author: O’CONNELL, Justice.

text:
    Kathryn Abbey HANNA, Frank D. Upchurch, Howard Odom, John D. Pennekamp and Mrs. Eugene Jones, as and constituting the Florida Board of Parks and Historic Memorials, a State agency, Appellants, v. SUNRISE RECREATION, Inc., a corporation, Antioch College, a corporation, John C. Durfey, as Administrator de bonis non with will annexed of the estate of Hugh Taylor Birch, deceased, Philip Dressler, as ancillary administrator with will annexed of the estate of Hugh Taylor Birch, deceased, Appellees.
    Supreme Court of Florida,
    On Petition for Clarification April 17, 1957. Special Division B.
    March 13, 1957.

      Richard W. Ervin, Atty. Gen., and Ralph M. McLane, Asst. Atty. Gen., for appellants.
    John C. Durfey, Springfield, Ohio, and Phillip Dressier, Fort Lauderdale, for ap-pellees.
   O’CONNELL, Justice.

The appellants are the members of the Florida Board of Parks and Historic Memorials, an agency of the State of Florida. Appellants, whom we will refer to as the Board, brought a chancery action for declaratory decree against the appellees, as defendants in the court below.

From an order dismissing, with prejudice, the Board’s bill of complaint this appeal is brought to us.

From the complaint and exhibits attached thereto it appears that Hugh Taylor Birch, in the year 1941, conveyed to the Board’s predecessor a tract of land in Broward County, Florida, which tract is now known as Hugh Taylor Birch State Park; that the deed conveying said lands, a copy of which was attached to the complaint, was made to the Board’s predecessor “for State Park purposes only, for the use, benefit and enjoyment of the public forever.”

The grantor, Birch, who died in the year 1943, retained by the terms of the deed a life estate in the tract retaining the right “to continue the development and improvement of the said premises as he may desire.”

The deed provided that the Board would “fully cooperate with the grantor herein in the furtherance of the program of development and improvement of said property heretofore undertaken and now being prosecuted by” the grantor, Birch. It also provided that the Board, after the death of grantor, would “continue to maintain said property as a State Park; will, so far as and to the extent that financial and other means are available, continue to improve and develop the same as a State Park along the lines adopted and followed by the grantor herein, and that in event said property ceases to be used for the purposes aforesaid and is abandoned by the said Florida Board of Forestry and Parks, its successors or assigns, as a State Park, for any continuous period of one year, title thereto shall revert to and become a part of the corpus of the estate of the grantor herein.”

The Board alleged that it had negotiated and proposed to lease to Sunrise Recreation, Inc., a portion of the park which is now a swamp or marsh. From the briefs filed before us it appears that the area proposed to be leased comprises about one third of the total area of the park, and is now in its natural state.

The Board alleges the the defendants, who are the Estate of Hugh Taylor Birch, the residuary legatee under his will, and the proposed lessee of the Board, all question the authority and the power of the Board to ■enter into the proposed lease with said lessee. A copy of the proposed lease was .attached to the bill of complaint.

The lease in question is for a term of 20 years, with option for an additional term of 10 years. It gives the lessee a right to construct, at lessee’s expense, and •operate certain facilities, which shall be open to the public, with fees to be charged by lessee as may be approved by the Board. The facilities to be constructed are:

An 18 hole, 3 par, golf course and pro ■shop; practice golf driving range; putting green, tom thumb golf course; restaurant and refreshment facilities; tennis courts; table tennis; horseshoes; swimming pool; landing for small boats and administrative offices.

At the end of the lease the facilities shall become the property of the Board.

In his order granting defendants’ motion to dismiss the chancellor determined that

(1) the complaint failed to state a cause ■of action;

(2) the Board is not authorized by law to enter into the proposed lease in that the provisions of the lease exceed and are ■contra to the authority conferred on the Board by Sec. 592.07(3), F.S.A.; and

(3) the uses contemplated by the lease .are not “park purposes” as required by ■the deed involved herein.

The Board contends that it has the authority to execute a lease such as proposed herein. On this point we must agree with the Board.

The pertinent section of the Florida Statutes, § 592.07(3), F.S.A., reads as follows:

“ (3) The board may grant privileges, leases, concessions and permits for the use of land for the accommodation of visitors in the various parks, monuments and memorials, provided no natural curiosities or objects of interest shall be granted, leased or rented on such terms as shall deny or interfere with free access to them by the public; * * * ” (Emphasis ours.)

Appellees contend that the authority of the Board contained in the section of the statutes next above quoted is so limited as not to authorize the Board to lease park land, but to authorize only the granting of use of such land for periods shorter than set forth in the proposed lease. They support this contention by urging application of the doctrine of ejusdem generis, and by pointing out that the Florida Board of Forestry, the parent of the Board involved here, can lease lands only with consent of the Governor and Trustees of the Internal Improvement Fund and then after public notice, F.S. § 589.10, F.S.A., yet no such safeguard is placed, on the Board involved here.

While the comparison of the powers to lease of the Florida Board of Forestry and the Board involved here are interesting we do not believe that it follows that because the legislature limited the power of one agency to lease lands, it must have also intended to limit the power of another agency to do so.

The doctrine of ejusdem generis applies where the enumeration of specific things is followed by a more general word oi phrase, and in such cases the general phrase is construed to refer to a thing of the same kind or species as included within the preceding limiting and more confining terms. Dunham v. State, 1939, 140 Fla. 754, 192 So. 324.

The Board contends that the above-mentioned doctrine is not applicable here because the word leases does not follow the words which defendants consider to be of limitation. The Board urges that another rule of statutory construction governs the interpretation of the word leases. This rule, announced in State ex rel. Bie v. Swope, 1947, 159 Fla. 18, 30 So.2d 748, is that where words in a statute have a definite meaning courts have no power to go elsewhere in search of conjecture to restrict or extend such meaning.

To follow defendants’ contention that the doctrine of ejusdem generis applies we must assume that the words “privileges,” “concessions” and “permits” all mean something less and are more limited than the ordinary meaning of the word leases. This does not follow. For example in Rendall v. Pioneer Hotel, 1950, 71 Ariz. 10, 222 P.2d 986 the court deals with the words concession and lease. The court points out in that case that where the concessionaire is given an exclusive right to real property his rights are identical with those of a lessee.

There is nothing in the above-mentioned statute which limits the length of time for which the privileges, leases, concessions and permits may be granted by the Board, or the conditions of such grants.

The only limitation placed on the authority of the Board in the above quoted section of the statutes is that “ * * * no natural curiosities or objects of interest shall be granted, leased or rented on such terms as shall deny or interfere with free access to them by the public; * * *.” The land involved here does not appear to be a curiosity or object of interest.

This latter portion of the statute gives support to the Board’s contention for here the words “granted, leased or rented”, all of which are less limited in scope than privileges, concessions and permits, are used. Unless the legislature considered it had given the Board authority to grant, lease or rent there would be no reason for limiting its authority to exercise these powers as related to curiosities and objects of interest.

We feel that from a reading of the whole section of the statute the word “leases” should be given its ordinary and accepted meaning and that the Board has the authority to enter into a lease of real property owned by the Board, providing the uses to which the leased property are to be put are consistent with the uses which the Board itself could make thereof under the law, and consistent with the terms of the dedication where acquisition is by private grant, as in this case.

But determining that the board has the power and authority under the statutes to execute a lease of its lands for a term of years is not sufficient to dispose of the questions before us.

The parties agree that the terms of dedications of lands for park purposes where the lands are conveyed by private individuals are to be construed more strictly than is the case where the lands are acquired by the public body by purchase or condemnation. 39 Am.Jur., Parks and Playgrounds, Sec. 21, p. 817.

The dedication in the deed involved here was for “State park purposes”. No authorities have been cited to show the meaning thereof. We must therefore consider that this term means the same thing as park purposes.

In Ocean Beach Realty Co. v. City of Miami Beach, 1932, 106 Fla. 392, 143 So. 301, we adopted the definition of a park as given in 20 R.C.L.' 638. This definition explains the change in concept of a park from the time when a park was understood to be an open square or plaza, usually containing shade trees and seats, to the pres•ent, when a park is considered not only as •ornamental but also as a place for recreation and amusement. Changes in the concepts of parks have continued and the trend is certainly toward expanding and enlarging the facilities for amusement and recreation found therein. This is demonstrated to some extent by the guide map of the park in question, as it now exists, a copy of •such map being attached to the bill of complaint. This map shows roads, a parking area, a garden club center, a comfort station, administration building, refreshment building, Elks Group Camp, canoe shelter ■and city 'fire station.

As a tourist state, Florida, its counties and •cities have made great effort to furnish public facilities, parks, which are attractive to and furnish recreation and amusement for not only its citizens but its tourist visitors as well.

This is reflected in the statement of policy wherein the Board is committed to the promotion of the park system for the use, enjoyment, and benefit of the people of Florida and visitors and in such manner as to contribute to the tourist appeal or Florida. F.S. § 592.12, F.S.A.

