnesses saw the cant hook strike plaintiff.

Plaintiff testified that when his cant hook slipped he lost his balance, fell backward in a sitting position and the handle of the cant hook struck him'both below and above the knee, inflicting visible evidence of the injury about midway of the thigh in the form of a “big, blue knot”.

Plaintiff finished his day’s work on Thursday, August 2nd, worked all of the following day, but did not report for work thereafter.

Plaintiff testified that he consulted Dr. O. P. Mauterer of Olla on Monday, but it is to be noted that Dr. Mauterer testified that he saw plaintiff as a patient on August 7th, which was a Tuesday. The doctor testified that plaintiff consulted him with reference to an injury to his thigh, but that upon examination he could not account for the amount of pain of which plaintiff complained and he referred plaintiff to Dr. Banks, an orthopedic specialist of Alexandria. Dr. Banks was not called as a witness by either plaintiff or defendant. Dr. Mauterer was unable to discover any objective evidence of injury and testified that there was no evidence of disability except plaintiff’s subjective complaints.

On August 14th plaintiff suffered a heart attack and was attended by Dr. Guy Campbell, who hospitalized plaintiff for two days.

Under cross examination of plaintiff it developed that while working in the State of Texas in July, 19S3, he suffered from thrombophlebitis, for which affection he was paid workman’s compensation.

The only other pertinent factor in connection with plaintiff’s testimony is his insistence that he called Mr. McDougald and reported the accident on Monday following its occurrence. This was denied by McDougald. However, we dismiss this conflict as having no significant bearing upon our conclusion.

We think plaintiff has sustained the burden of proof with respect to establishing the occurrence of an accident in the nature of a fall. However, we think he has failed to prove that he sustained a blow from the handle of the cant hook. Neither of his two corroborating witnesses supported this claim of plaintiff and Dr. Mauterer, his own examining physician, testified positively that he found no objective evidences of injury, and did not remember whether there was any external indication thereof. However, again we observe that, in our opinion, this fact is not of particular importance. It may be conceded that plaintiff sustained exactly the nature of injury which he related, but, for reasons which are hereafter developed, this fact, in itself, is not sufficient to justify recovery.

The issue here presented is not determinable by the occurrence of an accident but, rather, it is controlled by the question of causal connection between such an injury and plaintiff’s disability. To this issue we address our consideration.

Following the alleged accident plaintiff was first examined by Dr. O. P. Mauterer of Olla on August 7th; was referred to and examined by Dr. T. E. Banks, an orthopedic specialist of Alexandria, on a date which is not definitely established by the record, but which must have been during the same week of the month of August; was attended and treated by Dr. Guy Campbell on August 14th; was hospitalized, upon orders of Dr. Guy Campbell, for a period of two days; consulted Dr. J. M. Kittrell of Jena September 25, 1956, and finally was examined by a doctor, identified only as Dr. Tannehill, at the request of defendants, at some time prior to trial of this suit.

The medical testimony on trial of this case was given by Drs. Campbell, Kittrell and Mauterer, all of whom were tendered as witnesses on behalf of plaintiff.

There can be no question as to the fact that plaintiff’s disability has resulted from the heart condition which manifested itself in the attack suffered on August 14, 1956. Counsel for plaintiff contends that this attack and the resulting disability were super-induced by the accidental injury of August 2nd. The answer to this proposition must, of necessity, be determined by the testimony of the medical experts above named. The testimony of Dr. Mauterer throws no light upon the question, inasmuch as he never examined plaintiff subsequent to the occurrence of the heart attack of August 14th and therefore expressed no opinion with reference to a possible connection between the accident and such condition.

Dr. Campbell, who was called to examine and treat plaintiff on August 14th and who diagnosed his condition as a coronary occlusion, testified positively that this condition could not be attributed to the trauma of the leg allegedly sustained by plaintiff. This witness also testified that a clot which might have existed as the result of throm-bophlebitis suffered by plaintiff in 1953, even if dislodged by a blow, could not have caused the occlusion suffered by plaintiff on August 14, 1956.

Dr. Kittrell testified that it was “improbable” that plaintiff’s condition of coronory occlusion could have resulted from a traumatic injury to the leg; that it was extremely improbable that such an injury could have loosened a clot or formed a new clot; that the time element with respect to the occurrence of an injury on August 2nd and the coronary occlusion on August 14th “lessens the possibility that the injury had anything to do” with the coronary occlusion, and that, in his opinion, such an effect, if attributable to the injury, would have occurred almost immediately.

