text:
    Emily Dyer DE LEE, Plaintiff-Appellant, v. Maggie Dyer PRICE, Defendant-Appellee.
    No. 4368.
    Court of Appeal of Louisiana. First Circuit.
    March 25, 1957.

      J. Peyton Parker, Jr., Baton Rouge, for appellant.
    A. Leon Hebert, Watson, Blanche, Fridge, Wilson, Posner & Thibaut, Baton Rouge, for appellee.
   TATE, Judge.

On a previous appearance before this court, this appeal was remanded for introduction of the other judicial proceedings upon which was based the judgment sustaining an exception of lis pendens and dismissing plaintiff’s suit, 88 So.2d 719. This additional evidence is now in the record.

As stated in our earlier opinion, the allegations of the petition show: Plaintiff and defendant are co-heirs, together with seven other children, of the late Mrs. Anna C. Dyer. The decedent’s last will and testament bequeathed her entire interest (4%oth) in a valuable 140-odd acre tract to defendant, Mrs. Price, allegedly as a remunerative donation and because Mrs. Price had contributed a substantial portion of the purchase price of decedent’s interest in the land.

Plaintiff, Mrs. DeLee, herein files suit against her sister, Mrs. Price, to set aside the testament insofar as it infringes on plaintiff’s share as a forced heir (her leg-itime) and to reduce the donation mortis causa to Mrs. Price to the disposable portion of decedent’s estate.

Motion to Dismiss the Appeal.

A motion to dismiss the appeal as moot was filed on the ground that all the property left by decedent, including the tract forming the special legacy to defendant Mrs. Price, has been sold at public sale as the result of a partition suit between the coheirs.

While the present suit attacks the legacy of the particular property sold as an excessive donation, we apprehend its purpose and prayer as a direct suit under Articles 1502, 1504, LSA-C.C. by one forced heir against a preferred heir to establish the rights of the plaintiff as a forced heir and to reduce as excessive the donation received by the other heir. Even against third persons, this action is not defeated by prior sale of the property included in the excessive donation, Article 1517, LSA-C.C. (And the partition judgment and sale, and the subsequent conventional partition, relied upon by appellee in this motion to dismiss as moot, show that not third persons, but plaintiff’s eight co-heirs (including defendant) purchased decedent’s property and partitioned it among themselves.) Therefore, the sale of the property does not cause to become moot plaintiff’s claim of her rights as a forced heir and for reduction of the alleged excessive donation, cf., Fluker Farms, Inc., v. James, 226 La. 303, 76 So.2d 311.

The motion to dismiss the appeal is denied. (See also LSA-Civil Code Article 2453, the sale having been made after the present suit was filed.)

On the Merits.

After alleging that the donation of decedent’s interest in the 140-acre tract to defendant exceeded the disposable portion and infringed upon the legitime of the other forced heirs, and that the defendant in fact did not render services or any portion of the original purchase price of the property so as to constitute consideration for a valid 'remunerative donation, the plaintiff prayed, insofar as applicable:

“II.
“That there be judgment setting aside the Last Will and Testament of Mrs. Anna C. Dyer, probated in the proceedings entitled ‘Succession of Mrs. Anna Chaney Dyer’, Number 8587, Probate, 19th Judicial District Court, to the extent that it infringes on the legi-time of your Petitioner;
“III.
“That there be judgment in favor of your Petitioner, Mrs. Emily Dyer De-Lee, and against Defendant, Mrs. Maggie Dyer Price, reducing the said donation mortis causa by Mrs. Anna C. Dyer to the Defendant to the disposable portion, and decreeing Petitioner to be the owner of an undivided % of %’s of the estate and property of Decedent, Mrs. Anna Chaney Dyer, at the time of her death.”

The District Court sustained, for oral reasons, defendant’s exception of lis pen-dens founded upon the pendency of the “Succession of Anna Chaney Dyer”, Probate Docket 8587, East Rouge Parish, and of “Dyer et al. v. Mrs. Emily Dyer DeLee”, a partition suit, Civil Docket No. 53,695, East Baton Rouge Parish; allegedly involving the same cause of action and the same object between the same parties.

The declinatory exception of lis pendens arises from the fact of another suit being pending between the same parties, Article 335(2), Code of Practice. The defendant therein is entitled to have the second suit dismissed, Article 94, C.P. The exception is a correlative of the plea of res judicata by which a final judgment in one suit bars another between the same parties, State ex rel. Marston v. Marston, 223 La. 1046, 67 So.2d 587, which states that a “fair test” of whether the exception of lis pen-dens is well pleaded “is to inquire whether a final judgment in the former suit would be res judicata in the latter,” Id., 67 So.2d at page 589.

To be sustained, both of these exceptions require that the (1) parties, (2) cause of action, and (3) object (or demand) be the same, Article 335(2), C.P.; Article 2286, LSA-Civil Code; see, e.g., Quarles v. Lewis, 226 La. 76, 75 So.2d 14.