We think the view which defendants take of the term park purposes is too narrow, and are inclined to follow the view expressed in McLauthlin v. City and County of Denver, 1955, 131 Colo. 222, 280 P.2d 1103, 1106, wherein that court said:

“In this jurisdiction we have adopted the modern concept for a dedicated public park. That while an entire area of a park may not be converted to playground or recreational uses; nevertheless, when, considering the size and location of the park, its environments, density of adjacent population and their public needs, it is proper and legitimate that a reasonable portion of a park area be set aside and used for playground and recreational purposes. These uses would include tennis courts, playground and dancing facilities, skating, a swimming pool and bathhouse, horseshoe pitching, walking, horseback riding, athletic sports and other outdoor exercises, as may be needed, and if conditions are conducive therefor, golfing and baseball with the necessary equipment therefor, and with car parking facilities for the use and convenience of patrons and the public; provided always that a substantial portion of the park area remains in grass, trees, shrubs and flowers, with seats and tables for picnicking, for the use by and enjoyment of the public. * *”

We therefore are of the view that the facilitites and use proposed to be made of the land involved here is not such as to be necessarily inconsistent with park purposes.

Nor does it appear that the portion of the park proposed to be leased and put to use as recreational facilities is so great as to make the principal use of the park a playground or recreational center rather than a park. The area proposed to be leased is designated as a “marsh”. It apparently is not being used at this time. It is only about i/3 of the park area. Such use would not amount to an ouster of the public therefrom.

The fact that charges will be made for use of the facilities and that a private corporation will profit therefrom are not controlling. The Board is authorized by statute, Sec. 592.072, F.S.1955, F.S.A., to make charges to the public who use the facilities of the park. And we have held that the fact that a private corporation or individual will incidentally profit from the transaction does not in itself defeat a public purpose. State v. Daytona Beach Racing and Recreational Facilities District, Fla. 1956, 89 So.2d 34; Sunny Isles Fishing Pier v. Dade County, Fla. 1955, 79 So.2d 667.

We are therefore of the opinion that the uses contemplated under the proposed lease may be properly classified as park purposes.

However, whether they are such uses as were intended to be made of the park under the terms of the deed from the grantor to the Board is quite another matter.

In addition to dedicating said lands for State park purposes, the grantor required that the Board, insofar as its funds would permit, “ * * * continue to improve and develop the same as a State park along the lines adopted and followed by the grantor. $ % * »

It may well be that, when evidence is taken, it will become apparent that the development proposed to be made under the proposed lease will be a departure from the plans of development initiated by the grantor. If so, the development and use proposed under the lease should not be permitted.

The plan of the grantor can only be determined after taking evidence. We are here concerned only with the pleadings in this cause, and the applicable law.

Defendants contend that the Board in its bill of complaint should have but failed to allege that the improvements and development as well as the uses contemplated under the proposed lease were in accordance with the “ * * * lines adopted and followed by the grantor. * * * ”

The bill of complaint is silent of allegations that the proposed development and uses are consistent with the restrictions contained in the deed, either as to allegations that the proposed use constitutes State park purposes, or allegations as to the requirement that the development be according to lines adopted and followed by the grantor. These were necessary allegations and we-agree that the bill of complaint was insufficient for this reason.

The chancellor properly dismissed the bill of complaint, but he should not have done so with prejudice. The Board should be given the opportunity to amend to make its bill of complaint conform with this opinion, if it can do so.

We hold by this opinion that the Board has the authority to lease its lands for a term of years to individuals for use for park purposes and that the facilities and uses contemplated in the proposed lease are proper park purposes. We further hold that the restriction imposed by the grantor in the deed of conveyance to the Board,, whereby the Board is required to develop-the park along the lines adopted and followed by the grantor prior to his death, is controlling and after proof of such plan the chancellor must determine whether the proposed development and use is consistent with, the intent of the grantor.

We further hold as above explained that the bill of complaint is defective but that the Board should be allowed the right to-amend same if it chooses.

The order appealed from is reversed in part and affirmed in part.

TERRELL, C. J., and THOMAS and DREW, JJ., concur.

On Petition for Clarification

The appellant Board has filed a petition for clarification of our opinion herein. The Board argues that if on taking of evidence it is made to appear that the grantor of the lands in question had not ever, in fact, adopted and followed a definite plan of development of said lands that the Board will not he able to allege and prove that the proposed development and use of the park “ * * * were in accordance with the * * * lines adopted and followed by the grantor * *

The Board should only be required to allege and prove that which is necessary to show compliance with the conditions and/or restrictions in the deed by which it acquired title. If the Board alleges and proves that the grantor had not in fact ■ever adopted and followed a definite plan to develop the lands this would be sufficient. It seems apparent to us under the terms of the deed that unless such a plan was adopted and followed by the grantor that the abovementioned condition must be construed to mean that the lands must be developed and used for park purposes, generally, rather than under a specific plan of the grantor. We held in our opinion that the plan of development proposed by the Board and its lessee was for park purposes.

With this clarification we adhere to our ■original opinion.

TERRELL, C. J., and THOMAS and DREW, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Bessie Jean Ross CALLEN, Appellant, v. STATE of Florida, Appellee.
    Supreme Court of Florida, Division B.
    April 17, 1957.
    Truett & Watkins, Tallahassee, and Eli Breger, Miami Beach, and Harvey St. Jean, Miami, for appellant.
    Richard W. Ervin, Atty. Gen., and Moie J. L. Tendrich, Asst. Atty. Gen., for ap-pellee.
   PER CURIAM.

Reversed on authority of Luster v. State, 1887, 23 Fla. 339, 2 So. 690; Cloud v. State, 1912, 64 Fla. 237, 60 So. 180; Wildman v. State, 1946, 157 Fla. 334, 25 So.2d 808, and like cases.

TERRELL, C. J., and HOBSON, DREW and O’CONNELL, JJ., concur.


author: HAMITER, Justice.

text:
    232 La. 509
    Edna Lafield BALZRETTE et al. v. Mrs. Ruby E. HUGHES et al.
    No. 42562.
    Supreme Court of Louisiana.
    April 1, 1957.
    John Makar, Natchitoches, for plaintiff s-appellants.
    Gahagan & Gahagan, by Russell E. Ga-hagan, Natchitoches, for defendants-appel-lees.
   HAMITER, Justice.

Plaintiffs, Mrs. Edna Lafield Balzrette and Mrs. Annie Murphy Lafield, who are a daughter and the widow, respectively, of Marion A. Lafield, deceased, prosecute this appeal from a judgment rejecting their demands for the annulment of a deed affecting 80 acres of land in Natchitoches Parish executed on November 21, 1945 by the named decedent in favor of another daughter, Mrs. Ruby Lafield Hughes. (In the early part of 1945 a similar suit involving another deed to the identical tract was appealed to and considered by the Court of Appeal, Second Circuit, the property at that time having had a value much less than the jurisdictional minimum amount of this court. See Lafield v. Balzrette, 21 So. 2d 156.)

The instrument assailed herein recited the consideration for the conveyance as being $400 cash in hand paid, also four annual installment mortgage notes of $100 each, and further an obligation of the vendee “to furnish a place of abode for the vendor during the remaining period of his life.” However, in their petition plaintiffs alleged (and they have since contended) that no part of the $800 was paid, that the vendee’s obligation of care was never fulfilled, and that the purported act of sale was a donation in disguise made in fraud of their rights.

Answering the petition the defendants, Mrs. Ruby Lafield Hughes and Kenny F. Hughes (her husband), denied plaintiffs’ allegations. Further, they affirmatively averred that the instrument was a genuine and bona fide act of sale, that the recited $800 was fully paid, and that they furnished decedent with a place of abode as the vendee was obligated to do.

In rendering judgment rejecting the demands of plaintiffs the district judge commented: “Pretermitting the question of whether or not the $400.00 cash payment was made, the evidence seems clear that the $400.00 represented by the notes was actually paid. Then when it is considered that $15.00 per month was a minimum for room and board over a period of 7 years and nine months you have an additional payment of $1395.00 making a total of nearly $1800.00 as consideration for eighty acres of land as estimated to be worth about $1200.00 by some of the witnesses as of the date of the sale in 1945.”

As is indicated by the foregoing the instant appeal presents solely issues of fact. And from our careful and thorough study of the transcript we are unable to conclude that the judge manifestly erred in resolving those issues in favor of defendants.

That the four mortgage notes were timely paid is abundantly ■ disclosed by both oral and documentary evidence. Again,.it is equally clear that the defendants housed and regularly fed the decedent for many years until he voluntarily left them and went to visit another daughter, in whose home he became ill and spent the remaining months of his life. Furthermore, we are inclined to the belief that the recited cash consideration of $400 was paid (the district judge pretermitted this question), the record containing positive testimony of several witnesses to this effect which is not controverted.

For the success of their action plaintiffs depend almost wholly on a showing that the decedent never displayed any of the money received from the purported sale; that most of the time he was on an old age pension; and that the vendee’s husband, Kenny F. Hughes, was often sick, was unable to work regularly, and received much assistance from the welfare department. Concededly, these are suspicious circumstances. But evidence which merely casts a suspicion on the verity of • a sale' by a parent to his child is inadéquate to justify a decree of annulment. Blackman v. Brown, 155 La. 959, 99 So. 711, Bourgeois v. Bourgeois, 202 La. 578, 12 So. 2d 278 and Dietz v. Dietz, 227 La. 801, 80 So.2d 414, 417.

Counsel for plaintiffs suggests that our decision in Dietz v. Dietz, supra, insofar as it concerns the conveyance to John Dietz, is controlling here. Clearly, it is distinguishable from the instant cause, therein, we said: “ * * * it is admitted by John Dietz that his acquisition from his mother produced no change whatever in the dominion and control of the property— for, although he was living in a small house thereon, his mother continued to collect the rents which came due from the farming operations and the oil lease. * * Here the vendee and her husband had complete control and dominion of the 80-acre tract. On the land they raised for their own benefit hogs, cotton, potatoes and corn, and from an oil and gas lease affecting it they received for themselves delay rentals of $80 per year. Incidentally, the record shows that these receipts were used in paying off the above mentioned four annual mortgage notes of $100 each.

