text:
    LOUISIANA STATE BOARD OF MEDICAL EXAMINERS v. L. L. CRAFT.
    No. 4344.
    Court of Appeal of Louisiana. First Circuit.
    Feb. 4, 1957.
    Rehearing Denied March 25, 1957.
    Adams & Reese, New Orleans, Wood & Jackson, Leesville, for appellant.
    Jack L. Simms, Leesville, for appellee.
   ELLIS, Judge.

Plaintiff filed this suit in which it sought to enjoin the defendant from the alleged practice of medicine as defined by LSA-R.S. of 1950, Title 37, Section 1261. Judgment was rendered in favor of the defendant dismissing plaintiff’s suit from which an appeal was perfected to this court.

The learned judge of the District Court has favored us with an exhaustive and interesting opinion covering the law, a discussion of practically all prior jurisprudence and the facts, with which we are in complete accord and, therefore, adopt his reasons for judgment. We will discuss, after quoting the lower court’s reasons, the objection and criticism to these reasons as set forth in the brief of the plaintiff.

“Alleging that defendant is holding himself out to the public as being engaged in the business of diagnosing, treating, curing or relieving bodily or mental diseases, conditions, infirmities, deformities, defects, ailments and injuries in human beings other than himself, and is examining such persons for such purpose and is prescribing and administering external treatment to such persons for such purpose, which acts, it alleges, constitute the practice of medicine as defined by [LSAjR.S. 37:1261, plaintiff seeks injunctive relief, under [LSAjR.S. 37:1286, prohibiting such acts on the part of defendant, and the recovery of $100 penalty and $50 attorney’s fees, provided by the same Section.

"The rule nisi was issued April 19, 1956, and made returnable on June 4, 1956.

“Defendant answered the petition on May 8, 1956. Other than admitting the authority of plaintiff to bring the suit and that defendant has obtained no certificate or permit to practice medicine, as required by [LSAjR.S. 37:1270, the answer generally denied the material allegations of plaintiff’s petition.

“When the trial of the rule nisi was called for hearing on June 4, 1956, it was stipulated that the answer filed be considered both as an answer to the rule and to the merits and that the trial be had both on the rule and the merits, so that if an injunction should be issued, it be in the form of a permanent one.

“The case was submitted without argument or the filing of briefs, but from the evidence adduced by the respective sides it seems clear that while plaintiff contends that the labors performed by defendant were those of a chiropractor, hence, under the jurisprudence they constitute the practice of medicine, as the term is defined by' [LSAjR.S. 37:1261, defendant contends; that he does not practice chiropractic and does not hold himself out to the public as-being engaged in the business of diagnosing,, etc., the other things which the petition alleges he was doing, his labor consisting solely of those of a masseur, such as the Court of Appeal, Second Circuit, in [Louisiana] State Board of Medical Examiners v. Martindale, 83 So.2d 544, held not to be subject to the Medical Practice Act.

“The Court is aware that it is usually considered to be the best form, in writing legal opinions, to first relate the facts upon which the opinion Í9 based, and then to apply the applicable law to those facts, but in this particular case, because the evidence of both sides is so obviously directed toward attempting to bring the case under a particular interpretation of the law, it seems more logical to first discuss the law, The Medical Practice Act, as now embraced in Title 37, Sections 1261 et seq. of the 1950 [LSA] Revised Statutes, and the jurisprudence insofar as it concerns the issues involved in this case.

“Section 12 of Article VI of the present Constitution [LSA] directs the Legislature to provide for the protection of the people from unqualified practitioners of medicine. Similar provisions are to be found in the Constitutions of 1879, 1898 and 1913.

“The State has had many different Acts dealing with the practice of medicine, Act 320 of 1855, Sections 66 and 67 of the Revised Statutes of 1856, Act 114 of 1869, Sections 2677-2685 of the Revised Statutes of 1870, Act 31 of 1882, Act 55 of 1886, Act 49 of 1894, Act 244 of 1908, Act 16 of 1912, Act 56 of 1914.

“Pursuant to the constitutional mandates subsequent Legislatures passed various Medical Practice Acts, namely: Act 31 of 1882, Act SS of 1886; Act 49 of 1894; Act 244 of 1908; Act 16 of 1912; Act 56 of 1914, and Act 54 of 1918, the latter two being the source of the present law, which is now Title 37, Sections 1261 et seq. of the 1950 [LSA] Revised Statutes. Even prior to the constitution of 1879, the Legislature had passed a number of Acts on the subject, see Act 320 of 1855 (Sections 66 and 67 of the Revised Statutes of 1856), Act 114 of 1869 (Sections 2677-2685 of the Revised Statutes of 1870).

“I;n a study of the question of what acts constitute the ‘practice of medicine’, as that term is defined by the present law, [LSA] R.S. 37:1261, as taken from Section 9 of Act 54 of 1918, it is important to note the difference between the definition of that term, as contained in the present Statute, and that as contained in Section 13 of Act 56 of 1914.

“Section 13 of Act 56 of 1914 reads as follows:

“ ‘Any person shall be regarded as practicing medicine within the meaning of this Act who shall append the letters M.D. or M.B. to his or her name, or shall prescribe, direct, or apply, or shall profess or publicly advertise that he prescribes, directs or applies for the alleged purpose of treating, curing or relieving any bodily or mental disease, infirmity, deformity, defect, ailment, or injury in any person other than himself, any drug, instrument, or force, whether physical or physic, or of whatever nature, or any other agency or means, or who shall examine any such ,'person for such purposes; whether such drugs, instrument, force or other agency or "means is to be applied or used by the patient or..by any other person ; and whether such prescribing, directing, or applying, be for compensation of any kind or be gratuitous; and any officer of agent, or employee or member of any corporation association or partnership which does or professes or publicly advertises that it does examine for, cure, treat, or relieve such diseases, ailment, deformities, defects, injuries or infirmities, in any of the modes mentioned in this section shall be regarded as practicing medicine under the provisions of this Act.’

“Section 1261 of Title 37 of the 1950 [LSA] Revised Statutes, taken from Section 9 of Act 54 of 1918, reads as follows:

“ ‘As used in this Part, “the practice of medicine, surgery, or midwifery” means the holding out of one’s self to the public as being engaged in the business of diagnosing, treating, curing, or relieving any bodily or mental disease, condition, infirmity, deformity, defect, ailment, or injury in any human being other than himself whether by the use of any drug, instrument or force, whether physical or psychic, or of what other nature, or any other agency or means; or the examining either gratuitously or for compensation, of any person or material from any person for such purpose whether such drug, instrument, force, or other agency or means is applied or used by the patient or by another person; or the attending of a woman in childbirth without the aid of a licensed physician, surgeon or midwife; or the using of any other title other than optician, to indicate that he is engaged in the business of refracting . or fitting glasses to the human eye.’

“Comparison of the two definitions, as contained in the Statutes above quoted, renders it obvious that, whereas, under the former Statute, Section 13 of Act 56 of 1914, the acts constituting the practice of medicine could be both, the holding one’s self out as treating, curing, etc., and the actual treating, etc., under the definition contained in the present law, [LSA] R.S. 37:1261 et seq., the actual diagnosing, treating, etc., are not the acts that constitute the practice of medicine, but it is ‘the holding one’s self out to the public as being engaged in the business of diagnosing, treating/ etc., that constitutes that practice.

“Section 1289 of Title 37 provides criminal penalties for the violation of the Medical Practice Act. Could one be convicted, under that Statute ‘diagnosing, treating’, etc. ? No, because the crime is not diagnosing, treating, etc., without having first obtained a permit, it is ‘holding out one’s self to the public as being engaged in the the business of diagnosing, treating, etc.,

“Under the gambling Article, 90 of the Criminal Code [LSA-R.S. 14:90], the crime is the ‘conducting * * * as a business, of any game’. It is not the act of gambling. That article does not prohibit gambling of the individual. It prohibits the conducting of the game as a business. Gandolfo v. Louisiana State Racing Commission, 227 La. 45, 78 So.2d 504. Nor does the Medical Practice Act prohibit, as the practice of medicine, without a permit, the diagnosis, treatment, etc., of diseases and ailments. The prohibition therein contained is against the ‘holding out of one’s self to the public as being engaged in the business of diagnosing * * * ’ etc.

“The manifest and drastic change made by Act 54 of 1918 ([LSA]R.S. 37:1261) in the definition of ‘practice of medicine’, as defined in Act 56 of 1914, was, it seems to me a much needed and necessary one, for, under the 1914 Act a person would have been guilty of practicing medicine who, gratuitously, suggested to another that he take an aspirin pill to relieve the headache. Suffice it to say that, since the passage of the 1918 Act in order for one to be said to be practicing medicine, he must ‘hold out himself to the public as being engaged in the business of diagnosing, treating’ etc., the ‘diagnosing’ or ‘treating’, in themselves, not constituting acts within the definition of the term of ‘practice of medicine’.

