author: GUIDRY, Justice ad hoc.

text:
    232 La. 310.
    SUCCESSION of Katie ROTH, Widow of Frederick FRANZ and Succession of Mrs. Katie (Katy) Roth, Widow of Fred Franz.
    No. 42875.
    Supreme Court of Louisiana.
    Feb. 25, 1957.
    Rebearing Denied April 1, 1957.
    See, also, 230 La. 33, 87 So.2d 719.

      Piazza & Gulotta, Simon & Wicker, Curtis, Foster & Dillon, Felix W. Gaudin, New Orleans, for plaintiffs-appellants.
    Jones T. Prowell, Joseph V. Ferguson, II, Jackson P. McNeely, Cobb & Wright, Herman M. Baginsky, New Orleans, for defendants-appellees.
   GUIDRY, Justice ad hoc.

Mrs. Katie Roth, widow of Frederick Franz, died in the City of New Orleans at DePaul Sanitarium on October 22, 1953, at the age of approximately seventy-seven years, leaving a very considerable estate. Her estate is valued at approximately one million eight hundred thousand dollars. Her husband, Frederick Franz, died in the year 1939. She left no forced heirs. Her legal heirs are her blood first cousins who are the plaintiffs-appellants in this suit.

Mrs. Franz left a last will and testament in the olographic form dated March 17, 1948, in which she made eighteen special cash legacies to different persons aggregating the sum of fifty-two thousand six hundred dollars, one of which, in the sum of ten thousand dollars, and a special legacy of her home and its contents and an adjacent lot was made to defendant, Mark J. Falgoust. In this will the testator made Mark J. Falgoust her universal legatee and appointed him testamentary executor with seizin and without bond and with the provision that he should receive a commission for his services in addition to the legacies made to him.

Mrs. Katie Roth Franz had previously made a nuncupative will by act before Felix W. Gaudin, Notary Public, under date of April 4, 1945. A codicil to this will was made by Mrs. Franz in the nun-cupative form by public act before Felix W. Gaudin, Notary Public, under date of October 22, 1947. In her will dated April '4, 1945, Mrs. Franz made twenty-four cash legacies to tiventy-four different persons aggregating the sum of ninety-one thousand one hundred dollars, including one in the sum of ten thousand dollars to Defendant, Mark J. Falgoust. She did not in this will dispose of the balance of her property. She appointed August H. Grimaldi, Sr., as executor of her estate with seizin and without bond and appointed Felix W. Gaudin as attorney to handle the affairs of her estate. By the codicil of October 22, 1947, the legacies made by the will of April 4, 1945, were not affected. Two additional legacies were made by which the testator bequeathed to Ralph Comers Grimaldi the sum of two thousand dollars and bequeathed to Mark J. Falgoust the residence, 2318 St. Charles Avenue, and the adjacent lot and the entire contents of the home and of the property, with the exception of the iron safe and contents. By the codicil Mark J. Falgoust and August H. Grimaldi, Sr., were made residuary legatees each for one-half of the property not specifically otherwise disposed of by the will April 4, 1945, and the codicil. Felix W. Gaudin was reappointed as the attorney to handle the legal affairs of the succession of the testator. From the foregoing it will be seen that Mrs. Franz by her olographic will of March 17, 1948, effected the following changes in the provisions of the will of April 4, 1945, and the codicil of October 22, 1947: she eliminated seven cash legacies amounting to twenty-four thousand five hundred dollars and reduced four cash legacies by the amount of sixteen thousand dollars. She did not reduce, or otherwise change -the special cash legacy to Mark J. Falgoust but she did change the special legacy to him of her residence and the adjacent lot so as to include all of the contents of the house and of the property. She made Mark J. Falgoust her universal legatee. She appointed him her testamentary executor in place of August H. Grimaldi, Sr., thereby completely eliminating the latter from her will. In the paragraph appointing Falgoust executor she added the provision :

“He shall receive a commission for his services1 in addition to the legacies decreed to him.”

Because of the attack made upon the validity of Mrs. Franz’s olographic will on the ground that she lacked testamentary capacity it should be noted that in making her olographic will Mrs. Franz followed, with one exception, the same order in making her dispositions as she had followed in making her nuncupative will by public act on April 4, 1945, and the codicil of October 22, 1947, using essentially the same choice of words in describing the legatees and the legacies made to them, from which it is reasonable to assume that in writing her olographic will she had access to her will executed April 4, 1945, and to the codicil thereto executed October 22, 1947, and made reference thereto. In this connection it is also noted that Mrs. Franz in her olographic will, though, in most instances, she copied word for word the several paragraphs of her former will and codicil in making her special legacies, she, nevertheless, corrected errors in spelling which appear in the 1945 will. For instance in the paragraph containing the legacy to Mrs. Fred Eckert, her surname is correctly spelled, whereas in the 1945 will it is spelled Eckard; in the paragraph containing the legacy to Lawrence Franz, his Christian name is correctly spelled, whereas in the 1945 will it is spelled Laurence; in the paragraph containing the legacy to .August Giroir, his surname is correctly spelled, whereas in the 1945 will it is spelled Girois; in the paragraph containing the legacy to Frank Seymore, his surname is correctly spelled, whereas in the 1945 will it is spelled Seymour.

Mark J. Falgoust, who is named executor in the olographic will of March 17, 1948, attempted to probate this will, whereupon the legal heirs of Mrs. Franz, .who are the plaintiffs-appellants, filed a petition opposing ab initio the probate, registry and execution of this will and the codicil to the 1945 will dated' October 22, 1947, and praying that said will and codicil be declared null and void and, in the alternative, and in the event the Court should determine otherwise, that defendant, Mark J. Falgoust, be disqualified as a special or universal legatee under the provisions of either will or both -for the reason that he attempted to take the life of the decedent. Briefly stated, the allegations of the petition in support of the prayer thereof are as follows:

1. The testator was insane on October 22, 1947, and on March 17, 1948, and therefore, on those dates she lacked testamentary capacity.

2. The olographic will of March 17, 1948, was not entirely written, dated and signed by the testator and was not written on March 17, 1948.

3. In the alternative, if the Court should determine that testator was sane on October 22, 1947, and on March 17, 1948, and that the olographic will dated March 17, 1948, was entirely written, dated and signed by the testator then and in such event the testator was on those dates acting under fear, duress and undue influence as set forth in the petition.

4. Mark J. Falgoust and the testatrix lived in open concubinage from April, 1946, until September 25, 1951.

5. Mark J. Falgoust attempted to take the life of the testatrix.

Exceptions to the said petition were filed by Mark J. Falgoust. These exceptions were overruled. Mark J. Falgoust, defendant-appellee, filed an answer to the petition of John W. Kleis, et al., denying the allegations of the petition and asserting the validity of the will dated March 17, 1948. .Six persons named as special legatees in the will dated- March 17, 1948, namely, Mrs. Evelyn Belmont, George Brown, August Giroir, Frank Seymore, Louis Schneider and Protestant Home for. the Aged also filed answers denying the allegations of said petition for lack o'f information. Felix W: Gaudin an'd August H. Grimaldi, Jr., and Eugene A. Grimaldi, executors of the Estate of August H. Grimaldi, • Sr., defendants-appellants, filed an answer attacking the validity of the will dated March 17, 1948, and opposing the probate, registry and execution thereof on the ground that it is null and void and, in the alternative, in the event that the Court should decree that the will was entirely written by the testator, they allege that certain paragraphs on Page Three of the will are nullities as undated and unsigned codicils and prayed that they be stricken with nullity.

The National American Bank in New Orleans appointed by the lower Court as probational administrator of this estate is acting as such.

After a very lengthy trial in the lower Court the Judge rendered an order or judgment dismissing all oppositions to the validity of the will dated March 17, 1948, and the demands of John W. Kleis, et al., and the Grimaldi Heirs and their counsel. John W. Kleis, et al., and the Grimaldis and their counsel have taken an appeal to this Court. Counsel for some of the special legatees have filed a brief in this Court in support of the affirmation of the judgment of the lower Court.

The law of the case is well established except as to the effect of the insertion by a testator in the body of his will of additional provisions or legacies after the will has been wholly written, dated and signed by him. For the reasons hereinafter stated it is not necessary that we pass upon this point of law in this case.

(1) In determining the validity of a will the trial Judge’s findings of fact are entitled to great weight and should not be disturbed unless they are clearly or manifestly erroneous. Lebleu v. Manning, 225 La. 1087, 74 So.2d 384; Succession of Piz-zati, 218 La. 549, 50 So.2d 189; McCarty v. Trichel, 217 La. 444, 46 So.2d 621.

(2) Testamentary capacity is always presumed until the contrary is affirmatively established by satisfactory and convincing evidence, and under this well established principle of law a legal presumption exists in favor of the validity of the will. Kingsbury v. Whitaker, 32 La.Ann. 1055; Chandler v. Barrett, 21 La.Ann. 58; Succession of Mithoff, 168 La. 624, 122 So. 886; Clanton v. Shattuck, 211 La. 750, 30 So.2d 823; Succession of Pizzati, 218 La. 549, 50 So.2d 189; Succession of Schmidt, 219 La. 675, 53 So.2d 834.

