author: HAMLIN, Justice ad hoc. McCALEB, Justice

text:
    233 La. 636
    STATE of Louisiana ex rel. Chester A. BRODE v. Embry HATCHER.
    No. 43381.
    Supreme Court of Louisiana.
    June 28, 1957.
    ¡Rehearing Denied Oct. 8, 1957.

      Obier & Middleton, Plaquemi-ne, for relator and appellant.
    Ponder & Ponder, Amite, for respondents-appellees.
   HAMLIN, Justice ad hoc.

This matter involves a controversy over the custody of the minor, Emmie Sue Brode, born in 1946 of the union of Chester A. Brode and Mamie Sue Hatcher Brode, whose marital domicile was at Plaquemine, Louisiana, Iberville Parish.

Mrs. Brode died on April 5, 1956, from a lingering illness of cancer. Prior to her death, she was confined for approximately a year in a hospital in Clinton, Louisiana, the home of her family. Relator gave his consent for Emmie Sue to accompany her mother and be near her bedside during her last illness. During this time, Mrs. Brode’s brothers and stepmother, who were devoted to her, cared for Emmie Sue, enrolling her in school and looking after her personal necessities.

Relator visited his wife at intervals during her last illness, although the record reflects that their marital life had not been peaceful due to constant conflicts between Mrs. Brode and Mr. Brode’s sister, Miss Ollie Brode, who resided with them.

After his wife’s funeral, Mr. BiWe acceded to Monroe Hatcher’s requést that Emmie Sue remain a few days in Clinton with the Hatcher family. On April 8, 1956, he further consented to permit Emmie Sue to remain in Clinton to complete the school term. The Hatchers then refused to release Emmie Sue to him.

Relator filed habeas corpus proceedings against Monroe Hatcher and Mrs. Embry Hatcher in June, 1956, alleging that they were detaining his child against his will and wishes. Monroe Hatcher filed an exception of misjoinder of defendants, averring that Emmie Sue Brode was in the custody, control, and under the supervision of her maternal uncle, Embry Hatch-er. Mrs. Embry Hatcher filed an exception of no right or cause of action. Relator then filed a second petition, naming Embry Hatcher as defendant and praying that Embry Hatcher be ordered to release and deliver Emmie Sue Brode to him. Hearing was set for August 8, 1956. The defendant filed an answer on that day, the most cogent averments being:

“ * *■ * ,-relator is advanced in years and- unable to properly attend to himself much less a small girl, that relator’s home is not a fit place to raise a child and especially a young girl ten years of age.”
“ * * * relator has a sister living with him who is not a proper person to rear a small girl, that Emmie Sue Brode is definitely afraid of her, that she is a dangerous person with whom to leave a child because of her many peculiarities and idiosyncrasies. Further that this sister is in need of a caretaker and has even gone to the extent of threatening to kill Emmie Sue which upset her violently and has instilled in her a constant fear and dread of such eventuality.”
“ * * * while Emmie Sue was kept by relator and his sister, that she was not properly bathed, nor properly clothed and not properly fed and as a result thereof, was not receiving the proper attention a minor girl should receive, which was detrimental to her health and physical well being.
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“ * * * relator, because of his age, infirmities, actions and unrestrained temper, needs someone to care for him and consequently is unable to care for or rear a ten year old girl.”

After hearing, the trial judge recalled the writ of habeas corpus previously issued and dismissed relator’s suit. In his reasons for judgment, he stated:

“There was evidence brought out in this trial that Aunt Ollie — on one side they said that Aunt Ollie was crazy, ■ that she was incapable of handling and treating the child. And on the testimony offered by the people of Plaque-mine, substantial citizens, they testified that Aunt Ollie was eccentric and has peculiarities, and that she was no society belle but she was a substantial citizen. The Court was definitely impressed with the fact that Aunt Ollie was not in Court. That Aunt Ollie was not here to fight for her niece. That Aunt Ollie was not here to testify. And the counsel for Mr. Hatcher motioned for the Court or entered a plea before the Court of sending down and getting Aunt Ollie to testify but he gave up the idea for some reason. It was hardly practical because the trial was well along its way before this motion was made. There was evidence offered here that Aunt Ollie had threatened this child for playing with other children. There was testimony and evidence to the effect that she had at one time told this child, ‘I’ll kill you if you play with those children again.’ Counsel for Mr. Brode explained that by saying that any parent will remonstrate with their children, ‘I’ll beat the hide off you,’ or ‘I’ll wring your neck,’ or various and sundry terms of that nature. The Court understands that, but it is hard for the Court to understand a grown person telling a child, ‘I’ll kill you.’ * * * The Court makes a distinguishment from that and, ‘I’ll kill you.’ I think that when she said, ‘I’ll kill you’ the child already feared her aunt and it made a very severe impression upon her young memory. * * * The father under the law has paramount right to his child and heretofore the cases have been almost down the line that parents have absolute right, paramount right to the custody of his child, their child. Mr. Brode is an elderly man. Mr. Brode is a bachelor. Mr. Brode has to attend to his business activities. Mr. Brode has not attempted to • see his child since it has been up here. Mr. Brode has not written the child but two or three or four letters since it has been here. The Court knows, and Mr. Brode knew, and I told Mr. Brode that he could see and visit with his child any time that he wanted to. That he had a right to. The Court would see that he had the right, yet this has not been done. I believe according to some of the modern cases, some of the modern decisions rendered by the State Supreme Court that they have a tendency to overrule this paramount right of a parent to a child. They seem to look to the welfare and the happiness of the child. * * * I do believe Emmie Sue Brode is happy in her home, her present home. She is going to school here. She’s making good grades. She is getting the love and care that a child of her nature needs. I believe that her welfare — though it may be a drastic decision — even though I may be overruled by the Supreme Court — I believe the welfare of the child is better off where she is at present. * *

Relator has appealed to this court, alleging that the trial court erred in reaching the following conclusions:

1. That a parent does not have the paramount right of the custody of his or her child.

2. That because Mr. Brode is engaged in business, he is not the proper person to raise his own child.

3. That because a small child preferred to remain with her uncle and aunt, the father should be deprived of her custody.

4. That Emmie Sue feared Miss Ollie Brode, sister of relator.

5. That Miss Ollie Brode, who was not a party to this suit and was not advised that she would be made an issue, should have been in court.

We agree with the trial judge that in a case of this'’kind, involving the custody of a child, someone will be very badly hurt. However, our jurisprudence is well settled that:

“ * * * the courts are not authorized to interfere with a parent’s authority over his or her children, except if the court is satisfied that he, or she, Will neglect them, or expose them to improper influences, in which case the paramount interest which society has in seeing to it that they be well taken care of and properly brought up would justify the court in making some other disposition of them. Ex parte Lincoln, 128 La. 278, 54 So. 818; State ex rel. Martin v. Talbot, 161 La. 192, 108 So. 411; State ex rel. Bethany v. Corley, 172 La. 266, 134 So. 87, and the burden is on those resisting the parent’s right to show his or her disqualification or unfitness to have the custody of the child. State ex rel. Burleigh v. Savoie, 185 La. 985, 171 So. 98; State ex rel. Perdue v. Carkuff, 182 La. 920, 162 So. 729; Heitkamp v. Ragan, 142 La. 81, 76 So. 247. * * *” State ex rel. Martin v. Garza, 217 La. 532, 46 So.2d. 760, 762. (Emphasis ours.)

In Heitkamp v. Ragan, 142 La. 81, 76 So. 247, we clearly stated:

“The law clearly makes it the privilege and the duty of the father to rear and provide for his children; and, on the death of either spouse the tutorship of the minor children belongs of right to the surviving father or mother. C.C. 250. The child remains subject to the control of its parents, or the surviving parent, until his or her majority or emancipation. C.C. 216. And the right of appointing a tutor, whether a relation or a stranger, belongs .exclusively to the father or mother dying last. C.C. 257.”

We reiterate that which we have held on many occasions — ordinarily, parents have the natural and legal right to the custody and care of their minor children. Therefore, it follows that relator does have the paramount right to the custody of his minor child, Emmie Sue. However, his right in this respect is not unquestionable. State ex rel. Conerly v. Sonier, 209 La. 138, 24 So.2d 290.

“ * * * We have consistently held that, although parents have a paramount right to the custody of their minor child, this right is not an absolute one and must yield to the superior right of the State to deprive a parent of the custody of his child if the best interest and welfare of the child require it. State ex rel. Guinn v. Watson, 210 La. 265, 26 So.2d 740; State ex rel. Graham v. Garrard, 213 La. 318, 34 So.2d 792, and cases therein cited; State ex rel. Mouton v. Williams, 222 La. 457, 62 So.2d 641. In State ex rel. Harris v. McCall, 184 La. 1036, 168 So. 291, 292, this court said:
“ ‘Although parents have a natural right to the custody of their children, nevertheless the state has an interest in children which goes beyond the mere parental right. In all cases involving their custody, the welfare of the children must be considered, and should prevail over the mere parental right to their possession. * * * ’ ” State ex rel. Deason v. McWilliams, 227 La. 957, 81 So.2d 8,9.

