author: McBRIDE, Judge.

text:
    Mrs. Anaise COULON, Widow of John F. CHRISTEN and Mrs. Catherine Margaret Christen, Wife of William Robert Laughlin, v. Alex COULON.
    No. 20807.
    Court of Appeal of Louisiana. Orleans.
    March 25, 1957.
    Rehearing Denied April 15, 1957.
    Writ of Certiorari Denied June 10, 1957.

      John E. Fleury, Gretna, for plaintiffs and appellants.
    Jacob J. Amato, Gretna, for defendant and appellee.
   McBRIDE, Judge.

This is an action in boundary. Plaintiffs own the following property:

A Certain Piece or Portion of Ground, together wtih all the buildings and improvements thereon, rights, ways, servitudes, privileges and advantages thereunto belonging or in anywise appertaining, situated in the Parish of Jefferson, State of Louisiana, on the right bank of the Bayou Barataría, Barataría District, having a front of 'Ninety-seven (97') feet on Bayou Bara-taría and extending in depth between parallel lines to the Public Road.

Defendant owns the adjoining property to the south, his title deed calling for:

A Certain Piece or Portion of Ground, together with the rights, ways, privileges, servitudes, advantages and appurtenances thereunto belonging or in anywise appertaining situate in the Parish of Jefferson, State of Louisiana, on the right bank of Bayou Barataría in the District of Barataría and having a front of eighty (8CK) feet front on Bayou Barataría and extending in depth between parallel lines to the public road; said piece or portion of ground constitutes the front portion of a tract of land acquired by Octave Coulon from Victor Coulon by act before William C. Berthoud, late Notary Public in and for the Parish of Jefferson, on October 2nd, 1870, bounded on the North side by the property of the vendor herein and on the South by the property now belonging to John Perrin, and on the West by the Public Highway.

The premises in question are located in what is known as Little Village Community in Section 2, Township 16 South, Range 23 East, Southeastern District of Louisiana, West of the Mississippi River.

Plaintiffs also seek to have removed from their property certain of defendant’s improvements which encroach thereon.

The judge below pursuant to LSA-C.C. art. 841 appointed Henry E. Landry, Surveyor, to inspect the premises described in the petition, to survey the same, and to report thereon in writing to the court.

Defendant alleges in answer that he erected his fence in the month of August, 1943, and that this fence forms the correct boundary line. In a supplemental and amended answer he avers that shortly after acquiring his property, he and Mrs. Anaise Coulon Christen “measured off the fence separating his property from that of his neighbors, John Perrin and they did also measure off the eight foot right-of-way on the North boundary line by inserting three wooden posts on the North boundary line and a square wire fence eight feet south thereof; all done to the satisfaction and with the acquiescence and cooperation of Mrs. Anise Coulon Christian; and for these reasons plaintiffs did warrant title as per the boundaries so set and they are hereby estopped from asserting their claim in this matter.”

Defendant also set up that a relocation of the boundary would cause confusion by disrupting and displacing the boundaries of other property in the vicinity. He prays for dismissal of the suit. Defendant also filed a reconventional demand but nothing more need be said of such incidental demand as it has passed out of the case.

In due course Landry, the court-appointed surveyor, surveyed the property and submitted a comprehensive map showing his location of the boundary line and at the same time submitted his written report. Landry’s map appears thus:

Defendant disputes the correctness of Landry’s survey and bases his case entirely on a survey of J. L, Fontcuberta, Surveyor, dated April 11, 1955, which is in hopeless conflict with the Landry survey.

The court, after hearing both surveyors as well as several other witnesses on the trial of the case, concluded that defendant’s survey, i. e., the one made by Fontcuberta, “is more logical and in keeping with the existing lines of property at Lafitte,” and judgment was rendered establishing the boundary between the property of the respective parties as shown on the Font-cuberta map. Plaintiffs have appealed.

A brief history of the title and ownership of the property sought to be separated may be stated as follows:

Plaintiff, Mrs. Anaise Coulon Christen, and her late husband, John Christen, acquired (C.O.B. 44, folio 563 and C.O.B. 47, folio 475) certain lands having a continuous and aggregate frontage of 288 feet on Bayou Barataria, by a depth between parallel lines running to Lake Ouacha in the rear (a distance of 5 miles). John Christen, by several acts, disposed of portions thereof, He conveyed to William Bundy (C.O.B. 51, folio 212) one-fourth of an arpent (48 feet) front on Bayou Barataria, this being the southernmost portion of the property; to Ernest Alfred Coulon he sold (C.O.B. 54, folio 64) 31^4 feet front on Bayou Barataria adjoining William Bundy; to John Perrin he sold (C.O.B. 54, folio 63) 31)4 feet front on Bayou Barataria adjoining Ernest Alfred Coulon. All sales were made under a description reciting that the property had a depth between parallel lines running to Lake Ouacha.

John Christen died in 1940 and by judgment of possession rendered in his succession proceedings (C.O.B. 181, folio 315) the plaintiffs, as his widow and sole and only child, respectively, were sent and placed into possession of his estate, the assets of which embraced the remainder of the land acquired, as aforesaid, by himself and his wife, measuring 177 feet front on Bayou Barataria, with a depth between parallel lines running to Lake Ouacha in the rear.

Defendant acquired his property by purchase from the plaintiffs per act of sale dated May 24, 1943, passed before Ernest M. Conzelmann, N. P. (C.O.B. 193, folio 200). The sale described the land as having a front on Bayou Barataria of 80 feet and extending in depth between parallel lines to the Public Road. The sale was made subject to a right of way 8 feet wide running along the north line of the property and extending from Bayou Barataria to the Public Road. This right of way was established in the act in favor of George Pierce and wife and Willie Belsom.

After selling the said 80 feet to the defendant, there remained in plaintiffs’ ownership a portion of land having a front of 97 feet on Bayou Barataria, by a depth between parallel lines running to the Public Road, said tract adjoining defendant’s property on the north.

Defendant testified that when he built his fence Mrs. Christen told him to project the fence line from the Belsom tract on the west side of the Public Road to Bayou Barataria and to erect his fence along this projected line between the Public Road and the bayou, which he says he did. Mrs. Christen denies his statements. But even if the controverted testimony is deemed to- be true, the placement of the fence under the circumstances recited would not establish a boundary line such as the law would recognize. According to LSA-C.C. art. 832 the fixing of new boundaries or the investigation of old ones may be made extra judicially and by mutual consent. However, LSA-C.C. art. 833 explicitly provides whether the limits be fixed judicially or extrajudicially, it must be done by a sworn surveyor of this state.

As a starting point or bench mark Landry utilized an old grate bar located on the upper line of Little Davis Plantation. Font-cuberta agrees that this is a well-recognized monument.

From the old grate bar Landry traveled eastward a distance of 53.75' along the upper line of the Little Davis Plantation to a point he designates as “O” in the Public Road; he proceeded thence along the Public Road N 35° 43' W for a distance of 203.42' to point “A” (the southwest corner of plaintiffs’ land); thence N 74° 24' E 109.91' to point “B” (plaintiffs’ southeast corner); thence along Bayou Barataría N 30° 36' W 100.42' to point “C” (plaintiffs’ northeast corner); thence S 74° 24' W 119.45' to point “D” (plaintiffs’ northwest corner); thence along the Public Road S 35° 43' E 103.31' to “A” the place of beginning. The distance between the parallel lines from “A” to “B” and from “C” to “D” measured at right angles thereto is 97' which Landry says represents the frontage of plaintiffs on Bayou Barataría as per their title.

Returning to “A”, the place of beginning (this would form defendant's northwest corner), Landry went N 74° 24' E 109.91' to “B” (defendant’s northeast corner); thence along Bayou Barataría S 30° 36' E 82.82' to “E” (defendant’s southeast corner) ; thence S 74° 24' W 102.05' to “F” (defendant’s southwest corner); thence along the Public Road NT 35° 43' W 85.20' to “A”, the point of beginning. The distance between the parallel lines from “A” to “B” and from “E” to “F” is 80', the frontage on Bayou Barataría and the Public Road called for by defendant’s title.

Landry also shows on his map the property between the Public Road and Bayou Barataría owned by William Bundy, Ernest Alfred Coulon and John Perrin (the ven-dees of John Christen), and the sidelines of each tract are parallel as are the sidelines of plaintiffs’ and defendant’s property. Landry gives Bundy, Ernest Alfred Coulon and Perrin the precise width called for by their titles as measured at right angles between the sidelines. His plan reflects that titles of the present owners of all of the 288' of frontage on Bayou Barataría originally acquired by John Christen and Mrs. Anaise Coulon Christen are satisfied without deviation or exception.

On the other hand, discrepancies are manifest on Fontcuberta’s map. He fixes the boundary about 21' distant from where Landry places it. Fontcuberta testified he "researched” the title of all owners between the Little Davis Plantation line up to and including the title under which plaintiffs claim. He went on the ground and “oriented” himself and from the old grate bar:

“ * * * proceeded to make what we would have liked to make, what I call an ideal survey. That is saying, title.”

However, Fontcuberta discovered, after running several tracts, that his measurements and calculations were in disagreement with existing fences and buildings. He said:

“The further north we went, the worse it got.” He went on to state:
“We then inquired as to the property lines of various owners adjoining Mr. Coulon and Mrs. Christen’s property and each one was willing to tell us where their lines were.”