(3) An olograph will itself is the best evidence of the testamentary capacity of the testator if it is sensible and judicious. Succession of Schmidt, 219 La. 675, 53 So. 2d 834; Kingsbury v. Whitaker, 32 La.Ann. 1055.

(4) Under our law no inquiry is permitted into the motives which may have influenced a testator in making his testamentary dispositions. LSA-Civ.Code, art. 1492. The undue influence, such as intimidation and fraud necessary to procure the annulment of a testamentary disposition must have been exercised upon the testator at the moment the will was executed. Texada v. Spence, 166 La. 1020, 118 So. 120, 62 A.L.R. 281; Succession of Schlumbrecht, 138 La. 173, 70 So. 76; Succession of McDermott, 136 La. 80, 66 So. 546; Zerega v. Percival, 46 La.Ann. 590, 15 So. 476.

(5) In LSA-Civil Code, article 1481, the word “concubinage” describes a status and not mere acts of fornication or adultery however frequent or even habitual, it imports the maintenance of a status resembling marriage and the word “open” means free from concealment, reserve or disguise, not secret, but plain and above board. The mere fact that two unmarried people reside in the same house is no proof of concubinage open or secret. Jones v. Kyle, 168 La. 728, 123 So. 306; Succession of Jahraus, 114 La. 456, 38 So. 417.

According to the briefs filed in this Court both groups of opponents now admit that the will dated March 17, 1948, was entirely written, dated and signed by the testatrix,' and the Kleis opponents have abandoned the allegations of their petition to the effect that Mark J. Falgoust is disqualified as a legatee under wills of Mrs. Franz, for having attempted to take her life. Therefore, the ultimate questions for determination are of fact, i. e.,

1. Whether the paragraph on Page Three of the olographic will reading: “I give and bequeath all the balance of my property to Mark J. Falgoust”, and the words, “Mark J. Falgoust”, in the succeeding paragraph were written in after the will was a completed document.

2. Whether the testatrix was insane at the time the olographic will of March 17, 1948, was written and, if so, whether she was also insane at the time of the execution of the codicil on October 22, 1947.

3. Whether the testatrix executed either the will or the codicil under duress, force or undue influence.

The Grimaldis, as stated, concede that the olographic will of March 17, 1948, was entirely written, dated and signed by Mrs. Franz, but they contend that the paragraph on Page Three of the will reading: “I give and bequeath all the balance of my property to Mark J. Falgoust”, and the words, “Mark J. Falgoust”, in the succeeding paragraph were inserted by the testatrix in the body of the will many months after the remainder of the will had been written, dated and signed by her, and, that, therefore, these portions of the will should be stricken with nullity as undated and unsigned codicils. In their attempts to establish this contention as a fact, opponents to the will offered the testimony of Gilbert Fortier of New Orleans, Louisiana, a so called examiner of questioned documents, Dr. Philip W. West of Baton Rouge, Louisiana, a professor of chemistry at Louisiana State University, and Dr. Paul L. Kirk of- Berkeley, California, Professor of Criminalistics at the University of California. To meet this testimony, Defendant. Falgoust offered the testimony of four so called examiners of questioned documents or handwriting .experts, namely, Albert D. Osborn of New York City, George J. Lacy of Houston, Texas, Linton Godown of Memphis, Tennessee, and Clark Sellers of Los Angeles, California. The testimony of these handwriting and other experts is voluminous and cannot be gone into in detail. However, an analysis of the testimony of these handwriting experts will show that any part thereof which, might be construed as tending to show that the will of March 17, 1948, was not entirely written, dated and signed by the testator at one and the same time is purely conjectural. The preponderance of the evidence is to the effect that the will was not only entirely written, dated and signed by the testator but was entirely written, dated and signed by her at one and the same time. Much has been made over the fourth paragraph of Page Three of the olo-graphic, will reading as follows:

“I give and bequeath all the balance of my property to Mark J. Falgoust.”

For instance, it was brought out that the writer had skipped a line in writing this paragraph but as has been pointed out the testator also skipped a line in the second paragraph of Page One of her will. Therefore, this fact is of no particular significance. Then again it was suggested that this paragraph and the words:

“Mark J. Falgoust”

had been inserted in the will long after the balance thereof was written. There is no substantial basis for this theory. None of the experiments conducted by the handwriting experts and no part of their testimony in connection therewith which tends to support this theory is very impressive when a close examination of the will itself it made. The trial judge was impressed with the testimony of Messrs. Lacy, Osborn and Sellers, and so are we, as their testimony is - clear, plain and well illustrated. They appear to have testified frankly and. honestly giving valid reasons for their conclusions. For instance, Mr. Osborn testified as follows concerning the writing of the disputed paragraph :-

“We also believe that she did not immediately proceed to write the disputed paragraph after she had written the word ‘deductions’ in the preceding paragraph.”

As -has been previously shown it is reasonable to assume that when Mrs. Franz wrote her olographic will dated March 17, 1948, she referred to her nuncupative will of April 4, 1945, and to the codicil thereto dated October 22, 1947. Indulging in this reasonable assumption it is also reasonable to conclude that Mrs. Franz, after copying the paragraph ending with the words, “without any deductions,” from the will dated April 4, 1945, paused and reached for the codicil thereto dated October 22, 1947, to see what wording had been- used in the codicil to make Mark J. Falgoust and August Grimaldi her universal legatees therein, since she had not made a universal legacy in the will from which she was copying. This accounts not only for the break from her previously continuous writing but also for the deleted “J” before the word “I” in the disputed paragraph. She was probably debating with herself how to write this paragraph so as to eliminate August H. Grimaldi, Sr., as a legatee and started to write before completing her thinking, causing her to make an “I” that looked like a “J”. The objections to the succeeding paragraph are removed when it is considered that the testator had to return to her will of April 4, 1945, for guidance in writing the paragraph appointing an executor, as the codicil of October 22, 1947, contains no such appointment.

We will now consider the question of the testamentary capacity of the deceased at the time she wrote the olographic will dated March 17, 1948.

A review of the many cases-brought to this Court in which wills have been attacked on the grounds of the insanity of the testator will reveal that there have been but few instances where the evidence has been found sufficient to warrant the annullment of the will. The proof of insanity must be strong and a great deal depends upon the type of insanity involved. The jurisprudence discloses that the difficulties encountered by suitors assailing wills on grounds of the insanity of the testator has been due, in the main, to the inability to submit the degree of proof necessary to overcome the presumption of sanity. Thus, in each case, the weight of the evidence is the all important faetón

Therefore, whether Mrs. Franz was insane on March 17, 1948, the date her last will was written, presents for our determination a question of fact, which was resolved against the opponents of the will by the trial judge, and his findings are entitled to great weight and should not be disturbed unless they are clearly or manifestly erroneous.

Mrs. Katie Roth Franz, a lifelong resident of the City of New Orleans, accumulated, as has been previously stated, a very substantial estate. Her husband, Frederick Franz, died in the year 1939, and thereafter Mrs. Franz lived alone at her residence on St. Charles Avenue until about April, 1946, when at her invitation, Mark J. Falgoust went to live with her. Mark J. Falgoust had met Mrs. Franz and her husband for the first time about the year 1927. They became friendly, and, together made trips to Atlantic City, New Jersey, and New York. Several times they made trips to Mobile, Alabama. Falgoust was a frequent guest in the home of Mr. and Mrs. Franz. During the time he served in the army during World War II, Falgoust and Mrs. Franz kept a correspondence and, prior to his return to the United States, Mrs. Franz wrote to him that she had prepared a room for him in her home and hoped that -he would reside there upon his return to the United States. Falgoust upon his discharge from active duty in the armed forces in the year 1946,' accepted Mrs. Franz’s invitation to live in her home. He resided there through the year 1951. At the- time that Falgoust went to live with Mrs. Franz he was in his early forties and she was in her seventies.

According to the testimony of Dr. H. Oliver Ernst, her family physician, Mrs. Franz was hospitalized in Touro Infirmary in the year 1937. She was then suffering with diabetes mellitus, hypertensive heart disease (high blood pressure) and a generalized arteriosclerosis. She suffered a broken wrist in the early part of the year 1947. She sustained a broken arm in January, 1948. She had a back infection in the year 1949 or 1950. She was hospitalized in Touro Infirmary in June, 1951, for an ulcer on her left foot. After a short stay at Touro Infirmary she returned to her home where she was under the care and supervision of Dr. Ernst and trained nurses •on a twenty-four hour basis. Mrs. Franz was taken to DePaul’s Sanitarium on September 25, 1951, where she remained until her death on October 23, 1953.