Relator was seventy-two years of age at the time of trial in 1956. The record discloses that he owns property and receives an adequate income to support his daughter. He lives in a comfortable home, which was renovated through the efforts of his deceased wife. Five witnesses testified as to his good character and business ability. Frank C. Grosch, a building contractor and owner of a Western Auto Store, testified that relator attended Sunday School and in the past had brought his daughter with him. Sheriff C. A. Griffon of Iberville Parish testified that relator was a fit person to raise his own child. Nowhere in the voluminous testimony of the defendant’s witnesses do we find any evidence that would lead us to a conclusion that relator is not a good man. There is evidence in the record that he became excited during one of the hearings in this matter and used the words, “God-damned liar”, but we do not believe that this is sufficient to hold that he is not a good father. However, relator himself testified that he was engaged in business which necessitated his being out of his home at times. He said that his sister, Miss Ollie Brode, lived with him and that her mental condition was good. Hé denied that she had ever threatened his child.

Mrs. Zack Hatcher, stepmother of the deceased Mrs. Brode, testified as follows •

“Q. What would you say with regard to the mental condition of Miss Ollie Brode — would you think she was mentally competent to raise a child? A. I certainly do not, and she is afflicted. I wouldn’t hold a thing she does or says against her, because she is an afflicted person, and handicapped. Her brother sat in my living room when his wife was desperately ill and when she was a corpse, and said — he was enumerating the troubles he had had in his lifetime — and he said, ‘My sister had an accident when she was 11 years old that ruined her life — ruined her life.’ And Mrs. Embry Hatcher was sitting there too.
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“Q. Do you think she is competent of taking care of that child and state your reasons. A. Well, as I said, I think she is an afflicted person because of the accident. I believe that. And he had told me himself that she had an accident that had ruined her life. Anyone can see. I taught school for 21 years — I studied psychology, and I have had occasions to judge people— many times — and I know that mentally normal people — who are mentally normal people and who are not.
“Q. Do you think she has the mental competency to care for his daughter or any other child? A. No, I do not. She would not keep her clean. She would not give her the proper food. Her appearance is not good. She herself is untidy.”

Mrs. Zack Hatcher’s testimony is somewhat corroborated by some of the witnesses for the defendant, and we are confronted with the question of whether Emmie Sue will be exposed to improper influences. State ex rel. Martin v. Garza, supra; Ex parte Lincoln, 128 La. 278, 54 So. 818.

Plaintiff’s witnesses testified that Miss Ollie was a down to earth woman, and Sheriff C. A. Griffon testified that she was normal. However, they did not testify as to her ability to raise a child of such tender years as the minor herein involved. Relator made no statement as to his plans for the physical and moral upbringing of his child, and he repeatedly referred to the fact that his sister (Miss Ollie) had assisted in raising Emmie Sue during the time she was at home with him. We infer from his testimony that his sister would continue to exercise some control over his daughter.

The trial judge and counsel for relator and counsel for defendant met in the judge’s chambers and questioned Emmie Sue. The court’s report is as follows:

“The Court: I will dictate this into the record, our conversation with Emma Sue Brode. If I make an error,' please correct me and if you have anything to add to it, I certainly will let you add to it. The Court interrogated Emma Sue Brode relative to where she was living now with her aunt and uncle, Mr. and Mrs. Embry Hatcher. She said that she was happy there; she loved Uncle Embry; she loved Aunt Edna; that she liked to live here better than in Plaquemine. The Court further interrogated her as to whether the above mentioned Uncle and Aunt were kind to her and she said that they were very kind to her. She said, also, that her grandmother, Mrs. Alice Hatcher, was very kind to her and she loves all of them. The Court interrogated her relative to her father, Mr. Brode, and she said that she loved her father; that he was kind to her, but she still contended that she would rather live here. The Court interrogated her relative to her Aunt Ollie and she said, I believe, that she loved her Aunt Ollie — is that correct, Mr. Ponder ?
“Mr. Ponder: Yes.
“The Court: But, upon further questioning, she seemed to resent Aunt Ollie because Aunt Ollie and her mother, Mrs. Mamie Sue Hatcher Brode, did not get along. Mr. Obier questioned her and she said that her father was kind to her; that her father took her to Sunday School, but only just before her mother became sick; that her mother took her to Sunday School until she was able to go alone and then her mother had to stay and take care of the restaurant while she went to Sunday School. She said in answer to Mr. Obier’s questioning that her father was kind to her. She said that her Aunt Ollie never combed her hair and they would not let her father comb her hair because he would almost pull it out. However, she said that you certainly didn’t mean to, Mr. Brode. And, she testified to Mr. Ponder’s questioning that she loved her Aunt and Uncle and her Grandmother and that she made about the same grades here as she did in Plaquemine, but that she considered this school a little bit harder than Plaquemine or was it vice versa?
"Mr. Ponder: I think it was vice versa because they didn’t have the study period here and they did in Plaquemine. That made it a little harder.
“The Court: * * * She also said, on Mr. Obier’s questioning, that her Aunt would lay down with her at night —that Aunt Ollie would lay down with her. But, she seemed to indicate and she stated that she never asked her Aunt to lay down with her unless she was scared of the dark. The Court questioned her relative to whether Mr. or Mrs. Embry Hatcher had coached her as to what to say. She said that they had not told her what to say to me or to anyone else. Now, the Court stated to her that this was her life that she had to live it, and was she sure that she definitely wanted to live up here with her Aunt and Uncle when she had a right to go back to her Father, if she wanted to. She said that she still wanted to live with her aunt and uncle. She indicated, and if I am wrong in this we will strike it, that she was somewhat happier here than she was down there, but she was very plain that her father was always very kind to her and that she loved him. If I have left out any essential element, will you please add to it?
“Mr. Ponder: There is one thing, Judge. I don’t know if I asked her or if you asked her. Had Aunt Ollie made any threats to her and she said that one time she—
“The Court: Yes. I will state that. Mr. Ponder questioned her as to whether her Aunt Ollie had ever threatened her and she said that on one occasion she had threatened to kill her for playing with some children. Then, Mr. Obier questioned her relative to the children — -The Court asked her would she let her play with children and she said yes she would let her play with other children but that she would always complain and fuss about it after the children left.
“Mr. Obier: I didn’t get that impression.
“The Court: Did you, Mr. Ponder ?
“Mr. Ponder: That was my understanding.
“The Court: Well, we could strike it from the record, if you don’t want it in there. That is the impression that I got, that her aunt would fuss after — ■ after the children, but I asked her would she let children come to her home and play and she said yes but that she would fuss about it after they left. You didn’t get it that way, Mr. Obier?
“Mr. Obier: I didn’t understand it that way.
“The Court: Did you, Mr. Ponder?
“Mr. Ponder: My impression was just like you gave it — on that one occasion where she said she would kill her for playing with children—
“Mr. Obier: Some particular children, wasn’t it?
“Mr. Ponder: Some particular children. Then, on this .other occasion when the Court and Mr. Obier asked if she was allowed to play with children and she said yes but that Aunt Ollie always fussed.
“The Court: Well, that was about the way it was. Do you agree on that Mr. Obier?
“Mr. Obier: I understood that Aunt Ollie would fuss at her mother for not being at home.
“The Court: Well, do you gentlemen agree that that about covers the situation ?
“Mr. Obier: That is about it.
“Mr Ponder: That is a whole lot better than I could have done, Judge.
“The Court: I did the best I could.”

Since the right of the State is superior to that of the parent, and since we have not had the benefit of Miss Ollie’s testimony, we feel that it would be detrimental to Emmie Sue’s welfare to order her returned to her father without a legal determination of Miss Ollie’s qualifications, if Miss Ollie is to take care of her. Therefore, we think that the trial court should have the fight to observe and question Miss Ollie. On the other hand, if Miss Ollie is not to take care of Emmie Sue, it should be shown by relator what arrangements he intends to make for her care.

Under the circumstances of this case, we agree with relator that the trial court was in error regarding Miss Ollie’s absence on the day of hearing of the habeas corpus proceeding. Hearing was set for and took place on August 8, 1956, and the defendant filed his answer on that day. It was in his answer that defendant attacked the ability of Miss Ollie to take care of Emmie Sue. As stated in State ex rel. Martin v. Garza, supra, the burden of proof is on those resisting the parent’s qualifications and fitness. Here, the burden was on the defendant. This is not the type of case where a presumption should be asserted against relator for not producing his sister as a witness. We also find that during the trial of the proceeding, counsel for the defendant requested an instanter subpoena for Miss Ollie and then withdrew his request. Relator stated that it would not injure her health for her to appear in court. The record also indicates that the trial judge was anxious to finish hearing the case on the day of trial, because of a crowded docket.

The record is replete with evidence as to the moral and financial ability of the defendant and his wife to take care of Emmie Sue, and we have doubt that she would enjoy a life befitting a girl of her years if she made her home with them. The testimony and the conclusions of the trial judge also indicate that Emmie Sue is happy with her Uncle Embry and his wife. However, these factors are only to be weighed. They cannot be controlling of the custody of the child.

The only fair and equitable decree we can render is to remand the case to the lower court, in order that it may hear the relator’s testimony as to his plans for taking care of his daughter and hear the testimony of Miss Ollie Brode as to her actions toward Emmie Sue in the past and what her actions will be toward her in the future. This will determine whether Emmie Sue will be exposed to proper or improper influences were she to be returned to her father.

In commenting further upon the reasons for judgment of the trial judge, we would like to observe that while it is true that relator is an elderly man, this is not a ground for depriving him of the custody of his child. It is clear that he loves his daughter dearly, and we cannot help but remark that efforts should be made for him to visit with Emmie Sue during the interim of this remand.

As to the statement of the trial judge to the effect that relator has not attempted to see his child since she has been in Clinton, the record is clear that friction exists between him and the Hatcher family and that he is reluctant to g'o to their residences, although defendant’s witnesses testified that he is welcome. The trial judge remarked that he had urged relator to visit his child, and we believe that all parties should assist in carrying out this request.