Fontcuberta completely abandoned all thought of making an “ideal survey” as per title measurements and his sidelines of all the tracts lying between the Public Road and Bayou Barataría were established simply by projecting the fence lines from the other or west side of the road. He says this was the “controlling factor” and used the edge of the public highway as the base line. He admits he does not know where the right of way begins or where it ends. The net result is that Fontcuberta shows the dimensions of each tract to be materially different from title measurements. Starting at the Little Davis Plantation projected fence line, he gives Bundy an actual frontage on Bayou Barataría of 60' whereas the title calls for 48'. Bundy’s frontage along the Public Road is shown as 55.05'. Ernest Alfred Coulon’s land has an actual measurement on Bayou Barataría of 38' although the title calls for 31.5'; the actual frontage on the Public Road is 4O'. John Perrin’s title describes his land as being 31.5' front, but his actual measurement is 51' front on Bayou Barataria by 47' front on the Public Road. The defendant’s frontage as per his title is 80' on Bayou Barataria, but the actual measurement shown by Fontcuberta is 81' with the same frontage on the Public Road. The most glaring discrepancy of all appears in plaintiffs’ property. Their title calls for 97' front, but according to Fontcuberta the actual measurement is only 81' front on Bayou Barataria and 90' on the Public Road.

One thing stands out more than all else in Fontcuberta’s survey and that is that none of the tracts as he shows them have parallel sidelines. John Christen and his wife, Mrs. Anaise Coulon Christen, acquired the land under descriptions calling for a depth between parallel lines, and all sales made by John Christen and the sale made by plaintiffs to defendant recited that the property sold had a depth between parallel lines.

Fontcuberta made no perpendicular measurement between the sidelines as Landry did. The frontage he gives each owner is represented by a measurement made along the line of the general direction in which Bayou Barataria flows.

Landry is a surveyor of more than forty years’ experience. He testified:

“ * * * the frontage is a perpendicular distance between the two side lines * * * that is the only way to measure it.”

He rejected completely the idea of measuring along the meander line of the stream.

The conflicting surveys unquestionably result from the different methods employed by the two engineers in reaching their conclusions, and a solution of the controversy would depend on which survey is to be considered the correct one and adopted as such.

We do not think that the court should extend judicial approval to Fontcuberta’s fixation of the boundary, as it appears the means he used in arriving at his conclusions are dubious, to say the least. After making his start from the old grate bar on the upper line of Little Davis Plantation, he forsook all consideration of title measurements when it appeared to him that the lines called for by the titles did not coincide with the locations of certain improvements. Instead Fontcuberta proceeded to base his survey on verbal information elicited from the various proprietors and by the projecting of fence lines from the west side of the public highway. Landry’s map shows that each and every one of these fences is off line.

In Barker v. Houssiere-Latreille Oil Co., 160 La. 52, 106 So. 672, 674, the Supreme Court had occasion to comment on the use of fences as starting points in a survey:

“Old fences are very unreliable as starting points or checking points in city surveys, and a surveyor should use great caution in adopting same. Clark on Surveying, § 18, p. 14; Johnson-Smith on Surveying, p. 732; Martin v. Breaux, 12 La.Ann. [689] 690.”

Landry, with instruments, sought to establish the location of boundaries in accordance with the titles. This is in accordance with law. LSA-C.C. art. 841 in part reads:

“It is the duty of the judge who has cognizance of suits on the subject of limits, to appoint surveyors to inspect the premises in question, and the court, on their report, ought to decide according to the titles of the parties, * * *. ”

It also appears that Landry’s formula for ascertaining each owner’s frontage on Bayou Barataria by perpendicular measurement between sidelines is the correct one. In the syllabi in Minor v. Daspit, 128 La. 33, 54 So. 413 the Supreme Court said:

“A sale of a tract of land 4 arpents front on a bayou by 40 arpents in depth conveys 160 arpents in a parallelogram, unless the contrary intention be clearly shown by the evidence.
“In such a case, the rule is to measure the breadth on the stream by a line at right angles to one of the side lines which are presumed to be parallel.”

The record shows the significant fact that had Fontcuberta used Landry’s method there would have been no variance between the two surveys. This appears from Fontcuberta’s own testimony.

He was asked:

“If I measured that on a right angle line, do you know how that would have come out?”

His reply was:

“Yes, sir, I have a good idea.”

In answer to the question:

“How do you figure it would come out?”

He stated:

“It would have come out the same way as Mr. Landry’s came out.”

In light of the circumstance surrounding the making of the surveys, the only logical conclusion that could possibly be reached is that Landry’s survey is correct and that his boundary between points “A” and “B” shown thereon is the more worthy and should be adopted. Accordingly, it is apparent that certain improvements, viz.: a fuel tank, cistern, two fences, an outhouse and the northeast corner of defendant’s building encroach on the property of plaintiffs.

Defendant claims he built his fence in August, 1943, along the boundary line and that the said fence still stands. He pleads “the cause of action stated in plaintiffs’ petition prescribed in August of 1953.”

As the basis of this plea defendant is evidently relying on the provisions of LSA-C.C. art. 853 which read as follows:

“If the boundaries have been fixed according to a common title, or according to different titles, and the surveyor had committed an error in his measure, it can always be rectified, unless the part of the land on which the error was committed, be acquired by an adverse possession of ten years, if the parties are present, and twenty years, if absent.”

That codal article has no application whatever to this case. There never was any prior survey by a sworn surveyor fixing the contested boundary, and therefore, there was no adverse possession by defendant under a survey.

In Barker v. Houssiere-Latreille Oil Co., supra, we find the following language:

“In order to sustain the plea of prescription of 10 years under article 853, it is necessary not only to show a possession of 10 years, but also that the possession has been held by boundaries fixed by a surveyor in accordance with article 833 and consecutive articles of the Civil Code, requiring the work to be done by a sworn surveyor of the state, notice to the parties, examination by the surveyor of title papers, procés verbal of survey, etc. Gray v. Couvillon, 12 La.Ann. 730.”

The plea is without merit.

In his supplemental and amended answer defendant specially sets up “prescription of ten years, thirty years, and estoppel.”

The plea of acquisitive prescription of ten years is unavailable to defendant. His fence does extend beyond his property line, but under the facts of the case we know of no law by which he may prescribe beyond the limits of his title by the possession of ten years. Immovables are prescribed for by ten years when the possessor has been in good faith and held by a just title during that time. LSA-C.C. art. 3474.

LSA-C.C. art. 3478 stipulates:

“He who acquires an immovable in good faith and by just title prescribes for it in ten years. * * * ”

Defendant emphasizes the prescription of thirty years in a special plea lodged in this court. He alleges that certain installations were made on the property by the “Belsoms,” his authors in title; that they built wharves on the edge of the bayou; that these have been used for more than thirty years without anyone having asserted adverse claims; that he is entitled to tack onto his own possession that of his authors in title which in all would amount to more than thirty years’ uninterrupted possession.

But even if we assume, without deciding, that defendant could tack the “Belsom’s” possession to his own, still there is no evidence that there was an uninterrupted adverse possession of more than thirty years. There is no showing for what period of time any wharves or installations of other persons have existed on plaintiffs’ property as the trial judge excluded such evidence upon the objection of counsel for plaintiffs.

The plea of thirty years’ prescription is without foundation, and therefore it is overruled.

Defendant also alleged:

“Defendant shows that plaintiffs have ■ stood by while defendant built his home, part of which they allege to encroach approximately six feet upon their property; all done with no objection from the plaintiffs, but rather with their cooperation and acquiescence; and accordingly, plaintiffs should be estopped now from claiming the boundary line which they propose in this litigation.”

This plea cannot be sustained.

It is a cardinal essential of the principle of estoppel that the person sought to be estopped must have had knowledge of all of the facts and been cognizant of his legal rights. Little v. Barbe, 195 La. 1071, 198 So. 368; Parker v. Ohio Oil Co., 191 La. 896, 186 So. 604; Gallagher v. Conner, 138 La. 633, 70 So. 539; Jones v. Alford, La.App., 172 So. 213. It does-not appear that Mrs. Christen at the time-defendant erected his improvements knew of the facts or had reason to believe defendant was building beyond his property line. Moreover, were it otherwise, the other plaintiff, Mrs. Laughlin, would not be bound.

It is indeed unfortunate that defendant undertook to construct valuable improvements without first taking the necessary precaution of having the premises surveyed in order that he might determine his limits, and he can blame only himself for his present plight. We are told that if the boundary is fixed as it is shown on the Landry survey, this will also have the effect of dislocating and disrupting fences and buildings of other owners in the vicinity, but this, even if it be true, would be no valid reason for rejecting Landry’s line which we are fully convinced is the true boundary between the respective properties of the -parties.

We now pass to the assessment of the cost of the survey. Defendant in answer-admitted that plaintiffs endeavored to obtain his consent to an extrajudicial fixing-of the boundary, but that he refused to-have the matter amicably settled and maintained that his fence, as it now stands,, represents the correct boundary.

Ordinarily it is the rule that the-costs of the survey must be divided between the parties. LSA-C.C. art. 663; Tircuit v. Pelanne, 14 La.Ann. 215; Lafaucia v. Wagner, 7 La.App. 180; Gaubert v. Gaubert, 1 La.App. 719. But where the-defendant resists plaintiff’s demand to have ■ their boundaries fixed in accordance with. their respective titles and compels a suit,. the provisions of LSA-C.C. art. 663 do not apply and he should be condemned to pay the whole cost of the survey and not only one half. Dufrene v. Bernstein, 190 La. 66, 181 So. 859; Gaude v. Williams, 47 La.Ann. 1325, 17 So. 844; Miller v. Welsh, La.App., 66 So.2d 25; Fairbanks v. Louisiana Central Lumber Co., La.App., 163 So. 209; Lafaucia v. Wagner, supra.

For the reasons aforestated, the judgment appealed from is reversed and it is now ordered, adjudged and decreed that there be judgment herein in favor of the plaintiffs and against the defendant, fixing and establishing the boundary line between the property of plaintiffs and defendant as described in the petition, along the line between points “A” and “B” as shown on and in accordance with the survey made by Henry E. Landry, Surveyor, under order of court, a blue print of which is on file in these proceedings and made part hereof.

It is further ordered, adjudged and decreed that the defendant is condemned to pay the fee and costs of Henry E. Landry for the survey and also all costs of court, including the cost of this appeal.

