author:
McCALEB, Justice. HAMLIN, Justice ad hoc.
      HAWTHORNE, Justice McCALEB, Justice

text:
    233 La. 565
    STATE of Louisiana v. Paul J. CAVANAH.
    No. 43093.
    Supreme Court of Louisiana.
    Feb. 25, 1957.
    On Rehearing June 28, 1957.
    Rehearing Denied Oct. 8, 1957.

      Richard Dowling, Herbert J. Garon, New Orleans, for appellant.
    Jack P. F. Gremillion, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Leon D. Hubert, Jr., Dist. Atty., Phil Trice, Asst. Dist. Atty., New Orleans, for appellee.
   McCALEB, Justice.

Appellant was charged with the violation of R.S. 14:89, relative to crime against nature, in that he had unnatural carnal copulation with a ten year old boy and, after a trial, was found guilty of attempted crime against nature. Following imposition of a sentence to serve two years and six months at hard larbor in the State Penitentiary, this appeal was taken, in which appellant relies on three bills of exceptions taken during the proceedings for a reversal of his conviction.

Bill No. 1 was reserved to the alleged failure of the judge to charge the jury wholly in writing, as required by Article 389 of the Code of Criminal Procedure, R.S. 15 :389. In compliance with that Article, appellant requested, prior to the swearing of tha first witness, that the judge deliver his charge in writing. The request was granted and the judge prepared in writing his general charge which he delivered to the jury at the close of the case. However, prior to the giving of this written charge, the judge, taking note of arguments of defense counsel imploring the jury not to consign defendant to the penitentiary, made an oral statement to the jury, the substance of which is that it was the function of the jury to determine the guilt or innocence of the accused and that it should not be concerned with the penalty which the court might impose in event of a verdict of guilty.

Upon completion of the judge’s written charge to the jury, counsel reserved this bill of exceptions in which it is contended that the court violated the provisions of R.S. 15:389 in that his entire charge was not in writing. The rulings in State v. Rini, 151 La. 163, 91 So. 664 and State v. Wilson, 169 La. 684, 125 So. 854, are said to sustain this position.

In the cited cases, this Court held that the provision of law requiring the judge to deliver his charge in writing, when requested so to do, is mandatory and that, if any part of the charge is orally* given, it constitutes reversible error even though the remarks are reported by the court stenographer.

Counsel for the State recognize the force of these pronouncements and they admit that, if the court’s oral remarks in this case are properly characterized as part of the charge or a special charge, the remarks should have been reduced to writing before being read to the jury. However, they maintain that the remarks in question cannot be classified as a charge to the jury and that, since our law does not require that statements by the court which are not charges to the jury be first written, they could properly be given extemporaneously. In support of this contention, authorities from other jurisdictions with similar statutes are cited from which a general rule has been evolved. That rule is tersely stated in 23 C.J.S. Criminal Law § 1301, p. 886, as follows:

“The charge or instruction required by law to be reduced to writing is only that which the court may have to say to the jury in regard to the principles of law applicable to the case and to the evidence; and hence an oral statement or communication by the court to the jury, which is rather in the nature of a cautionary direction, and not fairly and strictly a direction or instruction on some question or rule of law involved in or applicable to the trial, need not be in writing.”

Thus, the issue for decision here is whether the oral statement of the judge to the jury was properly a part of his general charge. In determining this question, examination should first be made of the applicable provisions of our law with respect to the essential ingredients of the judge’s charge. The provisions will be found in the first six articles, preceding Article 389 (Articles 383-388) of Chapter IX of the Code of Criminal Procedure entitled “Charging the Jury”.

Articles 383 and 384 relate to the province of the judge and the jury and provide that the jury are the judges of the law and the facts on the question of guilt or innocence; that it is the function of the jury to determine the weight and credibility of the evidence and that the judge has the right to instruct the jury on the law.

Article 385 deals with the scope of the charge and provides that the judge shall charge the jury on the law applicable to the case.

Article 386 relates entirely to charges on responsive verdicts.

Articles 387 and 388 deal with the general charges of the judge to the jury, setting forth that it is essential for the judge to charge that the accused is presumed to be innocent; that it is his duty to give the defendant the benefit of every reasonable doubt and that it should not convict unless convinced of his guilt beyond a reasonable doubt.

It appears from the foregoing that there is no specific requirement for the judge to instruct the jury concerning the penalty which may be imposed in the event of conviction. This being so, it would seem to follow that a statement of the judge concerning the imposition of penalties which is given for the purpose of clarifying sympathetic appeals made by defense counsel to the jury, such as in this case, cannot be regarded as essential to the general charge and, therefore, need not be delivered in writing. This is the rule in other jurisdictions where it has specifically been held under statutes similar to our own that a statement by the judge to the jury, defining the penalty for the offense charged, or the eligibility of the accused to parole following conviction, does not constitute part of the charge and need not be in writing. State v. Jensen, 114 Wash. 401, 195 P. 238; State v. Smith, 132 Iowa 645, 109 N.W. 115 ; State v. Skinner, 101 W.Va. 632, 133 S.E. 371, reversed on other grounds; State v. Carroll, 52 Wyo. 29, 69 P.2d 542; State v. Kennedy, 82 Mont. 165, 266 P. 386; State v. Lammers, 171 Kan. 668, 237 P.2d 410.

We hold that Bill No. 1 is untenable.

Bill of Exceptions No. 2 was reserved when the judge refused to give a special charge on general reputation and good character. The Court ruled the requested charge objectionable since it was not wholly pertinent and wholly correct, which is requisite under Article 390 of the Code of Criminal Procedure (R.S. 15:390). The first paragraph of said special charge reads as follows:

“The general reputation of an accused for honesty, peace and quiet, and good morality, is competent evidence, and is to be considered by the jury together with all other facts and circumstances of the case.”

In his per curiam, the judge points out that he had already given a complete charge on the general reputation and character of appellant as to “sexual morality” and he deduced that the request for a charge as to appellant’s “honesty, peace and quiet” was not applicable to the case.

The ruling was correct. Under Article 480 of the Code of Criminal Procedure (R.S. 15:480), the evidence in this case was restricted to a showing of good character as to such moral qualities having pertinence to the crime with which appellant was charged, that is, his general reputation for sexual morality. See State v. Bessa, 115 La. 259, 38 So. 985; State v. Griggsby, 117 La. 1046, 42 So. 497 and State v. Banks, 138 La. 1090, 71 So. 194. Accordingly, the requested special charge, which included an instruction respecting honesty, peace and quiet, was not wholly correct and wholly pertinent. In other respects, the special requested charge was fully covered by the general charge.

Bill No. 3 was taken to the overruling of appellant’s motion for a new trial. Except for the allegation that the verdict is contrary to the law and the evidence, which presents nothing for review, the motion contains only a renewal of the contentions made in the first two bills of exceptions, which we have already discussed.

The judgment and sentence are affirmed.

PONDER, J., dissents.

HAWTHORNE, J., absent.

On Rehearing

HAMLIN, Justice ad hoc.

A rehearing was granted in this case, limited to a reconsideration of Bill of Exceptions No. 1.

This bill was reserved to the alleged failure of the trial judge to charge the jury wholly in writing, as required by Article 389 of the Code of Criminal Procedure, LSA-R.S. 15:389, which reads:

“The judge shall deliver his charge in writing, whenever requested so to do either by the prosecution or the defense prior to the swearing of the first witness.”

The record discloses that prior to the swearing of the first witness, counsel for the appellant requested the trial judge to deliver his charge in writing, which request was granted. At the close of the case, prior to giving his written charge, the trial judge, taking note of arguments of defense counsel urging the jury not to consign the defendant to the penitentiary or prison, addressed the following oral remarks to the jury and instructed the reporter to take them down in writing:

“Under our system of law and the administration of public justice, the Jury has its particular place. The Jury finds the question of guilt or innocence, and that only. The Court imposes the sentence if the Jury should find the defendant guilty.
“The Legislature, the representatives of the people fixes the penalty, both the minimum and maximum and character of penalty that the court in its wisdom might impose. Your function is simply to return a verdict of guilt or innocence without regard to the question of punishment. You have no right to acquit a guilty man, whom you believe guilty, because of the severity of the penalty as you might consider; nor should you convict a man whom you should have reasonable doubt about his guilt because the penalty might be relatively small.
“In view of the fact however, that one counsel has used the word ‘penitentiary’ and the other ‘prison’ as the possible punishment which could be visited upon the defendant, you should be acquainted with the law and the law says; insofar as punishment:
“ ‘Whoever commits a crime against nature shall be fined not more than $2,000.00 or imprisoned with or without hard labor for not more than five years, or both.’
“Therefore, if you should find the defendant is guilty it is within my judgment and discretion to fine him one dollar or two thousand dollars, and no jail sentence and/or as an alternative, if he didn’t pay the dollar or two thousand dollars, I could place him in the Parish Prison for as much as five years, or give him a jail sentence and a fine or give him a two thousand dollar fine and five years at hard labor at the Lousiana State Penitentiary.
“There is no such thing as a necessary jail sentence of any kind or character anywhere in this case. That is a matter that doesn’t concern you at all, if you should find that the State has proved the defendant guilty beyond all reasonable doubt.”