As to the statement of the trial judge to the effect that relator has not written his child but two or three or four letters since she has been in Clinton, relator, testified that.he stopped writing to his daughter because he did not believe she received his letters, although the Hatcher family testified that they delivered his letters to her unopened. Evidently relator did not receive letters from Emmie Sue, as the record does not clearly show how often she wrote her father.

However, these observations by the trial judge are not sufficient to deprive relator of the custody of his child.

For the reasons assigned, the judgment appealed from dismissing relator’s suit is reversed, annulled, and set aside, and it is now ordered that the case be remanded to the district court for proceedings consistent with the views herein expressed. All costs of this appeal are to be borne by appellee, Embry Hatcher; all other costs are to await the final disposition of the cause.

PONDER, J., absent.

McCALEB, J., dissents in part.

McCALEB, Justice

(dissenting in part).

I am in accord with the reversal of the decision of the trial judge and the ruling that relator, under the law and the evidence, is entitled to the custody of his daughter. But I think relator should be granted relief on the record as presented here and can see no substantial reason for remanding the case in order to permit the collateral relatives to further inquire into relator’s qualifications to reassume his status as father of the child in the paternal home (see Civil Code, Article 218) which no one doubts he has properly occupied since her birth. The remand serves only to further the injustice which has been visited upon this father by the relatives of his late wife and to withhold from him unjustifiably the present exercise of his legal and natural rights.

The facts, which have been fairly and painstakingly set forth in the main opinion, demonstrate that this not a case in which a father has, following the death of his wife, turned over his child to the wife’s collateral relatives or has impliedly surrendered custody by long silence and inaction, or has committed any act which would lead the court to believe that he did not care for his child. On the contrary, the record shows that this father was prevailed on by his late wife’s relatives to leave his child temporarily in their care on the plea that it would be to her best interest to remain in Clinton to complete her school term. But, actually, these relatives ñad no intention of ever returning the child, the circumstantial proof establishing that they had deliberately planned to keep her permanently, deceiving relator as to her whereabouts to the extent that he filed a habeas corpus proceeding against Monroe Hatcher, only to learn that she was in the household of another brother, Embry Hatcher. Their conduct does not commend itself to judicial reward and, in my opinion, the child’s interest is not well served by leaving her in defendant’s care even temporarily.

But, say the majority, there is some evidence that relator’s sister, “Aunt Ollie”, who has lived in his household for many years, has a mental affliction. Of course, this claim, like the other contentions of defendant, has not been established, the evidence consisting of speculative hints and opinions given by unqualified witnesses. Still, the majority seize upon these unproved charges to form the predicate for a remand of the case, unwittingly concluding that, although defendant has failed to carry the burden, of proving that relator is unfit to have the custody of his child, relator should produce more testimony “as to his plans for taking care of his daughter” and the judge should “hear the testimony of Miss Ollie Brode as to her actions towards Emmie Sue in the past and what her actions will be toward her in the future”. In other words, the burden which rested on defendant is now shifted to relator and, apparently, he and Aunt Ollie must now satisfy the district judge that it will be safe to restore the child to his custody.

It is well settled that the judiciary is not authorized to interfere with a parent’s authority over his child unless the evidence is such as to convince the court that he or she will neglect the child or expose it to improper influences. Ex parte Lincoln, 128 La. 278, 54 So. 818; State ex rel. Martin v. Talbot, 161 La. 192, 108 So. 411; State ex rel. Bethany v. Corley, 172 La. 266, 134 So. 87 and State ex rel. Perdue v. Carkuff, 182 La. 920, 162 So. 729. And, while it appears that this Court has on two occasions remanded custody cases for additional evidence, its action has been limited to matters wherein the record as presented on appeal left grave doubt as to the father’s financial ability or moral fitness to care for his child. See State v. Robin, 193 La. 789, 192 So. 349, and State v. Taylor, 210 La. 1004, 29 So.2d 43.

It would seem that the power to administer social justice in derogation of the law (Articles 216 and 250 of the Civil Code), which the Court has assumed, should, like all unbridled power, be sparingly employed and confined to those cases in which there is a clear and foreseeable danger to the child in returning it to its parental home. This, in my opinion, is not such a case.

      . Mr. Ponder: “If the Court please, the question is the fitness of the parent, and in order to determine the fitness, it is naturally incumbent upon the Court to determine the place of abode of the person who is asking for the custody. I would like an instanta subpoena to be issued for Miss Ollie Brode, since the question is going to come up about that.
      “I would like to see if she will come to Court. Now, if she can come to Court today, I would like to use her. If we complete the trial of this case and she’s not here, I realize I cannot insist on the Court holding the case open for her testimony. But since this question has come up, — I don’t know this lady — but the information I have is certainly to the effect that as long as she is in the home she needs someone to take care of her, and it certainly wouldn’t be a fit place for the child to be.”
      Mr. Obier: “If the Court please, I did not anticipate particularly that they were going to attack the mental capacity of anyone. I think that we have quite a few people here in the Court, reputable people, the Sheriff of the Parish of Iberville, who know Mr. Brode and who know his sister and who can testify, and I don’t think that it is necessary.”
      The Court: “Mr. Ponder, if you feel like you’ve got to have this witness, I will send after her, but now, I don’t want to do anything to injure her health or anything to — ”
      Mr. Brode: “It won’t injure her health.”
      Mr. Ponder: “Judge, suppose we put it this way — I’ll go ahead with my questions, and I’ll withdraw my request for a subpoena right now for her, and if it develops later on that we need her, we’ll get it.”

        Court: “I will also warn you gentlemen this — I hope — we may not be able to do it — but I hope to complete this case today. If I don’t I have criminal cases for Thursday, Friday, and Saturday I have another civil case. In fact, it’s a civil case of this nature that I have to try. If we do not complete this case today, it will be at least the middle of next week before I can continue. I would like to finish today, but I don’t know whether we can do it or not. I also state this, that I’m prepared to go into a night session if necessary.”


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Mr. and Mrs. Charles R. LITTLEJOHN v. LIBERTY MUTUAL INSURANCE COMPANY.
    No. 20840.
    Court of Appeal of Louisiana. Orleans.
    June 24, 1957.
    Gatlin & Murphy, New Orleans, for plaintiffs and appellants.
    Jones, Walker, Waechter, Poitevent & Denegre and John V. Baus, New Orleans, for defendant and appellee.
   PER CURIAM.

Appellee moves to dismiss the suspensive appeal herein taken by the plaintiffs on the ground that “upon motion and not in open court, an order granting a suspensive appeal was signed,” and that no citation of appeal was prayed for and appellee was not. served with citation of appeal.

We do not know the basis for the suggestion that the motion was not made and the order of appeal not signed in open court, as the record contains a motion for appeal which to all appearances was made in open court, and the order granting the appeal thereon likewise appears to have been signed in open court. We do not believe our brother below would have entertained the motion or signed the order of appeal outside the courtroom or while the court was not in session. Whereas the appeal was granted on motion at the same time at which the judgment was rendered, no citation of appeal was necessary. Rouyer v. Horil, La.App., 79 So.2d 106, and cases therein cited.

In support of their motion to dismiss, counsel for appellee cite us to the case of Bascle v. Perez, 224 La. 1014, 71 So.2d 551, wherein the Supreme Court held that an appeal was subject to dismissal as to a defendant who was not cited even though the motion for the appeal was made and the order granting the appeal was signed in open court. However, this conclusion of the Supreme Court was predicated on certain peculiar facts which are not present in the instant appeal. In Bascle v. Perez an appeal was first taken to the Court of Appeal for the Parish of Orleans and citation was served on the appellees, hut subsequently the plaintiffs filed a supplemental and amended motion in the lower court praying for an appeal to the Supreme Court. The appellants contended that no citation was necessary on second motion under the provisions of Art. 574, C.P., because the motion for the appeal had been made in open court. But the Supreme Court held that the said article of the Code of Practice had no application. It was pointed out that the article in providing that citation is not necessary in the event the order of appeal is granted in open court did not contemplate a situation such as existed in the case where an appellant changes the court for'the return of his appeal and obtains two orders to different courts for the same appeal. As support for its holding the Court cited Hymel v. Illinois Cent. R. Co., 116 La. 42, 40 So. 525, the syllabus therein by the Court reading:

“If, after obtaining an order of appeal on motion in open court, an appellant obtains a second order of appeal on motion, the appellee must be cited under the second order.”

The motion to dismiss is denied.

Motion denied.


author: LOTTINGER, Judge.

text:
    Viola A. H. FLANAGAN, Administratrix of the Estate of Walter Heck and Tutrix of the Minors, Lee Viola Heck and Waiter Heck, Jr., Plaintiff and Appellant, v. Ostele LOVE, Louis Chenel and Metropolitan Casualty Insurance Company of New York, Defendants and Appellees.
    No. 4482.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 4, 1957.
    Plorace R. Alexius, Jr., Covington, for appellant.
    No attorney for appellees.
   LOTTINGER, Judge.

Styling herself as the Administratrix of the Estate of Walter Heck and Tutrix of the minors, Lee Viola Heck and Walter Heck, Jr., Viola A. H. Flanagan brought this suit against the Metropolitan Casualty Insurance Company of New York, Louis. Chenel and Ostele Love, seeking damages against the defendants'jointly and in solido-in the amount of $10,000 for damages arising out of the mutilation, disfigurement, etc., of the body of Walter Heck after he-had been killed on November 22, 1951.