The testimony of Drs. Campbell and Kittrell leaves no ground for doubt. The conclusion is inescapable that plaintiff has completely failed to establish even a reasonable probability of any causal connection whatsoever between an accident of August 2nd and the coronary occlusion suffered on August 14, 1956.

Before this court learned counsel for plaintiff vigorously complains of a number of errors with respect to the findings and conclusions of the district judge. It is argued that the trial judge grievously erred in giving weight to plaintiff’s failure to call Dr. Banks as a witness, and it is insisted that he further erred in denying plaintiff the right to establish his reasons for not calling Dr. Banks. Frankly, we think this point is unimportant. Certainly it cannot be conceded that Dr. Banks’ testimony would have been favorable to plaintiff, and, on the other hand, we find it unnecessary to accord any weight, under the circumstances, to the well established principle that failure to call an available witness must be construed as indicative of unfavorable testimony. We have given no weight to this point either for or against either of the parties litigant.

Plaintiff’s counsel further insists that failure on the part of defendants to call Dr. Tannehill as a witness must be construed as an admission that his testimony would be unfavorable. In the instant case we do not think this conclusion would be justified. Since plaintiff has failed to establish his claims on the basis of the testimony of his own medical expert witnesses, there was no necessity on the part of defendants to introduce any further testimony which might be merely cumulative in effect. Where there is no conflict in the medical testimony which is convincing as against plaintiff’s claims in the instant case, the failure of defendant to call another medical witness does not warrant the application of the presumption that his testimony would be unfavorable. Teekell v. Travelers Ins. Co., La.App., 83 So.2d 536.

The instant case, under the facts established, is easily distinguished from the cases of Sepulvado v. Mansfield Hardwood Lbr. Co., La.App., 75 So.2d 529, and Roberson v. Michigan Mutual Liability Co., La.App., 90 So.2d 465, in both of which recovery was allowed to plaintiffs. The facts of the case before us are analogous to those found in Hastings v. Homewood Development Co., La.App., 84 So.2d 883, in which recovery was denied.

In the three cases above cited the court made the effort to carefully analyze the •basis for the establishment of a causal relationship between injury and a resultant heart condition.

In the case before us none of the elements such as exertion, heat, exhaustion, etc., were present. The record conclusively establishes the fact that this plaintiff had suffered over a period of years from a serious heart condition, but, in our opinion, there is nothing in the record which would justify the conclusion that this condition was exaggerated or worsened, in any degree, either by his usual activity in the ■course of his employment by this defendant ■or by an injury. It follows, failing adequate proof on these points, that recovery should not be allowed.

Summarizing our findings, we are of the opinion that the issue presented by this appeal is solely factual and has been conclusively determined by the testimony of plaintiff’s own witnesses adversely to plaintiff’s claims.

We find no error in the judgment from which appealed, and, accordingly, the same is affirmed.


author: HARDY, Judge. PER CURIAM.

text:
    ROY O. MARTIN LUMBER COMPANY, Inc., Plaintiff-Appellee, v. Mrs. Cleo Bryant STRANGE, Defendant-Appellant.
    No. 8631.
    Court of Appeal of Louisiana. Second Circuit.
    May 27, 1957.
    Rehearing Denied June 28, 1957.

      De Blieux & Cobb, Baton Rouge, for appellant.
    Maurice T. Mouton, Alexandria, for appellee.
   HARDY, Judge.

This suit was instituted by plaintiff, Roy O. Martin Lumber Company, Inc., under the provisions of LSA-R.S. 9:171 et seq., praying that the court order the sale of an undivided %2 interest in and to certain particularly described property located in Rapides Parish, owned by the defendant, Mrs. Cleo Bryant Strange, a resident of the State of Tennessee.

Defendant opposed plaintiff’s right to the relief sought upon two principal grounds; first, that defendant was not an absentee within the contemplation of the statutory provisions above noted, and, second, that the proposed sale would not be advantageous to defendant. These issues were first tendered in an exception of no right and no cause of action which was overruled and were then re-asserted in defendant’s answer to the suit.