“I have carefully reviewed all of the Louisiana cases I could find that pertain to the practice of chiropractics, and the labors performed by chiropractors, as being in violation of the Medical Practice Act. In each of these cases the Louisiana State Board of Medical Examiners was the plaintiff, and the following named, the defendants, respectively: Cronk, 157 La. 321, 102 So. 415; Fife, 162 La. 681, 111 So. 58 [54 A.L.R. 594]; Beatty, 220 La. 1, 55 So.2d 761; McHenery, 222 La. 984, 64 So.2d 242, transferred to Court of Appeal, Second Circuit and decided by that Court, 69 So.2d 592; Tackett [La.App.], 71 So.2d 137; Booth [La.App.], 76 So.2d 15; Fisher [La.App.], 76 So.2d 56; Weller [La.App.], 77 So.2d 166; Barber [La.App.], 78 So.2d 60; Martindale [La.App.], 83 So.2d 544; Adams [La.App.], 84 So.2d 282; Karas [La.App.], 85 So.2d 354; Wimberly [La.App.], 85 So. 2d 679, and Mooring [La.App.], 86 So.2d 641.

“In most of these cases the defendant admittedly either was a chiropractor, or he was found to be performing' the labors which the Court, in the first case, Cronk case, found to be performed by those engaged in chiropractics and holding himself out to the public as such. However, it is well to note that, although the Cronk case was decided in 1924, it makes no mention of the 1918 Act, but quotes the definition as given in Section 13 of Act 56 of 1914, and pointed out that under that Section, the mere direction or application of physical force for the treating, etc., is made an offense, whereas, as we have seen from the definition contained in [LSA]R.S. 37:1261, the offense is ‘the holding out of one’s self to the public as being engaged in the business of diagnosing, treating * * * or the examining of any person * * * or material from any person for such purpose’.

“The Court, in the Cronk case, defined ‘Chiropractic’ as follows:

“ ‘Chiropractic’ is defined in the cata-logue of the Palmer School of Chiropractic as ‘the philosophy, science and art of things natural, and a system of adjusting the subluxated vertabrae of the spinal column, by hand, for the restoration of health.’ The dean of the faculty of the Palmer School of Chiropractic testified on the trial of this case as follows:
“ ‘The theory of chiropractic is that the subluxation produces pressure upon nerves which produce abnormal conditions on the tissues of the body; and by the adjustment of this subluxation the pressure is relieved, normal impulses are allowed to flow through these nerves, and the natural forces of the body do the rest’.

“The defendant in the Cronk case defined ‘subluxation’ as ‘a slight displacement of a vertebra’, while Webster’s New International Dictionary defines it as ‘incomplete dislocation, as of one of the bones in a joint’.

“The opinion in that case begins with the statement that ‘defendant is a chiropractor’. That fact, apparently, was not disputed or in contest. The evidence in the case, insofar as the opinion discloses it, showed that defendant used no drugs, his practice consisting solely in adjusting the subluxated vertebrae of the spine with both hands, the application of the hands.being neither in the nature of rubbing nor pressing, but consisting of a thrusting movement. Defendant admitted that the purpose of such treatment was to bring about a correction of the sub-luxation of the vertebrae, and thereby to produce a normal functioning of the organs of the body and improvement of the health of the patient. He also admitted that he had treated patients for liver, kidney and stomach complaints, and other bodily ailments. A number of patients testified that they had been cured by him. On the showing made, the Court held that defendant was engaged in the practice of medicine and granted injunctive relief against him.

“Certainly, as the Court held, considering the definition of the practice of medicine as contained in the 1914 Act the defendant was guilty of violating that Act.

“The Cronk case was followed, in 1927, by the Fife case, which, perhaps is the best known of the chiropractor cases and the one most often cited. It, however, is not of much help to us in deciding the present case, since in it, defendants were, without question, practicing chiropractic and holding themselves out to the public as being engaged in the business of chiropractics and in diagnosing, treating, curing, etc.

“It seems that, the Fife case having so completely decided all questions that could arise in these chiropractic cases, litigation on the subject then ceased for a number of years, or until 1951, when the Beatty case reached the Supreme Court and was decided. The Beatty case is of no help in this case, since the defense urged in that case was that by the passage of Act 91 of 1932' [LSA-R.S. 37:1111] defining the practice of osteopathy, the definition of the practice of medicine, as contained in the Act of 1918, had been so modified as to exempt from its provisions the acts which defendants were performing, which were those of a chiropractor. The opinion shows that defendants were practicing chiropractics and ‘hold themselves out to the public as being skilled in the science of healing the sick * *

“The McHenery case was, 222 La. 984, 64 So.2d 242, by the Supreme Court, transferred to the Court of Appeal, Second Circuit, and decided by that Court, in 69 So.2d 592. In that case, the question of whether the defendant was holding himself out to the public as being engaged in the business of diagnosing, treating, etc., was not presented to or decided by the Court. It held that the evidence showed that he was engaged in the practice of chiropractic and as such he was violating the Medical Practice Act. The Court adopted the definition of chiropractic as contained in Maloy’s Medical Dictionary as follows:

“ ‘A system of adjustment consisting of palpation (feeling with the hands) of the spinal column to ascertain vertebral subluxations (an incomplete or partial dislocation), followed by the adjustment of them by hand, in order to relieve pressure upon nerves at the in-tervertebral foramina (holes or perforations) so that nerve force may flow freely from the brain to the rest of the body (Palmer)’.

“The Evidence in the McHenery case showed defendant used x-ray examinations, physical manipulations of the affected parts of the body, had informed patients he had attended a school of chiropractic for four years. The Court pointed out that under the Cronk and Fife cases, the practice of chiropractic constituted the practice of medicine.

“The opinion in the Tackett case does not disclose what the facts of the case were, the case having been decided on legal questions principally involved in the McHenery case.

“The defendant in the Booth case also was a chiropractor, engaged in chiropractic. The opinion says that ‘According to the record in this case, at his office, as a chiropractor, he rendered services’, etc. The case, apparently, was defended on the principal ground of unconstitutionality of the Act, former jeopardy, and the question of whether defendant was holding himself out to the public as being engaged in the business, etc., does not seem to have been considered or passed upon. The evidence showed that defendant treated patients for ulcers, arthritis, disability to spine and back and injured shoulder, all by applying pressure to the back or spine and manipulating the muscles and popping the neck.

“In the Fisher case it was stipulated that the defendant was ‘holding himself out to the public as being engaged in the practice of chiropractic’ and for such purpose received and treats patients, etc. Unquestionably he came under the definition as contained in the Act.

“The opinion in the Weller case (La.App., 77 So.2d 166) does not set out what the facts were, the case being decided on points of law. However, it does show that the petition alleged that defendant was holding himself out to the public as being engaged in the business of diagnosing, treating, etc.

“The opinion in the Barber case shows none of the facts, other than that defendant ‘was engaged in the practice of chiropractic in violation of the law’.

“In the Martindale case, the only one in which a defendant has been successful, the defense was based on the ground that the defendant was a masseur and that the labors performed by him were only such as are performed by such artists. He testified that he, although he was a licensed chiropractor under the laws of the State of Texas, has conscientiously refrained from exercising such practice in Louisiana, and has confined himself to the business of a masseur. He testified his treatments consisted solely in placing his patients upon a special type of table and administering a massage in which he may use a small vibrator affixed to his hand. The eight witnesses called by plaintiff in rule testified plaintiff informed them that he would not give them chiropractic treatments, diagnose their complaints or prescribe for bodily ills or infirmities. The Court said that:

“ ‘All that can be gleaned from the evidence is that the defendant placed the customer upon a table and administered a massage during which administration he employed a hand electric vibrator.’

“The Court defined ‘Massage’ as defined in Webster’s 20th Century Dictionary as a ‘system of remedial treatment consisting of kneading or rubbing the body’, and said:

“ ‘The Courts which have passed upon the question have consistently held a masseur does not violate a statute requiring a license or certificate to practice medicine when he confines himself to the particular sphere of labor of a masseur; but the rule is otherwise where he undertakes to treat diseases for pay and in doing so uses means not customarily used by a masseur in his particular sphere of labor. See 70 C.J.S., Physicians and Surgeons, § 10, Subd. (4), p. 838/

“Judge Gladney, as the Court’s spokesman in the Martindale case, further said:

“ ‘The practice of medicine is a pursuit very generally known and understood. It is understood to mean the diagnosis and application and use of medicines and drugs for curing, mitigating or relieving bodily diseases or conditions. The practice of massage in common understanding, refers to a method of treatment of the superficial parts of the body by rubbing, kneading, etc., usually with the hand as an instrument.’

“In the Adams case it was stipulated that defendant was holding himself out to the public as being engaged in the business of chiropractic .and for such purpose, receives, diagnoses, treats patients by manipulation of the spine, of the vertebrae of the spinal column and of the nerve centers of the body, and that he was a graduate chiropractor. This case was defended on the ground that the things which defendant did were those of an osteopath, and therefore excepted from the Medical Practice Act by Act 91 of 1932, but the Court holding that defendant was not a licensed osteopath and, therefore, was in violation of the Medical Practice Act.