The petition makes the following allegation with respect to the occurrence of the-accident:

6.
“That the accident that gave rise to. this cause of action happened in the following respects, to-wit: the deceased, Walter Heck, was walking-south on Louisiana Highway No. 34,. and an automobile being driven by Louis Chenel was headed and going-north and another automobile being driven by Ostele Love was headed and! going south, and the said Walter Heck. was walking south, and the said Chenel automobile ran into Walter Heck and killed him knocking him into the path of the Love automobile, which ran over his body and mangled, mutilated, dismembered, and disfigured it almost beyond recognition.”

It appears that at the same time the instant suit was filed in the court below, suit was filed against the Metropolitan Casualty Insurance Company of New York in the United States District Court for the Eastern District of Louisiana, seeking damages in the amount of $29,200 for the death of Walter Heck.

In the instant suit the defendants Metropolitan Casualty Insurance Company of New York and Louis Chenel filed exceptions to procedural capacity, lack of proper cumulation of actions and of no cause and right of action. Following argument and submission of authorities, the Lower Court overruled the exception of lack of proper cumulation of actions but sustained the exceptions to procedural capacity and no cause of action.

Subsequent to this ruling by the trial judge, the plaintiff perfected an appeal to this court. While this appeal was pending, as the result of a motion filed on behalf of the plaintiff and Louis Chenel and the Metropolitan Casualty Insurance Company of New York representing that the matter pending in the Federal Court and the instant case had been compromised, the appeal was dismissed with respect to the plaintiff in her alleged representative capacities and also with respect to the minors on March 9, 1953.

It appears that no pleadings were ever filed on behalf of Ostele Love and, on May 21, 1957, the attorney for the plaintiff entered a preliminary default against this defendant.

On May 24, 1957, when the matter came to be heard on confirmation of this default, according to the minutes of said day, the “Court refused to grant confirmation of default on the grounds that there is no evidence in the record against the defendant Ostele Love” and the matter is now before us again on an appeal taken by the plaintiff from this ruling.

Pretermitting the issue of whether the release executed in favor of Louis Chenel and the Metropolitan Casualty Insurance Company of New York would likewise dismiss the suit as to Ostele Love, we think the ruling of the trial judge is eminently correct. Counsel for plaintiff in his brief states as follows:

“The facts as agreed upon by and between plaintiff and defendant as to how the accident happened is as follows : The deceased, Walter Heck, was walking south on State Highway No. 34 and defendant, Chenel, was driving his automobile north on the same Highway and the defendant, Love, was driving his automobile south on the same highway and that the Chenel automobile ran into and killed Walter Heck and knocked him into the path of the Love automobile which ran over his said body and mangled, mutilated, dismembered, etc. it to a point beyond recognition.”

We are unable to find in the record any such stipulation as referred to by counsel, but even if one were contained therein, we do not think it would be sufficient to establish negligence on the part of Love so as to entitle the plaintiff to recover. It is too well settled to require citation that plaintiff, in default cases, must prove his case and the record in this matter is completely barren of any evidence whatever of negligence on the part of Love.

For the reasons assigned, it is apparent that the judgment of the Lower Court in refusing to allow the confirmation of the default was eminently correct and should be affirmed.

Judgment affirmed.


author: TATE, Judge.

text:
    STANDARD MOTOR CAR COMPANY et al., Plaintiffs-Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellee.
    No. 4456.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 4, 1957.
    N. Cleburn Dalton, Baton Rouge, for appellants.
    Haynes, Mathews & Lane, Baton Rouge, for appellee.
   TATE, Judge.

Plaintiffs appeal from judgment dismissing their suit upon exception of no right and cause of action.

The petition alleges: A car left by a customer of the plaintiff, Standard Motor Car Company, Inc. (“Standard”)) for servicing was involved in an intersectional collision while being road-tested by Standard’s employee in the course and scope of his employment. The negligence of a driver insured by defendant, State Farm Mutual Insurance Company, was the sole proximate cause of the accident. Standard paid for repair of the damages and by this tort suit seeks recovery of same from the insurer of the tortfeasor.

Defendant contends that, in the absence of a conventional subrogation by the owner of the damaged car in favor of Standard, Standard as possessor has no right or cause of action for the damage caused to its customer’s car, even though Standard paid for the repair of same. This contention is based upon the doctrine that “subrogation will not generally be decreed in favor of a mere volunteer or intermeddler who, without any duty, moral or otherwise, pays the debt or discharges the obligation of another,” 50 Am.Jur. 696, “Subrogation”, Section 21. See also 83 C.J.S., Subrogation § 9, p. 601. See LSA-Civil Code Article 2161, especially 2161(3).

Able counsel for defendant argues that Standard was a “volunteer” since, as depositary or bailees of its customer’s car, it was not legally liable to its customer for damages caused through the negligence of another and without fault on its own part. See cases such as Niagara Fire Insurance Co. v. Shuff, La.App. 1 Cir., 93 So.2d 325. “The depositary is only bound to restore the thing in the state in which it is at the moment of restitution. Deteri-orations, not effected by an act of his, are to the loss of the depositor ” Article 2945, LSA-C.C. (Italics ours.)

Plaintiffs urge most forcefully that the garageman is at least under a moral duty to repair the cars of his customers injured while in his custody. It is argued that the garageman cannot morally or as a matter of sound business practice return his customer’s car to the latter in a damaged condition with the observation that it is up to the customer to collect for the loss from an allegedly negligent third party. We are reminded that the garage-man, as depositary or bailee, is under a duty to return the car deposited with him in the same condition as received, and that —as between him and his customer, the depositor — injury to the car during the garageman’s custody establishes a prima facie case in favor of the customer against the garageman. Hazel v. Williams, La. App. 2 Cir., 80 So.2d 133; Articles 1908, 2937, 2938, 2944, 2945, LSA-Civil Code. The garageman thus has at least a prima facie duty to repair the vehicle damaged while in his custody before returning it to his customer. Furthermore, should he refuse to repair the vehicle on the ground that the damages resulted from the negligence of a third party tortfeasor, the prescriptive period applicable to his customer’s action against him for the damages to the car, while in the garageman’s custody is that of ten years, Article 3444, LSA-C.C., Reehlman v. Calamari, La.App.Orleans, 94 So.2d 311; far longer than the peremp-tive one year for tort actions during which either party must seek to hold the negligent third person.

The contentions of the plaintiffs-appellants are sustained by the jurisprudence; although in fairness we must add that the authorities cited below were not called to the attention of the learned trial judge.

The identical legal question was before our brethren of the Orleans Court of Appeal in Douglas v. Haro, 32 So.2d 387. Their opinion at 32 So.2d 387 contains a scholarly review of the applicable authorities. As against third persons misappropriating or damaging same, the possessors (such as an administrator, depositary, or •consignee) of property damaged or stolen while in their possession, although not owned by them, have been permitted to recover the property or for the damages thereto, irrespective of their non-ownership thereof. Lannes v. Courege, 31 La. Ann. 74; Johnson v. Imboden, 7 La.Ann. 110; Johnson v. Imboden, 4 La.Ann. 178; Fowler v. Cooper, Carathers & Co., 3 La. 215; Morgan v. Bell, 4 Mart., O.S., 615; McGrew v. Browder, 2 Mart., N.S., 17, 20; Klein v. Anderson, 4 Orleans App. 262. But based upon Article 15, C.P., the Orleans Court held in Douglas v. Haro that the depositary or bailee was without interest to institute suit to recover damage to property in his possession, when the sole cause of such damage was the negligence of a third party defendant, who under these circumstances was held to be liable solely to the owner (unless of course a conventional subrogation had been secured).

The Orleans court’s decision was, however, reversed by our Supreme Court, 214 La. 1099, 39 So.2d 744, which opinion, in the words of the Supreme Court in a later decision, Holley v. Butler Furniture Co., 217 La. 8, 45 So.2d 747, at page 748, “held that inasmuch as the depositor had ten years in which to file a suit against the plaintiff under the provisions of the Civil Code, and the right of action to recover damages from the defendant was one which prescribed in one year, that the plaintiff was deemed to have an interest to bring such action — but inasmuch as the depositor had not been made a party remanded for such purpose”.

In Douglas v. Haro, above cited, a strong argument had been made by the defendant that there was no allegation that the plaintiff-garageman had paid the owner for the damage to the automobile or that the owner had demanded payment of same from the garageman. In response to this argument, the Supreme Court remanded the case to implead the owner-depositor as a necessary party to settle the rights of all three parties and to prevent the possibility of the garageman being unjustly enriched by recovering the damages to the customer’s car although such damages were not demanded of him by the customer. Thus the cited decision might be interpreted so as to require our reversal, but also to require on the remand the impleader of the owner of the damaged automobile as a party to the suit. However, we feel that under the pleadings in this particular case, this requirement would be a useless technicality, since herein (unlike in Douglas v. Haro) the garageman-plaintiff has specifically pleaded that he himself has paid the claim for the damages sustained by the car while deposited with him.

The result we have reached is consistent with the common law principles surrounding a “bailment”, which is quite similar in many respects to a civil law “deposit”. “A bailee may recover from a third person for the latter’s wrongful injury to bailed property or disturbance of his possession thereof,” 8 C.J.S. Bailments § 39 b, p. 317. “Every bailee or person clothed with the exclusive right of possession has a temporary or qualified ownership in the property to the extent of enabling him to maintain actions in respect thereof against third persons, as has been shown in § 39, and he may sue for the protection of his own interest, or for the benefit of his bailor, or he may sue for both interests and recover full damages,” 8 C.J.S. Bailments § 56, p. 371. See also 6 Am.Jur. 430.