After trial on the merits there was judgment in favor of plaintiff ordering the defendant to make conveyance of her interest in the property described within thirty days from the date of judgment, and, upon failure so to do, decreeing the judgment to stand in lieu of such conveyance. There was further judgment ordering the consideration accruing to defendant, which was fixed in the amount of $900, to be paid into the Registry of the Clerk of Court in the event of defendant’s failure to execute the conveyance ordered. Costs were taxed against defendant. From this judgment defendant has appealed.

At the time of filing suit on February IS, 1956, plaintiff was the owner of an undivided 3Ys2 interest in and to the following described property located in the Parish of Rapides, State of Louisiana:

A certain tract or parcel of land situated in the Parish of Rapides, State of Louisiana, being all of Fractional Section 34 Township 5 North, Range 2 East, containing 286.41 acres of land, more or less, together with all buildings and improvements thereon, and all rights, ways and privileges appurtenant thereto, including all lands, underlying roads and under rights of way on or adjacent to the said land, all water bottoms and beds, alluvion and batture.

It was alleged in plaintiff’s petition, and established on trial, that plaintiff began acquiring interests in the above described tract in or about the month of July, 1954, and at the time of filing this suit had purchased the entire interest in the property with the exception of the undivided Vz2 interest owned by defendant. The payment of consideration for plaintiff’s purchases averaged $89.61 per acre. Plaintiff negotiated with defendant in the effort to purchase her interest upon the basis of a price of $90 per acre, amounting to a total of $805, which offer was refused. It appears from certain correspondence, incorporated in the record and filed in evidence by defendant, that the defendant asked a consideration of $1,000 with a reservation of minerals, which counter-proposition was refused by plaintiff.

Following this negotiation plaintiff instituted this suit under the provisions of LSA-R.S. 9:171-9:178, inclusive (Acts 1948, No. 457). These provisions authorize and provide the means for effecting the private sale of property to effect a partition in those cases where a record owner of any interest in the property is absent from the State.

The provisions under which the action may be instituted are set forth in Section 171, which reads as follows:

“Whenever to effect a partition, it is desired to sell for cash at private sale an entire property, regardless of its divisibility, and a record owner or owners of any interest or interests in the property are absent from the state and not represented of record in the parish where the property is situated, or his or their residence is unknown, or it is not known whether the record co-owner is or is not near, the other co-owners may file a petition in the district court of the parish in which the property is situated setting forth a full description of the property to be sold, the price and conditions of the private sale, and the reasons which make it advantageous to the co-owners to sell the property at private sale for cash to effect this partition.”

Defendant first contends that she is not an absentee within the meaning and intent of the statute. We are able to accord little consideration to this argument since we find nothing in the statute under examination which distinguishes an absentee, as therein defined, from the well understood and established definition of the term under both our codal provisions, as set forth in LSA-C.C. Art. 3556(3), and our jurisprudence. Indeed, if we did not have the benefit of the codal definition and the interpretations found in our jurisprudence, we think the provisions of the statute itself, as above quoted, are so clear as to deny any possibility of misinterpretation. This defendant, unquestionably, in the words of the statute, was “absent from the state and not represented of record in the parish where the property is situated * * * ”, and it follows that the contention made is untenable.

Next the objection is made that plaintiff has failed to establish the requisite fact that the proposed sale would be advantageous. Primarily, this defense was predicated upon the claim that the property in question embraced valuable gravel deposits, and, as a consequence, the price offered would not represent the full value of the property. This contention was carefully considered and painstakingly analyzed by the learned judge of the district court in his written opinion. Two experts tendered by plaintiff testified that, in their opinion, the value of any gravel deposits was negligible, and the expert witness on behalf of defendant was unwilling to express any opinion in the absence of adequate tests of the property. This witness further testified that he would not be willing to make a test on behalf of his company unless he could procure an option which would justify the necessary expenditure.

We concur with the conclusions of the district judge who found that there was no basis for the claim of existence of rich deposits of gravel, and that the evidence of the experts who had personally inspected the property indicated, in all probability, that the gravel of value had all been mined therefrom.