Before her death, that is in September of 1951, suit was filed by the plaintiffs-appellants herein to have Mrs. Franz interdicted and judgment of interdiction was rendered in December, 1951. During the interdiction proceedings an inventory was ordered taken which necessitated the breaking into Mrs. Franz’s bank box in the National Bank of •Commerce. The notaries making the inventory found therein three wills and a codicil, viz.:

1. A will of decedent in olographic form dated August 25, 1923, in which she had bequeathed her estate to her husband, Frederick Franz.

2. A will in nuncupative form by public act before Felix W. Gaudin, Notary Public, dated April 4, 1945.

3. A codicil to the will of April 4, 1945, in nuncupative form by public act before Felix Gaudin, Notary Public, dated October 22, 1947, and,

4.An olographic will dated March 17, 1948.

A review of the testimony will indicate that as regards medical opinions concerning the testamentary capacity of the decedent, opponents must of necessity, rely almost entirely upon the testimony of Dr. H. Oliver Ernst to support their contention that the decedent did not possess testamentary capacity when she executed the olographic will dated March 17, 1948, for the reason that the opinions given by Doctors Edmund Connoly, Benjamin F. Parker and Gene S. Usdin, who were called as witnesses for plaintiffs-appellants, in this regard, are largely if not entirely predicated and dependent upon the correctness of the conclusions reached by Dr. Ernst as to the medical and mental condition of Mrs. Franz at various times from the year 1937 to the date of her admission to DePaul Sanitarium. The testimony of Dr. Ernst is therefore of utmost importance. The trial judge, in his written reasons for judgment, after observing that the testimony of Dr. H. Oliver Ernst, Mrs. Franz’s physician for many years, was taken out of Court because of his physical condition and is very voluminous and after quoting from his testimony had this to say:

“The testimony of Dr. Ernst, taken ■ as a whole, and particularly that above quoted, in the Court’s opinion, does not overcome the presumption of sanity as the Court understands the jurisprudence herein cited.
“Certainly it cannot prevail in view of the testimony adduced by defendant Falgoust hereinafter discussed.”

We agree with the trial judge. Dr. Ernst did not see Mrs. Franz on March 17, 1948, and was not present at the writing of the will. He admitted that the conditions which he observed and the conclusions which he drew therefrom concerning the mental capacity of Mrs. Franz were not continuously present on a day to day basis for the period from the year 1946 through the year 1950. He declined to swear that Mrs. Franz lacked testamentary capacity on March 17, 1948. In his statement, upon the admission of Mrs. Franz at DePaul’s Sanitarium on September 27, 1951, he stated that he con-, sidered that Mrs. Franz had been psychotic for a year or more, perhaps two-three years with intervals of lucidity, yet in his deposition he expressed the opinion that Mrs. Franz was mentally incompetent to execute a last will and testament as far back as. October 22, 1947.

The trial judge, in his written reasons for judgment, commented upon the testimony of Doctors Edmund Connoly, Benjamin F. Parker and Gene S. Usdin, as follows:

“Dr. Edmund Connoly and Benjamin F. Parker saw Mrs. Franz after she was admitted to Touro Infirmary, July 2, 1951, and to DePaul Sanitarium on September 25, 1951, and base their answers on hypothetical questions on what they saw of her from then until her death on October 22, 1953, and on conversations with Dr: Ernst. They both testified that, considering her condition during the above time, she was not competent to execute a will on October 22, 1947, and March 17, 1948, three and one-half to four years before. Dr. Gene Usdin read the testimony of Dr. Ernst and, the undersigned believes, spoke to him; he did not see Mrs. Franz at any time.”

None of these medical experts, called by plaintiffs-appellants, saw Mrs. Franz before July 2, 1951, over three years after Mrs. Franz had written her olographic will, and their conclusions, it is clear from a reading of their testimony, are not predicated so much upon their observations of Mrs. Franz after July 2, 1951, but upon the medical history of Mrs. Franz as given to them by Dr. Ernst and contained in his deposition.

As against the 'testimony of Doctors' Ernst, Connoly, Usdin and Parker we have the testimony of Dr. Charles S. Holbrook, a psychiatrist, and that of Dr. Edward S. Hyman, a specialist in diabetes and internal medicine, who were called by defendant-appellee, with which we are impressed, as, their conclusions are more in accord with the common everyday observations of the-everyday practitioner and the layman. Dr. Holbrook testified that there is no method known to medical science wherein a psychiatrist can détermine when a person who-is a senile will pass into senile dementia and: that there is no means by which to determine when a person who is demented because of senility passed from senility into-senile dementia. Dr. Holbrook also testified'. that the various other physical illnesses, with which Mrs. Franz was afflicted could' not be used to determine their effect upon: her brain and intellectual capacities unless, such diseases had reached the point that various outward signs would have been observed by anyone coming in contact with-her. He stated that if these diseases had' resulted either in a stroke of some nature- or in diabetic coma, some marked changes, might have occurred in the brain, however,, he ruled out such damage to the brain because of the fact that Mrs. Franz had not suffered from a stroke of any sort nor had. she ever been in a diabetic coma. Dr. Hol-brook further testified that had Mrs. Franz, been demented because of her senility, any intelligent lay person coming in contact with, her during the existence of such condition, would have readily observed it; that information with respect to her daily contacts and conduct of business was material to the forming of an opinion as to her sanity. He-also testified that one of the criteria used' by psychiatrists in determining the mental condition of their patients is writing by the-patient. He examined the will of March 17, 1948, and expressed the opinion that the-person who wrote the will was sane and that if the will was written by Mrs. Franz,, she was sane when it was written. He based his conclusions on the length of the document, the composition, the writing, the-manner of the bequests, the fact that it bore-a place and date.

Dr. Holbrook expressed the opinion that Mrs. Franz was definitely sane on March 17, 1948, and based his opinion upon the will dated March 17, 1948, and interviews he had with various lay persons who had contact and business dealings with Mrs. Franz and whose testimony was offered in evidence.

Dr. Edward Hyman, testified that, in his opinion there was no connection between the diseases with which Mrs. Franz was afflicted and senile dementia. He stated that considering the age of Mrs. Franz at the time she became a diabetic, this disease was rather mild in character and that no serious problems to her health resulted from the fact that she frequently ate sweets in violation of her diet. Dr. Hyman further testified that a person could be afflicted by arteriosclerosis in various parts of the body without the brain being in any manner affected thereby and that the only way known to medical science in the absence of a stroke to determine if a person was afflicted with arteriosclerosis of the brain was to perform an autopsy after death. Dr. Hyman pointed out that Mrs. Franz had not suffered from a stroke nor had she ever been in diabetic ■coma and therefore there were no grounds whatsoever to assume that her brain had been in any way damaged or impaired because of the diseases from which she suffered.

The trial judge, in his written reasons for judgment, commented upon the testimony of each of the lay witnesses offered by plaintiffs-appellants to prove the insanity of Mrs. Franz on October 22, 1947, and March 17, 1948, and expressed his conclusions regarding the weight to be given such testimony as follows:

Miss Marie Hitchens
“On the question of insanity or duress at the time of the making of the two wills, her testimony is of no weight.”
Mrs. Fred J. Eckert
“So far as testimony of Mrs. Eckert is concerned in the Court’s opinion it tends to be in favor of the legality of the will dated October 22, 1947, in that Mrs. Franz was not mentally ill on October 22, 1947, and was not subjected to undue influence by Falgoust at the time the will was made. She could not help the Court at all as to Mrs. Franz’s mental condition on March 17, 1948, or as to any undue influence used by Falgoust on that date.”
Fred Delsa
“Fred Delsa’s testimony was of no help whatever to the undersigned in determining the mental condition of Mrs. Franz at the time of the making of the two wills, or as to whether or not there was any undue influence upon her on those dates.”
Mrs. Janet Murphy
“In view of the fact that Mrs. Murphy was at the Franz home only in the morning for about 45 minutes and was not present at the time or in the premises when either of the two wills were made, because her testimony shows she was not, the undersigned cannot place a great deal of weight on her testimony as to either mental incapacity of Mrs. Franz at the time of the wills, or undue influence,”
Mrs. Eva Murdock
“The Court does not feel that her testimony is entitled to much weight.”
“Miss Betty Fennin threw absolutely no light on the mental condition of Mrs. Franz on the date of the wills or as to undue influence.”