The issue for decision on this rehearing is whether the above quoted oral statement was a part of the general charge, and, if so, did its delivery constitute reversible error. This issue appears to have been settled by the opinion and decree of this Court in State v. Wilson, 169 La. 684, 125 So. 854, 855, wherein we held:

“ * * * The general charge of the court was committed to writing, but, in connection with the giving of special charge No. 1, the court orally instructed the jury as to the law governing the matter of the recovery of the property by the owner, or its return to the owner by the acused, and charged the jury that such recovery or return of the property cannot be pleaded or urged as a defense to the prosecution. (Underscoring ours.) (Double underscoring italics of original decision.)
“Before the jury retired, and in the presence and hearing of the jury, defendant excepted to the charge of the court on the ground that it was not entirely written, but was delivered orally in part.
“As shown by the clerk’s note of evidence, the court then instructed the jury to ignore the oral part of the charge.” (Double underscoring italics of original decision.)
“Under the doctrine of State v. Rini, 151 La. 163, 91 So. 664, this is a fatal error. The statute is mandatory that the charge must be given wholly in writing, when the request is made timely by a defendant. Revised Statutes of 1870, § 28.
“Article 389 of the Code of Criminal Procedure also provides that: ‘The judge shall deliver his charge in writing, whenever requested so to do either by the prosecution or the defense prior to the swearing of the first witness.’ (Double underscoring italics of original decision.)
“The framers of the Code of Criminal Procedure were familiar with the interpretation placed by this court on section 28 of the Revised Statutes, relating to requests for charges in writing to the jury, and, as the provisions of the Code are similar to those of 'section 28 of the Revised Statutes, the same interpretation must be placed upon the later provision of the Code.
“It was contended by the trial judge in the Rini case that the portion of the charge taken down by the stenographer would have been the same if he had embodied it in a written charge. * *
“The instruction of the trial judge that the jury ignore the oral part of the charge given does not, in our opin- . ion, cure the error resulting from his failure to give the whole charge in writing, after timely request made by defendant.”

In the present case, the court orally and extemporaneously charged the jury as follows :

“Under our system of law * * * Your function is simply to return a verdict of guilt or innocence without regard to the question of punishment. You have no right to acquit a guilty man, whom you believe to be guilty, because of the severity of the penalty as you might consider; nor should you convict a man whom you should have reasonable doubt about his guilt
because the penalty might be relatively small.” (Underscoring ours.)
“In view of the fact, however, that one counsel has used the word ‘peni-tentionary’ and the other ‘prison’ as to the possible punishment which could be visited upon the defendant, you should be acquainted with the law and the law says; insofar as punishment (Underscore ours.)
“ ‘whoever commits a crime against nature shall be fined not more than $2,000.00 or imprisoned with or without hard labor for not more than five years or both.
* * * * * *
“There is no such thing as a necessary jail sentence of any kind or character anywhere in this case. That is a matter that doesn’t concern you at all, if you should find that the State has proved the defendant guilty beyond a reasonable doubt.” (Underscoring ours.)

In our opinion, a comparison of the emphasized portions or elements of the charge in this case with the emphasized portions of the opinion in the Wilson case, supra, clearly shows a similarity between the two cases.

In the instant case there was no statement by the trial judge to the jury that it ignore the oral or extemporaneous charge. Even though the admonition to ignore the oral charge was given in the Wilson case, supra, this Court on appeal held that said admonition did not cure the error resulting from the failure to give the whole charge in writing after timely request made by counsel.

In its brief on original hearing, the State admits that if the trial judge’s remarks are characterized as part of the charge, or a special charge, they should have been reduced to writing before being read to the jury.

In 88 C.J.S. Trial § 266, p. 725, we find the following definition of a charge:

“A ‘charge’ which, in common-law practice, is regarded as synonymous with ‘instruction,’ is the final address made by a judge to the jury trying a case, before they make up their verdict, in which he sums up the case, and instructs the jury as to the rules of law which apply to its various issues, and which they must observe in deciding on their verdict when they shall have determined the controverted matters of fact; the address made by the judge after the case has been closed, when he comments on the testimony or instructs the jury in any matter of law arising on it; the exposition by the court to a petit jury of those principles of the law which the latter are bound to apply in order to render such a verdict as will, in the state of facts proved at the trial to exist, establish the rights of the parties to the suit; * * * any and all final instructions addressed by the court to the jury for the purpose of governing their action in making or aiding to make a final disposition of the case in favor of one litigant or the other.”

In LSA-R.S. 15:385, it is stated:

“The judge shall charge the jury on the law applicable to the case and shall charge the jury that it is their duty to accept and to apply the law as laid down for them by the judge.”

The above quoted charges to the jury followed the mandate of LSA-R.S. 15:385, and its contents were those set forth in the statement from C.J.S., supra.

We conclude that the instant instruction to the jury must be characterized as a charge, and under the clear and concise provisions of LSA-R.S. 15:389 it should have been in writing.

LSA-R.S. 15 :389 is couched in the mandatory “shall”, and the questions of reversible error and prejudice cannot be considered.

In the Wilson case, supra, it is further stated:

“The argument that the accused suffered no injury was made in the Rini case, as in the present case, but was without avail, as: ‘Written charges are often better considered, more clearly expressed, and, in complicated cases at least, less likely to contain error. An oral charge, although when the judge is delivering it, he knows that it is being taken by a stenographer, is not so likely to secure these advantages. Therefore, for this reason, and no doubt for others, the law permits either party to the case to require that the charge be delivered in writing.’ State v. Rini, 151 La. 179, 91 So. 664, 669.”

We further conclude that the authorities relied upon by the State must yield to the rulings pronounced in the Wilson and Rini cases, supra.

The decree rendered by this Court on the original hearing of this matter having been set aside by the granting of a rehearing, it is now ordered that the conviction and sentence appealed from be annulled and set aside, and that this case be remanded to the trial court to be proceeded with according to law and the views herein expressed.

The right of the State to apply for a rehearing is reserved.

McCALEB and SIMON, JJ., dissents.

HAWTHORNE, Justice

(dissenting).

I think the views expressed in the original opinion are correct.

McCALEB, Justice

(dissenting).

I adhere to the views expressed in the original opinion that the remarks of the trial judge to the jury in this case were cautionary directions and cannot be fairly characterized as a charge within the meaning of R.S. 15:389, which requires the judge to deliver his charge in writing whenever requested so to do.

The prevailing opinion on rehearing attempts to place this case on the same footing as State v. Wilson, 169 La. 684, 125 So. 854. But that case is clearly distinguishable from this one. There, the judge orally instructed the jury as to the law governing the matter of recovery of the property by the owner or its return to the owner by the accused, who was on trial for obtaining goods under false pretenses with intent to defraud and who had requested a written charge. This instruction was violative of R.S. 15:389 because it involved a principle of law pertaining to the guilt or innocence of the accused and it was admittedly given as a special charge to the jury.

Here, as demonstrated in the original opinion, the remarks of the judge to the effect that the jury was not to be concerned with the sentence which might be imposed, in the event it found appellant guilty, had nothing whatever to do with his guilt or innocence; it was neither a special charge nor did it form part of the general charge.

Furthermore, even if the remarks could be fairly viewed as a charge and thus violative of the statute, the infraction, at best, would have been purely of a technical nature from which appellant sustained no injury and, if Article 557 of the Code of Criminal Procedure (R.S. 15:557) means anything at all, appellant should not be granted a new trial. That Article, which is founded on the just concept that reversals of convictions in criminal cases based on technical errors are not favored, expressly provides that a new trial is not to be granted for any error of any matter of pleading and practice unless the court, after an examination of the entire record, is convinced that it has probably resulted in a miscarriage of justice and that errors which are insubstantial will not constitute grounds for reversal even though a statutory right has been violated. There is not the slightest doubt in this case that the remarks of the judge were in accordance with law and were sound directions given to the jury to counteract the sympathetic appeals made by defense counsel for an acquittal.

The purpose of R.S. 15:389 is to secure to the accused the right of having the charge of the court placed in writing in order that he may avail himself of any error therein. In construing a similar statute many years ago, Mr. Justice Brewer (subsequently a member of the United States Supreme Court) said in State v. Potter, 15 Kan. 302, “ * * * that it was not intended to cast any unnecessary burdens upon the court, or to hamper and restrict communications between the court and the jury; that it should be so construed as fairly to secure that purpose, and not made a mere weapon of technical error; * * *

I respectfully dissent.