For the reasons assigned the judgment appealed from is affirmed.


author: HAMLIN, Justice ad hoc.

text:
    232 La. 514
    Morris ANISMAN v. STANOLIND OIL AND GAS COMPANY.
    No. 42887.
    Supreme Court of Louisiana.
    April 1, 1957.

      Jackson, Smith, Mayer & Kennedy, Shreveport, for plaintiff-appellant.
    Norton Standeven, Oklahoma City, Okl., Simon & Carroll, Shreveport, for defendant-appellee.
   HAMLIN, Justice ad hoc.

In this suit, • plaintiff, in substance, prayed for an accounting of the entire quantity of gas and other products, produced and sold by the defendant-operator appointed by the Department of Conservation, from certain unitized areas embracing acreage owned by him. He also sought to recover his proportionate share of the market value of such products.

By supplemental petition, plaintiff alleged that he made Orders No. 125-A-l and No. 125-A-2 of the Department of Conservation, dated December 30, 1947 and February 2, 1948, respectively, a part of his original petition. He admitted that the Commissioner of Conservation of the Department of Conservation of the State of Louisiana, under date of February 10, 1955, issued Order No. 125-A-l-a, purporting to fix the costs of drilling, completing and equipping the Abney-Bryson Unit Well No. 1 at $73,348.17 and the costs of drilling, completing and equipping the Mays Unit “A” Well No. 1 at $115,367.94. However, he further alleged that—

“Petition further shows that he has never consented or agreed to the costs of development and operation of the units above described and has never agreed to the costs of said units as fixed by the Commissioner of Conser-, vation.”

A second petition was filed after the trial judge sustained an exception of vagueness with leave to amend, and the defendant filed an exception of no cause of action and an exception to the jurisdiction ratione materiae. After the exception to the jurisdiction ratione materiae was sustained, the trial judge permitted the case to be reopened for the purpose of taking testimony to establish the amount in controversy. By stipulation of counsel, it was stated that the defendant had produced and marketed from the Abney-Bryson Unit gas and other petroleum produced in excess of $75,000.00 and from the Miller-Mays Unit #1 products in excess of $150,000.00.

The trial court reinstated its judgment maintaining the exception to the jurisdiction ratione materiae, and the plaintiff appealed from that judgment.

This Court, ex proprio motu, must determine whether it has appellate jurisdiction. Grace v. Boggs, 220 La. 22, 55 So.2d 768; Nelson v. Continental Asphalt & Petroleum Co., 157 La. 491, 102 So. 583; Haney v. Dunn, La., 93 So.2d 532.

For this Court to have jurisdiction of the instant matter, the record must affirmatively show that the amount in dispute exceeds $2,000. Article VII, Sec. 10, Louisiana Constitution of 1921, LSA; Wainer v. Kirn, 223 La. 669, 66 So.2d 587; Lerner Shops of Louisiana, Inc., v. Reeves, 224 La. 33, 68 So.2d 748.

The pleadings and attached orders show drilling costs and revenues received from the wells herein involved, but plaintiff states in his supplemental petition, supra, that he has never consented nor agreed to the costs. There is no showing that the net figure will exceed $2,000, and, therefore, plaintiff’s action is primarily one for an accounting. In the case of Winsberg v. Winsberg, 229 La. 61, 85 So.2d 31, 32, we stated:

“ * * * an action for an accounting is not primarily a monetary demand but rather the assertion of a justiciable right which may or may not become the subject of a monied judgment, depending upon whether the district judge upholds or denies the claim. * * * The other right in controversy, i. e. — for an accounting of the revenues and profits derived from the personal property of Jacob Winsberg’s estate — which was rejected by the judge, is, as we have above stated, incapable of measure in dollars and cents and, unless and until an accounting is ordered, cannot be considered in determining appellate jurisdiction.”

The above statement is applicable to the present controversy; and, since there is no showing that the fund in dispute or to be distributed exceeds $2,000, this Court is without appellate jurisdiction. Thomas v. Southdown Sugars, 231 La. 75, 90 So.2d 682; State ex rel. Schwehm v. Morrison, 224 La. 811, 70 So.2d 881.

For the reasons assigned, and by virtue of LSA-R.S. 13:4441, 13:4442, it is ordered that this appeal be transferred to the Court of Appeal for the Second Circuit, provided the record be filed in that court within thirty (30) days from the date this judgment shall become effective; otherwise, the appeal shall be dismissed. The costs of this Court are to be paid by appellant.


author: SIMON, Justice.

text:
    232 La. 519
    BOARD OF COMMISSIONERS FOR LAKE BORGNE BASIN LEVEE DISTRICT et al. v. Lawrence W. BERGERON, Edmond Collins and Selma Picarella.
    No. 43254.
    Supreme Court of Louisiana.
    April 1, 1957.

      Allen J. Tillery, Thomas M. McBride, III, Arabi, for defendants-appellants.
    L. H. Perez, New Orleans, E. W. Gravo-let, Jr., Point-a-La Hache, for plaintiffs-appellees.
   SIMON, Justice.

The Board of Commissioners of the Lake Borgne Basin Levee District, hereinafter called “Levee District”, through its President, Roland Bergeron, and the said Roland Bergeron, Henry Schlindler, Jr. and Howard Hingle, the alleged lawfully appointed, qualified and acting commissioners of said “Levee Board,” obtained a temporary restraining order against the •defendants, Lawrence W. Bergeron, Edmond Collins and Selma Picarella, restraining and prohibiting them and each •of them, their associates, and all persons having knowledge thereof from interfering with said petitioners and any officers and employees of said “Levee Board,” and further restraining or prohibiting said defendants from acting or attempting to act ■or to take or assume any office of said “Levee Board” until the further orders of the Court. A rule nisi was issued against the said defendants ordering them to show cause why a preliminary injunction should not issue enjoining them from performing or attempting to perform the acts ordered restrained.

The defendants have been commissioned by the Governor of the State of Louisiana as Commissioners of the Lake Borgne Basin Levee District by virtue of the provisions of Act 35 of the First Extra Session of the Louisiana Legislature, 1956, LSA-R.S. 38:1071 and note.

In this proceeding plaintiffs sought to have the said Act 35 and the commissions issued thereunder declared unconstitutional, illegal, null and void.

Thus this suit is predicated on the attempt by plaintiffs to have the said Act 35 declared unconstitutional so as to warrant injunction prayed for by them. No other ground or cause of action is urged or pleaded.

After trial thereof the said rule nisi was made absolute and a preliminary writ of injunction was issued as prayed for.

In his written reasons for judgment, wherein his views on the law applicable were expounded, the trial judge concluded as follows:

“The court, therefore, finds that Sections 2 and 3 of Act 35 are unconstitutional and void, and that the commissions issued by the Governor to Defendants, therefore, likewise are null and void and do not entitle Defendants to take over said offices or the ‘Levee Board.’ ”

Whereupon, defendants timely applied for an order of suspensive appeal from said judgment which was denied. Application was made to us for writs of certiorari, prohibition and mandamus. Acting under the authority of Act 15, Second Extraordinary Session of 1934, LSA-R.S. 13:4431, 13:4432, we granted a suspensive appeal without bond from the judgment of the district court returnable to this Court on November 5, 1956.

Pending appeal plaintiffs filed a motion to transfer this case to the Court of Appeal, Parish of Orleans, on the ground that the amount in controversy is less than $2,000.

The defendants contend that this Court has appellate jttrisdiction by virtue of Art. 7, Sec. 10 of the La.Const. of 1921 LSA in that a “law of this State has been declared unconstitutional” and that the amount in dispute exceeds $2,000, exclusive of interest.

Art. 7, Sec. 10, Paragraph 1 of La.Const. 1921 provides: “The Supreme Court shall have control of, and general supervision over all inferior courts and shall have further jurisdiction as follows: * * * ”.

Paragraph 3 of said Art. 7, Sec. 10, provides: “It shall have appellate jurisdiction in civil suits where the amount in dispute * * * shall exceed two thousand dollars exclusive of interest * * * ”.

Paragraph S of Art. 7, Sec. 10, provides: “It shall have appellate jurisdiction * * in all cases wherein an ordinance of a parish * * * or a law of this State has been declared unconstitutional * * ”.

In their brief plaintiffs argue that there is no word in the judgment appealed from which decrees any act of the Legislature to be unconstitutional. They further contend that although the reasons for judgment by the trial judge “dwelt largely with an analysis of Act 35 of the First Special Session of 1956 and that he was of the opinion that said Act was unconstitutional for the reasons he assigned, as a matter of fact, he was careful not to declare said Act unconstitutional in his judgment or decree because he considered it 'unnecessary to base his judgment on the unconstitutionally of the Act, because the record of this case showed that the defendants had not qualified for the Offices of Levee Commissioners by. filing their Oaths of Office with the Secretary of State.”

We find plaintiffs’ contention, though ingenious, strained and untenable. An analysis of the trial judge’s “Reasons for Judgment on Rule Nisi for Preliminary Injunction” as well as the formal judgment rendered herein fails to reveal that the issue of oaths of office as commissioners of said “Levee Board,” legally or otherwise, was considered by the trial court as. a basis for the findings and conclusions reached by it; whereas the provisions of the statutes in question were critically analyzed and expressly declared to be in-violation of our Sec. 14 of Art. 5 of our Constitution and therefore the commissions issued thereunder were null and void.