Defendant Falgoust produced thirty-two witnesses who testified to the ability of Mrs. Franz to manage her affairs before and after October 22, 1947, and March 17, 1948. The testimony of these witnesses, taken together is of such length that the lower Court did not attempt to review it in detail. In support of the testimony of some of his witnesses defendant-appellee also offered in evidence five acts of sale in which Mrs. Franz was involved, dated respectively, February 19, 1948, August 5, 1948, June 17, 1949, December 28, 1949, and May 27, 1951, and an order in Mrs. Franz’s interdiction proceedings, dated October 3, 1951, for the purpose of showing that the will of March 17, 1948, was found in her bank box to which she alone had access. A review of this testimony proves beyond a doubt that from the year 1946 up to the middle of the year 1951 Mrs. Franz withdrew monies from her savings accounts in the Whitney National Bank, the National American Bank and the National Bank of Commerce; signed withdrawal receipts therefor and instructed bank officials to issue cashier’s checks with which to pay her real estate taxes and federal income taxes; entered her safety deposit vault and signed the card in the vault records; handled real estate negotiations for the purchase and sale thereof and signed agreements and Acts of Sale before Notaries in connection therewith; spoke to officials of the City of New Orleans in making payments of her taxes; collected her, rents, giving receipts therefor, which she had written out in advance herself; visited her properties while they were being repaired; paid her workmen off, and was known by those who generally saw and conversed with her not to be in any unusual state mentally or in a state of mental derangement. LSA-C.C. art. 1788, paragraph 3.

We concur in the opinion of the trial judge that the testimony of the lay witnesses called by Defendant-Appellee Fal-■goust and the documentary evidence offered by him in connection therewith preponderates to the effect that'Mrs. Franz had testamentary capacity when she wrote ■her olographic will of March 17, 1948.

In their attempt to prove that the codicil of October 22, 1947, and the will of March 17, 1948, were executed under threats, duress and fraud, plaintiffs-appellants offered the testimony of Dr. Ernst, Miss Marie Hitchens, Mrs. Fred J. Eckert, Mrs. Janet Murphy and Mrs. Eva Murdock. That part of the testimony of these witnesses relating to duress, force or undue influence exerted by Mark J. Fal-goust over Mrs. Franz was admitted solely for the purpose of permitting plaintiffs-appellants to prove if they could, in conjunction with other evidence, that Mrs. Franz lacked testamentary capacity on October 22, 1947, and March 17, 1948, as none of this evidence could be construed as showing the existence of these conditions either on October 22, 1947, or March 17, 1948. This was done in line with the decision of this Court in the case of Cormier v. Myers, 223 La. 259, 65 So.2d 345, which is to the effect that though duress, force or undue influence are not grounds for declaring a will void unless they are present at the making of the will, evidence thereof nevertheless is admissible to show testamentary incapacity and mental weakness. After reading the testimony of these witnesses we agree with the conclusion of /the trial judge that none of this evidence proves that Mrs. Franz labored under duress, force or undue influence at the time she executed the codicil on October 22, 1947, or when she wrote her olographic will of March 17, 1948. We have already reached the conclusion that Mrs. Franz possessed testamentary capacity on October 22, 1947, and March 17, 1948.

Plaintiffs-appellants contend, assuming the validity of the wills of Mrs. Franz, that the donations of immovables and the donations of movables in excess of one-tenth (Jio) of the value of decedent’s estate, made to Mark J. Falgoust are invalid because the deceased and Mark J. Falgoust lived in open concubinage. There are no specific allegations in plaintiffs-appellants’ petition to the effect that Mark J. Falgoust and Mrs. Franz lived in open ■concubinage. The lower Court permitted -testimony of the alleged intimacy between Falgoust and Mrs. Franz only in connection with the question of the sanity or insanity of Mrs. Franz. However, the petition contains numerous allegations which when taken as a whole may be construed as alleging that the decedent and Mark J. Falgoust lived in open concubinage from April 1946, until September 25, 1951. The evidence offered to prove this falls far short of its intended mark. We are not impressed with the conversations between the decedent and Mark J. Falgoust in DePaul Sanitarium as recorded on a tape recorder nor with the testimony offered by plaintiffs-appellants to establish the status of “concubinage” as existing between decedent and Falgoust and much less the status of “open concubinage” between them which is the status necessary under LSA-C.C. art. 1481, to render persons incapable of making to each other •donations of immovables and donations of movables exceeding one-tenth (Wo) part ■of the whole value of this estate. Mrs. Fred J. Eckert testified that Mrs. Franz had told her that Falgoust dressed her and washed her hair. However, she also testified that when she called Falgoust’s attention to the physical condition of Mrs. Franz, when she was about to go to De-Paul Sanitarium, Falgoust said, “We will wait and get Janet (meaning Mrs. Murphy) to do it”. Miss Marie Hitchens, a registered nurse who took care of Mrs. Franz during July and August, 1951, testified that Falgoust put Mrs. Franz to bed and bathed her. But Mrs. Olga DeFelice, who was nursing Mrs. Franz in the mornings during July and August, 1951, testified that she was the one who bathed Mrs. Franz and gave her medication. The balance of the evidence offered by plaintiffs-appellants for the purpose of proving that the decedent and Mark J. Falgoust lived in open concubinage is not more convincing. On the other hand, we have the testimony of three character witnesses called by Falgoust and the history of his activities since boyhood, from which it is reasonable to assume that he would not commit the acts of immorality alleged. Moreover, the record is replete with testimony to the effect that Mrs. Franz’s conduct was always beyond reproach.

For the reasons assigned the judgment of the lower Court is affirmed.


source: Caselaw Access Project

author: SIMON, Justice. HAMITER, Justice

license: Public Domain

text:
    232 La. 341
    Mrs. Beulah Chlasson DELATTE et al. v. James L. WOODS et al.
    No. 43194.
    Supreme Court of Louisiana.
    Feb. 25, 1957.
    Rehearing Denied April 1, 1957.

      Harvey Peltier, Donald Peltier, Thibo-■daux, Cobb & Wright, Joseph V. Ferguson, II, New Orleans, for defendants-appellants.
    . Plauche & Plauche, S. W. Plauche, Jr., Lake Charles, for appellees.
   SIMON, Justice.

Plaintiffs instituted this suit to annul and cancel a mineral lease and extension thereof granted by them and presently held by the defendant. -

The original contract of lease, dated October 24, 1951, was granted by plaintiffs to Woods Oil & Gas Company, Inc. for a primary term of two years, and covers a 60-acre tract of land located in the Valentine Field in the Parish of Lafourche.

The lease in controversy contained the customary stipulation, that if operations for the drilling of a well should not be commenced within one year from its date the same should terminate as to both parties unless on or before its anniversary ■date the lessee should pay or tender to the lessor or deposit to his credit in a designated bank $50 per acre, or $3,000 per year, which would cover the privilege of -deferring commencement of drilling operations for an additional period of twelve months.

The original lease further provided that .it should remain in force for the primary term of two years from date and as long thereafter as oil, gas or any other minerals are produced therefrom or production is had fr'om any part of the acreage with which said leased premises is pooled, in which latter event the lessee’s drilling obligation becomes fulfilled by such production.

It further provided that upon the completion of a well capable of producing gas in commercial quantities which was not being sold or utilized off the premises, the lessee shall pay lessor at the rate of $200 per year, payable quarterly, for such time as said gas is not sold or utilized off the premises, and that such payment would be construed as production of gas from said land.

It is further stipulated in said lease that “Lessee, at its option, is hereby given the right and power without Lessor’s joinder to pool or combine the acreage, royalty, or mineral estate covered by this lease, or any portion thereof, with other land, lease or leases, royalty and mineral estates in the immediate vicinity thereof, when, in Lessee’s judgment, it is necessary or advisable to do so in order to properly develop and operate said leased premises so as to promote the conservation of oil, gas or other minerals in and under that may be produced from said premises, * * * And that “Drilling or reworking operations on or production of oil, gas, sulphur or other minerals from land included in such pooled unit shall have the same effect in continuing this lease in force and effect during or after the primary term as to all of the land covered hereby as if such operations were on or such production were from land covered hereby.” And that “In the event that any part of the land herein leased is now, or by assignment or otherwise hereafter may become, segregated from any other part, commencement of operations for the drilling of a well, the drilling of any well,' and/or the production of oil, gas, sulphur or other minerals or casinghead gasoline on any part of the above described land or any acreage pooled therewith, shall protect and hold under this lease all tracts of said land whether segregated or not.”

On June 12, 1952, the lessee, Woods Oil & Gas Company, Inc., assigned the lease to James L. Woods, one of the defendants herein. On October 21, 1953, two days prior to the expiration of its primary term, plaintiffs and defendant James L. Woods executed an agreement extending all of its terms and conditions, for a period of one year from October 24, 1953, except as to additional and amended provisions as follows:

(a) That lessee pay delay rentals in the sum of $1,000 per month, being the first full payment for the period of October 24, 1953, to November 24, 1953, and for the right of the lessee at his option to renew this agreement each month thereafter up to a period of one year by the payment of $1,000 in advance;

(b) That the lease so extended would terminate on November 24, 1953 unless lessee commenced the actual drilling of a well on the leased premises or would pay the delay rentals of $1,000, which would extend for one month the time during which actual drilling may be commenced thereunder, with a further deferment of the commencement of drilling operations each month thereafter during the term as extended by the payment of said monthly delay rental; and'

(c) That upon the spudding in of a well upon the said property the extended lease would be maintained only so long as lessee shall pay to lessor the sum of $500 per month until such time as oil, gas or other minerals, or any of them, shall be produced and marketed, in which event further monthly payments of $500 would cease and be substituted by royalties in accordance with the terms of the original lease. The first of said payments of $500 per month would be due on the first day of the calendar month following that in which actual drilling commences.