The jurisprudence specifically pertaining to deposit and bailment has thus readily furnished a rationale for this decision. But it is not inappropriate to note that although the garageman in this case may be not subrogated to rights of the customer against the tortfeasor nevertheless he may have acquired by the payment to the creditor (i. e., the owner of the car) a right of action to recover the payment from the person legally obligated for the debt (i. e., the tortfeasor). This arises under Article 2134, LSA-C.C., which provides that the obligation is discharged by payment by another party “no way concerned in it” (i. e., the garageman), even if the latter “act in his own name”, although it also provides that the latter “be not subrogated to the rights of the creditor”.

While there are no Louisiana cases on the subject the equivalent article of the French Civil Code, -CN 1236, was explained in the report of Monsier Jaubert presented to the Tribunal (8 Fenet, Discussions, p. 341-342), in part as follows: “Quoique le tiers qui offre le paiement n’ ait pas un intérét direct et civil a l’acquittement de 1’ obligation, le créancier ne pourra non plus re-fuser de recevoir, puisqu’en derniére ana-lyse le créancier n’ a d’autre intérét que d’etre payé; mais dans ce cas le tiers ne peut forcer le créancier a le mettre a son lieu et place pour les privileges, les hypo-théques et la contrainte par corps. La loi ne veut pas, avec raison, que contre le gré du créancier un tiers vienne s’ interposer pour acquérir le droit de vexer le debiteur; le tiers que paie qui paie n’acquiert alors qu’une action simple contre le débiteur qui est entiérement libre de Vobligation primitive.’

As was recently stated by one of the main treatises on French Civil law: “Celui qui a effectué un paiment pour le compte d’un tiers sans ne lui ayant donné aucun mandat a cette fin, ne saurait en réclamer le remboursement audit tiers qu’á la condition de prouver l’obligation de celui-ci dans la dette ainsi acquitté par lui, IV Aubry et Rau, Droit Civil Francais (Supplement permanent, p. 1. 1957) Section 316, citing Cass. civ. 13 novembre 1939 (Gaz.Pal.1940, 1, 8 Sir.1940, 1, 27; J.C.P. 40, II, 1956).

Or as stated in Planiol et Ripert, Droit Civil Francais, Tome VII (2, 2 ed, 1954), Section 1150, p. 352: “ * * * [U]n tiers quelconque, méme non intéressé et agissant. de son proper gré, a qualité pour payer. Mais le tiers qui paie ne peut exiger á son profit le bénéfice de la subrogation de la part du créancier (art. 1236) ; il ne pourra exer-cer contre le débiteur que la recours fonde sur la gestión d’affaires ou l’enrichisement sans cause.” The footnote to this sentence in the French text is the citation to the decision of the Civil Chamber of the Court of Cassation, Feb. 12, 1939 (D.He 1929 180), in which the court reversed a lower court judgment which had held that the stranger or volunteer could not recover in the absence of a legal or conventional subrogation. See also Cass. req. Feb. 3, 1879 (S.79.1.365; D.79.1.231), in which by way of dictum, remarking that “Ce principle est incontestable”, the court of cassation said: “Le tiers qui a payé la dette d’autrui de ses propres deniers, a, bien que non subrogé aux droits du créancier, un recours contre le débiteur (c. civ. 1236.).

See also 2 Baudry-Lacantinerie, Précis De Droit Civil, II (13e Ed.) 149, Section 324 “Recours du tiers qui a payé.”

Furthermore, the civil law does not share the hostility of the Anglo-American common law to the “volunteer”, and as stated above quite possibly recovery in the present case is allowable under the theory of nego-tiorum gestio, Articles 2295-2300, LSA-Civil Code, see Comment, “Negotiorum Gestio in Louisiana”, 7 Tulane Law Review 254, the quasi-contractual obligation arising from the situation where a person voluntarily manages the business of another without any authorization whatsoever.

The action of the garageman in repairing the damage to its customer's automobile might be considered to be in satisfaction of the third party tortfeasor’s obligation to the customer for the damáge to the latter’s car, and therefore an act of negoti-orum gestio as to said third party defendant tortfeasor herein. For all that is required for an instance of negotiorum gestio is that one person (the gestor) manage, of his own accord, the “affair” of another (the principal) LSA-Civil Code, Article 2295. The garageman attended to the “affair” of the defendant herein when he fulfilled defendant tortfeasor’s obligation to the owner of the car existing by reason of his negligently damaging said vehicle. LSA-Civil Code, Article 2316.

For the above and foreging reasons the judgment of the District Court herein sustaining defendant’s exceptions of no right and cause of action is reversed, and the cause is remanded for further proceedings according to law. The costs of this appeal are assessed against defendant-appellee; all further costs to await final disposition of this matter.

Reversed and remanded.

      . Standard’s collision insurer is co-plaintiff for the portion of the damage paid by it.

      . Of course, had Standard alleged fault on its own part so as to entitle it to subro-gatious as of right, then the pleaded contributory negligence would likewise subject this tort suit to dismissal, save possibly as a suit for contribution by a co-obli-gor or joint tortfeasor.

      . In this Holley ease, the depositor (i. e., bailee or possessor) of property was not allowed to recover as plaintiff, because in his petition he had alleged he was the owner of the property damaged. At the trial it developed that the damaged car was actually owned by his father, who had paid for said damages; and the plaintiff-son was not permitted to amend his petition, as this would have changed the nature of the cause of action from one by the owner of property, to one by the possessor of property damaged by another.

      . “It is now an almost universal rule that for a conversion of, or damage to, bailed goods by a third person, the bailee is entitled to recover the full value of the goods or the full extent of the damage inflicted,” Brown, The Law of Personal Property (2nd Edition; 1955) 390, Section 90. Quoting with approval from the English reports, this treatise points out that “the root principle of the whole discussion is that, as against a wrongdoer, possession is title” (p. 392), and that “to allow the defendant, in an action in which his wrongful conduct is in question, to raise doubts as to the plaintiff’s title to the property, would raise collateral issues sharply interfering with the principal point in the case — the defendant’s wrongdoing,” (p. 393).

      . Roughly translated:
      “Although the third person who offers the payment has not a direct civil interest in extinguishing the obligation, the creditor cannot refuse to receive it, for in the last analysis the creditor has no other interest than to be paid; but in this case, the third [party] cannot force the creditor to put him in his [the creditor’s] place with regard to the privileges and mortgages he may have or to his right to-cause the arrest of the debtor. The law rightly does not allow a third party to interpose himself against the will of the-creditor in order to acquire the right to-harass the debtor; the third party who-pays then acquires only a simple action for reimbursement against the debtor who is then entirely free of the-original obligation." (Italics ours.)

      .Roughly translated:
      “He who has effected a payment for the-account of a third person without having, been given any authority for that purpose, will be allowed to demand reimbursement from the said third person only on the condition of proving that the latter was bound to pay the debt thus, discharged by him.”

      . Roughly translated:
      “Any third person whatever, even though not interested and acting of his own inclination, has the capacity to pay [the debt of another]. But the third person who thus pays cannot demand subrogation to the creditor’s interest (art. 1236); he can exercise against the debtor only the remedy founded on nego-tiorum gestio or unjust enrichment.”

      . Roughly translated:
      “The principle is incontestable * * * [that] The third person who pays the debt of another from his own funds has, although not subrogated to the rights of the creditor, a remedy against the debtor (CN 1236).”

      . In this regard, it is of no consequence that the plaintiff garageman herein must have intended to favor its customer, the car owner, or to preserve or foster his own business good will in fulfilling the defendant tortfeasor’s obligation to the owner of the car damaged through its negligence. Although the institution of negotiorum gestio is often associated with an act motivated, by the desire to render a service to the principal whose affair is managed, this motivation is said not to be an essential of its application. All that is required is that the gestor be aware of the fact that he is attending to another’s business, in this case the defendant tortfeasor’s obligation to repair the damage caused to the owner of the ear, and his motive may be to benefit (a) another or even (b) himself.
      For instance, the Italian Civil Code of 1942, the newest of the major Codes, specifically reflects this thought with the formula requiring no more than that the gestor act 1cnoioing he is managing or attending to another’s affair. Italian Civil Code, Article 2028; Pandolfelli, Codice Civile illustrate con i lavori preparatori (Libro d lie Obbligazaioni) (1942) 658, 659. And negotiorum gestio is often used in France (according to the jurisprudence and doctrine) and in Germany (under German Civil Code, Article 679) to permit recovery by a person (the gestor) who supplies food, clothing, or money to dependents of the principal. Certainly in these cases the motive is to help the dependent rather than the principal. On the French law, see Picard, La gestión d’affaires dans la jurisprudence contemporaine, Revue Trimestrielle de Droit Civil (1942) 419, 446 seq.
      Besides, the mere fact that one protects his own interest or even advances his own welfare does not of itself take the action out of the scope of negotiormn gestio. Thus French jurisprudence admits that a seller, whose buyer could not take delivery of grain because of the rise of a war, could sell the grain both in his own and his buyer’s interests and still be a gestor. (Req. 19 juin 1872, Dalloz Periodique 1872.1.471.) Similarly, a co-owner may be a gestor in repairing property or attending to a common obligation; and the surety and co-debtor who pay to fulfill their own obligations as well as those of the principal are treated as ne-gotiorum gestors. See generally on the matter of motive, Picard, La gestión d’af-faires ' dans la jurisprudence eontempo-raine, Revue Trimestrielle de Droit Civil (1922) 5, at 23; Goré, L’eririchissement sans Cause (1949) No. 261.


author: REGAN, Judge.

text:
    Fernand J. OEHMICHEN, Jr., et al. v. Albert A. FREEMAN.
    No. 20738.
    Court of Appeal of Louisiana. Orleans.
    Oct. 21, 1957.

