text:
    Mrs. Joan KILLIAN, Original Plaintiff, v. MODERN IRON WORKS, Inc., et al., Original Defendants, Joe H. Crosby, Plaintiff in Petition to Revive Judgment-Appellant, V. E. Smith, Defendant in Petition to Revive Judgment-Appellee.
    No. 8648.
    Court of Appeal of Louisiana. Second Circuit.
    June 28, 1957.
    Rehearing Denied July 25, 1957.

      Ferris & Achee, Shreveport, for appellant.
    Tucker, Bronson & Martin, Shreveport, for appellee.
   HARDY, Judge.

This action was instituted by Joe H. Crosby, who prayed for the revival of a judgment to the extent of the principal sum of $3,561.53 against V. E. Smith, E. A. Holley and Willie First, in solido. As the basis of his right to procure such revival of the judgment petitioner alleged that he was cast solidarily with the above named respondents; that he paid the principal sum above noted to the judgment creditor and that, as a consequence, he was legally sub-rogated to the rights of the judgment creditor as against his co-solidary judgment debtors and entitled to a revival and reinstatement of the judgment in order to preserve his rights against the said named respondents.

To petitioner’s action an exception of no right and no cause of action was interposed on behalf of the respondents, V. E. Smith and E; A. Holley, which exception was referred to the merits.

Pending trial on the merits petitioner’s claim against E. A. Holley was settled by compromise. The respondent, Holley, thereby became discharged from petitioner’s-action and the claim of petitioner as against the remaining respondents, V. E. Smith and Willie First, was reduced by one-half of the principal amount claimed.

The respondent, Willie First, a nonresident of the. State, was served through a curator ad hoc, but no pleadings of any nature were filed on his behalf, and, as a consequence, the trial with respect to petitioner’s right to a revival of the judgment as against Willie First was considered in the nature of proving up of a default judgment. Although the trial exclusively involved the contested issues between Crosby and Smith, it is noted that the judgment rejected petitioner’s demands as to both Smith and Willie First.

From the judgment petitioner has perfected this appeal.

For the sake of clarity in defining the issues under consideration in this action, it is necessary to recapitulate some of the facts in connection with the suit of Killian v. Modern Iron Works, La.App., 15 So, 2d 532.

On March 14, 1942, the husband of Mrs. Joan Killian, while riding a bicycle in the City of Shreveport, was killed in an accident in which a truck owned by Modern Iron Works, Inc., driven by V. E. Smith, and an automobile owned by E. A. Holley, driven by his employee, Willie First, were involved. Mrs. Killian, individually and for the use and benefit of her minor child, instituted suit for damages, impleading as defendants the Modern Iron Works, its insurer, Traders & General Insurance Company of Dallas, Texas, V. E. Smith, Willie First and E. A. Holley. After trial there was judgment rendered by the trial court on March 24, 1943, in favor of plaintiff, Mrs. Killian, and against Modern Iron Works, Inc., its insurer, and V. E. Smith, which judgment rejected plaintiff’s demands against Willie First and E. A. Holley. The judgment cast the defendants, Modern Iron Works, its insurer, and V. E. Smith, for the principal sum of $10.,000, and additionally cast the defendants, V. E. Smith and Modern Iron Works, Inc., in solido, for the sum of $287.25, which variation was necessitated by reason of the fact that the liability of Traders & General Insurance Company, as insurer of Modern Iron Works, Inc., was limited to $10,000. From this judgment the defendants, Modern Iron Works, Inc., its insurer, and V. E. Smith, appealed, sus-pensively and devolutively. Plaintiff appealed from the judgment insofar as it rejected her demands against E. A. Holley and Willie First and answered the appeal of the other defendants, praying for an increase in the amount awarded. After hearing of the appeals, judgment was rendered on July 19, 1943, by the Court of Appeal, Second Circuit, 15 So.2d 532, which judgment reversed the judgment of the lower court, insofar as it rejected the demands of plaintiff against E. A. Holley and Willie First, and rendered judgment against all named defendants, in solido, in the total sum of $10,000, and further judgment against V. E. Smith, Joe H. Crosby, Liquidator of the Modern Iron Works, Inc., Willie First and E. A. Holley, in solido, for additional amounts in favor of Mrs. Killian, individually, in the sum of $1,787.25, and for the use and benefit of her minor son in the sum of $1,521.25, with interest and ■costs. Rehearing was denied by this court on October 4, 1943, and certiorari was refused by the Honorable the Supreme Court •of the State of Louisiana on November 9, 1943.

On November 19, 1943, Traders & General Insurance Company paid to Mrs. Killian and her attorneys the sum of $11,043.55, representing full satisfaction of the judgment rendered against the named insurer. Receipt and full satisfaction of the judgment against Traders & General Insurance Company was evidenced by a formal document which we reprint in full as follows:

“No. 84,812
“Mrs. Joann Killian, First Judicial Individually and as District Court Tutrix of Louisiana v. In and for Caddo Modern Iron Works, Parish Inc., et al.
“Know all men by these presents,
“That we Mrs. Joann Killian individually and as Tutrix of the minor Richard Harvey Killian, and Albert P. Garland and Leslie Y. Barnette, attorneys for Mrs. Joann Killian in this matter, do hereby acknowledge receipt from Traders and General Insurance Company of the sum of Eleven Thous- and Forty-three and s%oo ($11,043.-55) Dollars, represented by check No. 226520 drawn on First National Bank in Dallas, Texas, in full satisfaction of the judgment rendered against Traders and General Insurance Company in this matter together with interest to this date and all costs.
“The Honorable V. G. Simmons, Clerk of First Judicial District Court in and for Caddo Parish, is hereby authorized and instructed to enter a satisfaction of this judgment on his records insofar as relates to Traders and General Insurance Company.
“This done and signed in triplicate originals on this 19th day of November, 1943.
“Mrs. Joann Killian “Mrs. Joann Killian, Individually and as Tutrix of the Minor Richard Harvey Killian
“Albert P. Garland “Albert P. Garland, Attorney'
“L. Y. Barnette
“Leslie Y. Barnette, Attorney.”

On the same date, November 19, 1943, Joe H. Crosby, Liquidator of Modern Iron Works, Inc., paid the plaintiff, Mrs. Killian, and her attorneys the sum of $3,561.53, representing the balance due the said plaintiff under the judgment with interest and costs. Mrs. Killian and her attorneys executed, in triplicate, a receipt, satisfaction and release which read as follows:

“No. 84.812
“Mrs. Joann Killian, Individually and as Tutrix
v.
Modern Iron Works, Inc., et al.
First Judicial District Court of Louisiana in and for Caddo Parish
“Know all men by these Presents:
“That we, Mrs. Joann Killian, individually and as Tutrix of the Minor Richard Harvey Killian, and Albert P. Garland and Leslie Y. Barnette, attorneys for Mrs. Joann Killian in this matter, do hereby acknowledge receipt from Modern Iron Works, Inc. the sum of Three Thousand Five Hundred Sixty-one & 5%oo ($3,561.53) Dollars represented by check for said amount on this date, payable to L. Y. Barnette, Attorney, and receipt from the Traders and General Insurance Company of Eleven Thousand Forty-three and 5%oo ($11,043.55) Dollars, represented by check for said amount dated November 18, 1943, payable to Mrs. Joann Killian and Albert P. Garland and Leslie Y. Barnette, her attorneys, in full satisfaction of the judgment rendered against V. E. Smith and Joe H. Crosby, Liquidator of Modern Iron Works, Inc. in this matter, together with all interest and court costs.
“The Honorable V. G. Simmons, Clerk of the First Judicial District Court in and for Caddo Parish, is hereby authorized and instructed to enter a satisfaction of this judgment on his records insofar as relates to V. E. Smith, Joe H. Crosby, Liquidator of Modem Iron Works, Inc., and Modern Iron Works, Inc.
“Thus done and signed in triplicate originals on this 19th day of November, 1943.
“Mrs. Joann Killian “Mrs. Joann Killian, Individually and as Tutrix of the Minor Richard Harvey Killian
“Albert P. Garland “Albert P. Garland, Attorney
“L. Y. Barnette
“Leslie Y. Barnette, Attorney.”
The present action was instituted by Crosby in his individual capacity on March 13, 1953, seeking, as above noted, the revival of the judgment to the extent of $3,561.53 as against V. E. Smith, E. A. Holley and Willie First.
As we have above observed, by virtue of a compromise settlement, E. A. Holley is no longer an interested party. The contention upon which the respondent, V. E. Smith, predicated bis exception of no right and no cause of action was that the receipt executed by Mrs. Killian and her attorneys, above noted in full, served as a complete satisfaction of the judgment and as a full and complete discharge and release of V. E. Smith, Joe FI. Crosby, Liquidator of Modern Iron Works, Inc., and Modern Iron Works, Inc. It should be noted that, while the original suit in which Mrs. Killian was plaintiff was pending, action was taken by the stockholders of Modern Iron Works, Inc. approving the liquidation of the affairs of the corporation and designating Joe H. Crosby as Liquidator, in which capacity he was made a party to the suit. On May 21, 1943, while the suit was pending on appeal, Joe H. Crosby, individually, became the owner of all the assets of the Modern Iron Works, Inc., by sale and transfer thereof from Joe H. Crosby, as Liquidator, to Joe H. Crosby, the individual. At the time of the transfer of the corporate assets, consisting of certain described real estate, movable property and equipment, and
“ * * * the entire assets formerly belonging to the corporation, The Modern Iron Works, Inc., including the name, good will and all other assets whatsoever,”
it is to be noted that no right of contribution existed in favor of the Modern Iron Works or Crosby, as Liquidator, or individually, against the solidary tort-feasors because no final judgment had been pronounced.

The respondent, Smith, defends against this action of Crosby to revive the judgment on three principal grounds; first, that the release granted by Mrs. Killian extinguished the judgment against V. E. Smith, which issue was tendered by the exception filed on behalf of Smith; second, that Crosby had guaranteed Smith against any liability under the judgment; and, third, that Crosby, individually, had never acquired nor succeeded to the chose in action which subsequently inured to the Modern Iron Works.