Reversed.


source: Caselaw Access Project

author: ELLIS, Judge.

license: Public Domain

text:
    Dr. Sidney DECKLER et al. v. The TRAVELERS INDEMNITY COMPANY.
    No. 4367.
    Court of Appeal of Louisiana. First Circuit.
    March 25, 1957.
    Seale, Kelton & Hayes,* Morris C. Shapiro, Baton Rouge, for appellants.
    Taylor, Porter, Brooks, Fuller & Phillips, Frank W. Middleton, Jr., Baton Rouge, for appellee.
   ELLIS, Judge.

Dr. Sidney Deckler and Mrs. Essie Deck-ler, husband and wife, join in a petition seeking payment, under a theft insurance policy, for the loss of a ring under circumstances petitioners claim entitled them to recovery.

The lower court dismissed the suit and this appeal was lodged.

A joint stipulation appears in this record whereby it was agreed: That the defendant was properly a party defendant; the diamond ring, the value of which is involved in this suit, has a reasonable value of $1,900 and was the property of Mrs. Deckler, its loss occurring on premises covered by the provisions of a policy issued by the defendant which was in full force and effect at the time of the loss; Mrs. Deckler last recalled seeing the ring on her finger sometime in the latter part of the evening on the date of the loss, which was first discovered by her shortly after the evening meal; she, in connection with an investigation by the defendant signed a statement, a true and correct copy of which appears herein; subsequent to the discovery of the loss a careful search of the entire house and premises was made as well as inquiries, but plaintiffs have been unable to locate the ring or unearth any information as to its whereabouts; there is no question with regard to notice given the defendant; the sole point of dispute is in regard to the construction and application of the terms of the policy, particularly as to the definition of theft contained in paragraph 1(b) under Conditions.

The policy, insofar as the portion in controversy, is concerned, reads as follows:

“(b) Theft. The word ‘theft’ includes larceny, burglary and robbery. Mysterious disappearance of any insured property, except a precious or semiprecious stone from its setting in any watch or piece of jewelry, shall be presumed to be due to theft.”

Mrs. Deckler was the only witness who testified. Her husband, the other plaintiff was, at the time of the loss, on duty in the Armed Forces, away from home. Her testimony states she last recalled seeing the ring on her hand some time during the afternoon of July 9th. Further, she related her recollection of having the ring on most of the afternoon but that she did not notice its loss “until after supper, after dinner”; that this was approximately 7:00 o’clock P. M. She was positive she had been in the house all of the time; that a maid had been there until about S :30 P. M.; that after the maid had left she searched the house but did not find the ring. Mrs. Deckler stated she wore the ring upon her left finger and that after she had prepared the evening meal for herself and her children she cleaned up the kitchen and then discovered the loss, although she did not remember exactly where she was or what she was doing when she found the ring was gone. Her testimony goes on to show there was no one in the house except herself and her children after the maid left; that she was cleaning up after the evening meal when the garbage disposal unit failed to function properly and she tried to correct its failure but was unable to do so. According to her, the disposal unit would not grind up the refuse which was placed in it, and did not operate at all from the evening on which the loss of the ring was discovered until it was repaired several days later by some repair men whom she called to fix the unit and search for her ring; they reported to her they did not find the ring or any part of it.

The statement given by Mrs. Deckler to a representative of the defendant some six weeks after the loss was one of the subjects of stipulation, referred to supra. According to this statement she alleged she was wearing her ring on the right hand instead of the left and that she had attempted to unclog the disposal unit at approximately 7:00 P.M. on the date of the loss. The statement further relates she worked with the unit with her right hand for approximately a half an hour and managed to cause it to operate again properly; that a few hours after this occurrence she noticed the ring was missing from her right hand. Contrary to her testimony, her signed statement, given in August of 1954, related she had looked for her ring in the disposal unit but that it had not been disassembled, since she felt that if the ring had gone into it, it would have been ground up; that she thought she had lost the ring from her finger while working with this unit and that it had gone on down through the garbage disposal connection to the sewer.

Regardless of any discrepancies between the signed statement and her testimony, the matter resolves itself into an interpretation of the condition in the policy, quoted above. The policy covering the insurance Had here is standard and the presumption of theft as contended therein must be considered in accord with the jurisprudence.

There is only one Louisiana case involving the same issues. This is Loop v. United States Fidelity & Guaranty Co., La.App., 63 So.2d 247, 248. There an insured’s wife selected a ring from several others, put it upon her hand and drove to the business section of the city in which she lived, a distance of about three miles from her residence. She carried a pair of gloves in her hand but was not wearing them, parked her car and walked a few city blocks to a store, subsequently going to her husband’s office. Both returned to the car and drove to the home of some friends. The wife, wishing to show the ring to some of her friends found, for the first time, the ring was not on her finger.

As contended here the plaintiff in the Loop case claimed the facts showed a “mysterious disappearance” and that such a disappearance created the presumption of theft and the loss was therefore covered by the policy.

Part of the opinion in the Loop case reads as follows:

“But we are of the opinion that the facts do not admit of the acceptance of the presumption that the loss resulted from theft. And it is quite clear that Mrs. Loop herself was of the opinion that there had been no theft, and that she had merely lost the ring from her finger somewhere during the course of the two and a half hours which elapsed between the time at which she left her residence and the time at which she discovered the loss.
“In the first place, she says that she did not report the loss to the police or to the agent of the insurer until about three weeks after it had occurred, for the reason that T kept hoping somebody would come back with it.’ In her statement made to the insurance adjuster a day or so after she finally reported the loss, she said:
“ ‘In summing up this matter I feel that I lost the ring and that it was not missing as a result of a theft. Because of this opinion I did not make a report of the loss to the Police Department.’
“In that statement she also said:
“ ‘I feel reasonably certain the ring was not stolen from my home, but I can’t account for the disappearance of the ring, except for the possibility that it slipped off my finger.’
“There is not one word in the record which suggests that some one forcibly slipped the ring off her finger.
“If she had taken it from her finger in order to wash her hands and had placed it somewhere in the washroom and had forgotten to put it back on her finger and then returned to the washroom and found it missing, it would have been possible to classify that loss as a mysterious disappearance and to accept the presumption that there had been a theft, but where there is no fact which can be pointed to as evidencing the remotest possibility of theft, we find it impossible to classify the disappearance as mysterious and to accept the presumption that there was a theft.”

Counsel for the plaintiffs in his brief maintains the correct rule of interpretation of the condition in the policy is set forth in Loop v. United States Fidelity & Guaranty Co., supra, and quotes therefrom:

“It is quite true that such a policy provision may be relied upon wherever the facts do not themselves belie the presumption. Consequently, if the facts made it even remotely possible to accept with any reasonable certainty the presumption that there was a theft, it would necessarily follow that, as a result of this presumption, the so-called mysterious disappearance would justify a recovery.”

An attempt is then made to distinguish the Loop' case from the present one. Counsel argues there was ample opportunity for others to have taken Mrs. Decider’s ring and denies that any reliance can be placed upon her statement taken in August, some six weeks after the loss, in view of the testimony contained in the record regarding the manner and circumstances under which the statement was given.

In her oral testimony Mrs. Deckler stated the agent of the Company came to her house on August 20, 1954 and that she was under the impression he was there just to ask a few facts; that he, the agent, “said most of everything that was testified”; that she did not even bother to read the letter, just signed it; that she thought everything the agent said was going to help her. She did admit the statement was given in response to questions asked. Paragraph 2 of the statement reads: “I worked with the disposal probably one-half hour, or somewhat less, and I finally got the disposal unit to operating properly again”. In answer to the correctness of this statement Mrs. Deckler admitted she had a garbage disposal unit and that it was not working; she tried to get it to work when it would start, operate a few minutes and then did not work at all. She was asked if she finally got the disposal unit to operate properly again and in answer said the statement concerning this was incorrect. She admitted she herself cleaned up the dishes after the evening meal on the date of the loss and the disposal unit was not able to grind up the garbage. As set forth hereinabove the statement placed the ring upon her right hand while her oral testimony is to the effect she always wore'the ring upon her left hand; that she did not “see how it could have been on my right hand at the time.”

The statement recites that at the time of the loss Mrs. Deckler was alone in the house except for her children, and she expressed the opinion therein she had lost the ring while working, on the disposal unit and that it “went down the garbage disposal.” Mrs. Deckler admitted signing the statement and initialing the pages preceding her signature.

It is maintained there was ample opportunity for others to have taken the ring and consequently the presumption of theft should apply.

Both counsel cite the landmark case of Davis v. St. Paul Mercury & Indemnity Co.,, 227 N.C. 80, 40 S.E.2d 609, 169 A.L.R. 220. A reference to this case was made in the Loop case, supra, and quotations therefrom given:

“In the Davis case, the Court defined a mysterious disappearance within the meaning of the policy as (227 N.C. 80, 40 S.E.2d 611):
“ ‘any disappearance or loss under unknown, puzzling or baffling circumstances which arouse wonder, curiosity, or speculation, or circumstances which are difficult to understand or explain. A mysterious disappearance is a disappearance under circumstances which excite, and at the same time baffle, wonder or curiosity. Webster, New Int. Diet.’
“ ‘A disappearance under circumstances which excite, and at the same time baffle, wonder or curiosity.’
“In a comment on the Davis case in 169 A.L.R., page 257, the commentator referred to that decision, saying:
“ ‘ * * * By this decision the court very soundly limited the effect of the new clause to its proper objective namely, to effect a somewhat larger measure of protection against theft to the insured, and refused to change it from a theft policy to a policy covering every loss due to mysterious disappearance. In doing so the court, in the opinion of this writer, not only reached a correct legal conclusion but, at the ■same time, helped to preserve a provision which is extremely valuable to the insured and which, if it had obtained the construction adopted by the trial ■court, very probably would be discarded ■by the insurance companies in future •contracts as unduly extending their risks.’ * * *
“ ‘The surrounding facts and circumstances, if any, which tend to show that the property was lost or mislaid or that its disappearance was not in fact due to theft are to be considered by the jury in arriving at a verdict, the burden of proof being at all times on the plaintiff.’ ”

The Court then went on to say:

“It is our opinion that, where such a clause is relied on as raising a presumption of theft, a court must take into consideration all ‘the surrounding facts and circumstances,’ and, from these facts and circumstances, must reach the conclusion that there has been some possibility that there was a theft before it can apply the presumption that merely because the insured article has been lost, there has been a mysterious disappearance and consequently a theft.”