      Reuter & Reuter, Patrick M. Schott, New Orleans, for plaintiffs-appellants.
    James D. McGovern, Jr., New Orleans, for defendant-appellee.
   REGAN, Judge.

Plaintiffs, Fernand J. Oehmichen, Jr. and his subrogee insurer, Motors Insurance Corporation, instituted this.suit against the defendant, Albert A. Freeman, endeavoring to recover the sum of $429.50, representing property damage sustained on November 28, 1953, at about 12:10 a. m. as the result of an intersectional collision in Canal and Burgundy Streets, between a 1947 Packard automobile owned by Oehmichen but operated by Mrs. Pearl Thompson and Freeman’s 1941 Cadillac coupe.

Defendant answered and admitted the occurrence of the accident, but asserted that the proximate cause thereof was the negligence of the operator of Oehmichen’s automobile and, in the alternative pleaded the doctrine of last clear chance and the contributory negligence of Mrs. Thompson, which, he contends, is imputed by law to Oehmichen. Defendant then reconvened, claiming the sum of $631.96, representing property damage to his automobile, loss of wages, and medical expenses.

From a judgment dismissing both the main and the reconventional demands, the plaintiff has prosecuted this appeal. Defendant has neither appealed nor answered the appeal; hence the reconventional demand is not posed for our consideration.

The trial judge obviously found as a fact that this accident occurred in the intersection of Canal and Burgundy Streets in the City of New Orleans and that Mrs. Thompson, the operator of Oehmichen’s automobile, and the defendant, Freeman, were • each guilty of negligence. We have carefully examined the record and are in accord with the foregoing factual conclusion reached by the court below. However, on appeal counsel for plaintiffs has directed 'our attention to the fact that there is no proof contained in the record of any agency or employer-employee relationship existing between Oehmichen and Mrs. Thompson, but diametrically opposed thereto is evidence to the effect that when the accident occurred Mrs. Thompson was on a mission of her own.

The record amply sustains the assertion that Mrs. Thompson was on a mission of her own when the accident occurred. Therefore, the only question which the pleadings and the facts in this case pose for our consideration is one of law and that is: May the negligence of Mrs. Thompson be imputed to Oehmichen and thus prevent recovery by Oehmichen and his insurer for damages sustained by his car ?

It is well settled that in the absence of proof of an agency relationship the owner of an automobile may recover for damages sustained by it in an accident to which the negligence of the operator thereof contributed. Metzler v. Johnson and Johnson, La.App.1954, 71 So.2d 607; Emmco Insurance Company v. Savoy, La.App.1954, 71 So.2d 573; Bituminous Fire & Marine Insurance Co. v. Allen, La.App. 1948, 36 So.2d 878; Manley v. Hammons, La.App.1944, 20 So.2d 817. Mrs. Thompson was guilty of negligence, but her negligence can not be imputed to Oehmichen or his insurer, since she was operating the car to serve her own interests and was not engaged upon a mission for Oehmichen either as agent or employee.

The record indicates that the damages sustained by Oehmichen’s automobile amounted to $429.50. However, these damages were not adequately proven, and we are therefore of the opinion that the ends of justice will best be served by remanding this matter for the restricted purpose of affording plaintiffs an opportunity to prove the exact amount of damages incurred by Oehmichen’s automobile.

For the reasons assigned the judgment appealed from insofar as it dismissed the main demand is annulled, avoided and reversed; and it is now ordered that this cause be remanded to the First City Court of New Orleans for further proceedings according to law and not inconsistent with the views herein expressed. In all other respects the judgment appealed from is affirmed.

Affirmed in part, reversed and remanded in part.


text:
    Leonise ZUELKE, Plaintiff-Appellee, v. Octave T. CAMBRE et al., Defendants-Appellants.
    No. 4468.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 4, 1957.
    Harrison G. Bagwell, Baton Rouge, for appellants.
    James M. Cudd, Livingston, for appellee.
   TATE, Judge.

Defendants appeal from judgment recognizing and maintaining plaintiff in possession of a certain narrow slice of land on her northerly boundary. On a previous appearance before this court, the opinion in which fully sets forth the facts hereof. 67 So.2d 310, we remanded “this case for a new trial”, 67 So.2d 316. The application for rehearing had pointed out that certain evidence upon which we relied in our original opinion had been filed in the record subsequent to the trial court’s judgment.

As we noted in our original opinion, this case originated as a possessory action. Plaintiff claimed that defendants, her northerly neighbors, had encroached immediately prior to suit upon certain property which had been possessed by herself and her ancestors in title for many years. In that opinion, 67 So.2d 310, we noted that under the record as then made up, the ■question of possession had passed from the case since no evidence as to same had been educed; although we specifically found no stipulation to this effect in the record.

Upon the remand, defendants unsuccessfully urged before the trial court (which was composed of a different judge than the original trial judge) that by stipulation and agreement of counsel the action had been converted from a possessory action (i. e., one instituted simply to recognize possession under Article 46 et seq., Code of Practice) into an action to establish title.

Able counsel for defendants chiefly relies upon this ground in urging reversal of the District Court judgment. The District Court maintained plaintiff in possession of the strip of land, as having satisfied the requirements of a possessory action under Article 49, C.P. Petitioner proved her possession of the property for at least several years prior to defendants’ encroachment thereupon shortly before suit by erecting a fence from approximately 25' (at its eastern end) to approximately one foot (at its western end) southerly of a very old fence recognized by plaintiff and previous owners of both tracts of land as the boundary thereof.

More or less conceding plaintiff’s possession, defendants argue that since the original possessory action had thus been converted into a boundary or title action, the boundary should be fixed according to the Blakewood survey relied upon by defendants-appellants, which fixed the disputed boundary line according to an 1879 survey in the chain of title; rather than along the old fence line claimed by plaintiff to be the correct boundary.

The District Court pointed out that the stipulations and agreements allegedly converting this possessory action into a title or boundary suit do not form any part of the record before it (and now before us). Therefore, upon the remand, since this appellate court had granted a new trial, the trial court ruled “that this case be tried entirely as an original proceeding * * * as a possessory action as indicated by the original pleadings.” (Defendants do not claim surprise, as the new trial on the merits took place approximately a year after the District Court’s order on the remand maintaining these proceedings as a possessory action.)

We think the District Court’s ruling was correct: “Whether the decision of the appellate court necessitates a new trial after remand depends on the intention of the appellate court, any doubt as to which is usually resolved in favor of a new trial,” 5 C.J.S. Appeal and Error § 1986, p. 1547. “If the appeal is taken generally from the entire judgment of the lower court, a reversal and remand for a new trial, without any limitations of issues being specified, is usually held to vacate completely the judgment of the lower court and open the whole case up for a new trial as to all issues,” 5 C.J.S. Appeal and Error § 1989, p. 1550.

The pleadings show that this suit was instituted as a possessory action, in which the evidence is limited to the facts of possession. Article S3, Code of Practice. A possessory action cannot be converted into a petitory (title) action except by consent of both parties. Article SS, C.P.

The record notes that certain pre-trial conferences were held prior to the initial trial and that subsequent thereto certain stipulations were entered into, admitting into evidence the surveys and the chain of title deeds of the parties hereto. While the evidence thus stipulated is certainly indicative that both counsel had reached some informal agreement that the initial trial would consider the question of title, we find no stipulation or other agreement in the record converting this action from a pos-sessory into a title or a boundary suit.

As an indication of the difficulty of sustaining defendants’ position that by stipulation the question of title rather than possession is before us:

If indeed the issue of this action had been converted from possession to title, then the evidence introduced after the remand upon the second trial certainly raises a serious question of acquisitive prescription in favor of plaintiff, plaintiff having filed such pleas in this court. But defendant urges that we are unable to consider such pleas because of an alleged stipulation before the initial trial that prescription was not a matter at issue, which alleged stipulation again is not incorporated in the record.

The District Court correctly concluded that the new trial on the remand should not be governed by unrecorded stipulations or agreements entered into for purposes of the first trial allegedly limiting the issues as to the first trial, the exact limitations or purposes of which could not be known by it or by reviewing tribunals.

The record does not admit of serious dispute that for at least several years prior to this suit and to defendants’ encroachment upon the strip of land in question, plaintiff had possessed the same and therefore is entitled to judgment maintaining her possession thereof, in accordance with the prayer of her petition.

For the above and foregoing reasons, the judgment of the District Court herein is affirmed, all costs hereof to be paid by defendants-appellants.

Affirmed.


text:
    Richard BANKS, Plaintiff-Appellant, v. K & H STOCK FARM, a partnership, Defendant-Appellee.
    No. 4473.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 4, 1957.

      Iddo Pittman, Jr., Hammond, for appellant.
    Reid & Reid, Hammond, for appellee.
   TATE, Judge.

This compensation claim is before this Court for the second time. The first appeal was from judgment dismissing the employee’s suit against the then sole defendant, the Kent Piling Company, Inc. The trial court had held that the plaintiff’s employer at the time of the accident was the K & H Stock Farm, a partnership' composed of Charles Kent and his brother-in-law, Thomas J. Hood; not the then defendant corporation.