Crosby attached to and filed with his petition in this action the receipt executed by Mrs. Killian, evidencing the full satisfaction of the judgment liability as to Modern Iron Works, Crosby, as Liquidator, and V. E. Smith. However, the district judge, actuated by a commendable feeling of precaution, referred the exception to the merits with the hope of obtaining a full disclosure, through evidence adduced, as to the purpose and effect of the written release and satisfaction of the judgment. On the basis of his analysis of the testimony the district judge resolved all of the grounds of defense, above set forth, in favor of respondent, Smith.

Our consideration of the voluminous record compiled on trial of this matter has served to convince us that the issue tendered by the exception filed on behalf of the respondent, Smith, conclusively determines the rights of the parties to this action.

With respect to the matters here involved, the exception is properly one of no right of action and therefore is restricted to the existence, vel non, of the right of the petitioner, Crosby, to revive, the judgment in question. If the judgment has been satisfied, and if the parties named therein have been discharged from liability without reservation of the rights of one against the others, it follows that no right to a revival of such judgment exists. We think this is the case.

The receipt executed by Mrs. Killian, who was the judgment creditor of Modern Iron Works, Joe H. Crosby, Liquidator, V. E. Smith, E. A. Holley and Willie First, evidences receipt of the amount se.t forth

“* * * in full satisfaction of the judgment rendered against V. B. Smith and Joe H. Crosby, Liquidator of Modern Iron Works, Inc., in this matter, together with all interest and court costs.” (Emphasis supplied.)

The above quoted recital is made more explicit and certain by the following definite authorization and instruction:

“The Honorable V. G. Simmons, Clerk of the First Judicial District Court in and for Caddo Parish, Louisiana, is hereby authorized and instructed to enter a satisfaction of this judgment on his records insofar as relates to V. E. Smith, Joe H. Crosby, Liquidator of Modern Iron Works, Inc., and Modern Iron Works, Inc.” (Emphasis supplied.)

We are at a complete loss to understand how and upon what ground the recitals of the release and satisfaction above set forth can be considered as anything other than a joint discharge, of the judgment as against the parties named. Nor does a study of the evidence adduced on trial detract from the effect of the instrument as a full, effective and complete satisfaction and discharge of the parties named. The check which was given and accepted in payment of the judgment was introduced in evidence. It was dated November 19, 1943, made payable to L. Y. Barnette, attorney who represented Mrs. Killian, in the sum of $3,561.53, was signed

“The Modern Iron Works, Inc.
“By (Joe IT. Crosby)”
and bears the notation:
“$3561.53
for suits of Joann Killian.”

The check was so made and signed, notwithstanding the fact that upon the date thereof Joe H. Crosby, individually, had not •only been duly appointed as Liquidator of the Modern Iron Works, Inc., but had actually become, some six months prior to the giving of the check, the individual purchaser of all the assets of the corporation.

We find nothing in the evidence nor in the several hundred pages of testimony which gives the slightest indication that Crosby, at the time of making the payment •of the judgment, reserved, or intended to reserve any rights of contribution against Smith. Some effort was made on behalf •of Crosby to establish the fact that he knew nothing about the execution of the receipt and satisfaction by Mrs. Killian. But, it was conclusively proven that the document itself, which was recognized by Crosby in the allegations of his petition in this action •and which was attached thereto, was taken from Crosby’s safe prior to the initiation of this suit for revival of the judgment. The •only conclusion is that Crosby, or his office manager, or his daughter, who at the time, was an office employee, received the instrument and placed it in the safe. In any event, it is certain that Crosby would be chargeable with knowledge thereof, and, as we have above commented, there is no indication that, up to the time of the payment and receipt in satisfaction of the judgment, Crosby had made any effort to assert or preserve any rights against Smith.

We think further substantiation of our conclusion is to be found in the circumstances which surrounded the transaction and the reasonable conclusions which would appear to be implicit therefrom. Smith was a long-time, dependable employee of Modern Iron Works at the time of the institution of suit by Mrs. Killian, and he continued as Crosby’s employee for a period of some six years following the satisfaction of the Killian judgment, during which time Crosby made no effort to collect any contribution from Smith to be applied against the liability which he now asserts he intended to enforce.. According to Crosby’s own testimony, it is clear that he was looking primarily to Holley for reimbursement of his portion of the judgment debt, and, again according to Crosby’s testimony, he enjoined Smith to keep careful observation of Holley’s economic status so that Crosby might take action as and when Hollé)' might be able to respond by payment.

We think it is unnecessary to dwell further upon these details which primarily concern the other defenses advanced by respondent Smith and have only a minor bearing and effect upon the interpretation and effect of the receipt hereinabove set forth.

It is clear that the document in question was given and received in complete satisfaction, discharge and acquittance of the Modern Iron Works, to whose rights Crosby succeeded individually, and V. E. Smith. It follows that since the judgment as against Smith was completely satisfied and discharged by this instrument, without any reservation of rights on the part of Crosby, that there can be no revival thereof.

Notwithstanding the fact that the district judge accepted the defenses pleaded and relied upon by Smith as being applicable to Willie First, we cannot find justification for such a conclusion. The effect of the instrument which evidences satis- ' faction of the judgment extends only to Modern Iron Works and V. E. Smith. Neither Willie First nor E. A. Holley were named in the instrument of receipt, satisfaction and discharge, and, accordingly, we do not feel that either of them could appropriately urge such a defense. Holley, having béen discharged by settlement and compromise, is no longer concerned, but, in our opinion the issue of the liability of Willie First has not been raised by any pleadings on his behalf nor does the evidence adduced establish any valid defense.

For the reasons assigned the judgment appealed from is affirmed insofar as it rejected plaintiff’s demands against V. E. Smith, but the judgment rejecting plaintiff’s demands against Willie First is set aside, annulled and reversed and there is now judgment in favor of petitioner, Joe H. Crosby, ordering the judgment rendered by this court on July 19, 1943, revived to the extent, and only to the extent, of preserving the rights thereunder as against Willie First, to be maintained in full force and effect as against the said Willie First for the period provided by law.

All costs are taxed against appellant.


source: Caselaw Access Project

author: LOTTINGER, Judge.

license: Public Domain

text:
    Gerald Robert METHVIN, Individually, etc., et al. v. Richard ROSHTO.
    No. 4462.
    Court of Appeal of Louisiana. First Circuit.
    June 28, 1957.
    Sam J. D’Amico, Louis D. Curet, Baton-Rouge, for appellant.
    Durrett Hardin & Blunter, Baton Rouge, Paul B. Dufreche, Ponchatoula, for appellee.
   LOTTINGER, Judge.

On November 12, 1954 at approximately 4:15 o’clock in the afternoon an automobile accident occurred in the Parish of East Baton Rouge on U. S. Highway No. 190 at about three miles east of the City of Baton Rouge, which gave rise to the following litigation:

The matter entitled “Gerald Robert Methvin, Individually, Etc., et al vs. Richard Roshto,” No. 54,021 of the Civil Docket of the Lower Court, was filed by Gerald Robert Methvin wherein he sought to recover from the defendant individually the sum of $100 and for the use and benefit of his collision insurer, Milwaukee Insurance Company, the sum of $511.20 as the result of damages to his automobile under the deductible provisions of his policy and subrogation provisions thereof. This suit alleged negligence on the part of the defendant, Richard Roshto, in turning suddenly to his left without any warning or signals being given directly in the path of Methvin while he was traveling west and Roshto was driving east on U. S. Highway No. 190. Roshto answered this suit denying any negligence on his part and alternatively pleading contributory negligence on the part of Methvin in failing to heed his vehicle and in running into same after it had come to a stop off of the highway.

The matter entitled “Richard Roshto, et al vs. Gerald Robert Methvin," No. 54, 902 of the Civil Docket of the Lower Court, was filed by Roshto, individually and for and on behalf of his minor children, Richard Roshto, Jr., Violet Ivy Roshto and by Roshto’s wife, Violet P. Roshto, against Methvin wherein damages were sought for automobile damage, medical expenses and personal injuries in the total amount of $16,635. Negligence was charged against Methvin in the same respect set forth in the answer filed by Roshto in the suit by Methvin against him. Methvin answered, denying any negligence on his part, and alternatively pleaded contributory negligence on the part of Roshto in the same respect as set forth in his petition.

The matter entitled “Elma Galloway vs. Gerald Robert Methvin,” No. 54,903 of the Civil Docket of the Lower Court, was filed against Methvin by Elma Galloway who alleged that she was a guest passenger in Roshto’s automobile and prayed for damages in the total amount of $51,391.72 for doctor bills, loss of earnings and personal injuries. Negligence is charged against Methvin in the same respect as set forth in Roshto’s suit against him. Methvin answered this suit, denying any negligence on his part and averring that the accident was due solely to the negligence of Roshto. Alternatively, he pleaded contributory negligence on the part of this plaintiff in that she acquiesced in the negligent operation of the vehicle by Roshto.

The three cases were consolidated for trial following which judgment was rendered in Suit No. 54,021 in favor of Methvin individually and for the use and benefit of Milwaukee Insurance Company as prayed for. In suits Nos. 54,902 and 54,903 judgment was rendered in favor of defendants, Methvin, and against the plaintiffs, Richard Roshto, et al. and Elma Galloway, respectively, dismissing their demands and they have appealed.

Gerald Robert Methvin, called on cross examination in suits Nos. 54,902 and 54,903, testified as follows:

Just previous to the accident on November 12, 1954, he was proceeding from Pontchatoula in a westerly direction on U. S. Highway No. 190 towards the city of Baton Rouge. He had with him in his automobile his wife and two children. He had averaged not more than 50 miles per hour previously, and, at the time when he first saw Roshto’s vehicle, was going about 35 miles per hour. He first saw Roshto when he was some 3 or 4 blocks away from him at which time he could not estimate his rate of speed although he did classify it as moderate. While there were no cars close to Roshto to his rear, there was one right in front of him at a distance of about 50 to 70 feet. The roadway at the place of the accident was straight and when he first saw Roshto attempt to make a turn, the car in front of him was still approaching but very close to him. He could not tell whether Roshto appeared to slow down before making his turn and he did not notice any signals whatsoever. The witness gave the following version of the accident.