      . The statement was taken down by the Court reporter and transcribed; it reads as follows:
      “Under our system of law and the administration of public justice, the Jury has its particular place. The Jury finds the question of guilt or innocence, and that only. The Court imposes the sentence if the Jury should find the defendant guilty.
      “The Legislature, the representatives of the people fixes the penalty, both the minimum and maximum and character of penalty that the Court in its wisdom might impose. Tour function is simply to return a verdict of guilt or innocence without regard to the question of punishment. Tou have no right to acquit a guilty man, whom you believe guilty, because of the severity of the penalty as you might consider; nor should you convict a man whom you should have reasonable doubt about his guilt because the penalty might be relatively small.
      “In view of the fact, however, that one counsel has used the word ‘penitentiary’ and the other ‘prison’ as to the possible punishment which could be visited upon the defendant, you should be acquainted with the law and the law says; insofar as punishment;
      “ ‘Whoever commits a crime against nature shall be fined not more than $2,-000.00 or imprisoned with or without hard labor for not more than five years or both.’
      “Therefore, if you should find the defendant is guilty, it is within my judgment and discretion to fine him one dollar or two thousand dollars, and no jail sentence, and/or as an alternative, if he didn’t pay the dollar or two thousand dollars, I could place him in the Parish Prison for as much as five years, or give him a jail sentence and a fine or give him a two thousand dollar fine and five years at hard labor at the Louisiana State Penitentiary.

        “There is no such thing as a necessary jail sentence of any hind or character anywhere in this case. That is a matter that doesn’t concern you at all, if you' should find that the State has proved the defendant guilty beyond all reasonable doubt.”

      . State v. Rini, 151 La. 163, 91 So. 666, which holds that it is a fatal error if any part of the requested charge is orally given, was decided long before the enactment of the Code of Criminal Pi-o-eedure in 1928. Therefore, that decision is not authority for a holding that a new trial must be granted because of a technical violation of Article 389 when no substantial right of the accused has been prejudiced. The opinion in State v. Wilson, 169 La. 684, 125 So. 854, which is founded on the ruling of the Rini case, does not refer to Article 557 of the Code of Criminal Procedure and, therefore, cannot be regarded as authority compelling the granting of a new trial where the error complained of does not work substantial injury to the accused.


source: Caselaw Access Project

author: SIMON, Justice.

license: Public Domain

text:
    233 La. 585
    Irving C. SUIRE and Calvert Fire Insurance Company, v. Lottery WINTERS, Marquette Casualty Company and Clemire Norris.
    No. 43090.
    Supreme Court of Louisiana.
    June 28, 1957.
    Rehearing Denied Oct. 8, 1957.
    Pugh & Bourdreaux, by Charles J. Bou-dreaux, Lafayette, for plaintiffs-appellants.
    Dubuisson & Dubuisson, Opelousas, for defendants.
   SIMON, Justice.

This cause comes to us on certiorari addressed to the Court of Appeal, First Circuit, and involves primarily the question of fact whether a motorist, who, allegedly blinded by the switching of opposing oncoming lights from “dim” to “bright”, collided with the rear of a loaded cane truck and trailer parked in the center of the north lane of traffic on a standard two-lane concrete surfaced highway, at about 7:30 p.m., was contributorily negligent such as would bar recovery for damages to property and for personal injuries incurred by him as the result of the collision.

This suit was filed by Irving C. Suire and his collision insurer, Calvert Fire Insurance Company, who became subrogated to the rights of its assured to claim reimbursement for payments made under its policy to him, against Lottery Winters, his insurer, Marquette Casualty Company, and Clemire Norris, the alleged employer of Winters.

The primary issue presented to the trial court was resolved in favor of plaintiff, absolving him from the charge of contributory negligence imposed by defendants, and accordingly the trial court rendered judgment in favor of plaintiff, Calvert Fire Insurance Company and against Lottery Winters and Marquette Casualty Company, jointly and in solido in the sum of $565.30, together with legal interest; and in favor of plaintiff, Irving C. Suire, and against Lottery Winters and Marquette Casualty Company, in the full sum of $5,836.80, together with legal interest from date of judicial demand until paid, and all costs. Judgment was further rendered in favor of Clemire Norris, rejecting the demands of the plaintiff.

The court of appeal reversed the judgment of the district court and dismissed plaintiff’s suit, holding him to be guilty of contributory negligence for his failure to have seen the parked loaded cane truck ahead of him.

The record discloses that on November 15, 1952 at approximately 7:30 P.M. plaintiff was driving his automobile on Louisiana Highway No. 25 in a westerly direction, between Delcambre and Erath in Vermilion Parish, at a speed of about 30-35 miles per hour when the front portion of his automobile collided violently with and underneath the rear portion of a truck and trailer loaded .with sugar cane parked in the lane of traffic in which plaintiff was properly traveling. The said truck was left unattended on the highway in violation of law.

LSA-R.S. 32:241 requires that no vehicle shall be parked on the main traveled portion of any highway unless it is impractical to do otherwise. In no event shall any person park a vehicle, attended or unattended, upon a highway unless a distance of fifteen feet of the highway opposite such parked vehicle is left unobstructed and free for passage and unless a clear view of such vehicle exists from a distance of at least 200 feet in each direction. Even in such instances if the vehicle is parked on the highway one-half hour after sunset or one-half hour before sunrise, the operator thereof shall display appropriate signal lights thereon sufficient to warn approaching traffic of its presence.

LSA-R.S. 32:241, subd. B creates an exception to the general rule for parking vehicles and provides:

“The provisions of this rule shall not apply to the driver of any vehicle which is disabled while on the main traveled portion of a highway so that it is impossible to avoid stopping and temporarily leaving the vehicle in that position. However, the driver shall remove the vehicle as soon as possible, and until it is removed it is his responsibility to protect traffic.” (Italics ours.)

LSA-R.S. 32:441 mandatorily provides that trucks such as the present one operating on the highways between one-half hour after sunset and one-half hour before sunrise must be equipped with at least three portable flares, reflectors, or other similar devices which may be plainly visible for a distance of 500 feet, and that the operator of such a vehicle shall immediately upon bringing his vehicle to a stop upon the traveled portion of the highway, at any time during this period, place one such warning device at the side of his vehicle just inside the black line marking the center of dirt or gravelled highways, and place one such device approximately 100 feet to the front and another 100 feet to the rear of his vehicle, and shall maintain these devices in this position during the time the vehicle remains parked.

The defendant Lottery Winters was hauling a load of sugar cane when his truck became disabled because of a flat rear tire, and for fear that the truck would turn over he did not remove it from the highway to the shoulder thereof. However, instead of discharging his responsibility of protecting traffic while the truck was parked in the lane of travel as required by LSA-R.S. 32 241, Winters set out two reflectors at a point fifteen feet to the front and to the rear of his truck and departed therefrom with a friend in order to pick up another tire, leaving the truck unattended. During his absence and while the truck was left unattended the accident herein occurred. The failure on the part of the said operator was properly decreed by the district court and the appellate court as gross negligence.

Plaintiff observed no burning flares, reflectors or any other type of warning device situated at or near the location of the truck. The semi-trailer was barrel shaped and commonly known as a “cane trailer”. The rear thereof slanted outward and upward causing its lower portion to be recessed several feet. It was covered with dirt and dust. Plaintiff alleged that the said truck had been left on the highway without any lights of any kind burning thereon.

Plaintiff was traveling in his proper lane of travel and contends that upon approaching opposite oncoming traffic he switched his headlights from “bright” to “dim” and decreased the speed of his automobile, and that the headlights of the opposing automobile were switched from “dim” to “bright” an instant before the collision, temporarily blinding him and totally obscuring the presence of the truck parked in his lane of travel. Plaintiff contended that he had no notice or warning of the presence of said truck on the highway and therefore had no' opportunity whatsoever to avoid the collision.

In view of the various disputed contentions relative to the particular physical facts and circumstances surrounding the accident herein, as well as the invariable differences and inconsistencies found in the testimony of the witnesses as to their appreciation and comprehensions of said facts, we are acutely aware of the delay which expired between the date of the accident and the date of the trial of the issues presented herein. The record reveals that the accident occurred on November 15, 1952, the suit was filed June 9, 1953 and trial on the merits was begun on March 23, 1955.

In determining whether plaintiff was contributorily negligent in failing to observe a stationary vehicle obstructing the highway ahead, no hard and fast rule can be laid down, but the surrounding circumstances and facts bearing on this particular case necessarily must be considered. The duty to use reasonable care for the safety of others places the operator of a motor vehicle: under continuing duty to keep a proper lookout for other vehicles which may be properly parked along the road as required by-statute or dictated prudence. However, although it is the duty of a motorist to have-his car under such control that he can bring; his vehicle to a stop within his range of vision, the standard the law gives us to apply is that to be exercised by a reasonably prudent motorist under a given set of facts and. circumstances then prevailing and not that exercised by imaginary ideal motorists.