In an effort to support their contention plaintiffs cite the case of Misita v. Inter-City Express Lines, Inc., La.App. 1st Circuit, 143 So. 677, wherein the judgment of the lower court declared the evidence and law to be in favor of the plaintiff and against the defendant, but the decree was rendered in favor of the defendants and against the plaintiff dismissing plaintiff’s suit at his cost. The Court of Appeal, First Circuit, held that as it is the decree which controls, the judgment, therefore, is one in favor of the defendant. Upon consideration of the merits and issue involved in that case the court of appeal amended the judgment of the lower court so as to read in accordance with its opinion. We find that this case is neither pertinent to nor controlling over the instant case.

In the case of In re Clover Ridge Planting Mfg. Co., Inc., 194 La. 77, 193 So. 468, 473, we find the following expression of law:

“It is well settled that a judgment disposes of all the issues and controversies raised in the case and creates an estoppel barring the parties from any further legal action involving the identical subject matter considered and disposed of by said judgment. And the judgment should be so construed as to give effect to every word and part of it and the effects and consequences which follow from its ■ terms whether expressed or implied. It is also a well recognized principle that a judgment is read in the light of the pleadings. * * *
“Succession of Regan, 12 La.Ann. 156: ‘When a judgment has once been signed by the Judge, it should be interpreted by the court which rendered it, as well as by all others, as the . foreign writers say, objectively; that is, it should be construed with reference to the pleadings and the subject matter of the controversy, according to the natural and legal import of the terms used.’ Davis v. McCain, 171 La. 1011, 132 So. 758; Peniston v. Somers, 15 La.Ann. 679; 23 Cyc. page 1101, Construction and Operation of Judgments.”

In the instant case, the defendants have been restrained and enjoined as prayed for in plaintiffs’ pleadings for the expressly declared reason as decreed by the trial court that the statute in question under which their commissions were issued was unconstitutional, null and void. We find this conclusion, read in the light of the pleadings, is the only one consistent with the reasoning of the written opinion handed down by the trial court in connection with this decree. Accordingly, we are constrained to construe the judgment of the trial court to be one wherein a law of this state has been declared unconstitutional and to conclude that appellate jurisdiction -is therefore vested in this Court. La.Const. 1921, Art. 7, Sec. 10.

. Accordingly, for the reasons assigned, the motion to transfer this appeal to the Court of Appeal, Parish of Orleans, is denied.

      . Wall v. Close, Director of Finance, 201 La. 986, 10 So.2d 779.

      . La.Const.1921, Art. 5, Sec. 14, provides in part that: “The power to legislate, under the penalty of nullity, shall be limited to the objects specially enumerated in the proclamation of the Governor, or petition and notice, convening such extraordinary session, * *


author: PONDER, Justice.

text:
    232 La. 527
    MARYLAND CASUALTY COMPANY v. W. H. STEWART & SONS, Inc.
    No. 42567.
    Supreme Court of Louisiana.
    April 1, 1957.

      Moutón, Champagne & Colomb, Lafayette, for plaintiff-appellant.
    Charles T. Everett, Crowley, for defendants-appellees.
   PONDER, Justice.

The plaintiff brings this suit under sub-rogation as workmen’s compensation insurer of one Bennett Fontenot, employer of Ovey Smith, deceased, for the amount of compensation and funeral expenses paid by it to the widow and hejrs of Ovey Smith, and against W. H. Stewart & Sons, Inc., a corporation operating a flying service conducting spraying operations, who had been engaged by Fontenot to spray his rice crop, and Charles Edward Stewart, the pilot operating the corporation’s plane that struck and killed Ovey Smith, who at the time was acting as flagman for Fontenot directing the path and direction of the operator of the plane in the spraying operation.

Since the appeal was lodged in this Court, the parties to this litigation filed a joint motion to transfer this case to the Court of Appeal, First Circuit, based on the ground that this Court is without jurisdiction to entertain the appeal relying on the recent holding in the case of Maryland Casualty Co. v. Gulf Refining Co., 231 La. 714, 92 So. 2d 697.

In the case of Maryland Casualty Co. v. Gulf Refining Co., supra, we held that the appellate jurisdiction in a suit brought by the subrogee of a compensation insurer lies in the court of appeal because the suit arises out of and by virtue of the compensation statute.

• For the reasons assigned, the appeal is hereby transferred to the Court of Appeal, First Circuit, pursuant to the provisions of LSA-R.S. 13:4441 ánd 13:4442, the record to be filed in that court'by appellants within thirty days from the date on which this decree shall become final, otherwise, the appeal shall stand dismissed. All 'costs to await the final disposition of the cause. ■


text:
    232 La. 529
    Gottlieb R. DIETZ et al. v. William G. DIETZ et al. Gottlieb R. DIETZ et al. v. John M. DIETZ et al.
    No. 42892.
    Supreme Court of Louisiana.
    April 1, 1957.

      H. Purvis Carmouche, Crowley, for plaintiffs-appellants.
    Aaron & Everett, Crowley, for defendants-appellees and defendants-appellants.
   PONDER, Justice.

This court in a prior case between the same parties, reported in 227 La. 801, 80 So.2d 414, 417, remanded the proceedings to the lower court with the instruction that “should the defendants fail to produce the witnesses above referred to without good cause, then the sales are to be set aside as the presumption would be so great as to render the conclusion of simulation inescapable.” In remanding this case, this court also stated that additional evidence may be tendered by the parties litigant.

The witnesses referred to were the notary and the witnesses to the alleged acts of sale sought to be annulled on the ground of simulation. The acts of sale were executed by Mrs. Bertha Dietz conveying 80 acres of land to two of her sons, John M. Dietz and William G. Dietz. The deeds were passed simultaneously and conveyed to John Dietz 40 acres of the tract for $2,-400 cash, and to William Dietz 40 acres of the tract for a like recited consideration. The facts are sufficiently set out in the former opinion and will not be here reiterated.

On this appeal we are concerned merely with the proof offered on the remand of the case. In our first opinion we said that the evidence concerning the genuineness of the sale to William Dietz would require that we uphold the sale while the condition of the record in that proceeding would require that we annul the deed to John Dietz and this we did not think was consonant with justice “which no doubt could have been dispensed had the defendants elected to produce the evidence readily accessible to them.” The reference being the evidence of the notary and the witnesses to the acts.

Upon the remand of this case, the notary and one of the witnesses were called to testify. The notary to the acts of sale was Mr. J. Donald Aaron; one witness was Mr. Everett, Mr. Aaron’s law partner; and the other witness was Miss Ethel Que-bodeauz, the firm’s stenographer who has since moved to Texas. The firm of Aaron and Everett represent the defendants in these consolidated cases.

The testimony of Mr. Aaron and Mr. Everett was to the effect that neither was able to recall how the cash consideration was paid and neither could say that any money was paid in their presence. The sales took place in 1949 and the trial was in September of 1953. No effort, except a letter, was made to secure the testimony of Miss Quebodeauz although her address was known to the attorneys in the case.

Mrs. William Dietz and her daughter testified that William Dietz gave cash for the sale but they could not remember the denominations of the bills. The money, according to William Dietz, was taken from a strong box at home but in testifying as to the amount of the money he had in the box he could not remember. He testified that they had money in a bank account in Iota on the first trial, but when Mrs. William was asked on remand if they had any other money in any bank account she answered that at no time did they have any bknk account.

As to the defendant John Dietz, he-produced the witness. Ivy LeJeune who farmed the land on a share crop basis and Lejeune testified that he paid the rental to John Dietz. This was contradictory to the testimony of John Dietz on first trial to the effect that his mother had received the rental. On this question the trial judge in his written reasons stated:

“The conflict in the testimony of John Dietz with his testimony given originally leaves the Court at a loss as to what to believe. In view of the fact that this man admittedly made false statements, under oath, to the Welfare Department in order to obtain relief just prior to the execution of the sales in question, and the apparent lightness with which he regards the taking of the oath, the Court has concluded that the contradiction of his previous sworn testimony cannot avail him.”

The trial court concluded that the proof was not sufficient to prove that the sale to William Dietz was a simulation but that the sale to John Dietz should be annulled and set aside.

On the remand John Dietz testified that his mother collected the lease money from not only his tract but the tract deeded to William Dietz. Mr. Everett testified that no effort was made to either subpoena the secretary who was a witness to the acts or to secure her depositions. The evidence in the first case shows that William Dietz lived in a four-room house with nine children and he farmed intermittently and worked for various oil companies when such work was available. His earnings were not ascertained with certainty.

It was stated in the first decision that “the record is silent respecting his (William Dietz) mother’s exercise of dominion and control over William Dietz’ 40 acres after the date of the sale.” On the remand John Dietz testified that his mother got the lease money on Willie’s 40-acre tract. William Dietz did not testify on the remand or offer any evidence to contradict John Dietz’ testimony.

The law as to the burden of proof is " succinctly stated in Dietz v. Dietz, 227 La. 801, 80 So.2d 414 and will not be reiterated here. Suffice it to say that on the remand the proof offered as to the sale to John Dietz adds nothing and as was previously "stated this sale should be annulled. See Article 2480 of the LSA-Civil Code and Peyton v. Roth, 149 La. 147, 88 So. 773.