Both briefs herein reviewed the jurisprudence in other jurisdictions citing, among others, Caldwell v. St. Paul Mercury & Indemnity Co., 210 Miss. 320, 49 So.2d 570; Levine v. Accident & Casualty Insurance Co., 203 Misc. 135, 112 N.Y.S.2d 397; Casey v. London & Lancashire Indemnity Co. of America, 204 Misc. 1106, 126 N.Y.S.2d 726.

The facts in these cases are very interesting. However, the decisions therein lead us to the opinion the Loop case, supra, has followed the only authority upon the subject and that the facts in the present case justify an application here of the Loop case.

We have taken into consideration all of the “surrounding facts and circumstances”. The presumption of theft cannot be applied here.

The judgment is affirmed.


author: LOTTINGER, Judge.

text:
    Myrtle Williams BIERRA v. Andrew L. ERWIN et al.
    No. 4394.
    Court of Appeal of Louisiana. First Circuit.
    March 25, 1957.

      Gordon Goodbee, Covington, Bernard J. Bagert, New Orleans, for appellant.
    H. R. Ainsworth, New Orleans, Mc-Dougall & Rodrigue, Covington, for ap-pellee.
   LOTTINGER, Judge.

This is a suit to annul a tax sale to the State of Louisiana and the subsequent sale of the property from the State to the defendant, George E. Reine, Jr. The suit is by Myrtle Williams Bierra against George E. Reine, Jr. and Andrew L. Erwin, the Sheriff and Ex Officio Tax Collector for the Parish of St. Tammany, Louisiana. The Lower Court upheld the tax sale and dismissed petitioner’s suit. The petitioner has appealed.

The petitioner claims that she is the heir of her Grandmother Claire Jupiter. It is admitted by both parties that on June 16, 1892, Claire Jupiter purchased Lot No. 8 of Square No. 67 of the Town of Mande-ville, and that the deed is of record in the official records of St. Tammany Parish. It is further admitted that on December 28, 1935, an adjudication was made to the State of Louisiana for nonpayment of taxes for the year 1934, the description in the tax sale was as follows: “Part of Sq. No. 57, Ward 4 — m.” It is also admitted that on April 15, 1952, a corrected procés verbal was filed in St. Tammany Parish, which correction was made to conform to the title of Claire Jupiter, and changed the Sq. No. from No. 57 to No. 67. It is also stipulated that on April 25, 1953, under the authorization of LSA-R.S. 47:2189, the Sheriff of St. Tammany Parish sold the said property at public auction to the defendant, Reine. It is admitted that the taxes for the year 1934 were never paid. It was also admitted that for the years 1935, 1936, 1937 and 1938 the property did not appear on the tax rolls; that, however, from the years 1939 through 1953, the property was assessed in the name of the Estate of Claire Jupiter, and the taxes thereon were paid by Homestead Exemption. The parties further admitted that Lot 8 of Sq. 67 was the only property ever acquired by Claire Jupiter in the Parish of St. Tammany. It is further stipulated by the parties that the Sheriff’s office of St. Tammany Parish has no records dating back to the year 1934, with respect to notices to delinquent tax debtors.

The petitioner claims that she has always held actual and corporeal possession of the said property and claims, as her reasons for annulling the said sale as follows:

1. That the adjudication to the State of Louisiana under date of December 28, 1935 passed nothing to the State because the description is so vague no land capable of being identified is described.

2. That no notice was given as required by the Constitution and laws of Louisiana.

3. That the plaintiff and her coheirs having remained in physical possession of the property same never preempted to the State of Louisiana and the State was without authority to sell same under LSA-R.S. 47:2189, in view of the provisions of LSA-R.S. 47:2186.

The defendants on the other hand have filed a general denial claiming that the petitioner has not been in possession of the property, that the description in the tax sale is sufficient and, furthermore, that the petition is fatally defective in that the State of Louisiana was not joined as a party defendant and a plea of prescription of 5 years under Article 10, Section 11 of the Constitution of Louisiana, LSA.

The Lower Court awarded judgment in favor of the defendants and dismissed petitioner’s suit. The petitioner has appealed.

Article 10, Section 11 of the Constitution of the State of Louisiana provides in part as follows:

“No sale of property for taxes shall be set aside for any cause, except on proof of payment of the taxes for which the property was sold prior to the date of the sale, unless the proceeding to annul is instituted within six months from service of notice of sale, which notice shall not be served until the time of redemption shall have expired and within five years from the date of the recordation of the tax deed, if no notice is given.”

There was a substantial amount of evidence adduced by petitioner intending to show possession of the property. Under the provisions of Article 10, Section 11 of the Constitution, there is a five (5) year right of preemption in favor of the tax purchaser, which right of preemption prevails unless it is shown that the taxes were paid. However, said preemption does not accrue when the owner at the time of the tax sale remains in actual possession of the property. Said possession must be an actual corporeal possession, and not merely a civil possession. Levenberg v. Shanks, 165 La. 419, 115 So. 641, Westover Realty Co. v. State, 208 La. 163, 23 So.2d 33, Scheller v. Goode, La.App., 69 So.2d 96, Magnolia Petroleum Co. v. Marks, 225 La. 805, 74 So.2d 36.

The petitioner produced several witnesses to substantiate her claim of possession. Most of these witnesses were either close friends or relatives of petitioner and Claire Jupiter. The vagueness of these witnesses was astounding, while they testified that someone has possessed the property “on and off” from the year 1934 until shortly prior to the suit, they could not give the names of the possessors, or the dates of possession. Many of these witnesses contradicted each other, and we feel that the Lower Court was correct in holding that they failed to prove the requisite possession, inasmuch as a period of some twenty (20) years elapsed between the tax sale of the property and the present suit. In the present suit, it was incumbent upon petitioner to show that no five (5) year period during said time elapsed without her having corporeal and actual possession of the property. This, she wholly failed to do. Another outstanding feature was the fact that most of these witnesses either lived in the same block with the property sold, or they were relatives of the petitioner and living in Mandeville. In spite of this, they were still unable to give sufficient proof of the names and the dates of the parties who were allegedly living on the property during this twenty (20) year interval.

The defendant testified that he lives diagonally across the street from the property in question and he testified that the property has been occupied on and off. The Lower Court resolved the evidence in favor of defendant and held that while some corporeal possession was proven from time to time during this twenty (20) year interval, during a great portion of the time it was nothing more than civil possession of the property. The petitioner has failed to prove her possession by a preponderance of the evidence, and the judgment in favor of defendant will be affirmed.

The wording of the Constitution is clear to the effect that no sale of property for taxes shall be set aside for any cause, except proof of prior payment of taxes, after the running of the five (S) year preemption period. The record discloses that this five (S) year period has elapsed several times since the sale of the property in 1935, and petitioner has failed to show that she has possessed this property during said period without an elapse of five (5) years having run. We feel, therefore, that the period of preemption has run and that the petitioner is now without right to attack the sale except for prior payment of taxes, which has not been claimed by the petitioner. In view of our decision on the question of preemption, under the clear wording of the Constitution, the other questions raised by the petitioner have become moot. The petitioner has cited Prampin v. Southern Chemical Works, La. App., 53 So.2d 210, to the effect that where the property was occupied corporeally by the descendants of the tax debtor, the preemption period was suspended during such possession. Even if such was the holding of said case, it would not apply under our situation, as we have held that the petitioner did not hold corporeal and actual' possession of the property sufficient to suspend the running of the preemptive period.

For the reasons hereinabove assigned, the judgment of the Lower Court will be affirmed, all costs of this appeal to be paid by petitioner.

Judgment affirmed.


author: TATE, Judge.

text:
    DENDINGER INCORPORATED IN LIQUIDATION, Plaintiff-Appellee, v. THOMPSON & THOMPSON FOREST PRODUCTS, Defendant-Appellant.
    No. 4393.
    Court of Appeal of Louisiana. First Circuit.
    March 25, 1957.

      Louis J. Ourso, Jr., Hammond, for appellant.
    Dalton J. B arranger, Frederick S. Ellis, Covington, for appellee.
   TATE, Judge.

Plaintiff landowner recovered damages for timber cut and removed from its land by defendant’s logging crew. Plaintiff was awarded as damages the gross' amount of $1149.22 received by defendant for plaintiff's timber, sawed and delivered by defendant.

Defendant admits that the timber cut was situated on plaintiff’s land, but urges that the trespass on plaintiff’s land was in good faith; therefore the recovery should be limited to the stumpage value of the timber cut — that is, the value of the timber in standing trees before it is cut and removed.

Our Supreme Court through Mr. Justice McCaleb comprehensively summarized the jurisprudence as follows in Kennedy v. Perry Timber Co., 219 La. 264, 52 So.2d 847 at page 851 (Italics and footnotes ours) :

“The measure of damages allowable for the unlawful cutting of timber is well settled in this State.

“[1] If the trespass has been reckless and willful, the trespasser is said to be guilty of moral bad faith and is liable for the converted value of the timber without allowance or deduction for costs and expenses. []

“[2] In cases where the trespasser believes himself to be owner but should have known otherwise, either from information available to him or other ascertainable facts which would have placed a reasonably prudent man on notice, he is held to be in legal bad faith and the actual expenses incurred by him in converting the timber are to be deducted in assessing the damages [from the award of the manufactured, or converted, value of the timber][]

“[3] And in cases where the trespasser is in good faith, that is, where he believes that the timber belongs to him and there is no valid reason for him to suppose otherwise, he is liable only for its stumpage value.” []

The District Court found the defendant to be in bad faith. Damages were awarded according to the prayer of plaintiff’s petition in the gross amount for which the timber was sold by defendant, without allowing as deduction the actual expenses incurred by defendant in cutting and delivering same — that is, the measure of the damages was that as against one who trespasses not only in legal bad faith, but in moral bad faith also. See Allen v. Frank Janes Co., 142 La. 1056, 78 So. 115.