The lease, as amended, was kept in full force and effect through August 24, 1954 by the lessee properly and timely paying the sum of $1,000 per month. The last $1,000 payment was made on or before July 24, 1954 and thus permitted-the deferment of actual drilling operations until August 24, 1954. Thereafter the lessee tendered payments of $500 per month, which were rejected by plaintiffs, lessors.

In order to chronologically set forth the events bearing on this case, it is suitable to here state the undisputed fact that prior to the execution of the extension agreement two producing gas distillate wells had been successfully completed and capped by other operators on properties adjacent to or flanking the leased premises. One of these was The Texas Company Southdown Sugars Well No. 2 (hereafter referred to as Well No. 2), a rich gas distillate located on property north of and adjacent to that of plaintiffs and bottomed in the Valentine Sand zone. This well was completed on April 20, 1953, six months prior to the execution of the extension agreement. On April 21, 1953 it was shut in for lack of a commercial market.

On July 14, 1954, the Commissioner of Conservation, pursuant to Act 157 of 1940, as amended, LSA-R.S. 30:2 et seq., following due notice to all interested parties and a public hearing had, issued its basic Order No. 280-A, dividing the Valentine Sand series of the Valentine Field into four drilling and production units with special rules and regulations governing the production of oil and gas therefrom, to become effective from and after August 1, 1954.

Among the four drilling units designated by Order No. 280-A is Unit B, containing a total of approximately 212 acres and embracing 15.04 acres of the leased premises herein.

Well No. 2 is located within the confines of Unit B.

Among the special rules and regulations governing the production of oil and gas from these established Units is the' ruling of the Commissioner that “The well located upon each unit is hereby assigned to the unit upon which it is located for allowable purposes.” This ruling was made in view of the finding by the Commissioner that one producing well of oil, gas or other minerals would efficiently and economically drain an area of at least 180 acres without waste of the unit’s natural resources. Paragraph E of said order rules that “Not more than one well on each unit shall be allowed to produce from the Valentine Sand series of the Valentine Field.1’

Well No. 2 was recognized and declared to be commercially productive of gas and condensate in the Valentine Sand depth and thus designated as the producing well for Unit B.

This order further provided for the allocation of the production in the ratio of the acreage of the lease and sublease contracts within Unit B as it bore to the composite whole; the production of oil and gas, together with other minerals, was to be treated, developed and operated as one lease, one unit, one property and one tract; and further, that drilling and production on any of the tracts within said unit would constitute drilling operations and production under the terms of each and every one of the leases or contracts affecting the property within said unit. .

It appears from the record that Well No. 2, while shut in for lack of a commercial market since the date of its completion as a distillate gas producer, underwent nominal mechanical repairs. On November 1, 1954 it was opened for production in commercial quantities and the gas produced therefrom disposed of on the market. This production has continued from that date.

Defendant Woods, taking the position that the creation of Unit B which embraced Well No. 2 constituted not only production from a tract within said unit but also constituted a spudding in of a well on the leased premises, accordingly made three monthly payments in the sum of $500 each, as provided for by the extension agreement. These payments were made on or before September 1, October 1 and November 1, 1954, and all were rejected by plaintiffs who contended that said payments failed to comply with the terms of the extension agreement, and therefore constituted a default and forfeiture thereof. Hence, this suit.

The record discloses that defendant Eunice J. Vinet, a resident of Lafourche Parish, is the assignee of an overriding royalty interest of Ymth of defendants' %th working, interest of the production from the leased premises. It also discloses that the defendant Jones and Laughlin Steel, Corporation is the holder of a mortgage granted by defendant Woods for the original principal of $1,250,000, secured by various properties and other real rights belonging to defendant Woods, including the lease at issue; and that the defendant Halliburton Oil Well Cementing Company is the holder of a mortgage granted by defendant Woods for the original principal of $149,723.97 encumbering, besides other properties, the lease in question.

Plaintiffs sought the cancellation of the mineral lease, attorney fees, and reservation of the right to sue for further damages, as well as for the cancellation of the above-mentioned overriding royalty interest and mortgages. They contended that the unitization of the 15.04 acres of the leased land did not prevent or relieve the defendant Woods from performing the drilling obligation expressly undertaken in the extension, agreement of October 21, 1953, and that this failure to do so within the stipulated period warrants the cancellation of the lease. They further contended that the original lease expressly provides that the drilling operations called for by the lease could be performed only by “James L. Woods, doing business as Woods Drilling Company, or by Woods Oil and Gas Company, Inc.”; and that, this provision not having been altered by the extension agreement, the failure of defendant Woods to have personally performed this obligation is further ground warranting the cancellation of the lease.

On the other hand, defendants contended that the Unit Order No. 280-A having oecome effective on August 1, 1954, Well No. 2 having been designated as the unit well, and the said order having placed a limit of not more than one well on said unit had the legal effect as though the lessee has spudded in and completed a producing but shut-in gas well on the leased property as of August 1, 1954; that, therefore, insofar as the provisions of the lease, as amended, required initial development there was full compliance with said obligation as of that date.

Defendants further contended that August 1, 1954 became the date as of which the lessee was also relieved of the payment of the $1,000 monthly delay rental; and that thereafter, in full compliance with the provisions of the lease agreement as extended, payments of $500 per month were properly made by him in lieu of the said delay rental.

It is undisputed that Well No. 2 was drilled and successfully completed as a gas distillate well in commercial quantities by The Texas Company about fifteen months prior to the effective date of the Commissioner’s Order No. 280-A and six months prior to the date of the extension agreement.

After trial on the merits, the lower court rendered judgment in favor of plaintiffs, ordering the cancellation of the lease, the overriding royalty and the inscription of the mortgages, awarding plaintiffs attorney fees in the sum of $5,000 and reserving to plaintiffs the right to sue for damages.

Defendants have appealed.

Thus, the sole question before us is whether the basic Order No. 280-A of the Commissioner of Conservation, unitizing a portion of the leased land with other lands, designating Well No. 2 as the unit well, and limiting said unit to one well, constituted a production of oil, gas or other minerals affecting all lands within said unit and thus relieved the defendant of any drilling operations towards production or the “spudding in” or commencement of actual drilling on any portion of the entire leased premises so as to have kept in full force and effect the lease here in controversy. We are constrained to hold in the affirmative.

On numerous occasions we have reviewed and analyzed the conservation laws of this State in respect to their effect on individual and property rights. Necessarily the exercise of the police powers of a state justifies the regulation and conservation of oil, gas and other valuable mineral deposits within its territorial limits. Public interest demands not only a maximum recovery of these minerals but equally as well sound public policy in the conservation and production thereof.

In the case of Arkansas Louisiana Gas Co. v. Southwest Natural Production Co., 221 La. 608, 60 So.2d 9, 10, we find the following expression: “The Department of Conservation was created by the Constitution of 1921 for the sole purpose of protecting, conserving, and replenishing the natural resources of this state, and the authority of the legislature to enact, and of the Commissioner of Conservation to enforce, is specifically limited to those measures that do ‘protect, conserve and replenish the natural resources of the State, and * * * prohibit and prevent the waste or any wasteful use thereof.’ Section 1 of Article VI of the Constitution of 1921, as amended, Act No. 328 of 1944, approved November 7, 1944. Pursuant to this authority, the legislature enacted Act No. 157 of 1940, LSA-R.S. 30:2 et seq., a comprehensive conservation statute, giving the Commissioner the authority, among other things, to prohibit the waste of oil and gas and to avoid the drilling of unnecessary wells by integrating into drilling units the maximum area he finds, as a fact, one well can efficiently and economically drain, * * * ”

In interpreting and applying these laws we are called upon to give due regard not only to public interest but to contractual relations and individual and property rights as well. However, it is firmly established that individual and property rights and contractual relations must yield to a proper exercise of the police power; and it is in the light of this principle that such laws are recognized as constitutionally valid. Everett v. Phillips Petroleum Co., 218 La. 835, 51 So.2d 87 and cases cited therein; Smith v. Holt, 223 La. 821, 67 So.2d 93.

Plaintiffs do not contest the right of the state to regulate and control, or to prohibit the production of minerals; and in the light of the foregoing principles they do not contest the right of the State to impair the obligations of contracts under valid police powers such as was exercised by the Legislature in Act 157 of 1940 (now LSA-R.S. 30:2 — 30:20). The primary cause urged by all the plaintiffs for the cancellation of their lease is that the unit-ization of a portion of the leased premises did not prevent or relieve the defendant Woods from the performance of the drilling obligation which he expressly assumed.