“The Karas case is authority only for the law that the President of the Plaintiff Board must be specifically authorized to bring a suit.

“In the Wimberly case, defendant had been convicted of illegally practicing medicine. He maintained a sign on his office showing it to be a ‘chiropractic clinic’. Whether he was otherwise holding himself out as being in the business of diagnosing, treating, etc., was not shown in the opinion. The case was decided on the showing that he was practicing chiropractic, which the Courts, in the Booth and Fisher cases, had held to constitute the practice of medicine.

“In the Mooring case the record established that the defendant was engaged in the practice of chiropractic, which the Court said had long been conclusively pronounced to constitute the practice of medicine, citing the McHenery case. The facts are not otherwise shown.

“In none of the cases reviewed, except, perhaps, the Cronk case, can it be said that the question whether one may be said to be practicing medicine, by the act of diagnosing, treating-, etc., as distinguished from the Act of holding out one’s self to the public as being engaged in the business of, etc., presented or passed upon. As has been seen the 1914 Act was applied to the facts of the Cronk case, and that Act contrary to the present law, did provide that the diagnosing, treating, etc., of patients constituted the practice of medicine. It is true that in a number of the cases reviewed, it was held that the mere fact of practicing as a chiropractor constituted a violation of the Medical Practice Act, but in neither of such cases was the question of whether defendant had been holding out himself to the public as being engaged in the business of diagnosing, etc., squarely presented and passed upon.

“As the Court views the Statutes and jurisprudence hereinabove analyzed, in order for it to grant the relief plaintiff seeks, it must find, from the evidence, either (1) that defendant was holding himself out to the public .as being engaged in the business of diagnosing, treating patients, or (2) that he was practicing chiropractic.

“We now pass to a consideration of what the facts are:

“Plaintiff called defendant on cross examination and three other witnesses, the three being hired for the purpose of investigating defendant’s activities. These were Messrs. James Culbertson, Horace Lyons and L. D. Whitesell. Culbertson visited defendant’s place on January 26, 1955, Lyons on March 25, 1955, and Whitesell on October 26, 1955. Two of them complained of a headache and one of an injured shoulder, where he had been shot. Each of them said defendant questioned them closely as to where they lived and what they did for a living. Defendant first massaged their necks and shoulders while they were sitting on a chair. He then placed them on a padded table, massaged their neck, back, legs and arms, and on one or more occasions he suddenly jolted or made sudden thrusts of the vertebrae. He turned their heads from side to side and snapped or popped their necks. One of the witnesses, Whitesell, said he had persuaded defendant to give him the massage. This witness also said that when he went to defendant’s home, he asked for Dr. Craft, and defendant said ‘That’s me’. All of them testified that they saw no diplomas, signs or other indications that defendant was claiming to be a chiropractor or engaged in any particular kind of work. All admitted that he made no examination, prescribed no drugs, made no claim of being able to cure or relieve. The defendant, called on cross examination, admitted that he had no doctor’s degree of any sort, although his name was listed in the telephone book as ‘Dr. L. L. Craft’. In explanation of this, he said that the Telephone company had asked him his business and he had told them he was a masseur. He had made no effort to have the ‘Dr.’ eliminated from the listing.

“Defendant called four witnesses, namely, Reverend A. H. Nanny, Harold Stephens, Fisher Franklin and Henry Ford.

“Each of these witnesses had been going to defendant for a long time, one saying he probably had been as many as 200 times. Each testified that defendant did nothing but massage; that they had been ‘adjusted’ or treated by chiropractor’s treatment, and that the chiropractic treatment was very different from what defendant did. They said he never ‘popped’ or ‘cracked’ their necks or spines or applied sudden force or thrusts. He never prescribed for them and they saw no diplomas, signs, or other indications from which it might be deduced defendant was claiming to be a chiropractor or doing such work. Ford said that on one occasion, he had told defendant his back hurt and defendant had suggested that he go see a doctor. Some of these witnesses likened the massages given by defendant to the body, to those given by the barber to the 'face, but said the barber was rougher. The same said he had taken the massages at Hot Wells (the Spa in Rapides Parish) and that defendant gave about the same thing, except at the Hot Wells, the massages were concluded with a ‘rub down’ with alcohol.

“The only advice or prescription, that any witness said that defendant had given them was (1) to a plaintiff witness, take exercise (the same advice that had been given him by an orthopedic surgeon), (2) stay out of a draft, also given to a plaintiff witness, (3) wear his hat, also' to a plaintiff witness and (4) to go see a doctor, given to a defendant witness. These were advices, it seems to the Court, about the same that the average man receives almost daily from his wife or other friends, and hardly can be said to be such as will be held to violate the Medical Practice Act.

“Applying the statutory law and the jurisprudence, as hereinabove reviewed, to the facts of this case, the Court cannot say that defendant was either (1) holding out himself to the public as being engaged in the business of diagnosing, treating, etc., patients, or (2) that he was or did practice chiropractic as that term has been delinea in the jurisprudence, particularly the Cronk case.

“Having the views expressed, the injunc-tive relief plaintiff seeks must be denied, ana accordingly,

“It is ordered, adjudged and decreed that defendant do have and recover judgment against the plaintiff, recalling the rule nisi herein issued and rejecting plaintiff’s demands, the plaintiff to pay such of the costs as are, under the law, taxable against it.”

The plaintiff in his brief takes exception to the hereinabove quoted reasons for judgment of the learned trial judge on the following grounds:

“In his decision, the Trial Judge refused or neglected to apply the law as stated by the Supreme Court of Louisiana in the Cronk case, supra, and the Fife case, supra. In his interpretation and with an utter disregard for the holding of the Supreme Court, he said that under-the Act the defendant must:

1. Hold himself out to the public as being engaged in the business of diagnosing, treating, etc., patients; or,

2. That he was or did practice chiropractic as that term has been defined in the jurisprudence, particularly in the Cronk case.

“We strongly maintain that the Trial Judge committed manifest error in saying that the defendant-appellee must be a known and licensed chiropractor and that he must hold himself out to the public as being engaged in the practice of medicine.

“The Cronk case said, ‘As, under Section 13 of the Medical Act, the mere direction or application of physical force for the treating, curing or relieving * * *'. (Italics ours.) And in the Fife case, supra, in a well rendered opinion, Judge Overton said: ‘But the practice of medicine has a broader signification than that. It may consist in the application of physical force to parts of the body for the purpose of curing disease or relieving bodily ailments, and the Legislature has, in part, so defined it. Section 9 of Act 54 of 1918 quoted supra. * * * ’. (Italics ours.)

“These cases are the law of this State as has been decided by the Supreme Court and have been followed. These cases are binding on the Trial Court and also upon this Honorable Court and they have been utterly disregarded by the Trial Judge in this instance.

“The Trial Judge also erred in stating that in these cases that they applied to Act of 1914, however, in both instances the Act of 1918 was considered and was referred to in their opinions. It cannot be by any stress of the imagination be shown or concluded that these cases were decided under the 1914 Act rather than under the 1918 Act.

“The 1918 Act has been re-enacted into our [LSA] Revised Statutes as Title 37, Section 1261 and the Cronk case, and the Fife case, supra, are controlling.

“The defendant-appellee will probably rely on the cases of Louisiana State Board of Medical Examiners v. Beaird [La.App.], 83 So.2d 481, and Louisiana State Board of Medical Examiners v. Martindale [La. App.], 83 So.2d 544, where the defendant charged was either a masseur or used an electric vibrator. These cases are easily distinguishable from the case at bar, although the Trial Judge tried to interpret the facts to come within the meaning of the Beaird and Martindale cases.

“There is nothing in the Beaird and Mar-tindale cases to indicate that any physical force was applied to the body, however, there is a vast amount of evidence in our case indicating that physical force was applied to the body.”

We are unable to agree with the contention of counsel for plaintiff that the trial judge did not correctly interpret the Cronk and Fife cases, supra. The trial judge was also correct in stating that the Cronk case dealt specifically with the 1914 Act which was materially altered by the 1918 Act, now incorporated in our LSA-R.S. of 1950, Title 37, Section 1261. The Fife case was considered in the light of Section 9 of Act 54 of 1918 but, as stated by the trial judge, Fife admittedly was practicing chiropractic, holding himself out to the public as being engaged in the business and in the diagnosing, treating, curing in the manner and method common to members of that profession. In other words, in the Cronk case, the defendant was doing exactly what the law said should constitute the practice of medicine and from which he was prohibited, while in the Fife case the defendants were doing exactly what the 1918 Act defined as the practice of medicine and which under the law they were prohibited from doing.

Counsel for plaintiff attempts to distinguish the case of Louisiana State Board of Medical Examiners v. Beaird, La.App., 83 So.2d 481, and Louisiana State Board of Medical Examiners v. Martindale, La.App., 83 So.2d 544, on the ground that in these cases there was nothing to indicate that any physical force was applied to the body. Physical force was applied to the body in both cases. A masseur applies physical force to the body, but in these cases the defendants were not practicing medicine as defined under the terms of Title 37, Section 1261, LSA-R.S., nor were they engaged in the practice of chiropractic.