In the instant case, though several witnesses testified as to surrounding circumstances and physical evidence bearing on-, this particular accident prior and after thereto, there were only three persons at the scene of the accident at the time of its. occurrence, the plaintiff herein and Mr. & Mrs. Overton Boudreaux, occupants of the-oncoming vehicle which allegedly blinded, plaintiff.

Mr. Boudreaux, who was traveling easterly in his right lane of traffic and on approaching the parked truck, testified that he observed plaintiff’s car approaching the parked truck and almost simultaneously realized the impending collision. He further testified that when he saw plaintiff’s car approaching the parked truck plaintiff’s lights were on “dim”. However, he did not see plaintiff’s lights switch from bright to dim. He had no recollection whether his own lights were on bright or dim. He first noticed the parked truck when he was about 35 or 40 feet away from its front end. He was about 15 or 20 feet from the front end of the truck when plaintiff’s car collided therewith. He immediately brought his car to a stop on the shoulder of the highway to the rear of the collision and went to the assistance of plaintiff, whose car had jammed underneath the trailer. He was unyielding in his testimony that at the time of the accident the truck was parked without headlights or any other warning lights; that on reaching the scene of the accident to render aid to the plaintiff there were no clearance or tail lights on the trailer.

Mrs. Boudreaux testified that shortly after the accident she saw someone “turn on” the headlights of the truck. However, Mr. Boudreaux testified that he did not see the lights being turned on but realized that they had been turned on shortly after the accident.

Stephen Theriot, who had not witnessed the accident, testified that he was traveling westerly on his way to Erath; that shortly after leaving Delcambre he passed plaintiff who was then traveling at about 30-35 miles per hour; that on his reaching the parked truck he stopped behind the second of two vehicles which had stopped to the rear thereof; that when the two cars drove around the parked truck the second car knocked over the reflector which had been undoubtedly placed to the rear of the truck by its operator; that before he passed the truck, his brother-in-law, a passenger in his car, got out and replaced the reflector in a standing position; and thereafter he proceeded on his way. Theriot also testified that he did not observe any lights of any kind burning on the truck or trailer.

The State trooper who arrived at the scene of the accident about 45 minutes after its occurrence noticed a reflector to the rear end of the truck that had been demolished and a reflector in the front of the truck which had been placed approximately 100 feet from its front end. He found the front lights of the truck burning and the rear lights demolished. The testimony of the State trooper does not in any way establish that the lights were on or off the truck at the time of the accident, nor the condition of the reflectors, the reason thereof being his belated arrival at the scene.

Two other witnesses were apparently confused as to the particular accident in question. It appears that two cane trucks had been disabled and parked a short distance apart. One witness admitted that at the time of the trial he could not positively identify which truck was involved in the accident herein; that at the time he passed the defendant’s truck then parked on the highway, the accident herein had not occurred. His testimony, because of his confusion, is of little help to us, to say the least. The testimony of the other witness taken under deposition is hereinafter reviewed.

Both Lottery Winters and Joseph Guidry who picked up Winters from the site of his parked truck and took him to obtain a spare tire testified that reflectors were left at both ends of the parked truck and that its lights were “left burning”. We are not impressed with the evidence pertaining to the alleged condition of the truck when it was left on the highway unattended, but we are vitally concerned with the facts and circumstances surrounding and bearing on the scene at the moment of the accident. As previously observed, Mr. & Mrs. Boud-reaux, who approached the scene of this accident from the front end of the truck, testified that its headlights were not burning, which testimony corroborates the positive testimony of plaintiff that there were no warning lights which he would have observed had they been burning.

We are impressed with the highly significant fact that all of the witnesses who testified agreed that the truck which was covered with dust and mud was undiscernable in the roadway at night without warning lights until a motorist was within a few feet thereof.

Upon a close examination of the record we have no alternative but to conclude that the evidence overwhelmingly establishes that there were no lights or reflectors of any kind on the truck and trailer parked on the road such as to timely warn a motorist of its presence.

Defendants direct our attention to the deposition made by plaintiffs cousin, John J. Suire, while he was in the U. S. Armed Forces. In answer to interrogatories propounded, he testified that on the night of the accident herein, on his return trip to the army base where he was stationed, he followed closely behind plaintiff and saw him collide with the rear of the truck. Whereupon he applied the brakes o'f his vehicle and pulled into the left lane of traffic to pass both the automobile and truck, continuing onward to his destination without stopping to render assistance or aid, if needed. He explained this unconscionable failure on his part in that the sight of the accident made him nervous and thoughtless, and further because of the urgency of his duty to return to the army base where he was stationed without delay. Notwithstanding said urgency, he testified that he stopped to have a cup of coffee with his brother in Erath and was then informed that plaintiff had been involved in an accident. Though he witnessed the accident he neither commented thereon nor did he advise anyone that he had seen the accident in question until about a year thereafter.

The testimony of this witness is relied upon by defendants as discrediting the positive testimony of plaintiff that he was blinded by the bright lights on the oncoming Boudreaux car and that testimony of Mr. & Mrs. Boudreaux that no oncoming car had crossed in their lane of traffic to pass the accident. We do not place such weight or merit on this witness’ testimony for a reading of the complete deposition made by him reveals a remoteness and lack of positive or independent knowledge of the particular accident here involved so as not to affect the conclusions we have reached herein.

In the recent case of Vowell v. Manufacturers Casualty Insurance Co., 229 La. 798, 86 So.2d 909, 913, we considered the situation and circumstances surrounding an accident in which the operator of a pickup truck ran into the rear of a lumber truck parked on the highway; and under the facts and circumstances of that case we held that the plaintiff was free from contributory negligence, saying:

“Our rule that a motorist traveling on the public highways after dark or during a rainstorm, fog, or other abnormal condition, which prevents him seeing ahead, except imperfectly, and for a short time and distance, must guard against striking objects in the road with which he may be suddenly confronted, constitutes an exception to the general rule that a motorist may assume that the road is safe for travel even at night. But that exception to the general rule is itself subject to the exception that a motorist traveling by night is not charged with the duty of guarding against striking an unexpected or unusual obstruction, which he had no reason to anticipate he would encounter on the highway. Jacobs v. Jacobs, 141 La. 272, 74 So. 992, L.R.A. 1917F, 253; Kirk v. United Gas Public Service Co., 185 La. 580, 170 So. 1.”

See also the cases of Gaiennie v. Cooperative Produce Co., 196 La. 417, 199 So. 377 and Dodge v. Bituminous Casualty Corporation, 214 La. 1031, 39 So.2d 720.

We conclude that the .circumstances immediately surrounding the accident here under consideration, the height and color of the cane truck, its size and shape, the absence of lights thereon, the absence of a discernable flare or reflector, the absence of warning by anyone of the presence of the truck, the brightness of the headlights of the opposing oncoming car which blinded plaintiff, the moderate speed traveled by plaintiff prior to the accident and the fact that his lights were properly on dim reflecting downward and under the high trailer are all facts that lend themselves to a conclusion which exonerates the plaintiff, Irving C. Suire, from the charge of contributory negligence.

For the reasons assigned, the judgment of the Court of Appeal, First Circuit, is reversed, annulled and set aside, and it is •ordered that the judgment of the district court be reinstated and made the judgment ■of this Court. All costs of this proceeding ¡to be paid by defendants.


author: HAMLIN, Justice ad hoc. PONDER, Justice. HAMLIN, Justice ad Hoc PER CURIAM.

text:
    233 La. 600
    LOUISIANA-NEVADA TRANSIT COMPANY v. Rufus W. FONTENOT, Collector of Revenue, State of Louisiana.
    No. 42844.
    Supreme Court of Louisiana.
    Feb. 25, 1957.
    On Rehearing June 28, 1957.
    Further Rehearing Denied Oct. 8, 1957.
    Robert L. Roland, Levi A. Himes, Chapman L. Sanford, Baton Rouge, for appellant.
    Cook, Clark, Egan, Yancey & King, Shreveport, for appellee.
   HAMLIN, Justice ad hoc.

Defendant appeals from a judgment of the trial court ordering him to refund to plaintiff gas gathering taxes paid under protest.

The stipulated facts of record disclose that plaintiff is a natural gas company authorized to do business in Louisiana, and that it holds a certificate of convenience and necessity issued by the Federal Power Commission, which authorizes it to transmit and sell, in interstate commerce, gas received into its pipelines. Its main pipeline, 8 in., originates near the plant of Cotton Valley Operators’ Committee in Webster Parish, Louisiana, and terminates at Okay, Howard County, Arkansas, and its pipeline, 6 in., originating in the Haynesville Area of Claiborne Parish, Louisiana, joins the main pipeline south of Springhill in Webster Parish, Louisiana. Plaintiff does not produce any gas. It purchases gas in Louisiana from three leases in the Haynesville Area and from the plant of Cotton Valley Operators' Committee.