It is firmly established in our jurisprudence that statutory authority is granted to the Commissioner of Conservation to create drilling developmental units and to integrate various tracts of various owners contained in such units, that the orders of the Commissioner supersede, supplement, replace and are incorporated in the provisions and obligations of contracts and leases relating to mineral development. LSA-R.S. 30:1 et seq. It necessarily follows that these orders become the law as between the parties in determining their respective rights and obligations.

Sec. 8(b) of Act 157 of 1940, as amended, LSA-R.S. 30:9(B), authorizes the commissioner to establish drilling units so as to prevent waste and to avoid the drilling of unnecessary wells. The unit contemplated means the maximum area that might be efficiently and economically drained by one well, the owner of such tracts to share rateably according to their ownership. Such units constitute a developed area as long as a well is located therein which is capable of producing oil or gas in paying quantities.

The rule is too well established in our jurisprudence to require citation that the drilling and production of oil from a unitized area constitutes an exercise and user of the mineral rights throughout the entire unit and operates as a substitute for performance of drilling obligations contained in a mineral lease covering any property or tract located within the unit.

As pointed out by us in Hardy v. Union Producing Co., 207 La. 137, 20 So.2d 734, and in Crichton v. Lee, 209 La. 561, 25 So. 2d 229, the lessor in such cases received the same revenue as he would have received if the well had been located on his lands and the lessor of any particular tract can receive no more even if the well were drilled on the land covered by his lease.

The completion and the existence of a shut-in gas well on a validly created unit are equivalent to production on all tracts in order to interrupt the prescription accruing against royalty interest and preserve same from extinction by prescription. Union Oil Company of California v. Touchet, 229 La. 316, 86 So.2d 50; Le Blanc v. Haynesville Mercantile Company, Inc., 230 La. 299, 88 So.2d 377.

Accordingly, the existence of a shut-in gas well on Unit B, as is shown in the instant case, rather than a producing or drilling well, in no way alters the application- of these cited principles.

Under these circumstances Unit B in which a portion of the leased premises was embraced constituted a developed area as defined by the conservation statute, supra, and therefore defendant Woods was relieved from any drilling obligation called for by his lease as extended on that portion of the leased premises embraced within said Unit B.

On previous occasions we have also considered the effect of operations conducted within a validly created unit as respecting that portion of leased property located outside of the unit. In the recent case of Hunter Co., Inc. v. Shell Oil Co., Inc., 211 La. 893, 31 So.2d 10, the property therein involved was covered by two mineral leases, both dated July 26, 1935, for a primary term of ten years. The property was described as being a portion of Governmental Section 5, and a portion of Governmental Section 8, both tracts being non-contiguous. During the primary term of said leases no wells had ever been drilled on the leased lands. On December 13, 1944, six months before the expiration of the primary term, the Commissioner of Conservation issued an order establishing 640 acres as the size of drilling and proration units for the production of gas from the Anthony Sand. On July 23, 1945 the Commissioner issued a supplemental order integrating, consolidating and force-pooling all the separately owned mineral interests in Section 5 for the production of gas from said sand.

Prior to the expiration of the primary terms of the Hunter leases, and while they were in force and effect by virtue of payments of delay rentals, and prior to the unitization order of the Commissioner, a well was successfully completed in Section 5. This well was located on land other than that covered by the leases which plaintiffs sought to have cancelled and annulled, but within the consolidated unit established on July 23, 1945, of which unit only 240 acres of the leased premises formed a part. This existing well was designated as the unit well by order of the Commissioner of Conservation, which order further provided that for all purposes of the leases and sublease contracts covering lands within said unit, insofar as the same affected the production of gas and other minerals, would be treated, developed and operated as one lease, one unit, one property and one tract; and drilling operations and production on any of the tracts included in said unit would constitute drilling operations and production under the terms of each and every one of said leases or sublease contracts affecting the property included therein.

We held to- the effect that production in paying quantities during the primary term of a mineral lease on a portion of an integrated pooling unit established by the Commissioner of Conservation, although not on the leased property, maintains the lease in effect beyond the primary term as to that part of the leased land lying outside the unit. The holding of such was based on the fundamental proposition well established in our jurisprudence that the lessee’s obligation to drill a well is indivisable in its nature and the lessor’s corresponding obligation to deliver the land is also indivisable, with the result that if the obligation of one is fulfilled in its entirety, then the obligation of the other is also fulfilled in its entirety.

In the recent case of Le Blanc v. Danciger Oil & Refining Co., 218 La. 463, 49 So.2d 855, 857, involving a factual situation similar to that presented in the Hunter case, supra, we reaffirmed the principles announced in the latter.

Plaintiffs further contend that the unitization of a portion of the leased premises did not prohibit or prevent the defendant from performing the drilling obligations on that portion of the property not included within the unit. We find the lease silent in that respect. We therefore conclude that had the parties to this lease intended that drilling operations on the area not embraced within the unit would be conducted by defendant Woods as an obligation flowing from said contract that intention would have been manifested and emphasized by express provisions contained in the lease.

In the Le Blanc case, supra, in reference to a similar contention, we said: “Moreover, counsel for the plaintiff overlook the fact that all contracts of lease with respect to the development and production of minerals in this state must, of necessity, be subject to the police power exercised in protecting these natural resources, and that any provisions in our law with respect thereto form a part of these lease contracts the same as though written therein, a fact of which the parties to the original lease themselves took full cognizance when they included a provision in the lease subjecting it to state and federal laws regulating the production and operation on the land. Had they intended any action in pursuance to such provisions segregating and placing only a portion of the leased property in a pooling unit to have the effect of dividing the lease, they could have so stipulated in their contract.” (Italics ours.)

Plaintiffs place great reliance in the case of Wilcox v. Shell Oil Company, 226 La. 417, 76 So.2d 416, as the basis for distinguishing the instant case from the decisions of this Court dealing with the effect of operations on or production from a unit area.

The Wilcox case, supra, is readily distinguishable from the instant case. This distinction lies in the fact that the former case deals with the improper and unauthorized creation of a voluntary unit, the interpretation of a contract between the parties relating to the voluntary pooling clause contained therein, and the effect of operations on an improperly created and unauthorized voluntary unit.

In the instant case we are called upon to deal with a unit compulsorily created by an order of the Commissioner of Conservation, and the interpretation and effect of a contract between the parties as to the obligations flowing therefrom but which has been substituted for and superseded by an order of the Commissioner ®f Conservation. It is apparent therefore that the Wilcox case is neither controlling nor analogous to that presented here.

Another ground for the cancellation of their lease as urged by plaintiffs is their contention that the Commissioner’s order could not and did not amount to the “spudding in” of a well on plaintiffs’ property by the defendant himself or his wholly owned company, thus maintaining that under the terms of the original lease the drilling of “spudding in” became a personal obligation of defendant Woods or his wholly owned company.

This contention, though unique, is not tenable in view of the provisions of the lease granting to the lessee the right to pool and combine the leased land or any portion thereof with other lands as well as the right to assign a portion or portions of said lease. The exercise of such rights could not be accomplished if it were literally intended by the parties that the defendant should personally perform drilling obligations. To hold otherwise would be to give a strained and untenable interpretation to the general composition of the lease and would be tantamount to lifting one phrase therefrom with a general disregard of other provisions therein contained.

Accordingly, for the reasons assigned, the judgment of the trial court is reversed, annulled and set aside and the plaintiffs’ suit is hereby dismissed. All costs to be borne by the plaintiffs.

HAMITER, Justice

(concurring in part and dissenting in part).

With respect to that portion of the leased premises lying within the established drilling unit I agree with the conclusion of the majority. However, I am compelled to disagree therewith insofar as the remaining portion of the tract in question is concerned (that lying without the unit) in view of my dissents, to the assigned reasons for which I still adhere, in Hunter Co., Inc. v. Shell Oil Co., 211 La. 893, 31 So.2d 10 and Le Blanc v. Danciger Oil and Refining Company, 218 La. 463, 49 So.2d 855-decisions that are cited and relied on in the majority opinion.

      . Beulah Chiasson Delatte, Lionel A. Chiasson, Elizabeth Chiasson Punch, HildChiasson Cuselich, Acy A. Chiasson, Sidney X Chiasson, Alcee X Chiasson, Whitney Chiasson, Edmond G. Chiasson, and Eugenia Chiasson Hebert.


author: MOISE, Justice.

text:
    232 La. 365
    STATE of Louisiana v. Hewitt H. BOOTH, John J. Senac, Frank Schnell.
    No. 43157.
    Supreme Court of Louisiana.
    Feb. 25, 1957.
    Rebearing Denied April 1, 1957.
    Chandler C. Luzenberg, Jr., Girard J. Fernandez, New Orleans, for appellants.
    Jack P. F. Gremillion, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Leon D. Hubert, Jr., Dist. Atty., Edward A. Haggerty, Jr., James C. Garrison, Louis Fenner Claiborne, Asst. Dist. Attys., for appellee.
   MOISE, Justice.

The defendants appeal from their convictions and sentences for the crime of conducting a lottery in the City of New Orleans in violation of LSA-R.S. 14:90.