It would appear that plaintiff contends that the mere application of force to the body constitutes the practice of medicine. If force alone were the test the mere touching of a body would be the application of force. The force applied must be done by one who is holding himself out to the public as being engaged in the business of diagnosing, treating, curing, or relieving any bodily or mental disease, condition, infirmity, deformity, defect, ailment of injury, etc.

Much is made of the fact that defendant was listed in the phone book with the appellation “Dr.” in front of his name. This is the only evidence intended to show that the defendant was holding himself out as a doctor, tie explained this by stating that the phone company listed him in this manner after he had told them he was a masseur. As found by the trial judge there is no advertisement or no claim that he could cure or diagnose anybody’s ailments or ills. He in nowise advertised as practicing chiropractic and above all there is not one single witness that testified in this case that went to him because he held himself out as being engaged in the business of diagnosing, curing, etc. The plaintiff’s witnesses were all employed as detectives to secure evidence, and the defendant’s witnesses went to him for massages.

The finding of fact by the District Court is not manifestly erroneous and for the reasons given by the learned Judge of the District Court and the additional reasons of this court, the judgment of the Lower Court is hereby affirmed.


source: Caselaw Access Project

author: LOTTINGER, Judge. DALFERES, Judge ad hoc

license: Public Domain

text:
    Laura Evelyn Brown GOINS v. Stanley W. GATES et al.
    No. 4312.
    Court of Appeal of Louisiana. First Circuit.
    Jan. 22, 1957.
    Rehearing Denied March 25, 1957.

      C. W. Berry, Jr., Oakdale, for appellant.
    Fusilier & Vidrine, Ville Platte, for ap-pellee.
   LOTTINGER, Judge.

Defendant has appealed from an adverse judgment wherein the plaintiff was recognized as the lawful owner of an undivided one-fourth (14) interest in and to the Southeast Quarter (SE14) of Section Twelve (12), Township Four (4) South of Range Two (2) West, Louisiana Meridian, containing 161.04 acres, more or less, in Evangeline Parish, Louisiana. The Lower Court has furnished us with a well reasoned and written opinion and we quote same as follows:

“This is a suit by Laura Evelyn Brown Goins, alleging that she is the true and lawful owner of an undivided one-fourth (|4th) interest in and to the tract of land containing 161.04 acres, more or less, situated in Evangeline Parish, Louisiana. She claims that she acquired this property through inheritance from her mother, Lonnie Blueeyes. She further alleges that the property is now being claimed by Stanley Gates, and that she has filed this petitory action to remove this cloud on her title to this property.
“Defendant, Stanley W. Gates, denies the claim; denies that the plaintiff is entitled to recover this land for the simple reason that Lonnie Blueeyes, her alleged mother, was never married to anyone, and if so, that she was married to Arthur Brown, who was a negro or of the colored race, and Lonnie Blueeyes was an Indian, and that further, denied that Lonnie Blue-eyes had any children whatsoever. For that reason, defendant prays that this suit be dismissed.
“In addition to the above main demand, there is a secondary demand for damages for timber which is allegedly unlawfully taken from the land of the defendant.
“The Court finds that through the succession proceedings which were filed in evidence, Lonnie Blueeyes, the alleged mother of the plaintiff herein, inherited a one-fourth (14th) interest of the land in question.”

After a careful review of the evidence in this case, the Court concludes:

“That through the succession proceedings which were filed in evidence, Lonnie Blueeyes inherited a one-fourth (14th) interest of the land in question;
“That Lonnie Blueeyes gave birth to two (2) children, one dying in infancy, the other being the plaintiff here, and her sole heir ;
“That the plaintiff was born to Lonnie Blueeyes and that Lonnie Blueeyes duly acknowledged her, making her a natural child under the law, and thus making her eligible to recover her estate.
“The facts are that the plaintiff was born in Elizabeth, Louisiana, in the home of one, Mattie Davis; that she was raised in LeCompte, Louisiana by one, Millie Jackson, a person of the colored race who has Indian blood in her; that she went to school in LeCompte, Louisiana; that she married one, Charlie Goins. There were filed in evidence several photostatic copies of applications for Social Security Benefits, Social Security -Cards and the like, evidently for the purpose of showing the Court that this information was given to various people at a ■ non-suspicious time.
“It is to be noted that on the applica- . tion for Social Security Card filed on September 29, 1943, which was over ten (10) years before this suit was filed, the plaintiff named her mother as ‘Lonnie Blue-eyes,’ and that her father’s name was listed as ‘Arthur Brown.’
“The plaintiff testified in the suit that she had secured the information from her elders as to who her father was; she further testified that she was taken to Millie Jackson’s home in LeCompte at the age of eighteen (18) months. This testimony' is ‘heresay,’ for the very obvious reason that, she was too young at that time to remember. The testimony of Millie Jackson confirmed the fact that she raised the plaintiff from the age of eighteen (18) months until she was grown. Millie Jackson says that Lonnie Blueeyes brought her child, Laura Evelyn Brown Goins, a baby of eighteen (18) months to her, and asked her to take this baby and raise her as her own.
“It is in evidence that the mother was then very sick and as disclosed by the evidence further on in the trial, she apparently never recovered from this illness and finally died at the old home in Evangeline Parish.
“In connection with the testimony of Millie Jackson, the plaintiff filed in evidence notaríais or affidavits by Mattie Davis to the effect that Laura, the plaintiff, was born in her home. Objection by the defendant to this evidence was made.
“The testimony of the other witnesses satisfied the Court that the plaintiff was the only surviving daughter of Lonnie Blueeyes.
“The Court permitted the introduction of ‘hearsay evidence’ in this case over the objection of the defendant. In the Succession of Anderson, 176 La. 66, 145 So. 270, the case involved the legitimacy of a child. To sustain the contention that hearsay evidence was admissible in a case of this sort, Justice Overton had this to say:
“ ‘Pedigree is the history- of family descent, which is transmitted from one generation to another by both oral and written declarations and by tradition. Unless proved by hearsay evidence, not competent in general issues, it cannot in most instances be proved at all. * * *
“ ‘That pedigree may be proved by hearsay testimony is settled. Such testimony is admitted because of the great difficulty, often impossibility, of proving the fact or degree of kinship between alleged relatives, because the subject of inquiry is so frequently of ancient date. Respecting what facts come within the meaning of the word pedigree, and by whom the declaration reproduced as hearsay must have been made, there was some divergence of opinion in the earlier cases. But it seems to be settled now that a declaration, to be admissible, must not only have been by a person since deceased, but must also have been made by a person related by blood or affinity with some branch of the family the pedigree of which is in question/ See also Wigmore on Evidence (2d Ed.) Vol, 3, 1482; Greenleaf on Evidence (10th Ed.) Vol. 1, 14; Abbott’s Trial Evidence (4th Ed.) Vol. 1, 174.
“ ‘The circumstantial guaranty for trustworthiness, relative to declarations concerning pedigree, as said by Prof. Wig-more, is found “in the probability that the ‘natural effusions’ (to use Lord Eldon’s often-quoted phrase) of those who talk over family affairs when no special reason for bias or passion exists are fairly trustworthy, and should be given weight by judges and juries, as they are in the ordinary affairs of life.” ’

“The Court again in the [In re] Succession of Gray, 201 La. 121, 9 So.2d 481, the Court stated:

“ ‘In proceeding to have plaintiffs recognized as irregular heirs of the parties’ ancestor, and placed in possession of his estate to the exclusion of his natural child and descendants thereof, witnesses’ recollection of what the “Old folks” of the community had told him regarding date of his birth and ancestor’s marital relations was not inadmissible as “hearsay.” ’
“It is therefore the considered opinion of this Court that in view of the above authorities, that the objection raised by defendant to the inadmissibilty of this evidence should be overruled, the same being an exception to the hearsay rule.
“On the question of acknowledgment, the Louisiana Civil Code provides for acknowledgment of illegitimate children. The Courts have long since declared that the Article stated in the Code, namely Article 203, appears not the exclusive mode for acknowledging a child born out of wedlock and that a mother may acknowledge informally her child in various ways. See Ford v. Calhoun, 6 La.App. 350, Succession of Hebert, 33 La.Ann. 1099, and many other cases, one method being that she calls the child hers and that it is common knowledge among the community that it is her child and there is no concealment of the child. In the case at bar, it is to be- observed that the mother brought the child to the old aunt and said that it was her child and that it was common knowledge in the community where she was living at the time that she had had a daughter; even according to the testimony, on her deathbed she acknowledged the fact that Laura, the plaintiff in this case, was her baby.
“Consequently, the Court has no difficulty at arriving at the definite conclusion that Laura Evelyn Brown Goins is the natural child of Lonnie Blueeyes.
“The defendant seems to lay great stress on the idea that a marriage between Negroes and Indians is prohibited. The Court does not believe that it is even necessary to go into that problem in view of the above findings; however, it may be prudent for the Court to take cognizance of this defense. There is no* conclusive proof in the record that the mother is pure Indian or that the father is a Negro. However, assuming that to be a fact, the Court will discuss the law applicable thereto.
“Under [LSA] Revised Statutes of 1950, Title 9, Section 391, entitled ‘Legitimation of Natural Children,’ and I quote:
“ ‘Natural fathers and mothers shall have power to legitimate their natural children, by acts declaratory of their intentions, made before a Notary Public and two witnesses; provided there existed at the time of the conception of such children, m> other legal impediments to the inter-marriage of the natural father and mother except those resulting from color or the institution of slavery.’
“For purposes of this case, it is not necessary to determine whether the child was legitimated as such, as the only thing that is pertinent is whether or not she was acknowledged and whether or not she was capable of being acknowledged.
“From the above quoted provision, there is no doubt in my mind that the law gives the mother the light to acknowledge a child making it her natural child under the laws of Louisiana. Consequently, the natural child can acquire from her mother as if legitimate. See Article 918 of the [LSA] Civil Code.
“There is a very informative and authoritative Law Review Article in 7 Loyola Law Review, page 94, dealing with irregular successions. The author of that Article goes in all facts of irregular successions and particularly important and pertinent to this case is the part dealing with the acknowledgment of illegitimate children. Thus we see on Page 105 of that Article .and I quote:
“ ‘In order that an illegitimate child may be acknowledged or legitimated, there must have been no impediment to the marriage of his or her parents at the time of conception. Thus children born of incestuous or adulterous connections and void unions, such as bigamists or miscegenous were originally barred from being acknowledged, or legitimated. Due to the increasingly charitable disposition of the Courts .and the Legislatures to remove the stigma and the disabilities of illegitimacy from children in order that they not be made to suffer for the sins of their parents, this stricfc prerequisite has been gradually relaxed. Thus the issue of an adulterous connection can now be legitimated by the subsequent void marriage in acknowledgment of their parents. Children of a void union contracted in good faith by one or both parties are legitimated.' Children born of parents who were barred from contracting valid marriage due to one parent being of the white race and the other of the Negro race, in view of the fact that they may be legitimated by notarial act, and the greater includes the lesser so that the legitimation includes acknowledgment, such children may also be acknowledged by notarial act.’
“While Article 94 prohibits the marriage between Negro and White races and Title 9, Section 201 prohibits the marriage between Indian race a person of a Colored or Black race, that does not necessarily mean that the acknowledgment Article above referred to in [LSA] R.S. 9:391 has any way been repealed and not in effect any longer.
“It is therefore the opinion of this Court that from the above mentioned Articles and Statutes, together with the authorities cited in 7 Loyola Law Review 94, that assuming that the mother was a pure Indian and her father was a pure Negro, which I have found is in no way proved, even then the mother could informally acknowledge the plaintiff herein, which she did, and therefore, she is entitled to recover her estate upon her death.
“The Court now comes to the secondary issue — the alleged damage for timber — . There is some evidence by some of the witnesses that some timber was cut on this land by someone, and while it leads to the defendant, the Court is unable to determine for a certainty that the defendant had the timber cut.
“In addition to that, there is no evidence in the record as to the stumpage and the value thereof, nor the time at which the timber was removed. The Court under the circumstances is constrained to deny any awarding of damages for timber taken by this defendant in this suit.
“Let a decree in accordance with the views herein expressed be prepared and presented to this Court in open Court for execution.”

A reading of the record shows that the factual findings of the Lower Court are amply substantiated. We are firmly of the opinion that the evidence offered by the plaintiff herein establishes that the plaintiff was informally acknowledged by her mother, Lonnie Blueeyes, during her lifetime and on her deathbed. This is not a case where the deceased only made casual reference to her alleged daughter or child on only one occasion but this is a case where we find the record to be that plaintiff’s mother made reference and acknowledged the plaintiff as her child when the child was turned over to Millie Jackson when the plaintiff was only eighteen months old. There is no dispute and it must be assumed as a fact that plaintiff lived with her mother during these eighteen months. It must be remembered that when plaintiff was turned over to Millie Jackson that the said Lonnie Blueeyes was then ill and she died shortly thereafter from said illness. It likewise appears that it was common knowledge around the neighborhood and area that the plaintiff was the daughter of Lonnie Blueeyes. It likewise appears by the testimony of at least two witnesses that Lonnie Blueeyes, on her deathbed, acknowledged the fact that Laura, the plaintiff herein, was her child. Therefore, we have more than just one casual acknowledgment and for that reason we are of the opinion that Lonnie Blueeyes informally acknowledged the plaintiff herein as her daughter during her lifetime in the mode prescribed by the jurisprudence of this state and that the judgment of the Lower Court should be affirmed. It appears to us that the acknowledgment made by Lonnie Blueeyes on her deathbed is very strong and one that would no.t be made at such a time unless it was true and unless she intended to acknowledge the plaintiff as her child. The truthfulness and credibility of plaintiff’s witnesses were resolved in favor of plaintiff by the Lower Court and we cannot find sufficient testimony or evidence in this record. to dispute that credibility. Therefore for the above and foregoing reasons, the judgment of the Lower Court is affirmed at defendants’ costs.

Judgment affirmed.

TATE, J., recused.

DALFERES, Judge ad hoc

(dissents).

I am in accord with the majority opinion-in holding that plaintiff may establish acknowledgment informally. I am compelled to differ in the conclusions reached in the majority opinion.

A review of plaintiff’s evidence may be-stated briefly as follows:

Decedent left the small community of’ Bradley in a pregnant condition and went to the home of Mattie Davis, where the-plaintiff was born; that when the plaintiff was approximately eighteen months old she took the child to the home of her maternal aunt, Millie Jackson, who lived at Le-Compte, Louisiana. Decedent stated to-Millie Jackson that she desired her to raise the baby as her own; that the baby was. left with Millie Jackson for the reason that, decedent wanted to work and was sick;, within a short time thereafter, but the exact period is not shown in the evidence, decedent returned to the community of Bradley and died at the home of Lessie Simon, who-lived in the old family home at Bradley;, that during her last illness she declared to-those who visited her that she had a child and that she had given the child to a cousin, who lived in the country near LeCompte.

I am of the opinion that it is only the affirmative acts and actions of a parent during-the life of the child or the life of a parent, if the parent predeceases the child, which, can be considered in determining whether the parent has informally acknowledged the-illegitimate child.

A review of the decisions of our courts on¡ this subject from the early case of Succession of Vance, 1903, 110 La. 760, 34 So. 767, to the case of Allen v. Anderson, La.App. 1951, 55 So.2d 596, supports this position.

In the Succession of Vance, supra, the Court held that proof of birth, together with a declaration by a parent of paternal descent, was not sufficient evidence to constitute an informal acknowledgment to elevate an illegitimate child from the status of bastard to that of natural child, a prerequisite before the child could inherit under Articles 918 and 919, Revised Civil Code.

It is worthy of note that .in each succeeding decision our courts have reviewed the evidence and have painstakingly quoted the affirmative acts or actions taken by the parent or parents where the issue was resolved in favor of the illegitimate child.

Briggs v. McLaughlin, 1913, 134 La. 133, 63 So. 851, 853; Taylor v. Allen, 1922, 151 La. 82, 91 So. 635; Murdock v. Potter, 1924, 155 La. 145, 146, 99 So. 18; Succession of Falls, 1925, 4 La.App. 10; Ford v. Calhoun, 1927, 6 La.App. 350; Succession of Tyson, 1937, 186 La. 516, 172 So. 772; State v. De Lavallade, 1949, 215 La. 123, 39 So.2d 845; Allen v. Anderson, La.App.1951, 55 So.2d 596.

In Briggs v. McLaughlin, supra [134 La. 133, 63 So. 852], the Court noted:

“ * * * but, it is admitted, and is placed beyond dispute by the evidence, that she was his mother, and that, from the date of his birth until her death, in (about) 1909, she openly, publicly, and uninterruptedly recognized him as her son, as did also the other parties to this litigation.”

In Taylor v. Allen, supra [151 La. 82, 91 So. 644], the Court found:

“For passing upon these questions the only facts necessary to be known are that Lillie Taylor is the child of Lona McGee and was raised by her as her daughter, and therefore acknowledged by her in every way except in one of the above mentioned modes.”