The gas from the Haynesville Area was taken after it had passed through plaintiff’s vendor's separator and into plaintiff’s meter. No liquid hydrocarbons were separated from this gas. The gas from the Cotton Valley Area was residue gas taken after plaintiff’s vendor had removed liquid hydrocarbons in commercial quantities. Water and impurities were removed after the gas had entered plaintiff’s dehydration units. Title to the gas passed to plaintiff as it entered plaintiff’s metering equipment near the gasoline plant.

This litigation involves the gas plaintiff purchased from the Cotton Valley Field and sold to markets in Arkansas.

The Collector of Revenue was of the opinion that since the tax event occurred prior to the interstate movement of the gas, plaintiff’s gathering of gas was a separate local business susceptible of taxation by the State. In paying the assessed taxes of $10,269.81, the plaintiff urged that the imposition was upon the taking of gas into interstate commerce, and it instituted the present suit for a refund.

The trial judge held that the Louisiana Gas Gathering Tax, LSA-R.S. 47:671 et seq., as assessed against plaintiff, infringed upon the Commerce Clause of the Federal Constitution, Article I, Sec. 8, Clause 3. In so holding, he relied on the cases of Michigan-Wisconsin Pipe Line Co. v. Calvert (Panhandle Eastern Pipe Line Co. v. Calvert), 347 U.S. 157, 74 S.Ct. 396, 98 L.Ed. 583, and United Fuel Gas Company v. Hallanan, 257 U.S. 277, 42 S.Ct. 105, 66 L.Ed. 234.

In the case of Michigan-Wisconsin Pipe Line Co. v. Calvert, supra (the latest expression of the United States Supreme Court on a tax as Herein involved) there was under consideration a Texas statute, Acts 1951, c. 402, similar to the one attacked in the instant case. There the appellants, two natural gas pipeline companies, purchased gas from Phillips Petroleum in Texas and shipped it through their own pipelines in interstate commerce without the State of Texas. Phillips installed gas meters in its pipes at the point where the gas flowed to appellants’ pipes. The State of Texas sought to impose a gas gathering tax, contending that the taking was the taxable incidence. The United States Supreme Court found the entire movement of the gas — from producing wells, through the Phillips gasoline plant, into the Michigan-Wisconsin pipelines, to consumers outside Texas — to be a steady and continuous flow. In disallowing the tax as being in violation of the Commerce Clause, it stated :

“ * * * ft is now -well settled that a tax imposed on a local activity related to interstate commerce is valid if, and only if, the local activity is not such an integral part of the interstate process, the flow of commerce, that it cannot realistically be separated from it. Memphis Natural Gas Co. v. Stone, 1948, 335 U.S. 80, 87, 68 S.Ct. 1475, 1478, 92 L.Ed. 1832, [1838]; Western Live Stock v. Bureau of Revenue, supra, 303 U.S. [250] at page 258, 58 S. Ct. [546] at page 550 [82 L.Ed. 823], And if a genuine separation of the taxed local activity from the interstate process is impossible, it is more likely that other states through which the commerce passes or into which it flows can with equal right impose a similar levy on the goods, with the net effect of prejudicing or unduly burdening commerce.
“The problem in this case is not whether the State could tax the actual gathering of all gas whether transmitted in interstate commerce or not, cf. Hope Natural Gas Co. v. Hall, [274 U.S. 284, 47 S.Ct. 639, 71 L.Ed. 1049], supra, hut whether here the State has ■delayed the incidence of the tax be-j-ond the step where production and processing have ceased and transmission in interstate commerce has begun. Cf. Utah Power & Light Co. v. Pfost, [286 U.S. 165, 52 S.Ct. 548, 76 L.Ed. 1038] supra. * * * ” [347 U.S. 157, 74 S.Ct. 401.]

We find the Michigan-Wisconsin Pipe Line Company case to be distinguishable from the present controversy.

In the instant case, Plaintiff owned the metering equipment, and title passed to it at the point of entrance to the metering ■equipment. This, we believe, was the taxable incidence. At that point the gas had not entered into interstate transportation. Since the taking of the gas by the Louisiana-Nevada Transit Company at the metering equipment did not become a part ■of interstate commerce, plaintiff was the first retainer of the gas, or gathered the •gas, and the assessment of the gas gathering tax (LSA-R.S. 47:671) was not viola-tive of the Commerce Qause.

The case of United Fuel Gas Company v. Hallanan, supra, involved a problem of transportation and is, therefore, not apposite.

For the reasons assigned, the judgment of the trial court is reversed and set aside, and it is now ordered that plaintiff’s demands be rejected.

McCALEB, J., concurs in the decree.

SIMON, J., absent.

On Rehearing.

PONDER, Justice.

The facts are succinctly set out in the opinion on original hearing and will not herein be reiterated.

We granted a rehearing to reconsider our ruling that the assessment of the gas gathering tax, LSA-R.S. 47:671, against the plaintiff natural gas company was not violative of the Commerce Clause. It was also called to our attention on application for rehearing that this court had overlooked the fact that in an agreed stipulation of facts it was stated that $5,582.60, which was paid by plaintiff in taxes should be refunded.

In argument counsel for the defendant concedes that if the facts herein are the same as those in the case of Michigan-Wisconsin Pipe Line Co. v. Calvert (Panhandle Eastern Pipe Line Co. v. Calvert), 347 U.S. 157, 74 S.Ct. 396, 98 L.Ed. 583, then the tax is not due but he argues that in those cases the “taking” into the pipelines of the plaintiffs therein was solely for interstate transmission, whereas in the present case it was stipulated that there was no way of determining how much of plaintiff’s gas would be sold in Louisiana and how much would be transported to Arkansas.

It is the contention of plaintiff that approximately J^ths of the gas was for in~ terstate transmission and for intrastate use and that under the decision in the Michigan-Wisconsin case and United Fuel Gas Company v. Hallanan, 257 U.S. 277, 42 S.Ct. 105, 66 L.Ed. 234, the assessment was violative of the Commerce Clause.

Although on original hearing we found the case of Michigan-Wisconsin, supra, to be distinguishable from the present controversy, this is doubtful in view of the following reasoning set forth in that case, viz.:

“* * * It is now well settled that a tax imposed on a local activity related to interstate commerce is valid if, and only if, the local activity is not such an integral part of the interstate process, the flow of commerce, that it cannot realistically be separated from it. Memphis Natural Gas Co. v. Stone, 1948, 335 U.S. 80, 87, 68 S.Ct. 1475, 92 L.Ed. 1832; Western Live Stock v. Bureau of Revenue, supra, 303 U.S. [250] at page 258, 58 S.Ct. [546] at page 550 [82 L.Ed. 823], And if a genuine separation of the taxed local activity from the interstate process is impossible, it is more likely that other states through which the commerce passes or into which it flows can with equal right impose a similar levy on the goods, with the net effect of prejudicing or unduly burdening commerce.
“The problem in this case is not whether the State could tax the actual gathering of all gas whether transmitted in interstate commerce or not, cf. Hope Natural Gas Co. v. Hall, [274 U.S. 284, 47 S.Ct. 639, 71 L.Ed. 1049] supra, but whether here the State has delayed the incidence of the tax beyond the step where production and processing have ceased and transmission in interstate commerce has begun. Cf. Utah Power & Light Co. v. Pfost, [286 U.S. 165, 52 S.Ct. 548, 76 L.Ed. 1038] supra. * *

It was admitted in the stipulation of facts that this litigation involves only that portion of the gas sold to markets in Arkansas. It is also admitted that plaintiff corporation holds a certificate of convenience and necessity issued by the Federal Power Commission authorizing it to transmit and sell in-interstate commerce gas received into its pipeline for such purpose, and that during the relevant period plaintiff sold 1,935,726 M.C.F. of gas purchased from its two Louisiana sources (Cotton Valley Operators’ Committee in Webster Parish and Haynes-ville Area of Claiborne Parish) of which 363,200 M.C.F. were sold to markets in Louisiana and 1,572,526 M.C.F. to markets in Arkansas. Plaintiff’s main pipeline is an eight-inch line (originating near the-plant of Cotton Valley Operators’ Committee in Webster Parish and .terminating at Okay, Howard County, Arkansas) some 80 miles in length of which approximately 14 miles lie in Louisiana and 66 miles lie in Arkansas. Plaintiff also has a six inch line, 17.15 miles in length, lying wholly in Louisiana which originates in the Haynesville Area of Claiborne Parish and joins the main pipeline South of Spring-hill in Webster Parish.

It was the holding of this court on original hearing that when the gas entered the metering equipment owned by plaintiff,, title passed to plaintiff and this was the taxable incidence. It was held that at this point the gas had not entered into-interstate transportation.

It is further admitted in the stipulation of facts that the gas market in Louisiana was commingled with the gas destined for markets in Arkansas.