In our opinion upon the first appeal, 87 So.2d 138, which fully discussed the somewhat complicated facts, we noted the plaintiff-employee’s alternative argument that if, indeed, the true employer of the plaintiff at the time of the accident was the K & H partnership instead of the Kent corporation, then nevertheless the latter was estopped to deny its liability for workmen’s compensation: for its course of conduct had misled the plaintiff as tO' which of the two family firms was his-employer, such as by the payment of compensation at the statutory rate to the employee by the Kent corporation for more than 55 weeks (or past the prescriptive year within which suit might be required to be filed against the K & H partnership if the latter was indeed the true employer of the injured plaintiff). Since this contention could not be decided in the absence of the K & H Stock Farm partnership' as a party to a suit deciding whether the compensation claim against it had prescribed, we remanded the proceedings-for the purpose of impleading said partnership.

On the remand, the K & H Stock Farm and the partners thereof were made parties defendant. The present appeal is from-judgment sustaining the plea of prescription filed by said partnership and partners.

This plea was based on their not being made parties to suit until May 25, 1956 (or within the 30 days permitted by our •original decree, rendered April 27, 1956, ■'87 So.2d 138). The accident occurred on June 20, 1952. The last compensation payment had been made by the Kent Piling Company on July 14, 1953 (original suit against the corporation being timely filed as against it on July 14, 1954).

In sustaining the pleas of prescription, the lower Court held that the prescriptive year commenced to run when the plaintiff was put on notice by answer filed September 7, 1954 and interrogatories answered September 21, 1954, of Kent Piling Company’s claim that the K & H Stock Farm instead of it was the plaintiff’s employer ■•at the time of the accident.

In so doing, our learned brother •below fell into error. Plaintiff-appellant properly relies upon the jurisprudence that .a compensation suit timely filed against ■the wrong defendant will nevertheless interrupt the current of prescription as .against the true employer when the latter is aware in fact of the claim filed and when the employee was reasonably misled into impleading the wrong defendant by the employer’s method of doing business in dose interrelationship with said incorrectly impleaded party. Lunkin v. Triangle Farms, Inc., 208 La. 538, 23 So.2d 209; Malone, Louisiana Workmen’s Compensation Law 497-498, Section 384; see, also, for tort cases: Davis v. Lewis & Lewis, 226 La. 1064, 78 So.2d 174; Jackson v. American Employers’ Ins. Co., 202 La. 23, 11 So.2d 225.

In the Triangle Farms case, the ■surviving dependent mother of the deceased ■employee had originally brought suit within the prescriptive year against the Evan-Hall Sugar Cooperative, Inc., which owned the Evan-Hall Plantation upon which the employee was working at the time of the fatal industrial accident. The initial suit was dismissed when it developed that the •decedent’s true employer was the Triangle Farms, Inc., which was operating the Evan-Hall Plantation for the other corporation made defendant. The Supreme Court held that the filing of the initial suit had interrupted the current of prescription, so that the second suit was timely although filed more than a year after the accident but within a year of the judgment of dismissal of the first suit. The court reasoned that impleading of the wrong party was due to the method of doing business of the corporations, although no deception was intended, pointing out “the close relationship enjoyed by the two corporations in their operations, both as shown, being under the same management, using a common office, and employing the same personnel in many instances,” 23 So.2d 211.

In the Jackson v. American Employers case, above cited, the timely filed suit was against the wrong insurer; the true defendant was another of three companies with similar names and the same claims manager and same claims office, with which plaintiff’s attorney was negotiating prior to suit. Although the correct insurer was not impleaded until after the prescriptive year, the Supreme Court held suit to be timely, since the initial suit gave sufficient notice to the defendant liable for compensation, and since the plaintiff had been misled by the very close interrelationship of the correct defendant with the company incorrectly impleaded initially.

The record in the present case indicates that Charles R. Kent, one of the two partners of the “K & H Stock Farm”, was a vice-president of the Kent Piling Company, the original defendant. He was also its woods foreman, under whom plaintiff Banks worked whether — as a bookkeeping entry between the two firms — his wages were charged to the Kent Piling corporation or the K & H partnership. It further indicates that both firms and the Kent Mercantile Company, credits upon which latter firm often constituted the mode of wage payments to the employees of the other two firms, were closely interrelated family firms, with members of the Kent family as officers thereof, with employees interchangeably assigned to duties as required by the varying requirements of each technically different firm.

For instance, the testimony of the injured plaintiff and his seven co-employees testifying shows that they reported regularly for work with the Kent Piling Company, were transported to the site of the day’s work by the Kent Piling Company truck and were assigned to work each day by and worked under the supervision of Charles Kent (woods foreman of the corporation and partner of the Stock Farm), indiscriminately either “at the farm” (i. e., K & H Stock Farm) or “in the woods” (logging for the Kent Piling Company), and drew their pay in cash (or credit slip) at the end of each week at the Kent Piling Company office in the same manner and at exactly the same rate, whether they worked at the farm or in the woods. Plaintiff was paid his compensation at the statutory rate for more than a year past the accident by checks of the Kent Piling Company, Inc.

We think this recital of the close interrelationship between the Kent Piling Company — under the woods foreman of which and at the offices of which plaintiff drew his wages and workmen’s compensation— and the K & H Stock Farm partnership — • to the accounts of which partnership with the Kent Piling Company and the Kent Mercantile Company (according to the testimony of members and an employee of the Kent family educed at the first trial) such wages and compensation payments to plaintiff were charged — is sufficient indication of the reason why counsel for plaintiff was reasonably misled into filing suit against the incorrect defendant.

That the correct employer, the K & H Stock Farm partnership, was apprised of this claim timely filed cannot he seriously disputed, since both partners testified as witnesses in the original trial against the Kent Piling' Company defendant in support of the latter firm’s contention that the farm partnership, not the defendant corporation, was plaintiff’s employer.

We do not find persuasive the contention advanced that the original suit did not constitute timely notice upon the defendant Stock Farm because the original defendant, the Kent Piling Company, Inc., was not served through any official agent for service of process but rather through the bookkeeper of the Kent Mercantile Company. This alleged improper citation was not questioned in the initial suit against the Kent Piling Corporation; such exception to citation not raised in limine litis was waived even as to the defendant therein. See authorities cited, 1 McMahon, Louisana Practice 288-289. More important, filing in the court of competent jurisdiction, and not service, interrupts prescription and constitutes legal notice of the demand. LSA-R.S. 9:5801.

For the above and foregoing reasons, the judgment of the District Court sustaining the plea of prescription as to the defendants, K & H Stock Farm, and the partners thereof, Thomas J. Hood and Charles R. Kent, is reversed; and this matter is remanded for further proceedings according to law. (It is further ordered that, pursuant to motions filed herein, the widow of Thomas J. Hood, deceased since the judgment below, who is also the duly qualified tutrix of his surviving children, be substituted individually and in her capacity as tutrix for said deceased codefendant.)

Reversed and remanded.


author: ELLIS, Judge.

text:
    Henry BELL v. T. Andrew TYCER.
    No. 4470..
    Court of Appeal of Louisiana. First Circuit.
    Oct. 4, 1957.

      Mary Purser, Amite, for appellant.
    Reid & Reid, Hammond, for appellee.
   ELLIS, Judge.

Along about 1900 or 1908 a road was constructed which began at what is now Highway SI and ran in a westerly direction so as to intersect another road running parallel with Highway 51. This road was constructed on what had been an old saw mill railroad bed. Approximately the first mile of this road from Highway 51 required several small bridges but thereafter the land was very low and swampy and at one point near the beginning of this swamp a 200 foot bridge was constructed as well as other smaller bridges further west.

The plaintiff in 1926 bought land along , this road east of this so-called “long bridge” and again in 1952 bought additional land. Since then, from 1924 to 1928, the long bridge and other bridges west of it were taken up with the express permission of the Police Jury of the Parish of Tangi-pahoa and used to repair the smaller bridges on the eastern end of said road which intersected Highway 51.

In approximately 1938 the defendant, together with a nephew of one Mrs. Rosa Wright who owned property along the eastern end of this road, placed a gap across the road for the purpose of keeping the cattle of the defendant and of Mrs. Wright from coming into the corporation limits of the Town of Amite or, in any event, to confine the cattle on the land to the west of the gap. This gap at that time was placed near Mrs. Wright’s home but when she returned she complained and the defendant moved the gap further west and built a gate across the road. This gate is located a short distance to the west of the corporation line of the town of Amite. The plaintiff and other Negro families own property and homes to the west of this gate and of necessity must and have used this road since it was constructed.

Plaintiff brought this suit in which he prays that the defendant be commanded to remove the gate or obstruction from the road and to have the said road declared a public road. Plaintiff alleges the road to be a public road.

The defense to the suit is that the road was never a public road and, in the alternative, in the event the court should hold that it was a public road, that it was not acquired through any grant or title but only upon work done by the public on the road more than 30 years previously, and accordingly that the public acquired only a servitude, and that thereafter the bridges along the said right of way were removed “and use of said right of way by the public was thereupon abandoned;” that no work has been done on said road with public funds for more than 30 years, and accordingly respondent now pleads in bar of any claim by the plaintiff herein as to the existence of any public road during the prescriptive period of 10 years provided by Article 789 of the Revised [LSA-] Civil Code of the State of Louisiana.

The case was duly tried and judgment rendered by our learned brother below in favor of the defendant. The main basis of the District Court’s judgment was a plea of prescription under Article 789, LSA-C.C.