In Murdock v. Potter, supra, the Court observed:

“Plaintiff was born on March 20, 1889. His mother was Fannie Williams, a colored woman, who at the time of plaintiff’s conception and birth was unmarried, and - his father was Dave Murdock, a single man, of the Caucasian race. Plaintiff lived with his mother until her death, which occurred in the year 1896. The mother acknowledged plaintiff orally as her child, cared for him, and held him out to the world as such.” •

In Succession of Falls, supra (Under Art. 922 LSA-C.C.), the Court found:

“The proof shows that Simonette Reason was the child of Mary Bingham, was recognized by her mother as her child and was generally known as such in the community where they lived. It is equally well established that Simonette Reason, deceased, was never acknowledged by her mother, M.ary Bingham, either by a declaration in a notarial act or by baptismal registry, as provided for in Article 203, [LSA] C.C. The question presented for decision is as to whether or not the rearing of Simonette Reason as her child by Mary Bingham was such an acknowledgment as to entitle her to be called or classed as a natural child and, upon her death, without posterity, whether her mother was vested with the right of inheritance, entitling her to claim the estate of her deceased daughter under [LSA] C.C. Art. 922. This presents the vital issue in the case.
“As it has been shown by the evidence that Simonette Reason was a child of Mary Bingham and had always been recognized as such by the mother, such proof would have been sufficient to shozv an acknozvledgment by her mother, and would have entitled her to inherit from her mother without proof of an acknowledgment by a notarial act or baptism, as prescribed by Art. 203, [LSA] C.C.” (Emphasis supplied)

In Ford v. Calhoun, supra, a case cited by the majority opinion in support of their findings, the Court said:

“On the point as to whether the father, Simon Ford, acknowledged his son, Norman, the plaintiff in this case, there were eleven witnesses who testified directly on that point. Among them were colored people ranging in ages all the way from fifty-three to seventy-seven years, each of whom having known plaintiff and his father from the early childhood of the plaintiff down to the time that the suit was tried.
“Among these are Jim Ford, seventy-five years old; Ara McCoy, seventy-seven years old, both illegitimate children of Simon Ford, but were not acknowledged by him, and who claim no interest in his succession; and Mitchell Ford, another son, who' was acknowledged by him and who owns an undivided one-fourth interest in his succession. Also Pauline Calhoun, a stepdaughter of Simon Ford and one of the defendants in this case, and her husband, Charlie Calhoun.
“These witnesses, together with others, testify that Simon Ford, the father, had repeatedly told them that Norman was his son; that he always referred to him as his son, and at times called him his favorite son.
“A number of these witnesses testify that Simon had kept Norman in the house with him while a child and had reared him as his son. It is in evidence that the child’s mother died when he was an infant and that his father carried him to a woman named Mariah to be cared for. That later, when the father took up with another woman, he demanded custody of his child and probably had a lawsuit with Mariah in order to obtain his custody, but finally got him, took him home and kept him.
“Some of the witnesses swore that about 1874 (the boy was born in 1864) he acted as carriage boy for some white people and lived with the “white folks”, but that during that time he visited his father constantly.
“One of the witnesses testified that-the father always claimed the boy as his own but said he was hard to keep at home; that he would run away, and. that the father had to go and get him and bring him back. This was when the boy had grown almost to manhood.
“Each and every one of the witnesses who claimed to know the family said that it was generally recognized and understood in the community where they had lived that Norman was the son of Simon.” (Emphasis supplied.)

In Succession of Tyson, supra [186 La., 516, 172 So. 780], the Court said:

“We think the record shows that all of Louisa Gibson’s children were duly acknowledged by her in accordance with the jurisprudence of this state. She not only openly and publicly acknowledged that they were her children, but reared and treated them as such until the date of her death, and they were therefore raised to the status of natural children, capable of inheriting from her.”

In State v. De Lavallade, supra [215 La. 123, 39 So.2d 847], the Court found:

“But in the stipulation of facts there is incorporated the record of the succession proceedings, as evidence for the trial of the exceptions. And in that record are the affidavits of four individuals swearing that Mary Lafargue always treated John B. Lafargue as her son, and that he was generally known to be her son.”

In Allen v. Anderson, supra, the Court reviewed at length the attitude of the mother toward the child and the act of partial abandonment for a short period. It may be implied from this statement of the case that had the mother not returned for the child the court may not have considered her original rearing of the child as an acknowledgment, but that her action in returning for the child definitely demonstrated her desire to acknowledge the child.

The Court said [SS So.2d 599]:

“However, the evidence clearly shows that Beatrice Chandler Hills, who was horn in 1900, was informally acknowledged by her mother to be her daughter. After the death of Willie Chandler, who died when the child Beatrice was three years old, Belle Frazer left the child in Patterson and came to New Orleans. Unquestionably she left her child only temporarily, for we find that a few years later she returned to Patterson and brought the child to New Orleans. Beatrice Chandler Hills continued to reside with her mother at least up to the time that Belle Frazer contracted marriage in 1921 with Richard Raney. Beatrice Chandler Hills says that her mother ‘raised’ her, and it is not to be doubted that during all of those years that Beatrice Chandler Hills lived with her mother, Belle Fra-zer treated her and held her out as her natural child * *

The majority opinion in holding that plaintiff was duly acknowledged, relies on the statement of the deceased at the time that the baby was delivered to Millie Jackson for rearing and certain statements made on her deathbed. I am of the opinion that this is not the public acknowledgment required to constitute an informal acknowledgment. A careful reading of the evidence indicates that decedent’s actions were •secretive rather than of a public nature. SKe left her home community in a pregnant condition to give birth to the child in •a strange community. No one who testified saw the child from birth to the time the •child was delivered to Millie Jackson. We think this is significant. The first evidence that Millie Jackson had of the birth •of the child was at the time the child was delivered to her, and the schoolmate of decedent did not see the child until the child was ten (10) years old. There is not a scintilla of evidence in the record which would indicate that decedent held plaintiff out publicly as her child or reared the child as her own from the birth of the child to the death of the decedent. It is for this reason that I am unable to reach the conclusion found in the majority opinion that decedent duly acknowledged plaintiff.

The affidavit of Mattie Davis, though timely objected to, is considered in its entirety. At best, it merely shows that plaintiff is the child of decedent.

The majority opinion assumes that plaintiff lived with her mother during the eighteen (18) months between the birth of plaintiff and the delivery of plaintiff to the home of Millie Jackson. The burden of proving acknowledgment was upon plaintiff. There can be no assumption or presumption, therefore, in favor of plaintiff on this vital issue. If plaintiff had any evidence of the conduct of decedent during these eighteen months toward the plaintiff, it is reasonable to suppose that plaintiff would have svibmitted this evidence.

“As has been many times declared by the several courts of this State, probabilities, surmises, speculations and conjectures cannot be accepted as sufficient grounds to justify recovery on the part of a plaintiff who is charged with the burden of proof.” Pinkney v. Cahn Inv. Co., La.App., 32 So.2d 345, 347.

' In many cases of this nature it is necessary to obtain evidence of attitude and conduct of the parent toward the child after a lapse of sixty, seventy, or eighty years, but in this case, plaintiff was only called upon to obtain evidence of a situation which had occurred twenty-four (24) years prior to the trial.

I am unable to attach the significance to the deathbed statement of the decedent that is given to that statement in the majority opinion. If decedent had publicly acknowledged plaintiff as her child and had reared her as such, what would be the necessity for the decedent, on her deathbed, to inform her relatives and friends that she had given birth to a child who was with an old person near LeCompte?

For these reasons we are of the opinion that plaintiff, having the burden of proving an informal acknowledgment, has failed to do so, and for that reason I must respectfully dissent from the majority opinion.


author: McBRIDE, Judge.

text:
    Francis C. FULTON, Sr. v. Norman S. MILLET (Consolidated with No. 20,747).
    No. 20748.
    Court of Appeal of Louisiana. Orleans.
    March 11, 1957.
    Roland J. St. Martin, New Orleans, for plaintiff and appellee.
    James David McNeill, New Orleans, for defendant and appellant.
   McBRIDE, Judge.

- Francis C. Fulton, Sr., who was commissioned on December 22, 1950, by the then Governor of Louisiana as a member of the Board of the St. John the Baptist Waterworks District No. 1 for the term expiring September 29, 1955, seeks to enjoin Norman S. Millet, who was appointed to the office on September 26,19S5, by the present Governor from “intruding into, usurping, holding or exercising, or attempting to hold and exercise the duties of Member of the Board of Commissioners of the St. John the Baptist Parish Waterworks District No. 1 and further restraining, enjoining and prohibiting him from interfering with petitioner in the lawful exercise of his duties as Member of said Board.”

Fulton charges Millet with “unlawfully attempting to replace petitioner as a member of said Board.” In answer, defendant alleges Fulton is without right or title to the office and asserts that he, the defendant, is the duly appointed and qualified Board member and in .a reconventional demand prays for recognition as such.

Fulton makes no pretense of having any color of title to the office, and it is a certainty he has none, it appearing as an un-controverted fact that his office has long since expired and that Millet is the appointee to succeed him. However, notwithstanding these circumstances, a preliminary writ of injunction was issued as prayed for, the demand in reconvention was dismissed, and Millet has perfected this appeal.