- In the case of Dietz v. Dietz, supra, the record was silent respecting his mother’s exercise of dominion and control over William Dietz’ 40 acres of land after the date of the sale but on the remand John Dietz testified that his mother got the lease money from this tract of land and this .evidence was not contradicted. William Dietz’. testimony was contracted on the remand by his wife as to whether or not he had a bank account. While William’s wife and daughter testified that cash consideration was paid at the date of the sale yet they could not remember the denominations of the bills.

It would appear that if consideration was paid the notary and the two witnesses would remember it and in our opinion it is significant that the testimony of the other witness was not procured at least ,by deposition because the case was remanded for that purpose and the presumption is that her testimony would not have been favorable to the defendants.

Another strong circumstance in this case is the fact that these two acts of sale were simultaneously passed and called for the same consideration and since unquestionably John did not pay the consideration it would seem extremely doubtful that the mother would exact payment from one son and not the other.

A careful consideration of the evidence in this case leads us to the opinion that no consideration was paid by either William Dietz or John Dietz and such being the case both deéds shotild be annulled.

For the reasons assigned the judgment of the lower court bearing docket No. 15,-665, dismissing the suit as to William G. Dietz et al. is reversed and set aside, the case is reinstated and there, is now judgment in favor of Gottlieb R. Dietz, Bertha Dietz Bertand, Rosie Lena Dietz Pousson,. Madre Dietz Pousson, and against William G. Dietz, John M. Dietz, Edward K. Dietz, Ida Dietz Fruge and Richard J. Dietz, annulling and setting aside the sale of Mrs. Bertha Dietz to William G. Dietz passed-on July 7, 1949 before Donald Aaron, Notary Public, recorded in Conveyance Book No. M-9, page 362 on July 7, 1949. All costs to be paid by the defendants.

The judgment of the lower court bearing docket No. 15,666 entitled Gottlieb R. Dietz et al. v. John M. Dietz et al. is affirmed. Cost of this appeal to be paid by the defendants.


text:
    232 La. 537
    Jessie M. MATTHEWS v. NATIONAL LIFE AND ACCIDENT INSURANCE COMPANY.
    No. 43146.
    Supreme Court of Louisiana.
    April 1, 1957.
    Ferdinand A. Cashio, Shreveport, for relator.
    Wilkinson, Lewis, Wilkinson & Madison,. Shreveport, for defendant-appellee.
   PONDER, Justice.

After we granted certiorari or review to-the Court of Appeal, Second Circuit, upon the application of plaintiff, and upon submission of the case in this Court, the defendant filed a motion to rescind the order on the ground that the application for cer-tiorari was not timely filed.

In the motion to rescind, it is set out that the record affirmatively shows that the Court of Appeal refused to grant a rehearing on July 11, 1956 and the application for certiorari was filed in this Court on August 13, 1956, more than thirty days after the date of the denial of a rehearing.

Under the provisions of Section 11 of Article 7 of the Constitution, LSA, this Court is without jurisdiction to entertain an application 'filed more than thirty days after a rehearing has been refused by the Court of Appeal. Trimble v. Employers Mut. Casualty Co., 213 La. 644, 35 So.2d 416; Landry v. Ramos Lumber and Manufacturing Company, 124 La. 599, 50 So. 593.

In the case of Heirs of P. L. Jacobs, Inc., v. Johnson, 221 La. 473, 59 So.2d 691, this Court, under identical circumstances, said: “Under the provisions of Section 11 of Article 7 of the Constitution, this court cannot grant certiorari under its supervisory powers, unless the application shall have been made to this court, or one of the justices thereof, within thirty days after a rehearing shall have been refused by the Court of Appeal. The proviso in Section 11 of Article 7 of the Constitution that the application for certiorari must be made within thirty days to this court or one of its justices is mandatory. We pointed out in the Trimble case that ‘This proviso is positive and explicit; it enjoins this court from entertaining applications for writs of certiorari to the Courts of Appeal unless they are filed within the time prescribed.’ ”

For the reasons assigned, the order of November 5, 1956 is set aside and the application for certiorari is denied at the cost of plaintiff, Jessie M. Matthews.


author: HAWTHORNE, Justice.

text:
    232 La. 539
    Ferdinand J. DELPIT v. Veneta Candiff DELPIT.
    No. 40968.
    Supreme Court of Louisiana.
    April 1, 1957.
    Leo L. Dubourg, New Orleans, for appellant.
    Michael H. Bagot, New Orleans, for ap-pellee.
   HAWTHORNE, Justice.

At the time set for argument of this appeal attorney for the appellant appeared solely for the purpose of informing the court that no briefs would be filed in support of the appeal and that the case would not be argued. Appellant in this case has thus not pointed out any error in the judgment of the lower court. It is well settled that under these circumstances the judgment may be affirmed under the presumption that it is correct. See Perkins v. Buchler, 223 La. 179, 65 So.2d 130, and numerous authorities there cited. We have nevertheless examined the record and find no error of law or fact in the judgment.

The judgment is therefore affirmed, appellant to pay all costs.


text:
    232 La. 541
    STATE of Louisiana v. James Norman MILLER.
    No. 43303.
    Supreme Court of Louisiana.
    April 1, 1957.
    Jack P. F. Gremillion, Atty. Gen., M. H. Culligan, Asst. Atty. Gen., Peter S. Anderson, Dist. Atty., Leesville, A. B. Cava-naugh, Lake Charles, for plaintiff-appellant.
    Gravel, Humphries, Sheffield & Mansour, Lloyd G. Teekell, Alexandria, and Jack L. Simms, Leesville, for defendant-appellee.
   HAWTHORNE, Justice.

Defendant, charged with the crime of • murder, timely filed a motion to recuse the presiding judge. The motion was sustained, and the State appealed.

The grounds for recusation of a judge in a criminal case are set out in R.S. 15:303, which reads insofar as pertinent here: “The causes for which any judge in any criminal case shall be recused, shall be as follows: * * * (2) * * * his being related * * * to one of the attorneys or to the spouse of one of the attorneys within the second degree. * * * ”

The motion to recuse which the district judge sustained was submitted on a stipulation of facts as follows: A. B. Cava-naugh is employed and regularly enrolled to assist the prosecution. Cavanaugh is a member of the law firm of Lawes, Cava-naugh, Hickman and Brame, of Lake Charles, Louisiana, and is a law partner of Robert B. Lawes. Lawes is the spouse of the daughter of the presiding judge of the court. Lawes has participated in the division of any fee which has been, or which may be, paid to Cavanaugh for his professional services rendered in this case. The members of this law firm often confer and consult with, and receive advice from, the other members of the firm concerning any case of which any member of the firm may be in direct charge. Even- though a particular member of the firm may be employed to handle a particular case, some other member of the firm may, and sometimes actually does, act as the trial attorney for the case.

The trial judge in his written reasons for sustaining the motion said, among other things:

“ * * * There are several reasons that render it clear to me that Mr. Lawes, the Judge’s son-in-law, is as much one of the attorneys in the case as is Mr. Cava-naugh, who is the one actually employed, associated with and actively assisting the prosecution, and why the employment of one member of a law firm is equivalent to the employment of the whole firm. Among those reasons are the following:
“(1) Mr. Lawes has participated in or will participate in any fee that has been or may be paid Mr. Cavanaugh for his professional services in the case, hence the Judge’s daughter'-will benefit or has benefited, indirectly, by the fee so paid.
“(2) Should Mr. Cavanaugh become unable to complete the litigation, Mr. Lawes, as every other member of Mr. Cavanaugh’s law firm, would be obligated, at the request of his employers and with the consent of the District Attorney, to complete the work Mr. Cavanaugh had undertaken.
“(3) Mr. Lawes could not now, in good conscience or ethics, accept employment on the side of the defense, because by reason of his employment, through the activities of his partner, Mr. Cavanaugh, he is already attorney for the State.
«* * * * * *
“(6) It is well known that, in some cases, lawyers accept criminal cases on a contingent fee basis, that is to say, one fee if successful and a lesser one if unsuccessful. If such were the case here, the Judge would be sitting on a case in which his son-in-law, and indirectly his daughter, had a personal interest in the outcome, in that success would mean greater benefit to each.
« * * sjs * * *
“ * * * While I know that no prejudice could be imposed upon defendant in this case, if I preside, by reason of the fact that Mr. Lawes is my son-in-law, to establish it as the law, if it should be so established, that a judge should not be re-cused under the facts here prevailing, would be, in my opinion, a most dangerous precedent, one that could be fruitful of much evil and one calculated to lower the respect for and confidence in the Judiciary.
« * # * * * * ”

The State argues that the grounds for recusation of a judge in a criminal case are purely statutory and limited, and that unless the grounds urged clearly come within the purview of the statute, the judge has no right to recuse himself.

We agree with the district judge that the employment of a member of his son-in-law’s law firm, under facts such as are shown by the stipulation to exist here, is tantamount to employment of the judge’s son-in-law in the prosecution of this case, and is clearly a ground for the judge’s re-cusation within the intendment of the statute.

For the reasons assigned the ruling of the district judge is affirmed.

      . See R.S. 15:313.


text:
    232 La. 546
    Eugene B. COTTINGHAM v. DEPARTMENT OF REVENUE, STATE OF LOUISIANA.
    No. 42503.
    Supreme Court of Louisiana.
    April 1, 1957.

      McKeithen, Mouser & McKinley, Monroe, for appellant.
    Robert L. Roland, Levi A. Himes, Chapman L. Sanford, Baton Rouge, for appellee.
   HAMITER, Justice.