“Q. When he turned, how far did you say you were from him? A. I was about 70 feet when he started to turn.
"Q. What did you do when he started to turn? A. Well, first ■ I applied my brakes and swerved to the right. And I hollered at my wife to hold on, I knew I could not avoid the accident.
“Q. Why did you swerve to the right? Was that the direction Mr. Roshto was turning in? A. He was turning into my lane. He was turning left.
“Q. He was turning towards your right? A. That’s right.
“Q. And that’s the direction you turned in, right? A. Exactly. I turned to the right to give him as much room on the highway as I could.
“Q. Is there any particular reason why you turned in the same direction that he was turning? A. Well, I mean, to give him as much of the highway so that he could try to stop to avoid the accident.
“Q. Did it occur to you that if he were turning to your right that you could have avoided the accident by turning to your left? A. No, Sir, I could not, because it happened so fast I didn’t have time.
“Q. Are you quite sure you applied your brakes? A. I am quite sure.
“Q. Did your vehicle slow down at all? A. My vehicle slowed down.
“Q. Did you leave any skid marks? A. Yes, Sir, I left skid marks.
“Q. How much, how many feet of skid marks did you leave? A. Well, that I don’t know for sure. The officers saw it.
“Q. Did you examine the scene of the accident after it happened? A. Yes, Sir.
"Q. To determine about'the skid marks? A. We did, with the State Trooper which was two of them.”

When asked if' he was familiar with' Roshto’s service, station on the north side of U. S. Highway No. 190, and the concrete driveway leading into same, the witness stated that he was although he had never noticed any concrete or shoulder between the highway and the edge of the neutral ground at Roshto’s service station. The witness stated further that he was familiar with a gravel road running North immediately to the east of Roshto’s service station, east of which is a concrete driveway approaching a Texaco Station which is still further' to the east. The witness placed on a diagram purporting tó be a rough sketch of the scene of the accident, a letter A at the spot where he was when he first saw the Roshto vehicle turning, which spot, he stated, was about on the east drive approaching Roshto’s service station. It was stipulated that the highway at the point of the collision was 22 feet in width.

At the moment of the collision the witness’s car was facing due west and after the collision, it was turned to the right and ended ttp facing in a northwesterly direction. The witness stated emphatically that his vehicle never left the highway until after the impact had actually occurred. The witness explained what had happened by saying that even though he turned to the right his vehicle did not have a chance to actually veer to the right except more than a couple of feet before the collision occurred. He stated that at the point of the collision, Roshto’s vehicle was entirely on the highway and repeated that just previously thereto he had been proceeding at about 35 miles per hour. He stated that he could not state definitely how fast he was going at the time of the collision although his vehicle had slowed and he was going approximately 25 miles per hour or, to use his words, “I didn’t have much time to slow up but I did have a brake action.” The witness stated that his left front collided with about the center of the front of the other vehicle or if anything, more to the left front of the other vehicle.

The witness testified on direct examination as follows:

Just previous to the accident, he was in the middle of the west bound traffic lane approximately 3 miles from what is known as the traffic circle east of the city of Baton Rouge. The weather conditions at the time were fair, there had been no rain and it was daylight at the time. After the accident, he did not get out of his automobile and talk to Roshto but gave first aid to his wife and son. The wife stayed at the scene 10 or IS minutes until an ambulance got there. He stated that although his wife and sons were injured, that he had not filed suit on their behalf but that the reason for not filing suit was not any belief on his part that he was to blame but was for other reasons. He stated that he never talked to Roshto and that as of the time of trial, would not know him if he were to see him. He repeated that he did not know the speed at which Roshto was traveling when he made his turn. He identified the total cost of repair to his automobile as $611.20. He stated positively that at the time Roshto began his left turn that had he swerved his automobile to his left instead of to the right, that he would have collided with the vehicle which he had described as being ahead of Roshto.

Richard Roshto testified on direct examination as follows:

Just previous to the accident, he was going east, that is, leaving Baton Rouge and going in the direction of Port Vincent and he made the turn into Roshto’s service station for the purpose of getting gas. With him at the time was his wife, three children, his mother and a friend. He approximated his speed before reaching the service station at from 30 to 35 miles an hour at the most. Just before reaching the service station, there was no traffic behind him, but there was one car to this front some 75 to 80 feet away. He saw the Methvin vehicle when it was 280 or 290 feet away when he commenced his turn. He marked on a diagram as point “A” the place where Methvin was when he began making his turn, and from his testimony, this point would be approximately the entrance to the gravel road leading North. He marked point “B” as the place where he began making his turn and estimated the distance between the two points at 280 feet. He stated that he was able to give the distance at 280 feet because he had stepped it off and had also used a tape to measure it. He stated that when he first began making his turn, he was aware that a vehicle was approaching and that although the car was coming pretty fast, he felt no doubt but that he could make the turn safely. When asked if he gave any signal prior to approaching the service station of his intention to make the turn, the witness stated that he gave a left hand signal, i. e., a manual hand signal by holding his hand straight out. He said that he was going about 20 miles an hour as he approached Roshto’s service station, having slowed down from perhaps 35 to 30 miles an hour to that speed. He gave the following testimony. “When I started my turn, I was slowing down a little bit, and I put it in second, to pick it up and keep the automobile from stalling, and then I put her back in high, and that is when the collision happened.” When he first realized that there was a danger of collision, he stated that he was already “in my turn” and that there was no way for him to speed up or stop or prevent the accident. He stated further that he first realized that he was in danger as he was leaving the westbound lane of traffic and was approximately halfway or better out of said westbound lane. He stated that he observed the Meth-vin vehicle just previous to the accident and that it swayed, leaving the main highway onto the side in front of the filling station and then going back onto the highway partially. He stated that at the point of impact, the Methvin vehicle was pointing in a northwesterly direction and that both automobiles were off of the highway at the time of the collision. The concrete slab in front of Roshto’s, he described, as being approximately 10 feet in width and stated that there is a neutral ground area with a curb around it. He did not examine the scene of the accident immediately following its occurrence because he had been put in the hospital with his wife, but did examine it the next morning. He stated that there were no tire marks left by Methvin that he could see and that just previous to the accident’s occurrence, although his windows were open, and he felt sure he would have heard brakes had they been applied, he did not hear any. He stated that he saw Meth-vin just prior to the collision at which time he removed his hands from the steering wheel throwing them into the air when he came back onto the highway after having left it. A picture introduced as P-6 was to show what the witness testified to as being the approximate position of his car at the moment of the collision. The back bumper of the car was approximately one foot off of the highway and he was onto the concrete slab. Another picture introduced as P-7 was identified by the witness as showing what he considered to be the position of both vehicles after the accident. He stated that his right front and Methvin’s left front had come into contact at the moment of the collision and that thereafter, the two vehicles moved approximately 20 feet sidewards. The witness stated that he put his hand out “maybe a few seconds” before he started his turn, and stated that he traveled approximately 75 feet “by tape measure” from the point where he began making the turn to the point where the collision occurred. He stated that his automobile was totally demolished as the result of the accident and that its value at that time amounted to $650. He stated that at the time of the collision his automobile had not come to a stop, as alleged, but was still moving.

On cross examination, Roshto testified as follows: When he saw Methvin throw his hands into the air he (Methvin) was some 175 feet east of the point of impact at which time the witness was approximately better than halfway of the west lane headed at an angle. The witness stated that from the time he saw Methvin throw up his hands the latter traveled a distance of 175 feet to the point of impact whereas he traveled at the most from 20 to 25 feet. He stated that the vehicle ahead of him was some 75 feet distant and far enough not to block his view of the Methvin vehicle. He stated also that he gave his hand signal some 2 or 3 seconds before he started his turn. He stated again that he realized that Methvin was “coming fast” but that as far as he knew, there was no danger in making the turn. He then defined “fast” as a speed of between 75 and 80 miles an hour. He stated that he must have been driving at approximately 75 miles an hour at the moment of the collision. The witness repeated that from the time when he was in the middle of the west lane of traffic he then traveled a distance of approximately 20 feet to the point of impact while the Methvin vehicle traveled some 175 feet to the point of impact. He repeated that his speed at that time was approximately 20 miles per hour.

Trooper W. R. Abadie, called as a witness on behalf of Methvin, testified on direct examination as follows:

This officer investigated the accident after its occurrence and stated that the speed limit on the highway where it occurred was 60 miles per hour. He stated that Roshto told him that he first noticed danger at a distance from the point of impact of 100 feet at which time he was going 40 miles an hour and that at the moment of impact his speed was 20 miles per hour. The officer stated that there were skid marks from the Methvin vehicle and skid marks and debris from the Roshto vehicle which enabled him to locate the point of collision. He stated that when the collision occurred, approximately 6 feet of the Methvin vehicle was off of the paved portion of the highway to the driver’s right and that the back wheels of the Roshto vehicle were on the pavement with front wheels off on the conCrete driveway of the station. He stated that the vehicles came to rest with the Methvin car some 12 feet from the point of impact and the Roshto vehicle some 22 feet from the point of impact.

Mrs. Elma Galloway, called as a witness in her own behalf, testified as follows:

She was a passenger in the Roshto vehicle being seated in the right rear of the automobile. She was the mother of the driver and stated that they made the left turn into the service station in order to get some gas. She estimated his speed prior to the time he approached the service station at between 30 and 35 miles per hour. She stated that some 20 feet before they got to the service station the driver gave the left hand signal and proceeded to turn. She stated that she saw the oncoming Methvin vehicle and did not have any idea that there might be an accident when Rosh-to first began his turn. She first became aware that an accident might happen when she saw the other car sway over to the right and then come back onto the highway. When asked if she was certain whether that is what happened, the witness replied, “I certainly am. I was watching all the way there because I was sitting on the back seat and I do quite a bit of back seat driving. I watch everything!” She stated that Methvin was excited because he threw his hands up and then grabbed the steering wheel and shook it. She declined to say whether the driver Methvin was on or off of the highway at the time he threw up his hands. When he shook the wheel, she said he did so by turning same in both directions.