We know of no grounds whatever on which the injunction should be issued. Fulton is but a de facto officer who could not be maintained in possession of the office by injunctive process for the very simple reason he can establish no legal right or title thereto. A comprehensive discussion of the many cases bearing on this subject will be found in Guillory v. Jones, 197 La. 165, 1 So.2d 65, 74, wherein the Supreme Court said:

“The true doctrine of all of these decisions, taken together, is that a de jure officer cannot oust a de facto officer by means of an injunction, but must resort to the intrusion-into-office suit; whereas the de facto officer may proceed by injunction against an outsider claiming the office, but is not entitled to the injunction unless he proves his title to the office.
“* * * jn Louisiana the judges are vested with the broad power of administering both law and equity in the same proceeding. Hence no good reason could be given for forbidding a judge of a Louisiana court to decide whether the plaintiff or the defendant is entitled to the office, in a suit brought by a de facto officer for an injunction to prevent one who claims to be his successor from taking possession of the office. There is no reason why .a contest like this in a Louisiana court should not be settled finally in the suit for an injunction, instead of requiring two suits to settle the controversy.”

See, also, Alleman v. Dufresne, La.App., 17 So.2d 70, decided by this court.

Counsel for both parties concede in oral argument and also in brief that prior to Fulton’s institution of the injunction suit Millet filed an intrusion-into-office suit against Fulton, and we are told that this suit was dismissed in the district court on an exception of no cause of action.

Fulton’s argument is that he is entitled as a matter of right to an injunction to keep him in possession of the office until such time as the question of Millet’s right thereto vel non is settled in a proper action brought by him for such determination. Fulton cites as his authority the case of Slater v. Blaize, 204 La. 21, 14 So.2d 872, in which the following language appears :

“ * * * it is the settled jurisprudence of this state that the person who is in possession of and claiming title to an office may resort to injunctive proceedings to maintain his possession thereof pending an orderly determination of the title thereto. Guillotte v. Poincy, 41 La.Ann. 333, 6 So. 507, 5 L.R.A. 403; Goldman v. Gillespie, 43 La.Ann. 83, 8 So. 880; State [ex rel. Bourg] v. Turner, 152 La. 828, 829, 94 So. 411; and Guillory v. Jones, 197 La. 165, 1 So.2d 65. An exhaustive discussion of the jurisprudence on this subject will be found in the Guillory case.”

Slater v. Blaize was a suit wherein the defendant was ordered by the district judge to show cause why an injunction should not issue enjoining him, as well as other parties conspiring with him, from forcibly taking the office of sheriff held by Slater. The defendant then applied to the Supreme Court for a peremptory writ addressed to the district judge, the district attorney, and Dr. Slater to prohibit them from proceeding further with the trial of the injunction proceedings. On the hearing of Blaize’s application for the peremptory writ it was called to the attention of the Court that the injunction proceedings sought to be stayed had been withdrawn by Dr. Slater the day before the application was filed and the Court concluded that this rendered the question presented a moot one and thereupon refused the writ. The printed report of the case shows that four justices took part, one of whom concurred in the refusal of relator’s application “for the reason it presents only a moot question.”

For two reasons we feel we are not under the duty of following the above-quoted language used by the Court in Slater v. Blaize which is irreconcilably at variance with what had been said in the previous case of Guillory v. Jones, supra, first, because it was not necessary to a determination of the case and second, because only three justices concurred therein.

Regardless of what was said in Slater v. Blaize we cannot believe that the Court intended to place a different interpretation on the jurisprudence of the State or to alter the holding in Guillory v. Jones, which is to the effect that it is only where the de facto officer can prove his title to the office that an injunction will issue against an outsider claiming the office. We believe this to be the law controlling this case.

The trial judge was also in error in dismissing the reconventional demand in which Millet prayed that he be recognized as a member of the Board and for a permanent injunction restraining and enjoining Fulton from usurping the office or interfering with Millet’s right to assume his duties. These were matters which should not have been dismissed on the trial of the rule nisi for the preliminary injunction which Fulton sought but they should have awaited adjudication on the trial of the merits of the case.

It is ordered, adjudged and decreed that the judgment appealed from be reversed and the preliminary writ of injunction is recalled; the matter is now remanded to the district court for further proceedings on the merits of the case according to law; ap-pellee is to pay the costs of this appeal while the assessment of all other costs is to await a final determination of the case.

Reversed and remanded.


text:
    Francis C. FULTON, Sr. v. Kittridge TROXLER (Consolidated with No. 20,748).
    No. 20747.
    Court of Appeal of Louisiana. Orleans.
    March 11, 1957.
    Roland J. St. Martin, New Orleans, for plaintiff and appellee.
    James David McNeill, New Orleans, for defendant and appellant.
   McBRIDE, Judge.

This case involves issues similar to those decided by us this day in Fulton v. Millet, 93 So.24 316, and for the reasons- assigned in our opinion it is ordered, adjudged and decreed that the judgment appealed from he reversed and the preliminary writ of injunction is recalled; the matter is now remanded to the district court for further proceedings on the merits of the case according to law; appellee is to pay the costs of this appeal while the assessment of all other costs is to await a final determination of the case.

Reversed and remanded.


text:
    Alvin A. HERO and Alfred O. Hero, Jr., v. CITY OF GRETNA.
    No. 20933.
    Court of Appeal of Louisiana. Orleans.
    March 11, 1957.

      John E. Fleury and Robert I. Broussard, Gretna, for plaintiffs-appellants.
    Andrew H. Thalheim, City Atty., Gretna, for defendant-appellee.
   McBRIDE, Judge.

This suspensive appeal was taken by plaintiffs from a judgment of the district court maintaining defendant’s exception of no cause or right of action and dismissing their suit to enjoin the defendant from exchanging a portion of Gretna Park for six other lots in the vicinity. The exception was maintained only after certain evidence had been introduced on trial of the rule nisi for a preliminary injunction. Plaintiffs’ appeal was made returnable to the Supreme Court, but the appeal was transferred to us when it was determined by that court that the amount involved was below its minimum jurisdiction. 231 La. 427, 91 So.2d 590.

The allegations of the petition for the injunction and the aforesaid evidence show that on October 7, 1930, by authentic act, seven persons owning property in the City of Gretna, among whom were Alfred O. Hero and Mrs. Claire Angele Emma Jou-bert de Villemarest, wife of George Alfred Piero, conveyed to the said municipality certain of their respective property within its corporate limits, it being recited in the deed of transfer:

“Whereas, Grantors have agreed to convey their several respective tracts of land in said triangular area ‘CZY’, as shown by the plat hereto annexed, to the City of Gretna, Louisiana, and dedicate the same as a public park, for the use of the public:
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“Each and all of the Grantors further declares that this conveyance is made for the purpose of creating a public park for the use of the public in the City of Gretna and that the several tracts of land herein conveyed are hereby dedicated as a public park for the use of the public:
“And now to these presents came and appeared Charles F. Gelbke, Mayor of the City of Gretna, Louisiana appearing and acting herein by virtue of an Ordinance adopted by the Mayor and Board of Alderman of said City, a certified copy of which is hereto annexed and made part hereof, who declared that the City of Gretna, Louisiana, accepts the conveyance and dedication of the properties hereinabove described, and, as a further consideration for said conveyance and dedication, the City of Gretna, Louisiana, agrees and binds itself;
“1. To develop the tract of land included within the lines ‘CZY’ on the plat hereto annexed, comprised of the several different parcels herein conveyed, as a public park for the use of the public at as early a date as practicable :
“2. To open and maintain at least one public street in said park area and to extend its sewerage, water and other facilities into the area adjoining the park as soon as possible;”

The recitation of the consideration for the transfer of the property by Alfred O. Hero and Mrs. Claire Angele Emma Jou-bert de Villemarest, wife of George Alfred Hero, to the City of Gretna appears in the deed thus:

“In consideration of the sum of One Thousand, Four Hundred Fifty-Six and 42/100 Dollars ($1456.42), to them cash in hand paid, receipt of which is hereby acknowledged, the benefits which will accrue to its remaining lands by the development of a park, and the further considerations hereinafter set out, the said Alfred O. Hero and Mrs. Claire Angele Emma Joubert de Villemarest, wife of George Alfred Hero, * * ”

It is a fact that the City of Gretna proposes to exchange a parcel of property measuring 450 feet by 450 feet which forms the corner of Gretna Boulevard and Claire Avenue for six scattered lots located in the general area. Though not named in the petition, the evidence in the record shows that the individual with whom the defendant intends to enter into the exchange transaction is Warren Rose. A further disclosure by the evidence is that upon the consummation of the transaction between the City of Gretna and Warren Rose, the latter will exchange the property he acquires from the City of Gretna with the School Board for other property, and that it is contemplated that a public school building will be erected on the land acquired by Rose from the defendant. The particular tract in question is part of that which was transferred by Alfred O. Hero and Mrs. Claire Angele Emma Joubert de Villemarest, wife of George Alfred Hero, to the City of Gret-na, on October 7, 1930, as aforesaid.

On April 14, 21 and 28, 1956, the Mayor and Board of Aldermen of the City of Gret-na publicly advertised in a newspaper of general publication a notice to the effect that an ordinance had been introduced and was proposed for adoption which authorizes the exchange of a portion of the Gretna Park for certain other property in the neighborhood (the property involved being fully described therein) and calling on and notifying all. parties at interest that any opposition thereto must be made within fifteen days as provided by LSA-R.S. 33:4712.