Although in the Michigan-Wisconsin case the gas was put into the plaintiff’s pipeline solely for transmission in interstate commerce still the language used and the rationale therein fits the present case.

It is to be noted that the Michigan-Wisconsin case was consolidated with the case of Panhandle Eastern Pipe Line Co. v. Calvert and in the opinion it is set out in a foot-note that Panhandle makes sales in Texas to three small customers, rather than sending all of its gas outside the State as Michigan-Wisconsin did but the court said that Panhandle’s operations are not significantly different from those of Michigan-Wisconsin.

The Texas statute involved in the Michigan-Wisconsin case is admittedly the same as involved herein. The court (in interpreting the statute) at page 169 of 347 U.S. at page 402 of 74 S.Ct. said:

“But the tax here is not levied on the capture of production of the gas, but rather on its taking into interstate commerce after production, gathering and processing.”

Then follows:

“The State Appellate Court recognized that nothing was done to the gas at the point of ‘taking’; its form was not changed in any way; it merely continued its journey. However, the court thought that it would be unfair to base a decision on the fluid nature of natural gas, and that there was in fact a two-step process, taking and transmission, with interference in between found in title passing and processing. But the processing, on which this tax is not imposed, was done by Phillips and took place prior to the taxable event of ‘taking.’ As for the interference of title passing, appellees readily admit this levy was designed to avoid taxing the sale; and we think that, as a basis for finding a separate local activity, the incidence must be a more substantial economic factor than the movement of the gas from a local outlet of one owner into the connecting interstate pipeline of another. Such an aspect of interstate transportation cannot be ‘carve (d) out from what is an entire or integral economic process’, Nippert v. City of Richmond, supra, 327 U.S. [416] at page 423, 66 S.Ct. [586] at page 589 [90 L.Ed. 760], by legislative whimsy and segregated as a basis for the tax. The separation must be realistic.”

Then the court went on to state that the taking of the gas, is not so separate and distinct from interstate transportation as to support the tax and if Texas may impose this “first taking” tax measured by the total volumne of gas so taken, then Michigan and the other recipient states have at least equal right to tax the first taking or “unloading” from the pipeline of the same gas when it arrives for distribution and a burden would thereby be placed on interstate commerce in violation of the Commerce Clause.

The case of United Fuel Gas Company v. Hallanan, 257 U.S. 277, 42 S.Ct. 105, 66 L.Ed. 234 involved a tax on transportation of gas. The plaintiff gathered gas and purchased natural gas, mostly in West Virginia, and distributed it through its pipes which extend to or beyond the state line in various places and also connects with the pipes of other companies that extend beyond the State. The plaintiff in the year in question dealt with a total amount of 54,973,588 M cubic feet of which all but a little over a million M cubic feet was gathered in West Virginia. There were sold directly to consumers in West Virginia 11,590,656 M cubic feet; a little over 10,000,000 M cubic feet to consumers in other States and the remainder was sold to four connecting companies transported only in interstate commerce, the others dealt mostly with interstate sales some intrastate sales. In holding that the state tax could not be levied the court said:

“In short the great body of the gas starts for points outside the State and goes to them. That the necessities of business require a much smaller amount destined to points within the State to be carried undistinguished in the same pipes does not affect the character of the major transportation. Neither is the case as to the gas sold to the three companies changed by the fact that the plaintiff, as owner of the gas, and the purchasers after they receive it might change their minds before the gas leaves the State and that the precise proportions between local and outside deliveries may not have been fixed, although they seem to have been. The typical and actual course of events •marks the carriage of the greater part .as commerce among the States and •theoretical possibilities may be left out ■of account. There is no break, no period of deliberation, but a steady flow ■ending as contemplated from the beginning beyond the State line. Ohio R. Commission v. Worthington, 225 U.S. 101, 108, 32 S.Ct. 653, 56 L.Ed. 1004; United States v. Reading Co., 226 U.S. 324, 367, 33 S.Ct. 90, 57 L.Ed. 243; Western Union Telegraph Co. v. Foster, 247 U.S. 105, 113, 38 S.Ct. 438, 62 L.Ed. 1006, 1 A.L.R. 1278.”

On reconsideration we have arrived at the conclusion that the cases of Michigan-Wisconsin Pipe Line Co. v. Calvert (Panhandle Eastern Pipe Line Co. v. Calvert), supra; and United Fuel Gas Company v. Hallanan, supra, are controlling and that the tax imposed on the Arkansas sales would be violative of the Commerce Clause.

For the reasons assigned, the judgment of the lower court is affirmed. All legal costs to be paid by appellants.

HAMLIN, Justice ad hoc, dissents with written reasons.

HAMLIN, Justice ad Hoc

(dissenting on rehearing).

I respectfully dissent from the majority opinion for the reasons set forth in the original opinion of this Court, of which I was the author, and for the following additional reasons:

The United States Supreme Court in the cases of Michigan-Wisconsin Pipe Line Company v. Calvert (Panhandle Eastern Pipe Line Co. v. Calvert), 347 U.S. 157, 74 S.Ct. 396, 401, 98 L.Ed. 583, stated:

“ * * * the Court has therefore been forced to decide in many varied factual situations whether the application of a given state tax to a given aspect of interstate activity violates the Commerce Clause. * * * ” (Italics ours.)
And
“ * * * the incidence must be a more substantial economic factor than the movement of the gas from a local outlet of one owner into the connecting interstate pipeline of another. ‡ ifi

In the instant matter, plaintiff purchased the gas herein involved from the plant of Cotton Valley Operators’ Committee. Plaintiff contends that -^ths is fo<- interstate transmission and i/sth. for intrastate use. The gas is residue, liquid iiyurocar-bons having been removed in commercial quantities. Plaintiff owns its metering equipment, and title to the gas passes at the point of entrance to the metering equipment. It is at this point that the tax is assessed, and it is not imposed after the gas passes into plaintiff’s pipeline, which originates near the plant of Cotton Valley Operators’ Committee in Webster Parish, Louisiana, and terminates at Okay, Howard County, Arkansas.

I cannot help but believe that the metering equipment is more than a local outlet. In my opinion, the taking of the gas by the plaintiff was separate and distinct from interstate transportation and would support the tax.

The majority opinion relies in part on the case of United Fuel Gas Company v. Hallanan, 257 U.S. 277, 42 S.Ct. 105, 66 L.Ed. 234. This case involved a transportation tax and not a gas gathering tax as is herein involved. However, emphasis is laid upon the statement in that case to the effect that:

“ * * * the great body of the gas starts for points outside the State and goes to them. That the necessities of business require a much smaller amount destined to points within the State to be carried undistinguished in the same pipes does not affect the character of the major transportation. * * $ »r

I do not believe that 80% should be held to be “the great body of the gas” as set forth in the United Fuel Gas Company case, supra. I feel that the State of Louisiana should not be deprived of taxing the 20% employed in intrastate commerce. Twenty percent, when dealing with a large amount of money or an appreciable volume of gas, is of great significance.

For these reasons, and for the reasons assigned in the original opinion, I respectfully dissent.

On Further Application for Rehearing

PER CURIAM.

The appellant complains of that portion of the decree wherein it is stated: “All legal costs to be paid by appellants.”

When we stated in our decree that all legal costs are to be paid by appellant we did not intend to convey the idea that the appellant was to pay any costs that the law exempts it from paying.

There is no merit in the other questions raised in the application for rehearing.

      . LSA-R.S. 47:673:
      “ ‘Gathering gas’ means the first taking or the first retaining of possession of gas produced in Louisiana for transmission through a pipe line, after the severance of such gas, and after the passage of such gas through any separator, drip, trap or meter that may be located at or near the 'well. In the case of gas containing gasoline or liquid hydrocarbons that are removed or extracted in commercial quantities at a plant by scrubbing, absorption, compression, or any similar process, the term ‘gathering gas’ means the first taking or the first retaining of possession of such gas for transmission through a pipe line after such gas has passed through the outlet of such plant, provided that the license or tax hereby levied is not levied against or charged to any royalty interest of any lessor or vendee or assignee of such royalty interest.” (Act No. 11 of 1948)

      . “ ‘Gathering gas’ means the first taking or the first retaining of possession of gas produced in Louisiana for transmission through a pipe line, after the severance of such gas, and after the passage of such gas through any separator, drip, trap or meter that may be located at or near the 17611. In the case of gas containing gasoline or liquid hydrocarbons that are removed or extracted in commercial quantities at a plant by scrubbing, absorption, compression, or any similar process, the term ‘gathering gas’ means the first taking or the first retaining of possession of such gas for transmission through a pipe line after such gas has passed through the outlet of such plant, provided that the license or tax hereby levied is not levied against or charged to any royalty interest of any lessor or vendee or assignee of such royalty interest.” LSA-lt.S. 47:673, Act No. 11 of 1948.


author: FOURNET, Chief Justice.

text:
    233 La. 617
    W. F. TAYLOR, Jr., et al. v. Joe W. DUNN et al. W. F. TAYLOR, Jr., et al. v. Clyde R. MINOR, Jr., et al.
    No. 43166.
    Supreme Court of Louisiana.
    June 28, 1957.
    Rehearing Denied Oct. 8, 1957.