Mrs. Violet K. Roshto, called as a witness on her own behalf, testified as follows:

Just before the accident she was seated in the Roshto vehicle in the right front seat with her husband and baby daughter Violet Inez. She saw the Methvin vehicle approaching when Roshto began making his turn but stated that she felt no reason for alarm and first realized that there was going to be an accident when she looked up and saw the Methvin vehicle almost upon them. The witness was knocked unconscious as a result of the collision. On cross examination, this witness stated that she did not recall whether there was a vehicle in front of them and that she did not know too much about how the accident occurred because her baby, who was on the front seat with them, was ill and she had been attending to her. She stated that because of her preoccupation with the child, she did not know anything about the speed of the Methvin vehicle nor did she know whether her husband’s turn was sharp or gradual. In response to a question by the court, she stated that she could not swear that her husband had given a signal for his turn as she did not actually see same.

Mrs. Mildred Joyce Methvin, called as a witness on behalf of Mr. Methvin, testified as follows:

She is the wife of Gerald Robert Methvin and was seated next to him in the front seat at the time of the accident. A baby was lying across her lap in the front seat and a six year old boy was in the rear. She estimated her husband’s speed as being moderate and between 35 and 40 miles per hour previous to the accident. She stated that she did not exactly know when she first saw the Roshto vehicle and first realized what was happening when her husband shouted to her to “hold on” at which time she saw the Roshto vehicle in the west lane on their side of the highway. When asked if the Roshto vehicle was at an angle, the witness said that she could not say as she was thrown to the floor when the cars crashed and could not say truthfully what was the position of the Roshto vehicle when she first saw it. Other than that, it was on their side of the road at what she believed to be a sort of an angle and in close proximity to them. She stated that her husband swerved and that the accident occurred almost immediately between the time that her husband yelled and she saw the other car. She did not have time to brace herself. She stated further that she did not have any idea how fast the Roshto vehicle was traveling.

Methvin, being recalled to the stand in his own behalf, testified as follows:

At the time Roshto began making his left turn, he, that is, Methvin, was going at a speed of about 35 miles an hour and that within five miles of the accident had never been driving 70 or 75 miles an hour or even over 50 miles an hour. He denied that prior to the accident, his automobile had gone off the shoulder and back onto the highway and then off the shoulder again. He stated that he had yelled to his wife to hold on. He stated that he managed to apply his brakes and that he was sure he had slowed his car down by some 10 miles per hour.

As will be seen from the above and foregoing, the testimony as to how the accident occurred is in hopeless conflict. The factual question presented was, however, resolved by the trial judge in favor of Methvin and we cannot say that he committed manifest error in doing so. In addition, we might add that we are not particularly impressed with Roshto’s testimony. In his pleadings he specifically averred that his vehicle had come to a stop before being struck by Methvin’s while on trial he admitted that he was still moving at the time the collision occurred. And, had Methvin been traveling at the rate attributed to him by Roshto, the damage to the vehicles and the personal injuries received by the occupants would undoubtedly have been far more extensive than those reflected by the record. In summary, therefore, we do not believe the trial judge committed manifest error in absolving Methvin of negligence.

This is just another one of those left turn accident cases. We have said many times before, and we do not think citations of authority are necessary herein, that a left turn across a highway constitutes one of the most hazardous maneuvers that a driver is called upon to perform and that the responsibility for seeing that such a turn can be made safely is placed upon the motorist making the left turn and he should be certain that it can be made without danger to normal overtaking or oncoming traffic.

Therefore for the reasons hereinabove stated we are of the opinion that the proximate cause of the accident herein was the negligence of the driver Roshto in making said left turn.

From the reasons assigned the judgment appealed from is affirmed.

Judgment affirmed.


text:
    Richard ROSHTO et al. v. Gerald Robert METHVIN.
    No. 4460.
    Court of Appeal of Louisiana. First Circuit.
    June 28, 1957.
    Sam J. D’Amico, Louis D. Curet, Baton Rouge, for appellant.
    Durrett Hardin & Hunter, Baton Rouge, Paul B. Dufreche, Ponchatoula, for appellee.
   LOTTINGER, Judge.

For the reasons assigned in the matter of Methvin v. Roshto, La.App., 96 So.2d 383, the judgment appealed from is affirmed.

Judgment affirmed.


text:
    Elma GALLOWAY v. Gerald Robert METHVIN.
    No. 4461.
    Court of Appeal of Louisiana. First Circuit.
    June 28, 1957.
    Sam J. D’Amico, Louis D. Curet, Baton Rouge, for appellant.
    Durrett Hardin & Hunter, Baton Rouge, Paul B. Dufreche, Ponchatoula, for appellee.
   LOTTINGER, Judge.

For the reasons assigned in the matter of Methvin v. Roshto, La.App., 96 So.2d 383, the judgment appealed from is affirmed.

Judgment affirmed.


author: ELLIS, Judge.

text:
    Joe DEMARCO v. Mrs. Pearl DUPLANTIS.
    No. 4476.
    Court of Appeal of Louisiana. First Circuit
    June 28, 1957.
    W. S. Rownd, Iddo Pittman Jr., Hammond, for appellant.
    Reid & Reid, Hammond, for appellee.
   ELLIS, Judge.

Plaintiff, alleging himsef to be the true and lawful owner of all that portion of the West Half of the Southwest Quarter of Section 36 T 6 S R 7 E in the Parish of Tangipahoa, which lies south and west of Arnold’s Creek, then alleged that the defendant, pretending to be the owner, had disturbed his possession by erecting a fence on the property and cutting or causing to be cut timber thereon on or about the third or eighth day of December, 1946, and that such acts constituted the disturbance of petitioner’s real and actual possession which he had enjoyed quietly and without interruption, and that less than a year had elapsed since the disturbance occurred, and he, therefore, prayed that his possession be restored and quieted and the defendant be ordered to remove the fence on his property.

Defendant denied any ownership or possession in the plaintiff and set up ownership as well as possession through herself and ancestors in title of the enclosed land, which amounts to approximately seven acres, for a period of over fifty years.

The case was duly tried and judgment rendered in favor of the defendant, ordering plaintiff’s suit dismissed at his cost, from which judgment the plaintiff has appealed.

This case was before this court previously (see 88 So.2d 735) in which it was necessary to decide whether a co-owner could maintain a possessory action. We answered in the affirmative.

On October 19, 1938 plaintiff herein acquired from James M. Leslie an undivided 24/40 interest in the property described as follows:

“That certain tract or parcel of land in Tangipahoa Parish, La., particularly described as bounded on S. by land of Bounderant on west by lands of Benton, on N and E by Arnold Creek containing 25 acre more or less and being in Section 36 T 6 S R 7 E, in said Parish of Tangipahoa, State of Louisiana, and said property having been acquired by vendor partly by purchase and partly by inheritance from his deceased mother Mrs. Mary J. Leslie and acquired originally from heirs of Henry Anderson on June 5, 1905, as per act duly recorded in Tangi-pahoa Parish records of conveyance. This said property is presently described as being bounded North by Quiroga East by Arnold Creek South by Weinberger Road, and West by Property belonging to Joe Demarco, known as the Starr farm and the property herein conveyed consists of all the property between the Quiroga property on the North the Arnold Creek on the East the Weinberger on the south and Starr farm on the west.”

It is the contention of the plaintiff that under this deed he acquired the stated interest in approximately seven acres of land contained in the NW/4 of the SW/4 bounded generally on the East by Arnold’s Creek which, according to the map introduced in evidence enters this quarter section right at the northwest corner. This creek is shown to be very crooked and therefore would bound the disputed land if strictly described on the north and east. It is admitted that plaintiff owns the land to the south in the SW/4 of the SW/4 containing approximately 25 acres, and it is bounded by the same creek which could be described as bounding the 25 acres on the north and east. Plaintiff also owns the land to the west of this section line which is the western boundary of the 25 acres owned by plaintiff and the seven acres claimed to be owned by plaintiff and the subject of this lawsuit.

While the title as such of the plaintiff is not at issue in this possessory action, it is the key to the nature of the possession claimed by plaintiff. Plaintiff claims that his actual, open, corporeal possession of the south 25 acres which it is admitted he owns, together with his intention to possess the whole tract or the seven acres, constitutes possession of the whole. It is readily seen at first glance by reference to the description under which he acquired from James Leslie that the land is described as twenty-five acres more or less, the said property having been acquired by Leslie partly by purchase and partly by inherit-anee from his deceased mother, Mrs. Mary J. Leslie, “and acquired originally from the heirs of Henry Anderson on June 5, 1905, as per act duly recorded in Tangipahoa Parish Records of Conveyance.” Then follows an attempt to precisely describe the property. It is proper that the two descriptions he compared. The deed from the heirs of Henry Anderson, viz., Mrs. Henry Anderson, Mrs. Elizabeth Blomquist et als., to Mrs. Mary Leslie, mother of plaintiff’s author in title, described the property as follows:

“A certain piece of land situated in parish of Tangipahoa, State Of Louisiana, near town of Hammond, described and designated as being bounded on the south by land of Bounderant on west by land of Benton, North and East by Arnold Creek being same property which the said Mrs. Lesslie now resides and has resided for the past 30 years, and being the same property sold by Henry Anderson deceased to Geo. Lesslie deceased, under date of January 13th 1876, and the said Henry Anderson having died before he could make to said George Lesslie a formal act of sale thereto and that they acknowledge that the said George Lesslie had paid said Henry Anderson before his death.”

This deed was executed the 5th day of June, 1905.

On the 31st of December, 1895, we find the heirs of Henry Anderson transferred to each other certain property. Mrs. Eliza Blomquist, the same lady that signed the •deed as an heir of Mrs. Henry Anderson to Mrs. Mary Leslie in 1905, in this deed acquired the NW/4 of SW/4 of Section 36 T 6 S R 7 E, containing forty acres. We also find in this deed that Mrs. Mary A. Anderson, who was Mrs. Henry Anderson, acquired “the north 15 acres more or less of S.W.4 of S.W.4 of Section 36 T 6 S R 6 E South of the land sold and apportioned to Mrs. Blomquist & north of the land of G. G. Leslie * * (Emphasis added.)