We are unable to hold this determination manifestly erroneous. The un-contradicted evidence shows that a yellow survey line painted from tree to tree along the boundary marked the line between plaintiff’s property and the Morgan tract '(the timber upon which had allegedly been purchased by defendant); and that a disinterested third person had called the trespass to defendant’s agent’s attention soon after defendant had started cutting timber on the wrong tract, but defendant nevertheless continued to cut and remove the timber therefrom until discovered by plaintiff’s land agent several days later.

We do not find impressive defendant’s argument that the trespass was in good faith (or, at the most, legal — but not moral — bad faith), since it was cutting timber on plaintiff’s property in reliance upon Morgan’s (its timber-vendor’s) assurance that his property line was along a winding wire fence, tacked from tree to tree, and approximately 100 yards inside plaintiff’s property from the correct boundary line: in view of the facts previously mentioned, and of defendant’s failure to call Morgan to corroborate this self-serving testimony of defendant’s partners.

For the above and foregoing reasons, the judgment appealed from is affirmed.

Affirmed.

      . See for instance the Kennedy case itself, and Livaudais v. Williams Lumber Co., Inc., La.App. 1 Cir., 34 So.2d 292.

      . See for instance: Blanchard v. Norman-Breaux Lumber Co., 220 La. 633, 57 So.2d 211; Quatre Parish Co. v. Beauregard Parish School Board, 220 La. 592, 57 So.2d 197.

      . See for instance: Culpepper v. Weaver Brothers Lumber Corporation, 194 La. 897, 195 So. 349; Theisen v. Broom, La. App. 1 Cir., 86 So.2d 736.


text:
    Davis WILLIAMS v. John F. ROBISON.
    No. 4391.
    Court of Appeal of Louisiana. First Circuit.
    March 25, 1957.

      Sternfels & Bruno, New Orleans, for appellant.
    Miazza & Drury, New Orleans, Dalton J. Barranger, Covington, for appellee.
   LOTTINGER, Judge.

This Í9 a suit brought by Davis Williams for damages for the death of his eleven year old daughter who was struck on U. S. Highway No. 190 between Slidell and La-combe, Louisiana, on October 8, 1951, by an automobile owned and driven by the defendant, John F. Robison. The original petition recited that on October 9, 1951, the plaintiff signed what he later learned to be a full release of all his rights and claims arising from the accident and death for the sum of $600, but that he “was ignorant of the normal everyday business transactions” and “did not know what this paper purported to be.” By supplemental and amended petition, it was prayed that the release so executed be declared null and void.

The defendant first filed exceptions of no right and no cause of action which were referred to the merits by the trial court. An answer was then filed which denied the material allegations of the petition and which pleaded the release in bar of the action. Alternatively, it was set forth that the accident was due solely to the negligence of the child and, further in the alternative, it was pleaded that the child was guilty of contributory negligence.

Following trial on the merits, judgment was rendered in favor of the defendant and the matter is now before us on an appeal taken by the plaintiff.

We address ourselves first to the question of the validity of the release. Virgil Williams, brother of the plaintiff, testified that he signed the release as a witness. He stated “I signed it but I didn’t know that was all the money Davis was going to get.” He stated further that the insurance man read the papers but he did not understand them. He did not actually see William Jones (the other witness) sign the paper as he was starting to sign as he was walking off, nor did he see Davis Williams sign the paper. He is able to read and write a little and does mostly manual labor for the Town of Slidell.

On cross examination he stated that he did not know what a release was and that while the paper was read to him there was plenty that he did not understand. He also understood that Davis Williams was getting $600 but didn’t know if he was getting any more or not. The amount received, he thought, was just for the funeral. At the time of the signing he stated that only himself, Davis Williams, his brother’s wife, Elizabeth, the wife of one Elmo were on the porch and William Jones. He said that he did not remember Davis Williams saying that he understood the instrument before he signed it, or that if he did, he did not hear him so state. He repeated that he did not see Davis Williams sign the paper and that he did not know how many papers he did sign.

William Jones, called on behalf of the plaintiff, testified as follows: He is the husband of Mary Williams Jones who is related to Davis Williams as a second cousin. He knew nothing of the accident of October 8, 1951, but did state that the decedent was waked on the 9th of October, 1951, and was buried on the 10th. He talked to an insurance agent between 11:30 and 12 o’clock on October 11th. With respect to the papers that were signed, he testified as follows: “That day when we went there, the insurance man asked us would we sign the paper for Davis Williams to get $600.00? I said I would and asked what was that for? He said to pay for the brial, etc. I asked Davis Williams if he wanted me to sign and he said ‘Yes,’ so I went on and signed.” This was on the day after the funeral and present besides the insurance man were Davis Williams and Isabelle Williams. He stated that he did not know what was in the paper and that the insurance agent tried to read to them “but he was so fast.” He did not see either Davis or Virgil Williams sign the paper, and stated that everyone was in a hurry as they were going back to work. He had a fifth grade education but did not remember hearing the word “release” mentioned.

On cross examination, he testified as follows: That he is employed by the Town of Slidell as a laborer to clean ditches, cut grass, etc. He stated that while Davis Williams had asked him to come sign the paper, he did not tell him much of what was going on although he imagined it was for her death. When asked if it was not a fact that he objected to the matter saying that Davis was not getting enough, he said “Yes, Sir.” He denied knowing that $600 represented more than the funeral bill and stated that Davis had told him that he was going to get more in the future besides the $600. He knew that Davis had a check for $600 but didn’t know what it was for.

Isabelle Williams, called on behalf of the plaintiff, testified as follows: She is related to Davis Williams as a sister. The insurance man came to her house on October 11th, which was the day after Doris was buried. Present at the time were Davis Williams, William Jones and Virgil Williams. She gave this version of what transpired:

“Q. Tell the court what conversation took place. A. He came and asked Davis Williams to sign the paper. He said he didn’t think he should sign the paper just then and I said ‘Don’t sign it, Davis, wait and go to Mr. Marshall Thompson and talk it over,’ and the insurance man said ‘Don’t wait and talk to Mr. Marshall Thompson it was Davis Williams’s daughter and he could sign it for himself.’
“Q. Were the people just named present during this conversation? If so, what else was said? A. Yes, Sir. I went back in after he kept on at him to sign it and after he told me it was Davis Williams’s daughter and he could do what he wanted, they signed on the porch and I went on back inside.”

Davis Williams, called on his own behalf, testified as follows:

He saw the insurance man on two occasions, first the day after the accident and the following day. The first time he saw him the man had some papers which he wanted him to sign but he did not sign it then and “I studied a while before I signed it, if I signed it.” He got the money ($600.00) the day after Doris was killed. He stated that he thought the money was for the funeral and that he was going to get some more money. He stated that he did not know what he signed, that he cannot read and that he did not understand what was being read to him. He went to the first grade but did not finish and had no schooling since then. He denied knowing what a release or a settlement is. He stated that he could not read numbers, that he did not remember the amount of the funeral bill and that Virgil Williams had attended to that for him.

On cross examination, the witness testified as follows:

The child was killed on October 8th which was a Monday and she was waked all day Tuesday and buried on Wednesday the 10th. He was contacted by the insurance man before she was buried, the place being at Elmo Williams’s house before the funeral. He then admitted that he came to get his marriage license and birth certificate of the child and signed the paper on the day of the burial after she had been buried. The release was read to him in full and when asked if he understood what every word in there meant, he answered, “Yes, Sir.”

On re-direct examination, when asked why he went to a lawyer, he said “I went there trying to see if I could get a bit more money than what I got there.”

On re-cross examination, he stated that a lot of people told him that he had not gotten enough money and that when the release was presented to him, William Jones and Isabelle had both told him not to sign it. He also admitted paying a funeral bill of $292 on October 18th, the Wednesday following his child’s death.

Mr. L. W. Mahoney, called on behalf of the defendant, testified as follows:

That he was employed by the American Employer’s Insurance Company, the liability insurance carrier of Mr. John F. Robison. He took a statement from Virgil Williams on October 10 at about 4:30 in the afternoon and when presented with the statement he identified it as the one that he had taken and the one that Williams had signed on the 2nd page.

He stated that he first saw Davis Williams on October 10 at about 3 o’clock which was after the funeral. He said he took a statement from him at his home at that time and when presented with D-2 he stated that that was Williams’ signature and his statement. The statement was read back to him at that time and he next saw Williams on the next day, October 11th. The witness identified the draft and the release. He related the obtaining of the release as follows:

“A. On October 10th, it was Thursday, to the best of my knowledge, drove up to his home, inquired from his mother if he was home, he had returned to work and he wouldn’t be home until noon time, then I could locate him when he returned to the house from Canulette Shipyards. I went over to the house, this was right before 12 o’clock, about 11:45 A.M. and waited for him to arrive.
“Q. He didn’t come? A. Yes, Sir, he arrived.
“Q. Tell the court what transpired then. A. I spoke to him and we went over the case and I told him from the testimony of witnesses, etc. that the company felt that there was not much liability in the matter, but as a sympathetic gesture, we were willing to make an offer of from $500.00 to $600.00. He said he would take it.
“Q. Did you prepare the release for his signature? A. I did, I took my portable typewriter and we went on the porch. They had between 8 and 12 people, to the best of my recollection, and I proceeded to type out the release and draft for $600.00 which he said he would be willing to take. After making out this release, I read it to him in the presence of the people around him. At the time some said the $600.00 was too small. I said the father is the legal guardian, if he was willing to take it, it is up to him. After I wrote this up I explained to him once he signed this he had no comeback. He appeared to understand this and by that time Virgil Williams and William Jones came on the scene and they verified his signature after the release was read to him.
“Q. They all heard you read it ? A. Yes, Sir.”