In this case there is presented for review a unanimous ruling of the Louisiana Civil Service Commission rendered on an appeal to that body by a dismissed state employee. The ruling and the reasons therefor, which were assigned in writing, read as follows:

“Eugene B. Cottingham, appellant, an Investigator I in the classified service of the Department of Revenue, was discharged effective December 31, 1954. The causes for this action were communicated to appellant in a letter dated December 16, 1954, charging substantially:
“1. That in a written application to the Department of State Civil Service, dated June 30, 1954, he denied having ever been a defendant in a criminal proceeding, whereas court records show that on October 3, 1947 he had pleaded guilty to violation of the Sunday Closing Law and was sentenced to pay a fine of $75 or serve 30 days in jail.
“2. That while employed in a position of confidence and trust he conducted himself in such manner that on November 23, 1954, members of the State Police preferred charges of public bribery against him.
“On December 27, 1954 appellant requested a hearing before this Commission without specifying any ground of complaint. . By a subsequent letter, three days later, he denied ‘falsifying’ the application but admitted an error through oversight due to conditions that he wished to discuss at a • hearing, which was originally fixed for February 5, 1955. By joint motion this fixing was upset, and was later fixed for March 28, 1955, at which time the parties were heard.
“At the opening of the hearing appellant excepted to the sufficiency of the notice of discharge and moved for a summary decree maintaining his appeal.
“The Commission denied the motion, but ruled out .the second charge for insufficient specification to justly put the burden of proof on these facts upon appellant.
“The parties have stipulated that appellant was charged on October 3, 1947 with violating the Sunday Closing Law by dispensing intoxicating liquor on a Sunday; that on that date he waived arraignment, pleaded guilty, was sentenced to pay a fine of $75 and costs or serve 30 days in jail, and paid the fine and costs.
“Appellant admits that on June 30, 1954, while holding his position as Investigator I in the Department of Revenue, he made written application to take an examination for the position of Investigator II in the classified service of the State; and that he answered ‘no’ to the question designed to reveal the subject matter of the stipulation.
“He obtained no appointment under the examination taken pursuant to his aforesaid application.
“When he signed said application he was emotionally disturbed by the serious illness of a brother. He testified that the offense which he did not reveal imported no moral turpitude, and that it 'escaped his memory at the time.
“There is no evidence that at any time between June 30, 1954 and December- 16, 1954, appellant made any attempt to correct the erroneous answer made in his application.
“The Collector of Revenue established that the position of Investigator in his Department requires men of the highest probity; that as part of his duties appellant had been required to examine into the character of applicants for liquor licenses.
“If appellant willfully made the false statement in his application, he would be guilty of a misdemeanor under Pars. (N) (4) and (P) (3) of the Civil Service Amendment (Const. Art. XIV, Section 15). It is not necessary in a dismissal case that the employee’s conduct be shown to have constituted a misdemeanor in order to justify his discharge. An employee whose conduct, whether willful or only negligent, convicts him of untrustworthiness, can find no shelter in the law to protect his employment. The purpose of all civil service laws regulating the discharge of employees is to insure good public service by experienced employees and to protect the faithful, honest and competent from removal for unworthy causes.
“The admitted facts constitute sufficient cause for appellant’s discharge, and his appeal is dismissed.”

Pertinent to our review of such ruling are provisions contained in Article 14, Section 15 of the Louisiana Constitution, relating to both state and city civil service, which recite: “(N) (1) No person in the State or Classified Service, having acquired permanent Civil Service status, shall be demoted, dismissed, or discriminated against, except for cause, expressed in writing by the appointing authority, (a) The burden of proof on appeal, as to the facts, shall be on the employee.

‡ iji sj«

“(O) (1) There is vested in the State Civil Service Commission and in the appropriate Civil Service Commissions for the several cities respectively the exclusive right to hear and decide all appeals and the legality of all removal and disciplinary cases. The decision of the appropriate Civil Service Commission shall be final on the facts, but an appeal shall be granted to the Supreme Court of Louisiana on any question of law if application to the Commission is made within thirty (30) days after the Commission’s decision becomes final. * * *»

Heretofore, in considering these provisions, we have stated: “ * * * While it is true that under our civil service system now in force, persons who have acquired civil service status are protected from discrimination and/or disciplinary action which is arbitrary or is based on political or religious reasons the same provision of the Constitution authorizes dismissal ‘for cause,’ and sets up a Commission to which 'application may be made when an employee is aggrieved — said commission being vested with ‘the exclusive right to hear and decide' all appeals and the legality \of all removal and disciplinary cases.’ The right of appeal to this Court is restricted to questions of law alone, * * *. Hearings of this kind are usually final, and the Court will not interfere with the bona fide judgment of the Commission. * * *

* * * * * *

“ ‘ * * * as a general rule, in the absence of arbitrary action, where the proceeding for the removal or discharge of a civil service employee has been conducted in compliance with civil service laws, the decision of the civil service commission or other authority authorized to conduct the hearing or to consider the employee’s explanation is not subject to review by the court. * * * the reviewing court will ordinarily inquire only whether the officer, board, or commission had jurisdiction, acted within the prescribed rules, and followed the form of proceedings legally applicable in such cases; and the court will not disturb the order or decision on its merits, or interfere with the exercise of the discretion vested in the officer, board, or commission, unless the action of the board or commission was arbitrary. * * * where the decision is based on substantial evidence, the court may not consider the weight or sufficiency of the evidence. * * * the burden of proving arbitrary action in the discharge of the employee is on the employee.’ ” Konen v. New Orleans Police Department, 226 La. 739, 77 So.2d 24, 27.

Some of these pronouncements were quoted approvingly in the later case of Domas v. Division of Employment Security of Department of Labor, 227 La. 490, 79 So.2d 857, 862, in which we further said: “Answering the contention presented under the fifth assignment of error that cause for dismissal was illegal and not justifiable under the circumstances in which, at the time, he found himself, we conclude that this involves purely the reasonableness of the cause based upon the final and conclusive findings of fact by the Commission, the correctness of. which cannot be inquired into by the courts.”

If it could be concluded herein that there was no real and substantial relation between the assigned cause for the dismissal of appellant and his qualifications for the position in which he served the action of the Commission in upholding his removal would, of course, be arbitrary and hence subject to annulment by this court as a matter of law. On the other hand if such a relation existed the question then presented would involve solely the sufficiency or reasonableness of the cause — a question of fact which the Commission, as pointed out in the above cited authorities, has the exclusive right to determine.

As stated by the Commission the appellant freely admits that he gave an incorrect answer of “No” to the application inquiry of whether he had ever been arrested or convicted for the violation of any law (except a minor traffic violation) ; theretofore, he had been convicted and sentenced for violating the Sunday Closing Law, LSA-R.S. 51:191 et seq., by dispensing intoxicating liquor on a Sunday. (However, he contends that in thus answering falsely he acted negligently and unintentionally while under an emotional strain due to the then serious , illness of his brother.) The record further conclusively discloses that, at the time of his filling out the application, the duties of appellant (as an Investigator I in the Department of Revenue) required him to investigate and pass upon the moral qualifications of applicants for beer and whiskey licenses.

Considering the foregoing undisputed facts there appears to have been a real and substantial relation between the assigned cause for the dismissal of appellant and his qualifications for the public work in which he was engaged. His having stated an untruth in answering a material and an important civil service query, even if only negligently done as he contends, could well affect the matter of his reliability and trustworthiness for performing the above mentioned duties of a position of trust which requires careful and thorough investigations. Therefore, we must conclude that the Commission did not act arbitrarily in upholding the dismissal. Whether the discussed cause was sufficient and reasonable for removing appellant from the service is, as above shown, a question of fact which we are without jurisdiction to decide.

Our decision in Morrison v. Department of Highways, 229 La. 116, 85 So.2d 51, cited and relied on by appellant, is not appropriate here. Therein this court merely held as a matter of law that the Louisiana Civil Service Commission was without authority to adopt a rule which required that employees in the classified service be removed on attaining a certain age.

For the reasons assigned the ruling of the Commission is affirmed


text:
    232 La. 556
    Succession of Henry J. MOORE, Jr.
    No. 42905.
    Supreme Court of Louisiana.
    April 1, 1957.
    Charles E. de la Vergne, New Orleans, for defendant-appellant.
    Byrnes & Wallace, New Orleans, for plaintiff-appellee.
   HAWTHORNE, Justice.

Henry J. Moore died in New Orleans on August 2, 1955, leaving neither wife, ascendants, nor descendants. By last will and testament in olographic form dated July 26, 1955, he bequeathed all of his property to Mary Belle Patterson.

■ This will was duly admitted to probate, and an inventory showed that his estate consisted of both immovable and movable property having an appraised value of over $19,000, including real estate appraised at $16,000. • .

'Shortly after the probate of the will, plaintiffs, collateral relatives of the deceased, instituted this suit against the universal legatee, Mary Belle Patterson, to have the bequest to her of all of Henry Moore’s property set aside on the ground that the donation mortis causa was null and void under Article 1481 of the Civil Code because Moore and Mary Belle Patterson had lived together in open concubinage. After trial the lower court rendered judgment setting aside the bequest to Mary Belle Patterson in its entirety, and she has appealed.