The second description shown in' the deed from Leslie to plaintiff is in absolute conflict with the description of the land transferred in the deed just mentioned, for by the second description, the land transferred by Leslie to plaintiff would be bounded on the north by Quiroga and it is shown that the Quiroga property touched or joined the property in dispute only at the northwest corner. The 25 acres which plaintiff acquired the undivided interest in from Leslie had never been described previously as being bounded on the north by Quiroga.

If this were a petitory action a further analysis of the descriptions in previous deeds would be most pertinent and necessary, and although - there is an apparent clash between the description which refers to the deed executed on the fifth day of June, 1905 and description No. 2, added for the first time in the deed whereby plaintiff acquired his undivided interest, we will consider plaintiff’s contention as if the deed covered the seven acres in question.

The District Court decided that plaintiff had not shown possession of the land in question but on the contrary the defendant had shown actual possession of the land through the acts of her predecessors in title, viz., her father.

It is shown that the defendant’s father did put fences across the property in dispute, at one time had a tenant house on it, a well which he had dug himself and these tenants had grown a garden on the property. It is true that the fences had fallen from age. In addition, the testimony shows that the plaintiff never thought he even owned this 7 acres and if he did not believe this, he had no intention of possessing it under his title. An intention to possess the whole is absolutely necessary where one claims that actual possession of a part constitutes possession of a whole where such possession is intended to cover the whole. Witnesses were produced by the defendant which the lower court evidently believed that the plaintiff had attempted to buy this seven acres of land from the defendant on approximately five different occasions. Plaintiff had never attempted to fence the seven acres of land or do anything with it, yet, he had cattle and a need for the property, and he had the balance of his property under fence with improvements built thereon. We agree with the lower court that the plaintiff never believed that he owned the seven acres of land and never intended to possess it.

For the above and foregoing reasons the judgment of the district court is affirmed.


author: GLADNEY, Judge.

text:
    V. O. WALTERS, Plaintiff-Appellee, v. John C. KREPAK, Defendant-Appellant.
    No. 8663.
    Court of Appeal of Louisiana. Second Circuit.
    June 28, 1957.
    Rehearing Denied July 25,1957.
    Writ of Certiorari Denied Oct. 8, 1957.
    Philip Goode, May & Woodley* Shreve^ port, for appellant.
    Love & Rigby, Shreveport, for appellee.
   GLADNEY, Judge.

The plaintiff, V. O. Walters, as the owner of the East 47 feet of Lot 29 of the Cres-well Subdivision of Shreveport, instituted this, a petitory action, alleging John C. Krepak, defendant, is in physical possession of a strip of land on the East side of his property, .95 feet in width, beginning at his Southeast corner and running approximately % of the length of said property along his East property line. The defendant admitted physical possession of the property in dispute but denies plaintiff has any title thereto. Upon the issues thus presented, the trial was had with judgment in favor of plaintiff. From this decree the defendant has appealed.

The question thus presented is simply whether or not the small area in dispute is encompassed within the title of plaintiff, who has offered evidence to show conclusively that he is the owner of the East 47 feet of Lot 29. The issue is concerned with the proper location of the East line of plaintiff’s property, which in turn, is the West line of the defendant, who owns Lot 30 of the Creswell Addition, or Cres-well Subdivision.

In support of his claim appellee has tendered in evidence a plat drawn by George E. Dutton, a registered surveyor, bearing date of November 23, 1955, wherein he locates the Southeast corner of plaintiff’s property (the Southwest corner of defendant’s property) one foot East of the corner claimed by defendant to be the true location of said corner. To confirm defendant’s position a plat has been offered in evidence dated February 1, 1956, and bearing the signatures of Jessie C. McLemore, Van A. Barnett and Ben E. Ramsey, all qualified and registered surveyors. Also found in the record is a photostatic copy of the original plat of the Creswell Addition as prepared by F. P. Leavenworth, surveyor, of date of October 26, 1871, which represents the Creswell Subdivision as originally drawn and recorded. In general, this plat subdivides a plot of ground into thirty lots. Lots numbered 1, 2, 3, 4 and 5 face Eastward on Fairfield Avenue and Lots numbered 16, 17, 18, 19 and 20 face West toward Southern Avenue. Lots numbered 6 through IS face Julia Street (now Eustis Street) to the North and Lots numbered 21 through 30 face Ada Street (now Prospect Street) to the South. West of and adjacent to the lots facing Fairfield Avenue is a 20-foot alley which runs between Eustis and Prospect Streets and similarly to the rear of the lots facing Southern Avenue there is a 20-foot alley between the same two streets.

The two properties involved in this suit face Prospect Street with Lot 30 adjacent to the alley in the rear of Lots numbered 1 to 5, inclusive. Lots numbered 6 through 30 are recorded as measuring 97.S feet frontage with a depth of 122 feet. The depth of the lots facing Fairfield Avenue and Southern Avenue is not delineated on Leavenworth’s plat. Because of the age of this subdivision, most of the property has been improved and no doubt some of the lots have been surveyed on more than one occasion.

It is also shown by the record plaintiff’s property was surveyed by A. A. Lyons on April 29, 1939, and his plat thereof is found in the record. It should be noted, however, that Lyons surveyed and his plat delineates the East one-half of Lot 29, which he records as having a width of 48.75 feet, whereas the title of Walters at that time embraced only the East 47 feet of Lot 29.

The plat of McLemore, Barnett and Ramsey of February 1, 1956, reproduces the entire plat of the original subdivision by Leavenworth, but reflects also actual measured distances towards the East from the Southwest corner of Lot 20, which also is a corner at the intersection of Southern Avenue and Prospect Street. For the purpose of recordation on the plat, this corner is indicated as Station O and proceeding to the East is recorded the true East-West dimensions of the lots, the returns of both alleys, the returns of the curbs of each alley, and the monuments or iron pins encountered along Prospect Street between Lots 21 and 22, 22 and 23, 23 and 24, 24 and 25, 26 and 27, 28 and 29, 29 and 30. Also recorded is an iron pin located near the middle of Lots 28 and 29. The improvements of driveways, fences, etc., are shown on the Dutton survey but are not reflected on the plat of February 1, 1956.

In attempting to discover the true East line separating the property of Walters and Krepak, Dutton testified his original starting point was an iron pin found near the Southeast corner of Walters’ property. This iron pin or the point referred to, is reflected on the plat of McLemore, et al. of February 1, 1956, as being Station 10 + 40.8, distant 1040.8 feet from Station O at the corner of Prospect and Southern Avenue.

Dutton testified, and also shows on his plat, the distance from the Southeast corner of Lot 29 to the West curb of the alley which adjoins Lot 30 on the East to be 99 feet. His map also shows an iron pin 2.6 feet West of the point affixed by him on the curb as being the Southeast corner of Lot 30. Dutton’s map also shows a cyclone fence built by Krepak .95 feet West of a monument or pin determined by him to represent the Southeast comer of Lot 29 and the Southwest corner of Lot 30. It is apparent from the testimony of Dutton, proof of the Southeast corner of Lot 29 or the Southwest corner of Lot 30 as fixed by him is dependent upon his testimony that the East line of Lot 29 forms a true 90° angle with the South line of Lots 29 and 30, but this is a non sequitur. Dutton’s plat also shows that from the East curb of the alley adjacent to Lot 30 to the pin at Fairfield Avenue (Station 13 + 72 on the McLemore, et al. plat), there is a distance of 212.3 feet. The same measured distance is represented on the plat of McLemore, et al. as 212.2 feet. The original plat of Leavenworth does not record the distance of the South line of Lot 5. As evidentiary-proof of his starting point Dutton testified that he measured from the Southeast corner of Lot 29 to the Northeast corner of Lot 29 and this line makes a true 90° angle with the South line, and further, that in measuring Easterly from said Southeast corner of Lot 29 to the West curb of the alley, Lot 30 would have a width of 99 feet. All surveyors agreed on the Northeast corner of the Lot 29. The record nowhere informs us where the angle of 90° has any significance. McLemore, et al. determine the same angle to be 89° 58". The angle is not computed on Leavenworth’s plat, nor is there any proof by Dutton of the location of the West and East curbs of the alley on the East side of Lot 30. The curb returns are simply assumed as there is no evidence to show a relationship between these points and the original survey of Leavenworth. Dutton testified his location of the Southeast corner of Lot 29 is predicated on the curb returns. He fails to explain the exact distances between the line established by him as the East line of Lot 29 and the various subdivision markers of the lots to the West along Prospect.

In proceeding East along Prospect Street from Station O at Southern Avenue, McLemore, et al. located pins in place at Stations 1 + 42, 2 + 59.2, 3 + 57.2, 4 + 54.7, 5 + 52.4 and 7 + 47.4. The plat establishes as curb returns on the alley East of the lots facing Southern Avenue: Station 1 + 47.9 as the back of the West curb and Station 1 + 63.9 as the back of the East curb of the alley. It is observed the Southeast corner of Lot 20, Station 1 + 42, is 5.9 feet West of the West curb return and the width of the alley between curbs is only 16 feet, whereas the alley was assigned a width of 20 feet on the original map of the subdivision by Leavenworth. The stations above listed designate the location of pins at corners on the South line of the following lots: 1+42, between Lot 20 and the alley; 2 + 59.2 between Lot 21 and Lot 22; 3 + 57.2 between Lots 22 and 23; 4 + 54.7 between Lots 23 and 24; 5 + 52.4 between Lots 24 and 25, and 7 + 47.4 between Lots 26 and 27. All of the pins so designated accord the correct frontage of 97.5 feet to the lots so concerned. Station 7 + 47.4 is .2 foot East of its correct position. The next corner pin in line from Station 7 + 47.4 was located at Station 9 + 43.7 near the corner between Lots 28 and 29. This station is 196.3 feet East of Station 7 + 47.4 or 197.5 East of the corner between Lots 26 and 27. This pin which should be 97.3 feet East of Station 7 + 47.4 is therefore 1.5 feet too far East and shorts Lot 29 to that extent. A pin was found at Station 10 + 39.8, only 96.1 feet East of Station 9 + 43.7. By locating the Southeast corner between Lots 28 and 29 one and one-half feet farther West, Lots 27 and 28 would each have their proper frontage of 97.5. Also it would follow that Lot 29 would have a frontage of 97.6 which nearly equals the true 97.5. However, by accepting the corner used by Dutton as the Southeast corner of Lot 29, that lot’s width would be 98.6 feet or about one foot in excess of its rightful distance. Continuing East a pin was found at Station 11 + 37.2 corresponding to'the true Southeast corner of Lot 30 and is 97.4 East of the McLemore et al. corner at Station 10 + 39.8 but the Dutton corner at Station 10 + 40.8 would give Lot 30 a width of only 96.4 feet. It seems clear, therefore, the pins found along Prospect Street, with exceptions of Station 9 + 43.7 and Dutton’s corner Station 10 + 40.8 tie in well with the original survey of Leavenworth.