      Jackson, Smith, Mayer & Kennedy, Har-grove, Guyton, Van Hook and Hargrove, Shreveport, for defendants-appellants.
    Cook, Clark, Egan, Yancey & King, Shreveport, for plaintiffs-appellees.
   FOURNET, Chief Justice.

The plaintiffs, alleging that on October 31, 1936, W. F. Taylor Company, Inc., a Louisiana corporation domiciled at Shreveport and owner of Cedar Croft Plantation consisting of some 1,500 acres of land in Caddo Parish, sold the plantation to Clyde R. Minor, reserving in the sale an undivided half mineral interest, and that they, .the plaintiffs, as successors in title of W. F. Taylor Company, Inc., on October 1, 1946, granted an oil, gas and mineral lease covering their said half interest in favor of Atlas Oil and Refining Corporation, which commenced drilling operations on Cedar Croft Plantation on October 19, 1946, drilled with due diligence to a depth of approximately 3,000 feet and finally abandoned the well as a dry hole on November 4, 1946, and that said lease was still a valid and existing lease upon the property, filed two petitory actions against the present owners of Cedar Croft who, it’ is said, deny the existence and validity of petitioners’ mineral servitude. They prayed to he recognized the true and lawful owners of a mineral servitude affecting half of the minerals in and under and upon Cedar Croft Plantation, and for judgment quieting them in their possession and enjoyment of same.

For answer, similar in the two cases, the defendants averred that the drilling operations did not constitute a bona fide attempt to obtain production of minerals in paying quantities, but were merely an attempt to interrupt the running of prescription liberandi causa — which ten year prescription under provisions of the Civil Code of Louisiana was specially pleaded by the defendants. The Minors, further answering in the alternative, averred that a road which divides the plantation into two sections was the result of two dedications made by the W. F. Taylor Co., Inc. before the sale to Minor; that said dedications to public use “constituted transfers in fee simple to the strips of land described,” thus having the effect of dividing the servitude retained by W. F. Taylor Co., Inc., into two separate and distinct mineral servi-tudes, so that the drilling of the well on one portion of Cedar Croft did not have the effect of interrupting the ten year liberative prescription running against the mineral servitude affecting the other. Defendants in both cases prayed for trial by jury on the issues, and on joint motion of all parties the cases were ordered consolidated for purposes of trial and were set for June 7, 1956. On that date, when the cases were called, exception of non-joinder of indispensable parties was filed by each defendant group, as well as motions for a continuance; and these having been argued, submitted and overruled, trial on the merits was had, resulting in the jury’s verdict “for the plaintiffs and against the defendants, as prayed for.” Separate judgments were rendered in which the trial judge adopted the jury’s verdict, and accordingly the plaintiffs were recognized to be the true and lawful owners of half of the minerals in, under and to be produced from the therein described property, with the right of ingress and egress for proper development of same. The defendants have appealed, specifying as error the trial court’s (a) holding that drilling was conducted in good faith; (b) failure to recognize that two separate servitudes resulted from the reservation by W. F. Taylor Co.; (c) overruling of defendants’ Exceptions of Non-joinder of Indispensable Parties; (d) failure to grant their Motion for a Continuance; and (e) exclusion of certain testimony offered by defendants.

The appellants, in support of their contention that the drilling operations were not conducted in good faith, argue that those operations were carried on under the direction of a Special Committee which had been set up by Atlas Oil and Refining Corporation solely for the purpose of spending some three-quarters of a million dollars to avoid the payment of excess profits taxes, and were undertaken without regard to the prospects of discovering minerals in paying quantities; as proof thereof, defendants claim that the record shows the only lease acquired by Atlas Oil and Refining Corporation in the area around the plantation, although supposedly an area approved by the Committee as suitable for development purposes, was the lease of Cedar Croft itself — covering, however, only an undivided half interest in the minerals; the drill site, although first located on the west side of the highway, on the smaller portion of the plantation, was moved, without explanation, over to the very much larger east side, and located on the extreme northern edge of the property, offset on three sides by unleased acreage; that drilling operations were begun nineteen days after execution of the lease, and only twelve days before the servitude would have expired; that numerous wells had previously been drilled in the surrounding area to a depth sufficient to test the horizon to which this well was completed, and Atlas-Minor No. 1 well was surrounded by numerous dry holes, nothing having been found in any of those wells which would give hope or encouragement in the selection of that location.

Defendants’ argument that “drilling operations under a lease covering only an undivided mineral interest do not constitute sufficient use of the servitude to interrupt prescription” is clearly without merit. Huckabay v. Texas Company, 227 La. 191, 78 So.2d 829. In that case we held that the lessee of fractional mineral rights had an absolute right to go upon and develop the property, independent of the holder of the remaining fractional mineral interest, “the only limitation being that if minerals are found, the finder is entitled to take only his share; * * 227 La. at page 197, 78 So.2d at page 831.

We think a fair appraisal of the evidence does not support appellants’ contention of lack of good faith on the part of Atlas Oil & Refining Corporation in the drilling of the well; on the contrary, we think the evidence is most convincing that these operations were conducted in good faith, and fully warranted the jury’s verdict for the plaintiffs. It is shown that it was common practice among oil companies, when they had enjoyed a profitable and successful year, to undertake a search for oil reserves, devoting to the project money which would otherwise have to be paid to the government as excess profits taxes; that in the year 1946 Atlas Oil and Refining Corporation, having profits of some three quarters of a million dollars, decided to spend the amount in developing fields for oil and gas. The so-called Paluxy sands occur in the general area of North Louisiana with which we are here concerned, being found at a depth of from 2,500 to 3,000 feet, and Paluxy was a known producing horizon, so an exploratory program to discover reserves of oil and gas in the Paluxy sands was started by Atlas. To implement the program it secured the services of several men respected and experienced in the oil business, men outstanding in their professions of geologist or independent oil producer. These men composed a Special Committee which met at regular intervals, and on the basis of geological surveys would designate an area as showing promise for development, whereupon leases would be obtained, drilling contracts would be let, a site would be chosen and actual drilling would proceed.

The record also discloses that in developing the program, Atlas drilled or participated in drilling about thirty wells, these being located all over North Louisiana, some in Texas and some in Mississippi; a total of three wells were drilled in the Greenwood area, of which Atlas-Minor No. 1 was one, all having been drilled to a depth sufficient to test the Paluxy formation. While there was no way to determine before the well was drilled whether the Paluxy sands were present, or, if present, whether they would be productive, since the sands come and go (yet trap the oil in pockets), nevertheless when the drilling of Atlas-Minor No. 1 was undertaken it was thought there was a good possibility of obtaining production in commercial quantities in the Paluxy zone because there had been found oil and gas in that zone northeast of the town of Greenwood, the Paluxy was a known producing area both north and south of the location in which this well was drilled, and the Paluxy sands were the nearest productive sands when Atlas Minor No. 1 was drilled in 1946.

Defendants’ claim that two separate servitudes resulted from the mineral reservation by W. F. Taylor Co. because of the fact that Cedar Croft was at the time traversed by a highway, and the effect of the dedications of that strip of land was to transfer title, so that even if it should be held that the drilling of the well on one section of the plantation interrupted prescription, the servitude has become extinguished as to the other section, is not supported by the two instruments creating such roadway. The first, dated May IS, 1917, was a dedication by Mr. W. F. Taylor to the public use for a public road of “A right of way sixty feet wide,” following a certain center line of the then proposed highway “as has been surveyed through Sec. 34 and Sec. 35, T. 17, R. 16;” the other instrument, dated December 9, 1929, signed W. F. Taylor Co., Inc., by its President, F. H. Ford, merely widened the strip to one hundred feet, which “strip includes the right of way now used as a public highway.” The jurisprudence is well settled that the instrument as a whole must be considered in arriving at what was meant in the dedication, and that unless the deed itself evidences that the parties intended otherwise, the conveyance of a right of way is the grant of a servitude and not a transfer of title to the land. See Texas & Pac. Ry. Co. v. Ellerbe, 199 La. 489, 492, 6 So.2d 556, and cases there cited.

The defendants’ exception of non-joinder of indispensable parties is based on the legal presumption obtaining under our Civil Law that property acquired in the name of either spouse during the existence of the community belongs to the community, and that therefore the rights acquired by the children of W. F. Taylor in the mineral servitude at issue here, regardless of the recitation of a purchase with separate and paraphernal funds, were acquired (it is said) for the benefit of and became assets of the respective communities of acquets and gains then existing between plaintiffs and their respective spouses; and that therefore Charles D. Evans, if he be alive, or, if not alive, then his heirs or legatees, and Frank H. Ford are indispensable parties to this suit. And, as to W. F. Taylor, Jr., it is their contention that unless it be affirmatively shown there has been no change in his marital status in the interval between the date of the transfer of the servitude and the present, then Gertrude Cox is also an indispensable party.