From the above and foregoing, we are satisfied (as was the trial judge) that the plaintiff knew what he was signing and was fully aware that the sum of $600 more than covered the funeral expenses, which he was bound to know amounted to less than $300. While we do not admire the insurance adjuster for attempting to close the case so quickly, the record fails to show any over-inducement on his part, nor does it show .that the plaintiff, through his ignorance, bereavement or otherwise, did not understand what he was signing. The case of Brandon v. Gottlieb, 16 La.App. 676, 132 So. 283, 285, relied on by counsel for plaintiff, is not apposite here for there the court found that by “disclosing only a part of it [information concerning the accident] and suppressing some, they led these plaintiffs into an error of fact, which it may be said ‘comes under the head of fraud’ which is sufficient to invalidate the contract,” a factual situation not present here.

The question is a factual one and we find no manifest error in the findings of the Lower Court.

Judgment affirmed.


text:
    Succession of George WHITE.
    No. 4395.
    Court of Appeal of Louisiana. First Circuit.
    March 25, 1957.
    Horace R. Alexius, Jr., Covington, for appellant.
    No attorney for appellee.
   ELLIS, Judge.

This is a succession proceeding in which the administrator of the Succession of George White and his brother, Arthur White, caused an inventory of the property and effects of the deceased to be made, which inventory revealed but one asset. This was a claim by the heirs to a lump sum allegedly due them under 45 U.S.C.A. § 228e(f) known as the Railroad Retirement Act.

The administrator made demand on the United States of America Railroad Retirement Board of the payment of the lump sum provided for in § 228e(f) (2) of Title 45 of the U.S.C.A.

On the 6th day of July, 1956 a rule nisi was issued at the administrator’s request, directed to the United States of America Railroad Retirement Board to show cause why the amount of $1,000 should not be released by the Retirement Board to the duly appointed administrator of the Estate of George White.

On July 13, 1956, the United States of America Railroad Retirement Board wrote a letter to the Clerk of Court of the Twenty Second Judicial District Court which, inter alia, stated there were, in addition to the claim of the brothers and sisters of George White, two women applying for the benefits under the act. The letter also stated:

“By way of general information, I may say that the Board’s Bureau of Retirement Claims, the initial adjudicating unit within the board, is now considering the applications of the two women each of whom claims to he Mr. White’s widow. If it is determined that the employee was not surviving by a widow or by any other person entitled to an award of benefits with respect to Mr. White’s death, but only in that event a residual lump sum benefit would under certain circumstances be awarded to Mr. White’s ‘estate’ (45 U.S.C. 1952 ed., § 228e(f) (2). Until the determination is made, however, that there are no such survivors, no such award can be made and nothing is payable to the estate. I may say further that the question of whether Mr. White was survived by any person or persons entitled is now under active consideration.
“Aside, therefore, from any question as to the jurisdiction of the Court to subject the United States through its Railroad Retirement Board to the Court’s jurisdiction, in the absence of any federal statute waiving the Government’s immunity to suit, and aside from the question as to proper service of such process upon the Board (20 C.F.R.(1949 ed.) § 262.-16(f), it is obvious that the rule on this Board dated July 6, 1956 should be dismissed * * *

The lower court rendered judgment on July 20, 1956 dismissing the rule and from this judgment the administrator has appealed.

The prime contention of the appellant is that the Retirement Board should pay into the registry of the Twenty Second Judicial District Court the lump sum due the heirs of George White, it being the court having the situs of the succession proceedings. There is also a contention by appellant’s that “the United States Railroad Retirement Board is an independent agency in the executive branch of the United States of America (45 U.S.C. 1952 ed., Sec. 228j) and is charged with the administration of the Railroad Retirement Act * * *

Appellant asserts that the Railroad Retirement Board has a claim in its possession and that the claim is a property right of the Succession, the Twenty Second Judicial District Court having jurisdiction of the succession, it therefore has jurisdiction over the property right of the succession held by the United States of America Railroad Retirement Board.

The applicable portions of the Act in' question are as follows: 45 U.S.C.A. § 228e(f) (1, 2):

“Upon the death, on or after January 1, 1947, of a completely or partially insured employee who will have died leaving no widow, widower, child, or parent who would on proper application therefor be entitled to receive an annuity under this section for the month in which such death occurred, there shall be paid a lump sum of ten times the employee’s basic amount to the following person (or if more than one there shall be distributed among them) whose relationship to the deceased employee will have been determined by the Board, and who will have been living on the date of such determination: to the widow or widower of the deceased; or, if no such widow or widower be then living, to any child or children of the deceased and to any other person or persons who, under the intestacy law of the State where the deceased will have been domiciled, will have been entitled to share as distributees with such children of the deceased, in such proportions as is provided by such law; or, if no widow or widower and no such child and no such other person be then living, to the parent or parents of the deceased, in equal shares. ij< * ‡ »
“Whenever it shall appear, with respect to the death of an employee on or after January 1, 1947, that no benefits, or no further benefits, other than benefits payable to a widow, widower, or parent upon attaining age sixty-five at a future date, will be payable under this section, or pursuant to subsection (k) of this section, under section 402 of Title 42, there shall be paid to such person or persons as the deceased employee may have designated by a writing filed with the Board prior to his or her death, or if there be no designation, to the person or persons in the order provided in paragraph (1) of this subsection or, in the absence of such person or persons, to his or her estate, a lump sum in an amount equal to the sum of 4 per centum of his compensation paid after December 31, 1936, and prior to January 1, 1947, and 7 percentum of his compensation after December 31, 1946 * * *'»

§ 228k:

“Decisions of the Board determining the rights or liabilities of any person under sections 228a to 228c — 1, 228e-228h, 228i-228p, 228r, and 228s of this title shall be subject to judicial review in the same manner, subject to the same limitations, and all provisions of law shall apply in the same manner as though the decision were a determination of corresponding rights or liabilities under chapter 11 of this title except that the time within which proceedings for the review of a decision with respect to annuity, pension, or lump-sum benefit may be commenced shall be one year after the decision will have been entered upon the records of the Board and communicated to the claimant. * *

§ 355(f):

“Any claimant, or any railway labor organization organized in accordance with the provisions of the Railway Labor Act, of which claimant is a member, or any other party aggrieved by a final decision under subsection (c) of this section, may, only after all administrative remedies within the Board will have been availed of and exhausted, obtain a review of any final decision of the Board by filing a petition for review within ninety days after the mailing of notice of such decision to the claimant or other party, or within such further time as the Board may allow, in the United States court of appeals for the circuit in which the claimant or other party resides or will have had his principal place of business or principal executive office, or in the United States Court of Appeals for the Seventh Circuit or in the United States Court of Appeals for the District of Columbia. A copy of such petition, together with initial process, shall forthwith be served upon the Board or any officer designated by it for such purpose. Service may be made upon the board by registered mail addressed to the Chairman. * * * Upon such filing the court shall have exclusive jurisdiction of the proceeding and of the question determined therein, and shall give precedence in the adjudication thereof over all other civil cases not otherwise entitled by law to precedence. * * *” (All emphasis in the above quoted sections added.)

The act in question, §§ 228a-228y, deals with the retirement of railroad employees, the benefits accruing, and to whom these benefits are due, etc.

As quoted, supra, in § 228k the decisions of the Board are subject to judicial review, the manner of review being referred to Chapter 11 of Title 45 (see emphasis).

That portion of Chapter 11 in Title 45 which deals with judicial review is § 355 (f) which prescribes fixed procedures after exhausting the administrative remedies for appealing the board decisions to the United States Circuit Court of Appeal.

There are no provisions in the act providing for decisions of the State courts to determine the persons entitled to benefits, under the act.

That, portion of the Act referring to “the intestacy law of the State” could not he interpreted as a waiver of the immunity by the Railroad Retirement Board from being sued in a state court.

This view is supported by United States v. Jacobs, D.C.Ala.1951, 100 F.Supp. 189. Therefore, if the Railroad Retirement Board has not submitted to the jurisdiction of the Twenty Second Judicial District Court of Louisiana, either by an express waiver of the Board or by Act of Congress, the contention of the appellant must fall and the dismissal by the lower court in this case was correct.

Since it is decided that the State Courts do not have jurisdiction over the Railroad Retirement Board, it is unnecessary to determine the other questions raised by appellant.

For the reasons above assigned the Judgment of the District Court is hereby affirmed.


text:
    AETNA FINANCE COMPANY v. Victor MONTGOMERY and Mrs. Victor (Ethel Boyd) Montgomery.
    No. 4397.
    Court of Appeal of Louisiana. First Circuit.
    March 25, 1957.

      Horace R. Alexius, Jr., Covington, for appellant.
    McDougall & Rodrigue, Covington, for appellees.
   LOTTINGER, Judge.

This is a suit on a promissory note executed under the Small Loan Act of the State of Louisiana. The Lower Court awarded judgment in favor of petitioner and the defendants have appealed.

The petitioner is a Louisiana corporation authorized to do business in accordance with the Small Loan Act of the State of Louisiana. Petitioner filed suit against the defendants seeking judgment as follows:

“ * * * in the just and full sum of $252.19, together with interest at 3j/á%. per month on $150.00 from November 29th, 1954 until paid, and interest at 2jdj% per month from November 29th, 1954 on $110.-31 to Jan. 5th, 1955, and interest at 2j/£%. per month on $102.19 from Jan. 5th, 1955 until paid in full, together with attorney’s fees in the amount of 20%. of principal and interest, and for all costs of this suit, all as more fully shown by the attached note, dated November 29th, 1954, made part hereof.”

As stated in the petition, the original note was made a part of the petition and is on file in the record.