The trial judge in written reasons for his decision, says that to accept the Mc-Lemore et al. line, and not accept the Dut-ton line as a dividing line between the two disputants would require plaintiff to remove 1014 inches of his concrete driveway. This inference appears to us to be incorrect. Furthermore, the court in supporting the surveys of Lyons and Dutton reasoned that Walters’ garage is four feet West of his East line and his house is 12^4 feet from that line. Another reason given is that the Dutton line will maintain all of the lot owners in their present positions and will leave Krepalc with more land between the Dutton line and the curb than the map shows he is entitled to. In conclusion, the court states that it understands there is a city ordinance that requires improvements to be placed four feet from the property line.

The only difference in the conclusions reached is that Dutton adds the West 2.6 feet of the alley to Lot 30, predicating his finding on the curbs as a proven boundary. McLemore et al. locate the curbs 2.6 feet East of the corners of the alley, predicating the findings on the true alley returns. By accepting Dutton’s map and findings, the defendant would have a lot 96.4 feet in width instead of the 97.5 feet his title calls for. By accepting McLemore’s findings with Station 9 + 42.2 as the Southwest corner of plaintiff’s lot, plaintiff has the full measured 47 feet called for in his title between said station and Station 10 + 39.8 as established by McLemore. If we read Dutton’s map and testimony as recorded in the record, there is nothing to dispute the identity of Station 9 + 42.2. The only person shorted in Lot 29, if the pin found at Station 9 + 43.7 should be recognized, would be the owner of the West part of Lot 29. McLemore’s plat indicates the true Southwest corner of Lot 29 should be 1.5 feet East of Station 9 + 43.7. If this is true, then the neighbor of plaintiff on the West would receive his full share of the property.

We, therefore, are of the opinion that there is manifest error in the ruling of the trial court in which it determined the East line between Lots 29 and 30 of the Creswell Addition to be as found by Dutton. The true line, we think, should be one foot West of said point as designated Station 10 + 39.8 on the plat of McLemore, et al., dated February 1, 1956.

It follows from our findings, therefore, that the judgment from which appealed should be, and is hereby reversed and it is now ordered, adjudged and decreed that there be judgment rejecting the demands of plaintiff at his cost.


author: AYRES, Judge.

text:
    Mrs. Claudia Beth Williams STEPHENS, Plaintiff-Appellant, v. NATCHITOCHES PARISH SCHOOL BOARD, Defendant-Appellee.
    No. 8692.
    Court of Appeal of Louisiana. Second Circuit.
    June 28, 1957.
    Rehearing Denied July 25, 1957.
    Writ of Certiorari Denied Oct. 8, 1957.

      Watson & Williams, Natchitoches, Booth, Lockard, Jack & Pleasant, Shreveport, for appellant.
    Gahagan & Gahagan, H. L. Hughes, Natchitoches, for appellee.
    Jack P. Gremillion, George M. Ponder, Harry Fuller, Baton Rouge, amici curiae.
   AYRES, Judge.

This is an action in tort, instituted by plaintiff individually and for the use and benefit of her minor son for the recovery of damages allegedly due for the death of Searcy B. Stephens, her husband and father of the child, who was killed in an accident in Natchitoches Parish, Louisiana, involving his automobile and a school bus owned by defendant School Board and operated by its employee, Sheppard Morris.

This appeal is from a judgment which maintained defendant School Board’s exception of no cause and of no right of action.

The trial court gave as its reason for its judgment, that the consent of the State originally granted to plaintiff to institute this action by reason of House Bill No. 113 of the Regular Session of the Legislature of the State of Louisiana for the year 1956, has been withdrawn by Act No. 613 of said session, which was subsequently adopted as a Constitutional amendment in November, 1956. LSA-Const. art. 19, § 26.

The School Board for an affirmance of the judgment, in addition to its reliance upon the exception sustained by the trial court, contends that House Bill No. 113 was never enacted as a law and in the alternative, if it was, it is unconstitutional, and urges its plea of one year prescription.

The defense that House Bill No. 113 was never enacted into law is predicated upon the fact that it was vetoed by the Governor and never thereafter passed over his veto. This bill was in the nature of a resolution adopted by both House of Representatives and the Senate. LSA-Const. Art. Ill, Section 35, provides in part:

“Whenever the Legislature shall authorize suit to be filed against the State it shall provide the method for citing the State therein and shall designate the court or courts in which the suit or suits authorized may be instituted and may waive any prescription which may have accrued in favor of the State against the claim or claims on which suit is so authorized.”

This Constitutional provision makes no express reference to the necessity of any action by the Governor. The jurisprudence appears to have been well established, under the aforesaid article of the Constitution empowering the Legislature to authorize the institution of suit against the State, that the right is vested in the Legislature and not in the Legislature with the approval of the Governor, and further that the Legislature may without attempting to pass a general or special law, pass a joint resolution effective as a consent to the institution of an action against the State, notwithstanding it may have been submitted to and was vetoed by the Governor. Lewis v. State, 1945, 207 La. 194, 20 So.2d 917; Jefferson Lake Sulphur Company, Inc. v. State, 1947, 213 La. 1, 34 So.2d 331; Preuett v. State, La.App., 1953, 62 So.2d 686. See: “Notes. Constitutional Law — Action Against the State”, 9 Louisiana Law Review 289.

Inasmuch as parish school boards are agencies of the State as the administrators of a system of public education, their status with reference to immunity in actions sounding in tort is the same as the State itself. Floyes, for Use and Benefit of Floyes v. City of Monroe, La. App., 1939, 194 So. 102; Whitfield v. East Baton Rouge Parish School Board, La.App., 1945, 23 So.2d 708; Mire v. Lafourche Parish School Board, La.App., 1952, 62 So.2d 541; Horton v. Bienville Parish School Board, 4 La.App. 123.

However, such immunity to actions in tort may be waived as to such agencies by appropriate legislative action. Such was accomplished by the passage of House Bill No. 113. An action for damages was predicated upon a similar legislative authority in Steer v. Orleans Parish School Board, La.App., 1957, 92 So.2d 128. Therefore, we find no merit in defendant’s contention that no legislative authority was conferred upon plaintiff for the institution and prosecution of this action.

The constitutionality of House Bill No. 113 is attacked upon the ground that such enactment confers upon plaintiff a special or exclusive right, privilege and immunity contrary to the prohibition contained in LSA-Const. Art. IV, Section 4. This contention is likewise without merit. A statute authorizing a particular individual to sue that State or one of its agencies on a claim is not subject to the objection of this section that it grants a special right of privilege, as it adds nothing to its rights, simply giving him permission to have such rights judicially determined. Carter v. State, 49 La.Ann. 1487, 22 So. 400.

We also fail to find any merit in defendant’s plea of prescription. In Cox v. Louisiana Department of Highways, La.App., 1942, 11 So.2d 409, 412, where a statute authorizing a suit against an agency of the State provided no limitation within which the suit might be instituted, this court stated:

“The Legislature can designate a forum, limit the time in which the suit must be filed and prescribe any other reasonable restrictions. It is not obliged to give the same time for assertion of rights against the State as that granted for the assertion of rights by one individual against another. The Act alone creates the right of action and any period of limitation fixed by said Act governs.
“Rights once created survive until destroyed by positive law. They do not cease unless a period of limitation is fixed by law and a period of limitation is purely of statutory origin. Without such a statute there is no period of limitation to any right of action. Act 353 of 1940, which created a right of action in plaintiff's favor, did not prescribe a period of limitation. Her right of action against the State Department of Highways is governed solely by said Act and since no period of limitation is fixed by the Act, certainly her right and cause of action have not prescribed.”

In the instant case, however, the bill provided that the action might be filed not later than November 1, 1956. It was filed October 10, 1956. In overruling a similar plea, the Court of Appeal for the First Circuit, in Gilmore v. State, 1955, 79 So.2d 192, 198, stated:

“We further feel that the plain legislative intent of Section 5, Act 164 of 1952 * * * specially authorizing this suit, was to waive limitation periods and permit plaintiff to file suit up through July 1st, 1953, which was timely done.”

It may be additionally noted, too, that under Article III, Section 35 of the Constitution authority is granted to the Legislature to waive any prescription. In this connection it is also noted that under Section 4 of House Bill No. 113 it is provided that the defendant shall not be entitled to urge any plea of prescription barring plaintiff’s claim, provided the action he instituted within the period designated therein.

Finally, for consideration is the question of whether Act No. 613 of 1956, adopted as a Constitutional amendment m November, 1956, withdraws the authority conferred upon plaintiff by House Bill No. 113, to institute and prosecute this suit. The pertinent provisions of the amendment read as follows:

“The consent of the State of Louisiana to suits or legal proceedings against any of the above listed special agencies, (however heretofore given) is hereby expressly withdrawn and no such suit or proceeding shall be permitted except as provided in this section. This withdrawal of consent to suits and legal proceeding shall apply not only to suits and legal proceedings filed in the future but also to any pending suits or legal procedure. There is expressly excepted from the foregoing, suits for the enforcement of contracts entered into by any of the special agencies or for the recovery of damages for the breach thereof. Additionally, the Legislature of Louisiana may, in individual cases, by appropriate act grant to any party showing just and reasonable cause the right to sue any of these special agencies, in compliance with Section 35 of Article III of this Constitution.”