From this judgment the plaintiff appealed.

There are two questions presented: (1) was the road in question a public road, and (2) if so, was the servitude lost by non-usage. It is undisputed that there was no deed or formal dedication of the road in question.

In considering the first question it must be remembered that mere sufferance or tolerance of the right of passage by owners of neighboring estates or by the general public is quite distinct from the dedication, either statutory or implied, of a roadway. Powell v. Porter, 172 La. 681, 135 So. 24; Martini v. Cowart, La.App., 18 So.2d 849, LSA-C.C. arts. 699, 727, 766. It is also well settled that no particular form or ceremony is necessary in the dedication of land to public use but all that is required is the assent of the owner of the land and the fact of its being used for the public purposes intended, it being sufficient that intention to dedicate be manifest, and that property be sold or purchased in reliance upon dedication, Municipality No. 2 v. Orleans Cotton Press, 1841, 18 La. 122, 36 Am.Dec. 624, 625; City Council of Lafayette v. Holland, 184-1, 18 La. 286; Carrollton R. Co. v. Municipality No. 2, 1841, 19 La. 62; Linton v. Guillotte, 1845, 10 Rob. 357; City of Baton Rouge v. Bird, 1869, 21 La.Ann. 244; City of Shreveport v. Walpole, 1870, 22 La.Ann. 526; Emery v. Orleans Levee Bd., 1945, 207 La. 386, 21 So.2d 418, certiorari denied 65 S.Ct. 1572, 325 U.S. 879, 89 L.Ed. 1996; Brasseaux v. Ducote, La.App.1942, 6 So.2d 769; Faunce v. City of New Orleans, La. App.1933, 148 So. 57; La Salle Realty Co. of Louisiana v. City of New Orleans, 1930, 169 La. 1035, 126 So. 545.

It is further well settled that an implied dedication for public use which is of common law origin is recognized in Louisiana and that “a ‘tacit dedication’ of property for public use is dedication arising from silence or inactivity, without express contract or ageement, as ‘tacit’ means done or made in silence, implied or indicated, but not actually expressed, while ‘statutory dedication’ involves some deliberate affirmative action or step, taken by landowner in compliance with statute, indicating purpose and intent to dedicate.” Goree v. Midstates Oil Corporation, 1944, 205 La. 988, 18 So.2d 591, 592.

In order to decide the first question posed, viz., whether the road was a public road, it is necessary that the facts be examined, bearing in mind the law cited. The facts show that prior to 1900 or 1908 a saw mill was being operated by Mr. W. A. Graves not far from the intersection of the road in question and what is now Highway 51, and in order to log the mill he had thrown up dirt and built a railroad or what is commonly termed a dummy line. When he finished cutting in this location he moved his saw mill along about 1900 or 1908 (the testimony is not positive as to the exact date) the present road was constructed in part by convict labor which, of course, under the Constitution then and now could only be used under legislative authority and as provided in Article 3, Section 33 of the Constitution of Louisiana, LSA-Const., which was previously incorporated in the Constitutions of 1913, Article 196 and 1898, Article 196. Under the terms of this Article convict labor was limited to work “on public roads or other public works, or convict farms, or in manufac-tories owned or controlled by the State, under such provisions and restrictions as may be imposed by law * * We do not presume that the convict labor was used in violation of the law but do assume that the road in question was considered as a public road being constructed by public labor. In this state at one time the prisoner could be sentenced to hard labor on the public roads of a parish.

Mr. Battles who was in the employ of the Police Jury about the time the road was built testified without objection that Milford Scarles who was one of the Police Jurors for the Parish of Tangipahoa at the time told him that the Graves saw mill gave the lumber, the people along the road did the work “but anything they had to buy, why, the Police Jury helped them out.”

The defendant testified as follows:

“Q. Mr. Tycer, at the time you purchased the property from Amite Bank and Trust Company in 1925 or 1926, what was the condition of the road, which was near the south line of the property? A. It was a dirt road, had been put up by convicts some years before that. Part the way out and on out further out in the swamp it was just an old railroad there.
“Q. Was there a continuous usable road from Highway 51 clear on back? A. Well you could use it in dry weather, but I wouldn’t say it was usable continuously.
* * * * * $
“Q. Earlier than that, had there been other bridges on the road ? A. I thing so, I am pretty sure there was. Mr. Bankston built those bridges, I don’t know just how soon that I — about the time that they had the convicts in there.
***** *
“Cross Examination By Miss Purser : Q. Mr. Tycer, you said that Mr. Bankston you thought, built the bridges, what Bankston? A. Maston Bankston.
“Q. Was he the Police Juror for the Third Ward? A. No, he was employed by the Police Jury I guess to build bridges.”

It is also shown that along the eastern end of the road in question the following people live and have used this road continuously: Adrene Bruly, John McCall, Henry Bell, plaintiff, Mrs. Rosa Wright, Bernard Bornes, Mrs. Frances McNamee, Urban Jones, W. B. Coney and William Ty-cer, son of the defendant.

In addition three or four years prior to this lawsuit the plaintiff had built a church on his property and the members used this road until it became impassable due to log trucks hauling the defendant’s timber and due to the fact that the obstruction prevented the working of the road west of Mrs. Rosa Wright’s property. It is shown that the road had been worked in the past, however, by two different police jurors but the proof does not satisfy the three year requirement under LSA-R.S. 48:491. However, the fact that the road was worked by two different members of the police jury is evidence that it was considered a public road. When the parties living on this road bought their property they considered it as a public road and used it without any question until the first gap was placed across the road in order to keep cattle from coming out to Highway 51. At the time the defendant bought his property there was attached to a deed a map which is in evidence and on which is clearly shown the road in question. He purchased this property on the 16th day of December, 1925.

The testimony also reveals that.permission was obtained from the Police Jury to take up the long bridge and to use the lumber on other bridges between it and Highway 51 or the east end of the road.

Thus we have a road built on private property without the least objection, partly by convict labor and under the supervision and with the aid and assistance of the police jury of the Parish of Tangipahoa and the entire road used by the public until the so-called long bridge was taken up with the permission of the Police Jury in the 1920’s, and the balance of the road to the east continuously used without any objection until 1938 by the public and particularly those people who bought their property along this road, depending upon it as being a public road. Under these facts the road was impliedly or tacitly dedicated as a public road by the owner of the land at the time it was constructed and was used by the public as such. Therefore, we hold that the road was a public road.

As to the second question to be decided, the facts show that the western portion of this road beginning' at the long bridge was definitely abandoned, and the. public lost its servitude through non-usage. However, it is well recognized that a portion of a public road may be lost through non-usage whereas the other portion may be retained by usage, once it becomes a public road. This was what occurred in the case .of Paret v. Louisiana Highway Commission, 178 La. 454, 151 So. 768. In that case the Police Jury acquired a servitude over an additional ten foot strip of land on the sides of an old road but it was never taken possession of and never used by the police jury until after the lapse of more than ten years. Later they attempted to widen the old road using one of the ten foot strips but the court held that the police jury and the public had lost the servitude by non-usage on the ten foot strip.

In the case of Starnes v. Police Jury of Rapides Parish, La.App., 27 So.2d 134, 136, our brethren of the Second Circuit stated what they considered were the requirements necessary for the abandonment of public roads by a public body. They stated:

“In our opinion the abandonment of public roads must be evidenced:
“(1). By a formal act of revocation and a setting aside of the dedication of such abandoned roadways in accordance with the provisions of Act No. 382 of 1938 [LSA-R.S. 48:701 and note]; or,
“(2). By the relocation and the establishment and maintenance of such relocated road, all of which must be done under the authority and by the action of the governing body; or,
“(3). By the clear and well-established proof of an intent on the part of the governing body to abandon.”

The facts show in the instant case an intention on the part of the Police Jury to abandon the western portion of this road beginning at the long bridge but this is not true of the eastern portion leading to the long bridge along which the various families live as above enumerated. Furthermore, the public ceased completely using the western end of this road in question after the long bridge was removed with permission of the police jury in order to repair the bridges on the eastern portion. If the police jury had intended to abandon the eastern portion they would not have given permission to re-ttse the lumber from the long bridge on that portion. The mere abandonment without a substitution of another road by the police jury would not alone be sufficient to satisfy the requirements of Article 789, LSA-C.C. It would also require non-usage by the public. In the present case the eastern portion of this road which runs past the plaintiff’s property has been continuously used since its construction. The mere fact that a gap or gate was placed across the road contrary to the interests of the public and remained for more than ten years would not deprive the public of its servitude where the latter has continuously used it.

We conclude from the facts in this case that the Police Jury never intended to abandon the eastern portion of the road in question which runs adjacent to and in front of plaintiff’s property as well as a number of other families along this road. The reason the other owners along this road are not complaining is because the road has been well worked and kept up at public expense and is open for them to travel. We further conclude that although the western end of this road was abandoned by the police jury and not used by the public for more than ten years, that the eastern portion which is in question in this lawsuit has constantly been used by the public since its construction at public cost, and, therefore, the plea of prescription is overruled.

For the reasons given the judgment of the district court is therefore set aside and reversed and it is ordered, adjudged and decreed that there be judgment in favor of the plaintiff, Henry Bell, and against the defendant, T. A. Tycer, ordering the defendant to remove the obstruction or gate from across said road and it is ordered and adjudged and decreed that said road from Highway 51 as far west as the west corner of the property of Minette Phillips be declared a public road. It is further ordered that the defendant pay all costs.