Article 1481 of the Civil Code provides:

“Those who have lived together in open ■concubinage are respectively incapable of making to each other, whether inter vivos ■or mortis causa, any donation of immova-bles; and if they make a donation of movables, it can not exceed one-tenth part of the whole value of their estate. * * * ”

In the leading case of Succession of Jahraus, 114 La. 456, 38 So. 417, 418, this court interpreted the term “open concubinage” used in Article 1481 as concubinage “that is plain and aboveboard, without secret, reserve, or disguise, and not merely one that is notorious”. In Jones v. Kyle, 168 La. 728, 123 So. 306, 307, this court reiterated the pronouncements of the Jahraus ■case, saying:

“In Succession of Jahraus * * * this ■court had occasion to inquire into the meaning of ‘open concubinage.’ The court said that the word ‘concubinage’ described a ■status and not mere acts of fornication or adultery however frequent or even habitual; ■that the word ‘open’ means free from concealment, reserve or disguise, not secret, but plain and aboveboard; that ‘open concubinage’ means one that is plain and aboveboard, without secret, reserve, or disguise, not merely one that is notorious; that ‘the concubinage should be so public as to be practically avowed, not necessarily by word, but at any rate by unambiguous, unequivocal conduct; that the relations must be such that, when sought to be made the basis of. judicial' action, no odious inquisition might be necessary, and no nice poising of testimony.’ ”

See also Succession of Lannes, 187 La. 17, 174 So. 94; Succession of Washington, 222 La. 707, 63 So.2d 610.

The record shows to our satisfaction that Moore and Mary Belle Patterson lived together in concubinage, and that the concubinage was open.

For almost a year before the death of Henry Moore, he and Mary Belle Patterson were having sexual relations with each other, and their liaison began while she was still living with her husband. In June of 1954 she left her husband, and shortly aft-erwards moved into an apartment house owned by Moore. Her apartment was next to the one occupied by Moore, and she used the kitchen and bath of his apartment. She paid rent for her apartment until January or February, 1955. At that time she moved into Moore’s apartment and lived with him there until his death in August of that year. After she moved into his apartment, they lived together as husband and wife, and their conduct clearly indicates that their relationship had by this time assumed the status of concubinage and was not “mere acts of fornication or adultery”.

On the question of whether the concubinage was open, which is a question of fact, the trial judge after hearing all the evidence and the testimony of the witnesses concluded that this man and this woman had lived in open concubinage, and we do not think he erred. Appellant herself denied emphatically that there were any improper relations between her and the deceased, but her testimony is refuted by other evidence. When she first moved into Moore’s apartment house, both she and Moore made some effort to conceal their relations from her husband. These efforts, however, continued only for a short time, and after she moved into his apartment the concubinage was open. It was known in the community in which they resided that they were living together as husband and wife, and their friends and associates were well aware of their relationship. The only serious question here is whether Moore and Mary Belle Patterson themselves made any attempt to conceal the concubinage. We do not think they did. She referred to herself as Moore’s common-law wife, and he spoke of her to friends as his “old lady” and his common-law wife. The term “old lady” as shown by the record is commonly used among members of the Negro race, to which all of these persons belong, of a woman who is living with a man out of wedlock. There is other evidence in the record establishing that the relations of these parties were free from concealment or disguise and plain and aboveboard, and that neither one of them, except just at first, made any effort to conceal their relations. There appears to be no reason for us to disturb the finding of the trial judge on this question of fact.

As we have stated, the district judge set aside the donation mortis causa to appellant in its entirety, and in doing this he did not properly apply the provisions of Article 1481. The donation mortis causa to Mary Belle Patterson of the immovable property left by the deceased is void and without effect. As to the movable property, however, the donation is valid but must be reduced to one-tenth of the value of all of the property left by the testator. Art. 1481, La.Civ.Code; Olivier v. Blancq, 2 La.Ann. 517; Succession of Hamilton, 35 La.Ann. 640; Succession of Landry, 114 La. 829, 38 So. 575

For the reasons assigned the judgment appealed from is amended by recognizing Mary Belle Patterson to be entitled to movable property of the succession of Henry J. Moore, Jr., equal to one-tenth of the value of the whole estate. All costs are to be paid one-tenth by appellant and nine-tenths by appellees. In all other respects the judgment appealed from is affirmed.

HAMLIN, J. ad hoc, recused.


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    232 La. 562
    Sam LEVY v. ANDRESS-HANNA, Inc., et al.
    No. 42879.
    Supreme Court of Louisiana.
    April 1, 1957.

      Morgan, Baker, Skeels, Middleton & Coleman, Shreveport, for defendant-appellant.
    Jack H. Kaplan, Wilson, Abramson & Maroun, Shreveport, for plaintiff-appel-lee.
   SIMON, Justice.

On November 2, 1953 plaintiff purchased from Andress-Hanna, Inc. a 1953 model Mercury Monterey coupe at a total price of $4,105.89, and for which he traded a used 1947 Ford sedan at a credit of $881.49 and paid $150 in cash. For the difference in price he executed a note in the sum of $3,074.40, secured by a chattel mortgage in favor of the Universal C. I. T. Credit Corporation, payable in thirty monthly installments of $102.48 each.

Plaintiff made six payments on the mortgage note and upon his defaulting on two successive installments the defendant Universal C. I. T. Credit Corporation repossessed said car. Whereupon plaintiff instituted this suit alleging the repossession to have been illegal and claimed damages in the sum of $16,801.37, which he itemized as follows:

(a) Amounts paid in trade-in allowance on the old car $1,751.37
(b) Improvements to the car 50.00
(c) Damages for loss of business 1,000.00
(d) Mental anguish 5,000.00
(e) Damage for embarrassment and humiliation 5,000.00
(f) Loss and value of the car 4,000.00

It was stipulated between the parties that the value of the automobile at the time of the alleged illegal seizure was $1,250.

The trial court rendered judgment in favor of plaintiff and against the Universal C. I. T. Credit Corporation in the sum of $1,400 with legal interest from date of judicial demand until paid, and dismissed plaintiff’s demands against Andress-Hanna, Inc.

Universal C. I. T. Credit Corporation has appealed from said judgment to this Court. Plaintiff answered and prays that the judgment against said appellant be increased from $1,400 to $16,801.37 with interest.

On examining the record with the view of determining our appellate jurisdiction we find by the evidence adduced that the amount in dispute at the time that the case was submitted to the district court for decision did not exceed the sum of $2,000. It being manifest that this Court has no jurisdiction over this cause, we take cognizance of that fact ex proprio motu, notwithstanding the failure of the parties to have raised this issue. Maginnis Land & Improvement Co. v. Marcello, 168 La. 997, 123 So. 653; Town of Springhill v. Murphy, 170 La. 1054, 129 So. 634; State v. Green, 210 La. 190, 26 So.2d 693; State v. Ware, 228 La. 713, 84 So.2d 56.

In the recent case of Harris v. Barron, 231 La. 1076, 93 So.2d 663, 664, we held as follows:

“In determining the question of jurisdiction this Court is not bound to accept the allegations of the petition but will look into the record to ascertain the real amount in dispute. Allegations of jurisdictional facts are not the exclusive test of jurisdiction. Wilkins v. Gantt, 32 La.Ann. 929; Lea v. Orleans, 46 La.Ann. 1444, 16 So. 456; Spearing v. Whitney-Central Nat. Bank, 129 La. 607, 56 So. 548; Wagner v. New Orleans Ry. & Light Co., 151 La. 400, 91 So. 817.

“In the case of Nash v. Curette, 218 La. 789, 51 So.2d 71, 73, with reference to the •appellate jurisdiction of this Court, we pronounced the following' principles: ‘It is well .settled in the jurisprudence of this, state that ■a plaintiff’s allegations as to the amount in •dispute will not control in determining the •appellate jurisdiction of this court where the nature of the case, as disclosed by the record, is such that an award in plaintiff’s favor could not exceed our minimum juris•diction of $2000.00. See Bensel v. Kuhlman, 154 La. 150, 97 So. 347; Guidry v. Breaux, 158 La. 1002, 105 So. 43; Trahan v. Breaux, 212 La. 459, 32 So.2d 845.

“ ‘Further, it is well settled that, where the allegations of damages are evidently •exaggerated, they will be disregarded by this court in passing upon the question of jurisdiction. Quaglino v. Curren, 127 La. 126, 53 So. 464; French v. Trout Creek Lumber Co., 141 La. 18, 74 So. 575; Wagner v. New Orleans Ry. & Light Co., 151 La. 400, 91 So. 817; Buck v. Latimer, 151 La. 883, 92 So. 372; Lo Cicero v. Societa Italiana Di M. B. Christoforo Columbo, 151 La. 887, 92 So. 373; Buttner v. Palmisano, 152 La. 587, 93 So. 880; Walsh v. Bush, 206 La. 303, 19 So.2d 144.’

“In the early case of Wunderlich v. New Orleans Ry. & Light Co., 143 La. 626, 79 So. 80, this court held that, ‘* * * where the appellate jurisdiction depends upon the amount involved, the question of amount will be determined by the circumstances disclosed by the records, rather than by the allegations of the litigants * * *. Wilkins v. Gantt, 32 La.Ann. 929; State ex rel. Police Jury of Livingston Parish v. Miscar, 34 La.Ann. 834; Buddig v. Baldwin, 38 La.Ann. 394; Pinckney v. Wolf, 41 La.Ann. 306, [6 So. 27]; Johnson v. Hosmer, 108 La. 697, 32 So. 961; Leury v. Baton Rouge C. Co., 117 La. 956, 42 So. 439; Schlemmer v. Howard, 120 La. [321] 322, 45 So. 263; Nick v. Bensberg, 123 La. 351, 48 So. 986; Weis v. [New Orleans] Board of Trade, 125 La. 1010, 52 So. 130; Bloomfield v. Thompson, 133 La. [209] 211, 62 So. 634.’”