Of particular concern is whether or not the exception emphasized above can be applied to the consent given by the State of Louisiana in House Bill No. 113. While the provisions relative to the withdrawal of consent is concededly very broad, it does not appear to have been the legislative intent that the provisions of the amendment apply to the actions of this character, especially where they have been heretofore authorized by legislative act and particularly where the authorizing act was passed at the same session as the Constitutional amendment was proposed and more particularly in view of the fact that the amendment provided that the Legislature may by appropriate act grant to individuals the right to institute such actions in compliance with the aforesaid Constitutional provisions. Irrespective of the broad and apparently all-inclusive language of Act No. 613 in withdrawing the consent of the State theretofore given, it does not appear that it was intended to nullify bills which were then being currently considered and adopted in the same session of the Legislature. We cannot attribute to the Legislature the intention of doing a vain and useless thing. We cannot conclude it was the intention of Act No. 613 as an amendment to the Constitution to withdraw the consent of the State in an action ex delicto, which consent had theretofore been given by a special act of the Legislature.

Since the adoption of the aforesaid Constitutional amendment, similar cases have been decided in the appellate courts without reference to such an amendment, for example Webb v. State of Louisiana, 1956, 91 So.2d 156, decided by the First Circuit Court of Appeal on November 26, 1956; Steer v. Orleans Parish School Board, 1957, 92 So.2d 128, decided by the Orleans Court of Appeal on January 14, 1957, and Reeves v. State, 232 La. 116, 94 So.2d 1, decided by the Supreme Court on February 25, 1957. Inasmuch as no mention of the amendment was noted in any of these decisions by either counsel or court, it might be concluded, therefore, that the issue was not presented. Such omissions, however, apparently lend some support to our view of the matter that the present action was not, nor was it intended to be, affected by the aforesaid amendment.

For the reasons herein assigned, we find no merit in defendant’s pleas and exception. Accordingly, the judgment appealed is annulled, avoided, reversed and set aside and it is now ordered, adjudged and decreed that the exception of no cause or right of action, the plea of prescription of one year, and the plea of unconstitutionality of House Bill No. 113 be, and the same -are hereby overruled; and that this cause therefore, be and the same is hereby remanded to the Honorable the Tenth Judicial District Court in and for Natchitoches Parish, Louisiana, for further proceedings consistent with the views herein expressed, and in accordance with law.

Reversed, pleas and exceptions overruled and remanded.


author: GLADNEY, Judge..

text:
    Joseph Edward SCHMIDT, Jr., et al., Plaintiffs-Appellees, v. Fred L. COHAN et al., Defendants-Appellants.
    No. 8700.
    Court of Appeal of Louisiana. Second Circuit.
    June 28, 1957.

      Eugene J. Coen, Shreveport, for appellants.
    Brown & Fleniken, James J. Dormer, Shreveport, for appellees.
   GLADNEY, Judge..

This appeal is from a judgment condemning lessees to pay for damages to the premises leased by plaintiffs. From a judgment which awarded plaintiffs the sum of $213, the defendants have appealed.

The petition of Joseph E. Schmidt and his wife, owners of a house and lot identified as Municipal No. 235 Preston Avenue in Shreveport, Louisiana, alleges that on March 21, 1955 a written contract of lease was entered into for a period of one year from April 1, 1955, with Fred L. Cohan and his wife. The agreement stipulated the lessees would upon termination of the lease, restore the leased premises in like good condition as when received, subject to usual wear and tear from prudent use. It is further alleged that at the end of the term of occupancy the premises were not returned in good condition.

Requiring our special interest is a charge of damage to the wall to wall carpet. The trial court rejected claims by plaintiffs for other items, which now are of no concern on this appeal for plaintiffs have neither perfected an appeal from the adverse ruling, nor have they filed an answer to defendants’ appeal.

The defense relies upon an exception of no cause and no right of action and answer in which responsibility for injury to the carpet is disclaimed upon several grounds: first, that there was no damage inflicted; second, the carpet was not a part of the leased premises and not included in the contract of lease; and third, it is averred plaintiffs were aware the defendants had two children and a dog, and by consenting to the rental without stipulating liability for acts of commission, they are estopped to assert such a claim.

That the carpet was delivered in good condition is substantiated by the testimony of plaintiffs, B. F. O’Neal, Jr., the realtor who rented the premises, ajid Mrs. Fred L. Cohan. Proof of injury to the carpet is clearly made out. Charles E. Hammond, Truman Thomas and plaintiffs testified positively there were some eight or ten dog stains found in the carpet. Mr. Hammond, an expert in the care and repair of carpet, testified such stains cannot be removed by any cleaning process, but it would be necessary to cut away and remove the stained areas of the carpet and replace with matched material. He estimated the cost at $213.

The argument advanced by counsel that the carpet did not constitute a part of the leased premises is manifestly untenable, nor is there any merit to the contention defendants should be relieved of any obligation for damages caused by their children and dog. The obligation of the lessees insofar as we deem pertinent to the issues herein raised is set forth in Articles 2719, 2720, 2721, 2722, and 2321 of the LSA-Civil Code, which provide:

Art. 2719:

“If an inventory has been made of the premises in which the situation, .at the time of the lease, has been stated, it shall be the duty of the lessee to -deliver back everything in the same state in which it was when taken possession of by him, making, however, the necessary allowance for wear and tear .and for unavoidable accidents.”
Art. 2720:
“If no inventory has been made, the lessee is presumed to have received the thing in good order, and he must return it in the same state, with the exceptions •contained in the preceding article.”
Art. 2721:
“The lessee is only liable for the injuries and losses sustained through his own fault.”
Art. 2722:
“He is, however, liable for the waste ■committed by the persons of his family, •or by those to whom he may have made a sublease.”
Art. 2321:
“The owner of an animal is answerable for the damage he has caused * * ❖ y

In the instant case no inventory of the property was made, nor was there any stipulation in the lease defendants would not be responsible for proper care of the carpet.

“While, therefore, it is quite true that tenants are not liable except for loss resulting from their negligence, it is quite obvious that the burden of absolving themselves should be placed upon them, particularly when it is not damage by wear and tear that is complained of but the entire absence of some part of the leased premises. In other words, if a tenant seeks to avoid responsibility for the value of some missing part of the leased building, he must show that it was not his negligence that caused the loss. All a lessor need do is to show the loss and at once there is thrown on the tenant the necessity to explain.”

The petition herein sets forth with particularity the stains were made by lessees’ dog, which was permitted to run free in the house. Liability therefor is created by LSA-Civil Code, Art. 2321. If this authority is not sufficient we might add that in our opinion the lessees should be held negligent in allowing the dog to have such unrestricted use of the premises.

We find no error in the judgment from which appealed, and accordingly the same will be affirmed at appellants’ cost.


text:
    Norman Glenn KIHNEMAN, Plaintiff-Appellant, v. LOUISIANA STATE BOARD OF OPTOMETRY EXAMINERS, Defendant-Appellee.
    No. 8703.
    Court of Appeal of Louisiana. Second Circuit.
    June 28, 1957.
    Rehearing Denied July 25, 1957.
    Writ of Certiorari Denied Nov. 12, 1957.

      William J. Kihneman, New Orleans, for appellant.
    Wood H. Thompson, Monroe, for appel-lee.
   AYRES, Judge.

In this action plaintiff sought a writ of mandamus to compel the Louisiana State Board of Optometry Examiners to permit him to take an examination for a license, or certificate, authorizing him to practice optometry in the State of Louisiana, and, in the alternative, to issue him a license with a waiver of examination. From a judgment rejecting plaintiff’s demands he appealed to the Supreme Court and the appeal was transferred to this court. La., 95 So.2d 492.

This appeal presents four questions for solution: First, whether plaintiff is a graduate of a college of optometry approved by the Louisiana State Board of Optometry Examiners as prescribed by LSA-R.S. 37 :- 1049 et seq.; second, in the event plaintiff is not held entitled to take the examination, whether he has the right to require the Board to issue him a license to practice optometry by waiver of the requirement for examination; third, whether that part of the statute encompassed in LSA-R.S. 37 :- 1049, which requires all applicants to be graduates of a school or college of optometry appproved by the Louisiana State Board of Optometry Examiners, is constitutional; and, fourth, whether the Louisiana State Board of Optometry Examiners had discriminated against plaintiff.

Plaintiff enrolled as a student in the Monroe College of Optometry in Chicago, Illinois, September 26, 1946, and graduated March 26, 1948, or after eighteen months of college work, following which he took an examination before the Illinois State Board of Optometry and was granted a license to practice optometry in that State. On returning to Louisiana plaintiff made application to the Louisiana State Board of Optometry Examiners to take an examination, through which he might be authorized and licensed to practice his profession in this State. Plaintiff’s application was rejected and he was refused permission to take an examination on the ground that he was not a graduate of a school or college of optometry approved by the Board. The questions presented for determination will be-considered in the order enumerated.

The evidence in the record conclusively establishes that at the time plaintiff enrolled in the Monroe College of Optometry the college was not only not on defendant’s approved list and did not have its approval, but that the college and its course of study had been, in fact, disapproved by the Board. The college, however, had previously been on the Board’s approved list but by action of the Board in 1942 such approval had been withdrawn and neither the college nor its course of study met the Board’s approval thereafter. Appropriate notices were given to the college and, through it, to all persons concerned, of the Board’s action in removing the college from its approved list. It was particularly stated in the notice given that the Board did not approve the course of only two years study pursued at the college and would not permit a graduate of such a course to take the examination in Louisiana. One of the qualifications and requirements of applicants for license to practice optometry in Louisiana is that such applicant must he graduated from a school or college of optometry approved by the Board. LSA-R.S. 37:1049. Therefore, as the college from which plaintiff graduated was not approved by the Louisiana State Board of Optometry Examiners, the Board was without statutory authority to permit plaintiff to take the examination.