Three bills of exceptions were perfected and are presented for our consideration.

Bill of Exceptions No. 1 was taken to the trial court’s overruling defendants’ plea to the jurisdiction of Division “A” of the Criminal District Court for the Parish of Orleans.

Defendants allege that the State, on its own motion, had their case transferred from Section “C” of the Criminal District Court for the Parish of Orleans, to which section their case was originally allotted, to Section “A” without their consent. They contend that the removal was illegal and in violation of their constitutional and legal rights and had the effect of depriving them of their allotment and arbitrarily selecting their forum.

The motion to transfer, filed by the Assistant District Attorney for the Parish of Orleans, and signed by Judge J. David Mc-Neill, Judge of Section “C”, reads as follows :

“On motion of Edward A. Haggerty» Jr., Assistant District Attorney for the Parish of Orleans, and on suggesting to this Court that this case should be transferred from Section C, to Section A, for the following reasons, to-wit:
“For proper expedition of Courts business as provided in La.Const. Art. 7 [§] 86 and Rules of Crim. Dist. Court.
“It Is Ordered: that this case be transferred from Section C, to Section A, subject to the approval of the Judge of Section A.
“Filed April 10, 1956
“(Signed) J. David McNeill
“Judge of Section C”

Article 7, Sec. 86, of the Louisiana Constitution, LSA provides:

“All prosecutions instituted, or cases filed on appeal or otherwise in the Criminal District Court for the Parish of Orleans, and all cases transferred to said court, shall be equally allotted by classes among the judges of said court, and each judge or his successor shall have exclusive control over any case allotted to him from its inception to its final disposition in said court. Provided, however, the said judges shall have authority to provide by rule for the exercise of jurisdiction by any judge over any case previously allotted. The judges of said court shall have power to adopt all necessary rules regulating the order of trial, and the proceedings in the trial of all cases in said court not in conflict with the law, and to provide by rule for the receiving of affidavits charging crimes and offenses against the State; said affidavits to be taken and filed by the clerk of the Criminal District Court for the Parish of Orleans or his assistants.”

Rule VI, Sec. 3, of the Criminal District Court for the Parish of Orleans, adopted under the above Constitutional authority, provides:

“Any case of any class whatsoever may be transferred as often as may be necessary for the proper expedition of the business of the Court, upon the motion of the State or the defendant, from one Section of the Court to another, provided that the Judges of the Sections from which, and to which, the case is transferred consent thereto in writing.”

Counsel for the defendants argue that the State failed to show any necessity for the transfer of appellants’ case from Division “C”, the forum of original allotment, to Division “A”; and that, in reality, the District Attorney chose his own forum to try appellants. It is further asserted that appellants are not complaining of their original allotment, but are complaining that they lost the benefit of such allotment by the transfer.

Defendants offered the testimony of Honorable J. David McNeill, Judge of Division “C” of the Criminal District Court, which was to the effect that he could have tried defendants’ case, but nowhere in the record is there any evidence to show that the transfer was not to properly expedite the business of the Court.

In the per curiam of the trial judge we find the following statement, which is proof that the action of the district attorney in requesting the transfer was not arbitrary, and that the transfer actually expedited the Court’s business:

“The trial Court annexes to this per curiam and makes part hereof a photostat of the original of a report compiled by the District Attorney’s office in April of 1956, which document is labeled, “Status of Dockets, Criminal District Court, Parish of Orleans, Active Cases”, and furnished the respective judges of said Court, when and as compiled by the District Attorney.
“* * * jn April of 1956, Section ‘A’ had 37 active misdemeanor cases pending on its docket and * * * Section ‘C’ had 73 active misdemean- or cases on its docket.
“ * * * in April of 1956 when this case was transferred from Section ‘C’ to Section ‘A’, ‘to expedite the business of the Court’, * * * Section ‘A’ had less misdemeanors on its docket than any other Section of the Criminal District Court and * * * Section ‘C’ had more misdemeanors on its docket than any other section of the Court, and consequently, it served to expedite the business of the Court to transfer this misdemeanor case from Section ‘C’, which had more misdemeanors than any other Section to Section ‘A’, which had less misdemeanors than any other Section of the Court.
“Respectfully, while it is quite true as stated that Section ‘C’ could have tried this one case expeditiously, it nonetheless expedited the business of the Court to relieve Section ‘C’ ’s docket of this case and transfer the case to Section ‘A’, particularly since it is a case that required considerably more time to try than the average misdemeanor case

We find no basis for defendants’ complaint as they have not shown that they were unfairly tried. State v. O’Malley, 115 La. 1095, 40 So. 470. The record discloses no violation of defendants’ constitutional rights. The district attorney and the judges of both Division “C” and Division “A” adhered to the procedure outlined in the above quoted provisions of the Constitution and the Rules of the Criminal District Court for the Parish of Orleans. Both judges agreed to and signed the transfer, and it must have been their opinion that the court’s business was expedited by their action. This was all that was necessary. State v. Bailey, 165 La. 341, 115 So. 613, 58 A.L.R. 1. Therefore, there is no merit to the bill.

Bill of Exceptions No. 2 was reserved to the trial court’s refusing defendants a new trial.

This bill raises the same issues as are presented in Bill of Exceptions No. 1 plus the allegation that the verdict is contrary to the law and the evidence.

Since we have fully discussed Bill of Exceptions No. 1, and found that it is without merit, there is no need for comment on this bill. The trial judge was correct in overruling defendants’ motion for a new trial.

Bill of Exceptions No. 3 was reserved to the trial judge’s overruling defendants’ motion in arrest of judgment.

This bill is a repetition of Bill of Exceptions No. 2. It is therefore without merit.

For the reasons assigned the convictions and sentences are affirmed.


text:
    232 La. 373
    Julian GOTREAUX v. Roy GARY et al.
    No. 42510.
    Supreme Court of Louisiana.
    Feb. 25, 1957.
    Rebearing Denied April 1, 1957.
    Charles C. Jaubert, Lake Charles, for appellant.
    Herschel N. Knight, Jennings, for defendants-appellees.
   MOISE, Justice.

Julian Gotreaux instituted this suit for damages in the sum of $2,405.75. It is alleged that Welsh Flying Service, Inc., sprayed 2, 4-D poisoning on the rice crop grown on Roy Gary’s tenant farm on July 2, 1953, and that the wind carried the herbicide to plaintiff’s crop — approximately 13.3 acres of cotton and 3 acres of peas — causing the destruction of all but one bale of cotton.

Defendants denied liability and plead lack of negligence by the use of due and reasonable care, relying on Act 502 of 1952, LSA-R.S. 3:1621, and the regulations of the Louisiana Department of Agriculture and Immigration.

The trial court held defendants free from any negligence and dismissed plaintiff’s action. Plaintiff’s appeal to the Court of Appeal, First Circuit, was transferred to this Court.

Plaintiff contends that defendants’ actions constituted a private nuisance, and that liability for damages resulting from the maintenance of a nuisance does not depend on a question of negligence.

The record discloses that defendant Gary employed Welsh Flying Service, Inc., to spray a tenant rice crop of 240 acres on July 2, 1953. Spraying operations were commenced before 8:30 A.M., and after that hour the pilot determined that the wind was too high to continue. Gary’s farm lands were located some 3^4 miles south of plaintiff’s farm, and the wind was blowing from the south on July 2, 1953. There is a dispute as to the wind’s velocity at the time of the spraying; however, after the spraying, the wind reached a velocity higher than that permitted by the regulations. Plairi-tiff detected the odor of the poisoning on the morning of the operations, and when he went to the airport to request the discontinuance of the spraying Mr. Gary informed him that he was through for the day.

Plaintiff’s testimony is to the effect that some eight to ten days after July 2, 19S3, his cotton crop began to have curled leaves and his two crops became unproductive. His testimony is substantiated by that of adjoining farmers, which is to the effect that the 2, 4 — D caused the destruction.

We find from the evidence that plaintiff’s crops were destroyed and that it was from the blowing or drifting on plaintiff’s crops of the herbicide sprayed by defendants.

Defendants have not proved that there were any other spraying operations conducted in the vicinity of plaintiff’s farm on July 2, 1953, or within a short time before, and they have not disproved the fact that the 2, 4-D, which they sprayed, came to rest in part on plaintiff’s crops and caused their destruction.

We do not believe that the legal problem presented is that of a private nuisance. It resolves itself to the determination of whether the doctrine of strict liability is applicable.

In the case of Fontenot v. Magnolia Petroleum Co., 227 La. 866, 80 So.2d 845, 848, the defendants were free of negligence. There we held that plaintiffs, whose residences were damaged by blasting operations carried on by defendants, were entitled to recover damages as a result of an invasion of their privacy of their respective homes, inconvenience occasioned them, and mental anguish suffered as a result of property damages. . We made the following statement, which is applicable to the present controversy:

“In disposing of questions of this character, we are mindful of two important considerations: First, to give the owner of property the largest liberty possible, in the use, occupation and improvement of his own property, consistent with the right to employ modern methods and machinery in accomplishing the improvements desired; and second, that one may not use his own property to the injury of any legal right of another. This maxim of the common law, ‘Sic utere tuo ut alienum non laedas’, is so well established and so universally recognized that it needs neither argument nor citation of authority in its support.”