It is elementary that every party who may be affected by a decree must be made a party to a suit, because no one should be condemned without a hearing. Heirs of Burney v. Ludeling, 41 La.Ann. 627, 6 So. 248; Succession of Todd, 165 La. 453, 115 So. 653; Commercial Nat. Bank in Shreveport v. Haas, 182 La. 504, 162 So. 57; Jamison v. Superior Oil Co., 220 La. 923, 57 So.2d 896. Under the laws of this State, all property acquired during the existence of the marriage, whether purchased in the name of the husband or the wife, is presumed to be community property (Article 2402, Louisiana Civil Code), and the jurisprudence holds that the presumption is not overcome by a mere declaration of the spouses in a deed to the wife that the latter is purchasing with her separate and paraphernal funds, under her separate administration; that “the wife, * * * to overcome the presumption in favor of the community, must establish three crucial facts, namely: (1) The para-phernality of the funds; (2) the administration thereof separately and apart from her husband; and (3) investment by her.” Houghton v. Hall, 177 La. 237, 244, 148 So. 37, 39; Johnson v. Johnson, 213 La. 1092, 36 So.2d 396; Succession of Lejeune, 221 La. 437, 59 So.2d 446; Stevens v. Johnson, 230 La. 101, 87 So.2d 743. The husband, as head and master of the community of acquets and gains (Article 2404, Louisiana Civil Code), is the proper party to prosecute its rights and defend its interests, and the wife alone can neither prosecute such a claim nor defend an action against the community and stand in judgment to bind it.

Inasmuch as the record shows that the wife of William F. Taylor, Jr., is still living with him in community, she is clearly not a necessary party to this suit. With respect to Frank H. Ford and Charles D. Evans, however, the situation is different, and the point is well taken. While the record lends the impression that the subject property was actually paraphernal, yet as the purchasers of the assets of W. F. Taylor Company, Inc., assumed the debts of that company, in the absence of a showing that either Mrs. Ford or Mrs. Evans had separate funds with which to pay their share of such debts, if there were any, or that they did pay debts under their obligation with separate funds rather than community funds, and as it is not clear the time and manner of acquisition of the stock of W. F. Taylor Co., Inc., given in consideration of their respective purchases, it necessarily follows that the presumption that the property acquired in the deeds was community .property has not been overcome, Under such circumstances Mrs. Ford can neither prosecute nor stand in judgment for the community without Frank H. Ford joining her or being made a party to this suit. The fact that he executed the deeds in his capacity as Liquidator of W. F. Taylor Company, Inc., and that he testified in court disclaiming any interest in the property, cannot be the basis of an estoppel by which his forced heirs would be concluded. Louisiana Civil Code, Article 2239; Houghton v. Hall, supra, 177 La. at page 258, 148 So. at page 43, and authorities there cited. And inasmuch as the record shows that Mr. Evans died subsequent to the acquisition of the mineral servitude at issue, his widow, as the surviving widow in community, can prosecute her claim, defend the same and stand in judgment only to the extent of her half of the community interest; as to the other half it will be necessary (in the absence of a showing that the property was in fact paraphernal) to determine who are the heirs or successors of Mr. Evans, so that they may be made parties.

The defendants, anticipating that “the absence of indispensable parties may cause this case to be remanded”, argue that their motion for a continuance should have been granted to permit them an opportunity to “attempt to locate certain missing minutes of its [Atlas’] Exploration and Development Committee to see whether they threw any light on the question of whether this well was a good faith attempt to find production in paying quantities;” also, that two witnesses offered by the defendants, being the owners of land adjoining Cedar Croft Plantation, “should have been permitted to testify fully with respect to the fact that their land was un-leased and no attempt was made to lease their land, so that this testimony would be available to the jury in its deliberations.” There is no merit in either point. The defendants could make no showing that the minutes they seek are in existence, or as to their contents; defendants did show a diligent effort in the several months preceding trial to unearth all minutes kept by the Committee, and we are impressed with the fact that the data which they did find indicated a completely honest and aboveboard course of conduct on the part of the Special Committee. The testimony of the ownei's of lands adjoining Cedar Croft, for the purpose introduced, was immaterial to the issue here.

As previously stated, from the record it appears very probable that this property is the separate property of these plaintiffs. We have therefore concluded to remand the case to the lower court for the purpose of determining the paraphernality of the interest involved. Following a hearing, should the trial judge conclude that the property is the separate property of the plaintiffs, then he is to reinstate his former judgments; and if the property is found to be community property, then he is to grant a new trial in order that all necessary parties may be joined.

For tjhe reasons assigned, the judgments of the jlower court are annulled and set aside ahd the cases are remanded to the ! lower court for further pi-oceedings in accordance with law and not inconsistent with the views herein expressed; costs of this appeal are to be borne by the appellees; all further costs to await the final determination of this cause.

      . William F. Taylor, Jr., Mrs. Nell Taylor Boggs, widow of W. Kyle Boggs, and Mrs. Amanda Taylor Ford, wife of Frank H. Ford.

      . On December 30, 1936, the W. F. Taylor Company, Ine., acting through Frank H. Ford, its duly qualified Liquidator, transferred and conveyed all of the assets formerly owned by the said Company to Mrs. Genevieve Gray Taylor, widow of W. F. Taylor, and to the Taylor children, Mrs. Nell Taylor Evans (who later became Mrs. Boggs), Mrs. Amanda Taylor Ford and William F. Taylor, Jr., in the proportion of one-half to the widow and one-sixth to each of the children. Upon the death of Mrs. Genevieve Gray Taylor, which occurred shortly thereafter, her above-named children, as sole heirs, were recognized and sent into possession as owners, in equal proportions, of her property, including her interest in the servitude at issue in this suit.

      .In the first suit, filed May 13, 1955, the named defendants were Joe W. Dunn, Jack R. Dunn and Eugene F. Dunn; ip the second suit, filed March 8, 1956, those made defendants were the heirs of Clyde R. Minor, deceased, namely, his widow, Mrs. Audrey N. Minor, and Clyde R. Minor, Jr. and Edwin C. Minor. Plaintiffs concede that the Dunns own title to part of the plantation and that the Minors (Mrs. Minor actually resides at Cedar Croft) own such part as is ndt owned by the Dunns; and that title to the mineral interest not claimed by them, the plaintiffs, is in the various named defendants.

      . The first dedication, made by instrument dated May 15, 1917, granted “A right of way 60 feet wide, 30 feet on each side of the center line of the proposed Greenwood-Bethany Road;” the second, by instrument dated December 9, 1929, widened the strip to 100 feet. The road forms part of Louisiana State Highway No. 203 and U. S. Highway No. 79.

      . The record reveals that the interest of the plaintiffs herein was acquired by virtue of two instruments; in the first, by notarial act dated December 30, 1936, Frank H. Ford, appearing in his capacity as Liquidator of W. F. Taylor Company Inc., acting pursuant to authority granted to him by consent of the stockholders and duly recorded in the Conveyance Records of Caddo Parish and with the Secretary of State, bargained, sold, conveyed and delivered, unto the widow of W. F. Taylor and his three children, Mrs. Nell Taylor Evans, wife of Charles D. Evans, Mrs. Amanda Taylor Ford, wife of Frank H. Ford, and William F. Taylor Jr., whose wife is Gertrude Cox, all spouses living in full community, various described tracts of real property, as well as “all of the assets of whatsoever kind and wheresoever situated * * * formerly owned by W. F. Taylor Company, Inc.” The transfer was made “in consideration of the delivery and cancellation by the purchasers' of all of the stock of W. F. Taylor Company, Inc., and the assump-sit by the vendees of the outstanding liabilities of W. F. Taylor Company, Inc., such assumpsit being made by the vendees in the ratio which their interest in the property herein acquired bears to the whole property; that is to say, one-half is assumed by Mrs. W. F. Taylor and one-sixth (%) each by the other three vendees.” That instrument was signed only by Frank H. Ford as Liquidator— none of the vendees having signed. Upon discovery that the mineral servitude at issue here had not been included in the properties described in the above instrument, a second notarial act was executed to remedy the oversight; dated April 30, 1937, it conveyed the mineral interest to the same parties in the same proportions as the former deed, the purchase being with paraphernal funds and the consideration being that expressed in the former deed. This instrument was signed by Frank H. Ford as Liquidator, by Mrs. Taylor and the three Taylor children, plaintiffs here, but not by their respective spouses either as parties or as witnesses.

      . Atlas Oil and Refining Corporation is now hefunct and its files have been removed to another State.