The second of the propositions submitted for determination is fully answered by the provisions of LSA-R.S. 37:1054 of the statute, which provides that:

“The board may waive the examination provided in R.S. 37:1051 if the applicant presents to the board a satisfactory certificate of registration from a board of optometry examiners of another state, and if the standard of requirements adopted and enforced by such board is equal to that provided in this Chapter(Emphasis supplied.)

In the first place, the authority conferred by this section is not mandatory upon the Board but is only discretionary, and, in the second place, the record not only fails to establish that the standard of requirements adopted and enforced by the Illinois State Board of Optometry is equal to that provided for in Louisiana, but that such requirements fail to meet the requirements enforced in this State. In Illinois plaintiff was permitted to take an examination only after attending an optometry college for a period of eighteen months, whereas here the Board required as a condition precedent to its recognition and placement on its approved list that a college of optometry should have a four-year course. That requirement has since been increased to five years. No contention is made that such requirement for an accredited approved college training course is arbitrary and unreasonable. Plaintiff has shown nothing more than that he is a graduate of a school of optometry after pursuing a course of eighteen months study. It therefore follows that the license of registration obtained by plaintiff in the State of Illinois, based upon his graduation from such college, is not of equal standard to that required by the regulations of the optometry board of this State, and, therefore, the Board is without authority to waive the required examination.

In Louisiana Board of Pharmacy Examiners v. Smith, 226 La. 537, 76 So.2d 722, it was held that under a statute providing that the State Board of Pharmacy may, in its discretion, grant reciprocal registration to registered pharmacists of other states who show evidence of having had the education and training required by the laws of this State at the time of registration in such other state, the Board was without legal authority to grant reciprocal registration to a pharmacist in the absence of evidence that ■the school from which he graduated is, or was, an accredited school as required by the laws in force in this State at the time of his registration in such other state. On this point all the applicant was able to produce was a certificate showing that he had completed a course in pharmacy in a correspondence school not shown to be an accredited college pharmacy or a Department of Pharmacy of a university recognized by the Board of Pharmacy of Louisiana. For the same reason the Board in the instant case properly refused to grant applicant a license to engage in the practice of optometry in this state by waiver of the required examination.

Plaintiff next contends that Section 1049 of the statute is unconstitutional, null and void as constituting an unlawful delegation of power to the Louisiana State Board of Optometry Examiners and as depriving him of his property without due process of law and of the equal protection of the law in violation of the Fourteenth Amendment to the Constitution of the United States and of Article I, Sections 1, 2 and 6 of the Constitution of Louisiana, LSA. The authority for the regulation of the practice of medicine in all its departments and for the protection of the people from unqualified practitioners thereof is conferred upon the Legislature by Article VI, Section 12 of the Constitution of Louisiana. Similar objections made to the Medical Practice Act were overruled by the Supreme Court in Louisiana State Board of Medical Examiners v. Fife, 162 La. 681, 111 So. 58, 54 A.L.R. 594, and the statute regulating such practice was held constitutional. The rules therein pronounced have been uniformly followed. For instance, in Louisiana State Board of Medical Examiners v. Beatty, 220 La. 1, 55 So.2d 761, 763, the court held there could be no denial of the fact that the regulation of the practice of medicine was within the police power of tíre State. The court also stated that the practice of optometry falls within the Medical Practice Act and that optometrists would be amenable to its provisions but for the exemption which the Legislature has seen fit to grant them when they are legally licensed to practice within their particular field. With reference to the objections raised as to the validity of the statute, such as were the objections made here, the court continued by saying:

“Likewise without substance is the claim that the Act confers arbitrary powers on the Medical Board and thus denies equal protection. The alleged arbitrary powers of the Board are said to be contained in Section 2 of the Act-declaring that, before any person may enter upon the practice of medicine, he shall present to one of the Boards of Medical Examiners ‘a diploma from a college in good standing, of any sect teaching medicine or the healing art, and shall stand a satisfactory examination * * * It is asserted that, since the Medical Board is given the right of determining what is or what is not a 'college in good standing’, the statute vests in it arbitrary power which may be, and actually has been, exercised in the interest of a favored few.
“The identical contention of appellants was rejected by the Supreme Court of the United States in Graves v. State of Minnesota, 272 U.S. 425, 47 S.Ct. 122, 71 L.Ed. 331. The provision that the applicant present a diploma from a college in good standing does not clothe the Board with an arbitrary power but only with the right to exercise discretion; what is or what is not a college in good standing is a matter for determination by the Board after investigation but, should it refuse an examination to an applicant presenting a diploma from a reputable medical school, its action would then be regarded as arbitrary and subject to coercion by mandamus. The possibility of arbitrary action, where discretion is vested in an administrative body, does not render the statute vulnerable to the charge that it denies an equal protection of the laws, 12 Am.Jur. ‘Constitutional Law’ Sec. 494, Engel v. O’Malley, 219 U.S. 128, 31 S.Ct. 190, 55 L.Ed. 128.
******
“Finally, counsel assert that the Act takes from appellants their constitutional right to practice their profession without due process of law. In making this contention, counsel admit that the State has the right to regulate the practice of medicine but they say that the regulations imposed by the Act and its administrators are arbitrary and unreasonable and, therefore, strip them of their property right to practice chiropractic.
“That this statute does not violate the due process clause of the state and federal Constitutions has already been determined by this Court and the Supreme Court of the United States in the Fife case [162 La. 681, 111 So. 58, 54 A.L.R. 594; Id., 274 U.S. 720, 47 S.Ct. 590, 71 L.Ed. 1324], In truth, the argument now made on this score is not in reality grounded on the due process clause but is a rehash of the same contention made under the asserted denial of equal protection of the laws.”

In State v. Rones, 223 La. 839, 67 So.2d 99, it was held that the practice of optometry, which, by its very nature, is closely related to the public health and welfare, is subject to governmental regulation by the Legislature under its police power.

Similar rulings were made in Semler v. Oregon State Board of Dental Examiners, 294 U.S. 608, 55 S.Ct. 570, 571, 79 L.Ed. 1086, wherein it was stated:

‘‘The question is whether the challenged restrictions amount to an arbitrary interference with liberty and property and thus violate the requirement of due process of law. That the state may regulate the practice of dentistry, prescribing the qualifications that are reasonably necessary, and to that end may require licenses and establish supervision by an administrative board, is not open to dispute. Douglas v. Noble, 261 U.S. 165, 43 S.Ct. 303, 67 L.Ed. 590; Graves v. State of Minnesota, 272 U.S. 425, 427, 47 S.Ct. 122, 71 L.Ed. 331, [334], The State may thus afford protection against ignorance, incapacity and imposition.”

The trend in this line of jurisprudence was emphasized in Williamson v. Lee Optical of Oklahoma, 348 U.S. 483, 75 S.Ct. 461, 464, 99 L.Ed. 563, wherein the United States Supreme Court stated:

“The day is gone when this Court uses the Due Process Clause of the Fourteenth Amendment to strike down state laws, regulatory of business and industrial conditions, because they may be unwise, improvident, or out of harmony with a particular school of thought.”

It was early held by the Supreme Court of Louisana in Allopathic State Board of Medical Examiners v. Fowler, 50 La.Ann. 1358, 24 So. 809, that:

“Whenever the pursuit of any particular occupation or profession requires for the protection of the lives or health of the general public, skill, knowledge and other personal attributes or characteristics in the person pursuing it, the general assembly has the power and authority to have recourse to proper measures to ensure that none but persons possessing these qualifications should pursue it. A statute to that effect is not open to attack as depriving citizens of their right to earn a living. The right to practice medicine is not an absolute natural right, but a right or privilege to be exercised under conditions and limitations regulated by legislative authority.
“The general assembly, having the authority to require as a condition precedent to the right or privilege of any one to practice medicine in Louisiana, that he should be subjected before doing so to a prior examination as to his qualifications, and found and declared worthy and qualified, it has the right to select the particular agency to whom should be delegated that duty. Courts can not control that selection. * *
“The recognition by the constituted authorities of another state that a person was properly qualified to practice medicine, and that the medical college whose diploma he presented as evidence of that fact was a medical college in good standing, does not carry with it a vested right in the party to practice medicine in Louisiana. Each state acts independently of the other in this matter.”

The conclusion is therefore inescapable that the statute whose constitutionality is attacked by plaintiff meets the tests of the objections and is constitutional, legal and valid.

Lastly, plaintiff contends that the Board has discriminated against him. This claim is predicated upon the fact that in prior instances the Board had granted licenses to two other graduates of the Monroe College of Optometry while denying to him the same right. The record clearly disproves the contention of ' discrimination. The college prior to 1942 was on the approved list of the Louisiana State Board of Optometry Examiners. It was during that period that the two were permitted to take the examination and were licensed to practice optometry in Louisiana. It is therefore clear that, since the college had not been disapproved when those two graduated, they were authorized to take the examination prescribed by the statute. However, when plaintiff enrolled at the college it was not on the approved list of the Board. Neither was it on the approved list when he graduated or when he made application to take the examination in Louisiana.

It is a matter of common knowledge that in all professions for many years there has been a tendency to raise the standards by increasing entrance requirements and expanding courses of study. Plaintiff’s dilemma stems from the fact that when he tendered his application for examination to practice optometry in Louisiana the requirements for admission to practice had been raised. Merely because others, at a prior time, under lesser requirements, were admitted to the profession is no reason why plaintiff and others similarly situated should now be relegated to the prior and lower standards for admission which have been discarded for higher admission requirements.

Neither does plaintiff have any cause for complaint that those licensed under prior requirements are granted a renewal license annually. That formality is no more that a ministerial act after the initial licenses were granted. Similar licenses are required in other professions, such as the legal and medical professions, and have no bearing upon the initial qualifications as prerequisite to the issuance of licenses to practice in those professions.

We find no error in the judgment appealed and, accordingly, it is affirmed at appellant’s cost.

Affirmed.