Rice is one of the most important crops of Louisiana and its proper cultivation necessitates the application of herbicides. However, plaintiff could not be deprived of the privilege of raising to production his cotton and pea crops because of defendants’ use of spraying operations.

Article 667 of the LSA Civil Code provides :

“Although a proprietor may do with his estate whatever he pleases, still he can not make any work on it, which may deprive his neighbor of the liberty of enjoying his own, or which may be the cause of any damage to him.”

In the case of Tucker v. Vicksburg, S. & P. Ry. Co., 125 La. 689, 51 So. 689, we held that the grant and exercise of privileges to one does not confer the right to disregard the private rights of others.

In the instant matter, it is true that the Legislature consented to the use of herbicides, but this did not entitle defendants to injure plaintiff’s crops. Although the use of the spraying operation was lawful, it was carried out in such a manner as to unreasonably inconvenience plaintiff and deprive him of the liberty of enjoying his farm. Devoke v. Yazoo & M. V. R. Co., 211 La. 729, 30 So.2d 816.

We adopt the following ruling made in the case of Fontenot v. Magnolia Petroleum Co., supra:

“We are unwilling to follow any rule which rejects the doctrine of absolute liability in cases of this nature and prefer to base our holding on the doctrine that negligence or fault, in these instances, is not a requisite to liability, irrespective of the fact that the activities resulting in damages are conducted with assumed reasonable care and in accordance with modern and accepted methods.”

We believe that there is adequate proof in the record to substantiate the amount of damages alleged to have been suffered by plaintiff. While there is some dispute as to the value of the pea crop, we do not believe that defendants have sufficiently controverted the loss alleged by plaintiff.

For the reasons assigned, the judgment of the trial court is annulled and set aside, and plaintiff is allowed judgment against the defendants in the sum of $2,405.75, together with legal interest from demand until paid; all costs to be paid by the defendants.

      . Act 502 of 1952 empowers the Commissioner of Agriculture and Immigration to promulgate just and reasonable rules and regulations necessary to protect crops and other valuable plants from, damage arising from the use of 2. 4-D — dichloro-phenoxyacetic acid and related herbicides.
      On March 10, 1953, such rules as above provided for were promulgated.

      . Sec. 8 — Regulations Covering The Use of 2, 4-D and Related Herbicides, Louisiana Department of Agriculture and Immigration, Promulgated in Accordance With the Provisions of Act 502 of 1952.
      “Np spraying shall be carried out when wind velocity exceeds six (6) miles per hour except in isolated areas by special permit from the Commissioner.”

      . Damage such as herein involved usually displays itself within 14 days after spraying with herbicides.


author: FOURNET, Chief Justice.

text:
    232 La. 379
    WASHINGTON FIRE & MARINE INSURANCE COMPANY v. FIREMEN’S INSURANCE COMPANY.
    No. 43097.
    Supreme Court of Louisiana.
    Feb. 25, 1957.
    Rehearing Denied April 1, 1957.
    Roy M. Fish, Springhill, for 'plaintiff-applicant.

      Jaclcson, Smith, Mayer & Kennedy, Shreveport, for defendant-respondent.
   FOURNET, Chief Justice.

We granted certiorari to review the judgment of the Court of Appeal, Second Circuit, reversing the district court’s judgment and dismissing the suit of plaintiff, Washington Fire & Marine Insurance Company, subrogee of its insured, Mr. Jewell Nix, against defendant, Fireman’s Insurance Company, the public liability insurer of Mr. Dewey Butts, to recover the amount of property damage sustained by Nix in an automobile collision between his car and one owned and driven by Butts, due to the alleged negligence of Butts in making a left-hand turn across the path of the Nix car — the Court of Appeal having reached the conclusion that the accident was due to the negligence of the driver of the Nix car, which negligence was the proximate cause of the collision. See La.App., 88 So.2d 402.

The undisputed facts are that shortly after midnight on June 19, 19SS, the Nix car, being driven by Jimmy Nix, the 19 year old son of the owner, was proceeding south on South Main Street in Springhill, Louisiana, while the Butts car was traveling north on the same street, and that Butts by directional signal light indicated his intention to make a left turn into the parking lot of a drive-in restaurant located on the west side of South Main Street; that an intersection, some 35 to 50 yards north of said restaurant, is controlled by a traffic light which was in operation; that South Main Street runs north and south, is without curves for some distance in both directions, young Nix saw the blinker light indicating a left turn and Butts saw the Nix car on the far side of the intersection; and that the collision occurred when Butts had almost completed the left turn, the right front fender of the Nix car having struck the rear right fender of the Butts car with sufficient force to knock it several feet and into another stationary vehicle preparing to leave the restaurant driveway. The only conflict arises with respect to the contributory negligence charged to Nix and urged by special plea, i.e., that he failed to heed the traffic light at the intersection, which was red for traffic on South Main Street; and, in any event, had he been keeping a proper lookout and not been driving at an excessive and unlawful rate of speed, he could have avoided the accident.

The trial judge, in summarizing the testimony at the conclusion of the trial, stated that as to the color of the traffic light he did not know what to believe; the only persons who were able to testify with any positive recollection were the occupants of the vehicles involved — Nix and a lady passenger, Butts and another man who rode with him — and their testimony was completely contradictory. The judge expressed dissatisfaction with the remaining proof offered by the defendant, finding it “pretty hazy” and not made out with sufficient certainty. The Court of Appeal was in accord with those conclusions, stating that “After reviewing the record we are unable to determine with legal certainty that Nix ran the red light or that he was traveling at an excessive rate of speed.” [88 So.2d 405] On the other hand, that Court thought it “clear that Nix was negligent * * * in that after observing the left turn signal being given from a distance of thirty yards or more, he did nothing more that to reduce the speed of his vehicle to twenty miles per hour.” Labeled “the grossest sort of negligence” was the failure of Nix “to bring his vehicle under more complete control and thus avoid the collision,” and this led to the Court’s conclusion that the negligence of Nix “in not yielding his right-of-way and permit Butts to complete the maneuver was a proximate cause of the accident and a bar to the recovery of damages by plaintiff.”

In so holding we think the court erred. The cases are legion which hold that before making a left turn the driver of an automobile must ascertain that he may do so safely; not only is this cardinal rule of the road founded on common sense, but in our State is a positive enactment, incorporated in the Revised Statutes as R.S. 32:235, by the terms of which it is the mandatory duty of the driver of any vehicle on the highways of this State to ascertain, before turning upon any highway, that there is no traffic, vehicular or pedestrian, approaching from either direction which will be unduly delayed; and said driver "shall yield right-of-way to such approaching traffic and shall not attempt to make a turn unless the way is clear.” (Emphasis ours.) Among pertinent cases are Lane v. Bourgeois, La.App., 28 So.2d 91; Home Insurance Co. v. Warren, La.App., 29 So.2d 551; Michelli v. Rheem Mfg. Co., La.App., 34 So.2d 264; Malone v. Fletcher, La.App., 44 So.2d 352; Zurich Fire Ins. Co. of New York v. Thomas, La.App., 49 So.2d 460; and Codifer v. Occhipinti, La.App., 57 So.2d 697. In the last cited case the Court of Appeal for the Parish of Orleans aptly stated that “When such a left-hand turn is being made and an accident occurs, the burden rests heavily on the driver who is making the left-hand turn to explain how the accident occurred and to show that he was free from negligence.” 57 So.2d at page 699.

There is no merit in the argument of counsel for the defendant that “after hearing the testimony neither court could determine whether or not Nix ran through the red light and, therefore, there was no factual or legal basis for their finding that Butts made a left turn at an unsafe time because, if the light was red, he certainly did not attempt his turn at a time when it was unsafe to do so.” The fact that neither the trial judge nor the Court of Appeal could find the plaintiff contribu-torily negligent means that the defendant failed to sustain his burden of proving that charge; there remains only the negligence of the defendant in having undertaken a left turn into a driveway on the opposite side of the thoroughfare without having a clear chance of successfully completing that dangerous maneuver, and he is liable for the damages sustained by the plaintiff.

For the reasons assigned the judgment of the Court of Appeal, Second Circuit, is annulled and set aside and the judgment of the District Court is affirmed, defendant to pay all costs.

      . The District Court’s judgment is “in favor of the plaintiff, Washington Fire & Marine Insurance Company, and against the defendant, Firemen’s Insurance Company, in the sum of Two Hundred Eighty Nine and 39/100 ($289.39) Dollars, together with five (5%) per cent per annum interest thereon from August 1, 1955, until paid, and for all costs of these proceedings.”