In the instant case, as above noted, the Value of the new car, including improvements thereon was stipulated by the parties to be $1,250, which amount the trial court ■ accepted as a basis for its award for this item. We find no evidence which in any wise supports plaintiff’s claim for damages as a result of his alleged loss of business.

The trial court awarded to plaintiff the sum of $150, apparently in full satisfaction of his claim for damages for alleged mental anguish, embarrassment and humiliation. There is no evidence in the record affirmatively showing that plaintiff would be entitled to an increase of said award such as would cause the amount in dispute to be in excess of $2,000 and thereby vest jurisdiction in this Court.

Manifestly, there can be no award made in satisfaction of plaintiff’s claim for damages for loss and value of the repossessed automobile. The trial court, in accordance with the stipulation of counsel for both sides, awarded plaintiff the full cash value of whatever equities he owned in said car, namely $1,250. It follows that there is no legal basis for entertaining plaintiff’s claim for damages in the sum of $4,000 allegedly due for the loss and value of the car so repossessed.

Thus it is readily seen from the record itself, the allegation of the petition notwithstanding, that plaintiff has grossly inflated his claim for damages and that under the proof adduced by the parties the value thereof could not have supported the requirement that the amount in dispute, at the time the case was submitted to the district court, exceed the sum of $2,000 so as to vest appellate jurisdiction in this Court. La. Const. 1921, Art. 7, Sec. 10, LSA.

Accordingly, for the reasons assigned, it is ordered that this appeal be transferred to the Court of Appeal, Second Circuit, pursuant to the provisions of LSA-R.S. 13:4441 and 13:4442, the records to be filed in such court by appellants within 30 days from the date on which this decree shall become final; otherwise the appeal shall stand dismissed. All costs of the appeal to this Court shall be paid by appellant; all other costs to await final disposition of the cause.


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    232 La. 569
    Leon A. NOLAND v. LIBERTY MUTUAL INSURANCE COMPANY et al.
    No. 43211.
    Supreme Court of Louisiana.
    April 1, 1957.
    Durrett, Hardin & Hunter, ' Baton Rouge, Richard Kilbourne, Clinton,' for plaintiff, appellant below, and applicant.
    Taylor, Porter, Brooks, Fuller & Phillips, Baton Rouge, for defe'ndants-appel-lees-respondents.
   HAMITER, Justice.

Plaintiff, Leon A. Noland, seeks a judgment herein for damages allegedly sustained as the result of a collision between the automobile he was driving and a bakery truck operated by one Jack B. Gou-deau. Cited as defendants were the named truck operator, Wm. Wolf Bakery, Inc. (Goudeau’s employer and truck owner), and Liberty Mutual Insurance Company (the liability insurer of the latter).

The district judge dismissed the suit. Although being of the opinion that the defendant Goudeau was negligent, he concluded that plaintiff was contributorily negligent.

On appeal the Court of Appeal, First Circuit, affirmed the judgment. It held that there was no negligence on the part of the truck driver and, hence, it did not pass on the question of plaintiff's contributory negligence. See 89 So.2d 428. We granted certiorari.

The record discloses that the collision occurred before daylight during the morning of August 7, 1954, about eight miles north of the Village of Scotlandville, Louisiana, on U. S. Highway 61 which (at such point) is black topped, is twenty feet in width, and has four foot shoulders. Immediately before the accident plaintiff’s automobile, having just completed a curve to its right, was traveling in a southerly direction in the proper or west lane at a speed of approximately 35 miles per hour. The bakery truck approached it from the south (proceeding in a northerly direction) at a speed of from 45 to 47 miles per hour, in the east lane, and on a straight roadway.

Some fifty feet south of the mentioned curve (which plaintiff’s car had completed) was a motionless automobile belonging to one Abe Sims, part of which was in the truck’s lane. This third vehicle, parked partially on the roadway at approximately a forty-five degree angle without lights, flares or other warning signals, was headed toward the north with its left front wheel on the paved surface and the remaining wheels on the shoulder. According to Goudeau it occupied about one-half of his side of the highway and was not seen by him until he was approximately seventy-five feet therefrom, at which time he applied his brakes. He is not sure whether thereafter the truck accidentally swerved into plaintiff’s traffic lane or it skidded there as a result of his applying the brakes. Nevertheless, he admits that his vehicle veered into plaintiff’s lane and that therein (just about alongside the parked car) the front of his truck struck the side of plaintiff’s automobile and forced it into the ditch adjoining the western shoulder.

Plaintiff and Goudeau (they were the only eyewitnesses to the accident) disagreed in their testimony only with respect to the condition of the headlights of the former’s car as the vehicles approached each other. Goudeau testified that they were on bright, that he asked for dimmers by blinking his own lights, and that plaintiff immediately complied with the request. Plaintiff, on the other hand, stated that his lights were dim at all times and that no signal was given by Goudeau.

Title 32 of the Louisiana Revised Statutes, which relates to motor vehicles and traffic regulation, contains the following provisions:

“§ 231. Upon all highways * * * the driver of a vehicle shall drive it upon the right half of the highway * * * except when overtaking and passing another vehicle, subject to the limitations applicable in overtaking and passing set forth hereafter.
“§ 232. Drivers of vehicles proceeding in opposite directions shall pass each other to the right, each giving the other for at least two hundred feet before meeting, one half of the main travelled portion of the highway.
“§ 233. * * * C. The driver of a vehicle shall not drive to the left side of the center line of the highway in overtaking and passing another vehicle traveling in the same direction, unless such left side is clearly visible and free from oncoming traffic for a sufficient distance ahead to permit such overtaking and passing to be made in perfect safety. Whenever an accident occurs under such circumstances, the responsibility therefor shall rest prima facie upon the driver of the vehicle doing the overtaking or passing.”

In view of these provisions, and since the instant collision occurred while the bakery truck was in the wrong traffic lane, the presumption is that Goudeau was negligent in the operation of his vehicle. And it follows that the burden is upon him to show that the accident was not caused by his negligence or that there were justifiable circumstances which would excuse his conduct. See Schick v. Jenevein, 145 La. 333, 82 So. 360 and Miller v. Hayes, La.App., 29 So.2d 396.

As the Court of Appeal pointed out there are decisions in our jurisprudence to the effect that where a driver is faced with and he acts during a sudden emergency not of his own making, and in attempting to avoid a perilous situation he causes injury to another, his conduct does not give rise to an action in damages in favor of the person so injured. Too, our courts have held that the existence of certain circumstances beyond the control of a driver (for example, blinding lights of approaching vehicles) may exculpate him from a prima facie showing of negligence. But those cases (cited by the Court of Appeal and by defense counsel in their brief) are inappropriate here, for we do not find that any such emergency or exculpatory circumstances existed in connection with the instant collision. Neither did the trial judge so find, he having observed in his written reasons for judgment that: “* * * the night was clear, the road between the bakery truck and the parked Sims car was straight, and Goudeau doesn’t complain that his vision was in any way interfered with." (Emphasis ours.)

The Court of Appeal, in holding that the truck driver was not negligent, believed that Goudeau’s vision was impaired by the lights of plaintiff’s approaching car. But, as indicated above, we find no testimony or other evidence on which to base such a belief. In fact, Goudeau was asked by the trial judge: “Why hadn’t you seen it, because Mr. Noland’s car was coming slightly around the curve which threw his headlights directly on that parked car at a time when they were not blinding in your face according to every experience that I have had. Now, why didn’t you see that parked car then ? ” And he replied: “Sir, I just didn’t see it. That’s all I know, sir. What caused me to didn’t see it I don’t know then.”

Under these circumstances we can only conclude that Goudeau’s failure to timely observe the parked vehicle was due to his not keeping a proper lookout as to the condition of the road ahead. His seeing such vehicle at the last minute and swerving into plaintiff’s lane to prevent striking it (or being forced there by skidding when he attempted to stop) was not an emergency created by another as referred to in the cases relied on by defendants. Rather, the emergency here resulted from Goudeau’s lack of vigilance.

While we agree with the district court that Goudeau was negligent we do not agree that the plaintiff was also guilty of negligence in failing to observe the parked car. No authority has been called to our attention, and we know of none, holding a driver to that degree of care which requires him to see during the nighttime an unlighted obstacle in a traffic lane other than his own, such as was the situation with respect to the Sims vehicle.

This case is distinguishable from Taormina v. Reid, La.App., 71 So.2d 351 which was cited and relied on by the district judge. The accident therein obviously occurred during the daytime, and it was admitted that the driver of the car in the proper lane plainly saw the obstacle (about 300 feet ahead) in the path of the vehicle approaching him but made no attempt to slacken his speed, he simply assuming that the approaching vehicle would stop in time.

We hold, therefore, that plaintiff was -not guilty of contributory negligence and that he is entitled to recover for the losses he sustained as a result of the collision. For a determination of the quantum of damages, however, the case will be remanded to the Court of Appeal since it has not passed upon that issue.

For the reasons assigned the judgment of the Court of Appeal is reversed and set aside and the cause is remanded to that court to be proceeded with according to law and consistent with the views herein expressed. The defendants shall pay all costs.