The plaintiffs-appellants made seasonable written opposition to the adoption of the proposed ordinance and to the exchange of the property, but after a hearing the opposition was rejected and the ordinance plaintiffs attack, which was assigned the number 968, authorizing the exchange was adopted. This suit for an injunction ensued.

The plaintiffs are Alvin A. Hero and Alfred O. Hero, Jr. They assail the validity of the ordinance on several grounds, one of which is that:

“ * * * the City of Gretna proposes to exchange petitioners’ property with other property to some private individual or corporation and that they propose to build a school on the property donated for park purposes, instead of using said property as it was intended to be used, for park purposes.”

The plaintiffs pray for injunctive relief:

“ * * * directed to the defendants, the Mayor and Board of Aldermen of the City of Gretna, restraining, enjoining and prohibiting them, their agents, employees, or any other persons claiming to act in their behalf, from executing an exchange of the property described in the ordinance and in the advertisement with any individual, person, firm or corporation

Plaintiffs also pray for judgment “decreeing the ordinance illegal, unconstitutional, null and void.”

Plaintiffs also sought and obtained a temporary restraining order. The rule nisi for a preliminary injunction was duly heard, after which the trial judge recalled the restraining order and rendered the judgment from which the' appeal was taken.

Besides the exception of no cause or right of action, defendant filed several other exceptions, but these were not passed upon and need not be mentioned except the plea of prescription of ten years which the appellee has reurged before us. The exceptions not passed upon by the lower court are deemed to have been overruled. Rains v. Thomason & Champion, 17 La.App. 120, 135 So. 92; Lacaze v. Hardee, La.App., 7 So.2d 719.

LSA-R.S. 33:4712 authorizing the sale, lease or other disposition' of certain property by municipalities reads as follows:

“Municipalities, the City of New Orleans excepted, may sell, lease, or otherwise dispose of, at public or private sale, any real property not actually acquired for a specific public use, or, if acquired and once used for a specific public use, there is, in the opinion of the governing authority, no further need for the property.
“Before disposition can be made of property under the provisions of this Sub-part, an ordinance must be introduced, giving the reasons for the action on the part of the governing authority, and fixing the minimum price and terms of the sale, lease or other contract to be made with reference to the property. Notice of the proposed ordinance must be published three times in fifteen days, one week apart, in a newspaper published in the municipality or, if there is no such newspaper, in a newspaper having a general circulation in the municipality, and if there is no newspaper of general circulation in the municipality, by posting in three public and conspicuous places in the municipality.
“Any opposition to the proposed ordinance shall be made in writing, filed with the clerk or secretary of the municipality within fifteen days after posting of the above notice or its first publication. If an opposition is filed, the governing authority shall not adopt the ordinance until a hearing has been held. If the ordinance is adopted, it shall not become effective until ten days after its passage, during which time any interested citizen may apply to the district court having jurisdiction of the municipality for an order restraining the disposition of the property. After the ordinance becomes effective, it cannot be contested for any reason.”

Necessarily the first question to which our attention must be directed is the correctness of the judgment maintaining the exception and dismissing the suit. In his written reasons for judgment the lower court made these observations:

“* * * The Court now passes only upon the exceptions of no right or cause of action, which had been referred to the merits, as this disposes of the entire case and there is, therefore, no need to discuss or pass upon the other questions involved.
“The relief herein sought is an injunction to restrain the defendant from executing an exchange of property. This relief is fundamentally and actually a conversatory one in the sense that what the plaintiffs are seeking is, and must be, a preservation of the status quo until such time as there is a judicial determination of what is to be done about the property involved. The plaintiffs, for example, might seek the return of the property, or a decree restricting its use to that of a public park, etc. However, in this suit the plaintiffs have failed to pray for any such relief. The injunction sought is not incidental to a final recognition and determination of any of their rights. To the contrary, the injunction sought here is a final and permanent restraint of an exchange of the particular property without regard to its purpose and without any assurance that the plaintiffs, at any future date, would proceed to clear up the question. For the Court to grant the relief prayed for conceivably could result in needlessly taking the use of the property away from the defendant without any hope of the same being cleared up in the foreseeable future. The holding of the Court on this question is that it cannot so act. It could grant the relief sought only if that relief were incidental to the determination of the final status of the property and the plaintiffs’ rights therein, in which case the injunction could be granted, if proper, only for the purpose of maintaining the status quo.
“Nor can the plaintiffs hope to overcome this objection by reason of the fact that they have applied to the Court within the ten day period and as ‘interested citizens’ under R..S. 33:4712. The words ‘Any interested citizen’ as used in Section 4712 refer to a citizen of the community, a citizen of the City of Gretna, and the plaintiffs are not such citizens.”

We think that those conclusions were clearly in error.

It is true that both of the plaintiffs are residents of the City of New Orleans and that LSA-R.S. 33:4712 provides that “any interested citizen may apply to the district court having jurisdiction of the municipality for an order restraining the disposition of the property.”

Counsel for the City of Gretna took the position in the trial court and he assumes the position here that the words “interested citizen” mean a citizen of the City of Gretna having some interest in the subject matter of the ordinance. We cannot believe that the Legislature ever entertained an intent that the right to attack a disposition of the property by the municipality would only be vested in a citizen of the municipality in which the property is situated, but rather that any citizen, even a nonresident could appeal to the courts for an order restraining the disposition of the property if such disposition affected his interests adversely. Alvin A. Hero, the evidence shows, is the owner of certain real property within the confines of the City of Gretna on which he pays taxes, and this fact alone, we believe, would endow him with the necessary interest to pursue the relief sought in the suit. His interest in the suit could be very real in that the development and maintenance of the park by the City of Gretna for public use might enhance the value of his property on which he pays taxes to the city. A taxpayer, though a nonresident, may prosecute his demand to keep a public place open for public use. City of Shreveport v. Kahn, 194 La. 55, 193 So. 461. We think that the other plaintiff, Alfred O. Hero, Jr., also clearly has a right of action. He is the only child and sole heir at law of the deceased grantor, Alfred O. Hero, and was in these qualities placed into possession of all property left by Alfred O. Hero, whose death occurred sometime in the year 1941. Alfred O. Hero, Jr., as the successor of the grantor, has a general interest from which would flow the right to ¡maintain a demand that the City of Gretna fulfill its obligation to keep and maintain the prop-' erty as a public park in view of the grantor’s dedication of the property to such specific purpose and the contractual obligation of the City of Gretna to develop the land as a public park for the use of the public.

Counsel for the appellee misunderstands the nature of the relief sought by the plaintiffs. They are not seeking the enforcement of a resolutory condition or a revendication, but what they pray for is that the ordinance by which an exchange of the property is authorized be declared illegal and ineffective and that the governing officials of the City of Gretna be restrained from carrying out the provisions of the ordinance by disposing of the public property in the manner outlined in the ordinance. What we have said here also completely disposes of the plea of prescription of ten years. The prescription relied upon by defendant does not apply to such an action as plaintiffs assert. While it is quite true that the City of Gretna has never laid out the whole of the property as a public park, there is a statement of the Mayor in the record showing that a baseball diamond and grandstand have been erected on part of the land which is in general use by the public. We are uninformed of any law which would relieve the City of Gretna of the obligation it assumed by its contract of retaining or maintaining the property for the purposes of a public park merely as a result of passage of any particular period of time.

One of the alleged grounds of invalidity of the ordinance is that its purpose is to effect the erection of a school building on part of the land which the City of Gretna is contractually obligated to develop and maintain as a park by first transferring the property to Warren Rose, who will in turn convey it to the School Board, all in violation of the obligations assumed by defendant in the act by which it acquired its title to the land.

We think this charge, which seems to be supported by the evidence adduced on the trial of the rule, would make out a prima facie case for the issuance of a preliminary injunction. The issuance of such writ does not dispose of the issues in the case but only serves to preserve the status quo until the case can be tried on its merits at which time all the issues may be inquired into and adjudicated.

In Anderson v. Thomas, 166 La. 512, 117 So. 573, the Supreme Court found that the facts showed that the erection of a municipal auditorium in a public park was not consistent with the use of the land as a public park and would practically destroy the lot as a park. It was held that individuals may maintain actions to keep public places open.

We believe under the circumstances of this case we have the right as a reviewing court to issue any judgment that should have been issued by the court of origin.

Therefore, it is ordered, adjudged and decreed that the judgment appealed from is reversed and defendant’s exceptions are dismissed at its cost.

It is further ordered, adjudged and decreed that a writ of preliminary injunction issue herein directed to the defendants, the Mayor and Board of Aldermen of the City of Gretna, restraining, enjoining and prohibiting them, their agents, employees, or any other persons claiming to act in their behalf from executing an exchange of the property described in Ordinance No. 968 with any individual, person, firm or corporation, said writ to issue upon plaintiffs’ furnishing bond with good and solvent surety in accordance with law in the sum of $1,000.

It is further ordered that the matter be remanded to the lower court for such further proceedings as are authorized by law.

Judgment reversed; preliminary injunction granted; matter remanded.

REGAN, J., concurs.