The defendants first filed a general denial, and thereafter filed an exception of no right or cause of action alleging that because the petitioner has charged interest at a greater rate than provided in the Small Loan Act, the entire action is now void. The Lower Court dismissed the exception ánd gave judgment in favor of petitioner as follows:

“ * * * in the full and true sum of $252.19, together with interest at 31/2 per cent per month on $150.00 from November 29th, 1954 until Feb. 2nd, 1956, and interest at 21/2 per cent per month on $102.19 from Jan. 5th, 1955 until Feb. 2nd, 1956, and interest on $252.19 at 5%, from Feb. 2nd, 1956 until paid in full, together with attorney’s fees in the amount of 20%. of principal and interest and for all costs of these proceedings.”

Because of the particular wording of the petitioner’s petition, the defendants claim that the petitioner is attempting to charge an unlawful rate of interest. If the petition were standing alone, we feel that this contention might have some merit. However, the note was filed with the petition and is made part and parcel thereof. The note shows that the date of the loan was November 29, 1954, the amount of the loan was in the sum of $260.31. Said loan is payable in 20 monthly installments of $18 each, the first installment being due on December 30, 1954. According to the wording in the note the interest is at the rate of 3J4j%, per month on any part of the unpaid principal balance of the loan not exceeding $150, and 2i^'% per month on any remainder of the unpaid balance. The note contains a clause reading:

“If this note is not paid at maturity, •it shall bear interest thereafter at said rate, provided, however, that after the expiration of 12 months following the last contractual installment date, the interest on any balance still unpaid shall not exceed the maximum rate permitted by Louisiana Law.”

The face of the note shows the final payment date as July 30, 1955. This was obviously an error because 20 months after November 29, 1954 would be July 30, 1956, instead of 1955. The Small Loan Act as set forth in LSA-R.S. 6:571 et seq., LSA-R.S. 6:583 provides, in part as follows:

“Every licensee may contract for and receive on any loan of money not exceeding three hundred dollars interest at a rate not exceeding three and one-half percent a month on that part of the unpaid principal balance of any loan not in excess of one hundred and fifty dollars and two and one-half percent a month on any remainder of any such unpaid principal balance, provided that after the expiration of a period of twelve months following the last contractual installment date the interest on any balance still unpaid shall not exceed eight percent per year. For the purpose of computing interest a month shall be considered any period of thirty consecutive days, and a day shall be considered one-thirtieth of a month.”

It is the opinion of this Court that the form of the note was entirely in accordance with the provisions of the Small Loan Act and that any excessive interest, such as would void the obligation, is not apparent from the note itself. Defendants claim that the attorney fees stipulated at twenty percent is excessive. We do not agree that such percentage on a small loan could be considered excessive. See Foundation Finance Co. v. Robbins, 179 La. 259, 153 So. 833, wherein 25% attorney’s fees was provided and the Supreme Court held that same was not excessive but was a legitimate provision in a small loan note under the act. See also Unity Plan Finance Company v. Green, 179 La. 1070, 155 So. 900. There is filed in the record a statement showing that the principal balance due as of the time of filing suit was in the amount of $252.19. The defendants do not quarrel with this figure, their only defense being that the interest rate and the attorney fees stipulated are excessive. We believe that the note filed with the petition, and specifically made a part thereof, would control over the wording of the petition itself, and are therefore affirming the decision of the Lower Court.

It might be noted that the Lower Court gave petitioner interest at the rate of 3i%% per month on $150 from November 29, 1954, until February 2, 1956 and interest at 2y-¿% per month on $102.19 from January 5, 1955, until February 2, 1956 and interest on $252.19 at 5%. from February 2, 1956, until paid. It is shown by the record that the defendants paid $18 on January 5, 1955 and of this sum $9.88 was applied to the interest then due on the note and $8.12 on the principal thereby leaving a balance due on the principal of $252.19. In view of the fact that the defendants had paid the interest up to January 5, 1955, which was due on the note, we are of the opinion that the Lower Court should have started the interest from that date instead of from November 29, 1954, as stated. We are likewise of the opinion that the Lower Court should have granted the plaintiff interest at the rate of 8% per annum from July 30, 1957, which date was twelve months following the last contractual installment date. We are of the opinion, however, that under the act and under the note as herein filed that the plaintiff would have been entitled to interest at the rate of 3i/£% per month on $150 from January 5, 1955, until July 30, 1957, and at the rate of 2i^%, per month on $102.19 from January 5, 1955, until July 30, 1957, and then interest at the rate of 8% per annum on the principal of $252.19 or unpaid balance from July 30, 1957, until paid. However plaintiff has not perfected an appeal nor filed an answer herein and for that reason we cannot correct the judgment to enlarge it in its favor, but we are of the opinion that the judgment of the Lower Court should be amended so that the beginning of the interest date will be from January 5, 1955, instead of as stated in the judgment of the Lower Court. Therefore for the above and foregoing reasons we feel that the judgment of the Lower Court should be amended so as to give the petitioner judgment in the full sum of $252.19 together with interest at the rate of 3^4% per month on that part of the unpaid principal balance not in excess of $150 and 2Yz% per month on the remaining $102.19 both from January 5, 1955, until February 2, 1956, provided, however, that after February 2, 1956, the interest on any principal balance still unpaid shall not exceed 5%. per annum.

For the reasons hereinabove assigned the wording of the judgment of the Lower Court is amended and as amended is affirmed. All costs of this appeal to be paid by the defendants.

Judgment amended and as amended affirmed.


text:
    Lamar C. HARRIS v. Jesse P. VARNADO and Gerald Dykes.
    No. 4392.
    Court of Appeal of Louisiana. First Circuit.
    March 25, 1957.

      .Talley & Anthony, Bogalusa, for appellant.
    Welton O. Seal, Bogalusa, for appellees.
   ELLIS, Judge.

Plaintiff has appealed from a judgment dismissing his suit in which he sought damages for personal injuries, loss of wages and current medical expenses as a result of an accident which occurred on September 16, 1954 when he was riding as a passenger in a pick up truck belonging to the defendant Varnado and being driven by his agent, the defendant Dykes.

On the day of the accident Dykes was driving a pick up truck with an enclosed body which had been added behind the cab. Apparently the purpose of enclosing the rear of the pick up truck was to utilize this space to carry passengers. At this point, however, it might be well to state that the evidence fails to show that the truck hauled paying passengers or that the plaintiff was anything other than an ordinary guest passenger. Therefore, as held by the lower court, the defendant Dykes was not the insurer of the plaintiff’s safety nor was he bound to exercise extraordinary care to operate the truck as an expert would have done. The only duty devolved on him toward the plaintiff as a gratuitous passenger was to use ordinary care in the operation of the truck so as not to injure him. Lorance v. Smith, 173 La. 883, 138 So. 871; Monroe v. D'Aunoy, La. App., 143 So. 716.

Also a passenger in the truck at the time was one Red Mizell, who was riding in the front seat with the driver. At the time of the accident the plaintiff was riding in the rear of the pick up truck, lying on an inner spring mattress. The day was rainy and windy and the black top was slippery. The plaintiff testified that the truck started swerving and skidding on the highway from one side of the road to the other and then turned over. The driver Dykes testified that on the date of the accident when they left Bogalusa, Louisiana, on their way to Sun, La.,- the plaintiff rode in front with him; that when they got to the latter place where he picked up his other passenger, Mizell, the plaintiff then got in the covered back portion of the pick up truck. On this particular morning Mizell was late and, therefore, these employees were going to be late for their work at Higgins. After they left Sun, Louisiana, Dykes stated that about 100 yards after he had come out of a small curve he was “driving about 35 miles per hour, the wind was blowing and the wind hit the body and got it to whipping and I lost control,” and “I skidded on the slippery highway.” The truck turned over on its side.

Under the above facts it is contended that the doctrine of res ipsa loquitur does not apply because plaintiff has alleged specific acts of negligence which he must prove. The negligence alleged by plaintiff is set forth in his petition as follows:

“Petitioner shows that defendant’s agent, Gerald Dykes, was operating the Ford truck negligently in the following, but not exclusive manner:
“1. Driving said truck in a dangerous and reckless fashion at an excessive rate of speed without regard to the safety of others.
“2. Failing to keep said truck under proper control on the highway, which was slippery due to the wet and rainey conditions.
“3. Failing to keep a proper and careful lookout.”

The defendants appeared in proper person for the trial of the case but employed counsel for the purpose of filing a brief in the lower court as well as in this court. Counsel relies upon B & B Cut Stone Co. v. Uhler, La.App., 1 So.2d 149, 151, and Coffey v. Ouachita River Lumber Co., La.App., 191 So. 561.

The Coffey case would not he controlling in the case at bar for the reason given in the Uhler case as well as the reasons stated in the recent case, also from the Second Circuit, of Hamiter v. Duncan, Jr., La.App., 78 So.2d 80, 82. In the Uhler case the court said:

“ ‘Considering that the statement above quoted is the law, we do not think that it is applicable to the present case. The mere allegation that defendant permitted his car to get out of control and further, that the accident was due to the negligence of the defendant, does not show knowledge on the part of the plaintiff. The cause of the car getting out of control is not set forth nor is any specific act of negligence alleged in his petition. The allegations as made by the plaintiff would clearly indicate that it was not in possession of all of the facts causing the accident. The allegation that the defendant’s car was allowed to get out of control is practically a conclusion from the fact that he ran over the curb and caused this damage.’ ”

In the Duncan case the defendant had parked his car at the curb of Louisiana Street in Shreveport and a short time later plaintiff parked her car on Fannin Street, almost immediately at its intersection with Louisiana Avenue. Later in the day plaintiff found that her automobile had been damaged by the defendant’s vehicle which had crossed over the sidewalk and crashed into the side of her car. Neither party was present at the time of the collision and neither had knowledge of the exact facts involved. Counsel for defendant resisted the application of the doctrine of res ipsa loquitur as plaintiff in her petition alleged specific acts of negligence on the part of •defendant without pleading any reliance mpon the doctrine. In considering defendant’s contention, the court said:

“As has been many times iterated by the courts of this state the doctrine of res ipsa loquitur is a rule of evidence. We have been somewhat concerned in connection with the matter before us as to whether there are any specific requirements of pleading which are necessary as conditions precedent to the applicability and enforcement of the rule, but have come to the conclusion that specific pleading of the doctrine is not required in cases where the facts themselves invoke its application. We find the pronouncement that the doctrine is a rule of evidence rather than a rule of pleading in 65 C.J.S., Negligence, § 220(3) pp. 993, 994. In our own jurisprudence we find the following plain pronouncement in the opinion of Mr. Justice Hamiter of the Supreme Court in Gerald v. Standard Oil Co. of Louisiana, 204 La. 690, 16 So.2d 233, 236.
“‘(Res ipsa loquitur) is not a rule of pleading or of substantive law; rather, it is a rule of evidence, the applicability of which is to be determined on the conclusion of the trial.’
“This case offers, as we believe, a perfect exemplification of the principle above enunciated. The conclusions were susceptible of formulation only after the trial of the case which demonstrated (1) that neither party was chargeable with actual knowledge as to the cause or causes of the accident and (2) that defendant’s automobile was the offending instrumentality.”