Before this court counsel for defendant has zealously argued that the term “advantageous” must be construed with reference to all parties concerned. It is pointed out that the record establishes the proposition that the proposed sale will be advantageous to plaintiff but will not result in a commensurate advantage to defendant. We have carefully examined this contention. It has been established that plaintiff desires to engage in a comprehensive and expensive reforestation program and that the principal, if not entire, value of the property involved lies in its timber content and the projected development thereof by approved conservation measures. Plaintiff is unwilling to undertake the necessary operations unless and until it acquires the entire ownership. It was further frankly testified on behalf of plaintiff that it would not be agreeable to selling its interest at the same price which it was prepared to pay defendant. This position was logically explained on the ground that plaintiff had made an expensive investment, not only in the total amount of the consideration but also in a substantial outlay of costs and expenses.

After thorough consideration we find nothing unfair nor inequitable in these explanations of plaintiff’s position.

Finally, counsel urges that the statute specifically requires the sale of the “entire property” and, therefore, the sale of defendant’s interest contravenes the statutory requirement. We think there would be considerable merit in this argument were it not for the provision of Section 177, which reads as follows:

“Any property sold under the provisions of this Chapter may be purchased by any co-owner or co-owners.”

To require the sale of the entire interest in order to effect the purchase thereof by plaintiff would, in our opinion, constitute an absurdity. Identically the same result will be accomplished by the sale of defendant’s small interest, which will serve to vest the title to the whole, that is, to the “entire property,” in plaintiff.

Finally, it should be observed that all proceedings under the statute involved are conducted under examination by the district court of the parish in which the property is situated. The act is permissive,, not mandatory, and full protection is accorded the absent owner or owners. Except in cases where the district court has been guilty of abuse of discretion, or has erred in its evaluation of facts, we perceive no ground upon which a decree should be disturbed. No such reason exists in the instant case.

Though the question has not been raised, we are disposed to give consideration, ex proprio motu, to the matter of costs in the instant case. We note that the judgment appealed from assesses all costs,, including the fees of expert witnesses, against the defendant. We are inclined to feel that this action is inequitable, and, accordingly, we have determined to exercise the right granted appellate courts under the provisions of Code Prac. Art. 908.3 by assessing the costs of the lower court equally between the parties litigant.

For the reasons assigned the judgment appealed from is affirmed, and, accordingly,

It is now Ordered, Adjudged and Decreed that there be judgment herein in favor of plaintiff, Roy O. Martin Lumber Company, Inc. The defendant, Mrs. Cleo Bryant Strange, is hereby directed and ordered to sell and transfer at private sale unto Roy O. Martin Lumber Company, Inc., her undivided Vs2 interest in and to the following described property situated in the Parish of Rapides, State of Louisiana, to-wit:

A certain tract or parcel of land situated in the Parish of Rapides, State of Louisiana, being all of Fractional Section 34, Township 5 North, Range 2 East, containing 286.41 acres of land, more or less, together with all buildings and improvements thereon, and all rights, ways and privileges appurtenant thereto, including all lands, underlying roads and under rights of way on or adjacent to the said land, all water bottoms and beds, alluvion and batture.

It is further ordered that, in consideration for the said transfer, the plaintiff, Roy O. Martin Lumber Company, Inc., shall pay to the defendant, Mrs. Cleo Bryant Strange, the sum of $900 cash at the time of the consummation of the sale above •ordered.

It is further ordered that in the event the •defendant shall fail to comply with this judgment within a period of thirty days from the date of finality hereof, then, and in such event, this judgment shall stand in lieu of and shall be considered equivalent to a full and complete act of transfer and conveyance by defendant, and, in such •event, the consideration hereinabove fixed as full payment for defendant’s interest in the property described shall be deposited in the Registry of the Clerk of Court of the Ninth Judicial District Court of Louisiana in and for Rapides Parish for the benefit and account of the said defendant, Mrs. Cleo Bryant Strange.

All costs of the lower court, including the fees of expert witnesses fixed at $25 each, are equally divided between and assessed against plaintiff and defendant. All costs of this appeal are taxed against defendant-appellant.

PER CURIAM.

Our attention has been called to LSA-R.S. 9:176, which provides for the deposit of the sale price accruing to the absent co-owner in the registry of the court:

“ * * * less his pro rata of the cost of the sale and court cost, * * (Emphasis supplied.)

Under the above provision of the statute we think we were in error in dividing the costs equally between the parties litigant. Accordingly, our decree is amended by taxing ®%2 of the costs of the lower court against plaintiff and %2 of said costs against defendant. Costs of the appeal are taxed against defendant-appellant.

The application for rehearing is denied.