This court in the case of Weddle v. Phelan, La.App., 177 So. 407, held that where plaintiff made general allegations of negligence against the defendants as well as specific allegations of negligence based on information and belief, the doctrine of res ipsa loquitur applies, citing 9 Blash-field’s Cyclopedia of Automobile Law and Practice, pp. 244, 245, § 5983; Horrell v. Gulf & Valley Cotton Oil Co., Inc., 15 La.App. 603, at pages 610 and 611, 131 So. 709.

In the case of Hebert v. General Accident Fire & Life Assurance Corporation, La. App., 48 So.2d 107, 109, in considering the application of the doctrine of res ipsa lo-quitur the court stated:

“Nor can it be denied that if a person, who is a passenger in a car, is hurt because the car leaves its proper place on the road and crashes into a ditch or an embankment alongside the road and the passenger can show that he was asleep, or was reading, or for some other proper reason was not aware of what was going on and knew nothing and could know nothing about the cause, then there is placed on the driver the duty of producing evidence which will show that he was not at fault.”

The doctrine of res ipsa loquitur was also successfully invoked in the following suits by injured passengers for their survivors) against the driver (or his liability insurer) of a car which left the road for unexplained causes: Bourg v. Aetna Casualty & Surety Co., La.App. 1 Cir., 77 So.2d 131; Fetterly v. McNeely, La.App. 1 Cir., 77 So.2d 757; Pearce v. United States F. & G. Co., La.App., 8 So.2d 743; Harrelson v. McCook, La.App., 198 So. 532; Galbraith v. Dreyfus, La.App., 162 So. 246; Gomer v. Anding, La.App. 1 Cir., 146 So. 704, 705; Monkhouse v. Johns, La. App., 142 So. 347; Livaudais v. Black, 13 La.App. 345, 127 So. 129; and Hamburger v. Katz, 10 La.App. 215, 120 So. 391.

An examination of Article 3, supra, of plaintiff’s petition will show that the negligence charged is general in its nature and are legal conclusions as a result of the truck suddenly swerving and skidding and turning over on the highway. In any event, the doctrine of res ipsa loquitur is a rule of evidence rather than pleading, and under the facts of the present case it is applicable as ordinarily a truck being driven in a careful and prudent manner does not turn over in the middle of the highway for no apparent reason, and it was under the exclusive control of the defendant driver Dykes and at the time of the collision the plaintiff was lying down on an inner spring mattress in the rear portion of the pick up truck.

Having decided that the doctrine does apply it is necessary that we examine the testimony to determine whether the defendant driver has satisfactorily refuted the presumption of prima facie negligence. The passenger Mizell was in California and neither party was able to obtain his testimony personally or by deposition. The defendant driver’s explanation of the cause of the accident has been previously quoted, to the effect that his speed was 35 miles per hour and that the wind was blowing which caused the truck to start swerving from one side to the other of this black top highway and he lost control, skidded and turned over. Under cross examination Dykes stated that he was not familiar with the brakes on the truck as he had only driven it the evening before the accident. He did not apply the brakes as he thought that would cause the truck “to skid more.” The defendant has offeréd no other evidence as to the force of the wind or gust of wind that started his truck to swerving. According to the record it was just a windy day and the driver being well aware of this fact should have been proceeding at a speed and in a manner commensurate with the danger. There is some doubt cast upon the estimated speed of the truck by the defendant driver. In the testimony of Rufus Jones, who was called as a witness on behalf of the defendant, he stated that on the morning of the accident he saw the truck on the other side of Bush, Louisiana, going south, and “they were driving at a very slow rate of speed and the fellow that rode with me in my car commented on how slow he was driving on that particular morning. Usually they drove faster than they were driving at that time.” On cross examination when asked how fast the truck was going, when he passed it, this witness said: “I imagine about SO or SS or 60, somewhere along there.” He also stated that the highway was very slippery and one had to be careful going around the curves and, in addition, that the wind was blowing pretty hard that day.

It was also admitted that these workmen were late that morning. We are well aware of the fact that the District Court has accepted the rate of speed at 35 miles per hour and held that it was not excessive under the circumstances, and he was of the opinion that the plaintiff had failed to prove “the specific acts of negligence alleged on the part of Dykes which plaintiff contends constituted the proximate cause of the accident.” The able District Judge then went on to state in his reasons that if the doctrine of res ipsa loquitur was applicable, it was incumbent upon the defendant driver to make sufficient explanation to exculpate himself from the legal inference or presumption of negligence arising therefrom, and although he had considerable doubt that the doctrine was applicable, he still felt that the defendant Dykes “has satisfactorily explained that he used ordinary care in the operation of the truck and the accident did not occur as the result of any negligence on his part. The testimony shows that the truck was enclosed and covered and there were two windows on each side thereof, and it was Dykes’ explanation that the wind hit the body of the truck causing it to sway and turn over. Most assuredly it is plausible that a gust of wind suddenly striking the body of the truck, which was apparently top-heavy, could have started it to skidding on the blacktopped highway, and if this is what happened, which it is reasonable to believe, then it was not any negligence on the part of Dykes which caused this unfortunate accident.”

It must be remembered that the burden of freeing himself from negligence rested on the defendant and under the facts it was raining, the road was slippery and the wind was blowing, all to his knowledge for the entire trip from Bogalusa to a point south of Sun, La., where he admittedly lost control of the truck and it turned over. There was no sudden force of wind that struck the truck. Apparently from the record it was of the same intensity and force all the way from Bogalusa, and even if he were traveling 35 miles per hour, which we doubt considering all the facts in the case, it evidently was excessive under the facts and circumstances.

Dykes, the defendant driver when called as a witness on his own behalf, was questioned by the court as follows:

“The Court: I believe you testified the truck turned over as you went out of the curve, is that right?
“The Witness: Yes, sir.
“Q. How far from the curve? A. I would say approximately 50 yards.
“Q. You had negotiated the curve and were 50 yards beyond?
“The witness: Yes, sir.”

The defendants have not eliminated the probability that due -to the conditions of the road and weather that Dykes was going around this curve too fast, and his testimony as given in answer to questions by the court could mean that as he came out of the curve the truck started swerving and turned over approximately 150 feet from this point. His estimate of the distance previously given under cross examination in the beginning of the trial was 100 yards.

Defendant has failed to bear the burden of proof imposed upon him and is, therefore, liable to the plaintiff, which brings us to the question of quantum.

As to quantum, it is not inappropriate to state that the state of the record is most deficient. However, the evidence indisputably shows that plaintiff suffered a compression fracture of the 12th dorsal vertebrae and a fracture of the left foot, and that he was hospitalized for 19 days. He complained of pain in his foot immediately after the accident.

Plaintiff is a man of 54 years of age who had been complaining of back pain for some time before the accident, due to an arthritic condition therein. While at the time of trial he had not returned to his regular job at Higgins, the evidence shows that this was because of a layoff, rather than plaintiff’s disability. At the time of trial, plaintiff was employed at filing saws with W. W. Fornea, a job he had held before his employment with Higgins at a wage of $105 per week. His salary at Higgins was $88 per week, and the most loss of earnings proved by plaintiff was for 19 days. While his doctor stated plaintiff was only employable at light labor, he specifically did not state that this was due to the trauma rather than the arthritic condition due to plaintiff’s age.

In the necessarily arbitrary task of assessing a monetary value to personal injuries, we think the evidence of the fractures, relatively slight pain, .and slight loss of special earnings would be adequately compensated for by an award of $3,000, in the light of the following cases: Attaya v. Zimmerle, La.App. 1 Cir., 83 So.2d 676; Hawkins v. Fidelity & Cas. Co., La.App. 1 Cir., 74 So.2d 323; Lewis v. American Brewing Co., La.App. Orl., 32 So.2d 109; Burke v. Toye Bros. Yellow-Cab Co., La. App. Orl., 28 So.2d 369; Smith v. Hyman, La.App. Orl., 10 So.2d 647.

The doctor stated that there was a medical bill owing, but neither he nor plaintiff proved the amount. As to this aspect of the claim, since this item of damages was definitely proved to exist although not in the specific amount, we believe the ends of justice will be served by remanding the cause, restricted to the purpose of proving the exact amount, but not to exceed the amount of $669.16 demanded by the prayer of plaintiff’s petition. Lavergne v. Indemnity Ins. Co., La.App., 84 So.2d 617.

For the above and foregoing reasons, the judgment of the District Court is reversed, and judgment is rendered against defendants Jesse P. Varnado and Gerald Dykes, holding them liable in the full and true sum of $3,000 together with legal interest thereupon from date of judicial demand until paid. This cause is further remanded for the restricted purpose of establishing the cost of hospitalization and treatment by Dr. W. S. Harrell, in an amount not to exceed in all $669.16; and to enter judgment in plaintiff’s favor in the amount so established, together with legal interest thereupon, holding both defendants liable therefor in solido. All costs of these proceedings are assessed against defendants.

Reversed; remanded in part.