In the “Succession of Anna Chaney Dyer”, Probate Docket 8587, the decedent’s will was probated by ex parte judgment upon petition of plaintiff’s eight co-heirs. Subsequently, these co-heirs filed a petition alleging the death and testacy of the decedent, and also her special legacy of her interest in the 140-odd acres to defendant, and which prayed, inter alia:

“IV. That the said special legacy to Petitioner, Mrs. Maggie Dyer Sullivan Price, as particularly set forth in Paragraph 4 [Footnote 1 hereof] be delivered to her and that judgment be entered recognizing her as entitled to the same and sending and putting her in possession thereof. * * * ”

A prayer was included for recognition of the eight petitioning co-heirs and Mrs. De-Lee, defendant herein, as the heirs entitled to be sent into possession of the entire estate of the decedent “less the special legacy aforesaid.”

We think the “object” or “demand” thus posed contradictorily was the same as that before us now: the ownership of decedent’s interest in the 140-acre tract. The “cause of action” also is the same: whether defendant was entitled to the special legacy to her of decedent’s interest in the tract is dependent on whether the remunerative donation mortis causa is valid and not subject to reduction. And the parties are the same; the additional presence of co-plaintiffs with present defendant in the other suit does not destroy the identity of the opposing appear-ers who are also opposing parties appearing in the present suit. The District Court therefore properly sustained the exception of lis pendens.

It is of some interest that although Mrs. DeLee was properly served and cited in the earlier probate proceedings, the record does not indicate that issue was ever joined by default or answer or other appearance (although the rule requiring her to accept or reject the succession was made absolute against her). Whatever effect this deficiency may have as to validity of the judgment in the probate proceedings, Article 606, C.P., Chopin v. Freeman, 145 La. 972, 83 So. 210, Rector v. Allied Van Lines, La. App. 2 Cir., 198 So. 516, Robinson v. Enloe, 2 Cir., 10 La.App. 435, 121 So. 320, and although in these earlier probate proceedings default or answer did not join issue so as to begin the suit, C.P., Art. 359, the action was commenced by valid citation, Id., so as to constitute the probate proceeding the earlier action within the provision of C.P., Article 94: “The judge before whom the action is first brought shall sustain his jurisdiction.”

Having decided that the plea of lis pen-dens was correctly upheld due to the pend-ency of the prior succession proceedings involving the same cause of action between plaintiff and defendant, it is unnecessary to resolve the extremely complex issues raised by defendant’s argument that the earlier suit for partition by licitation (#53,695) likewise bars the present suit, because plaintiff might have raised therein the cause of action pleaded in the present suit, see Quarles v. Lewis, 226 La. 76, 75 So.2d 14, and cases therein cited; as opposed to plaintiff’s contention that the present suit is to establish a right to reduce the special legacy to defendant insofar as it is prejudicial to plaintiff’s legitime, whereas the partition suit’s incidental purpose was only to establish the prima facie proportions of ownership at the time of suit but subject to successful exercise of plaintiff’s fundamental right as forced heir to reduce the donation to the extent prejudicial to her legitime.

For the above and foregoing reasons, the judgment of the District Court is affirmed.

Affirmed.

      . “Article 4 of the petition alleged:
      Under and by virtue of the terms of said will, Decedent left unto Petitioner, Mrs. Maggie Dyer Sullivan Price, as an extra portion, all of her right, title and interest in and to that tract of land containing approximately one hundred forty-six and %o (146.5) acres, located in Section 41, Township 5 South, Range 2 East, Greensburg Land District, and being more particularly described in Judgment of Possession in her late husband’s Succession, which bequest was made in consideration of said Petitioner having nursed and supported Decedent since the death of her husband, and of having paid a substantial portion of the purchase price of said property when it was originally acquired, the said property being shown as Item No. 1 in the aforesaid inventory, and disposed of the remainder of her property according to law. * ^

      . Although Article 335(2) of the Code of Practice of 1870 provides that the exception must be founded upon an earlier suit pending “before another court”, Article 94 in pari materia was amended in 1918 to omit the latter requirement, Weems v. Moise, 1 Cir., 3 La.App. 224; and we feel that any doubt as to the extremely technical point of whether the exception of lis pendens would lie only against earlier suits (i.e., in which issue was joined) rather than against earlier actions should be resolved in favor of the language of Article 94, as being a legislative re-enactment subsequent to Artiele 335, as well as being more in accord with, the general purposes of the exception in most situations.


source: Caselaw Access Project

author: LOTTINGER, Judge.

license: Public Domain

text:
    COMMERCIAL CREDIT CORPORATION v. Wilmer Louis SERPAS and The Travelers Indemnity Company.
    No. 4372.
    Court of Appeal of Louisiana. First Circuit.
    March 25, 1957.

      Taylor, Porter, Brooks, Fuller & Phillips, Tom F. Phillips, Baton Rouge, for appellant.
    David E. Cooley, Theo. F. Cangelosi, Baton Rouge, for appellees.
   LOTTINGER, Judge.

This is a suit for property damages resulting from an automobile collision. The suit is by Commercial Credit Corporation, which was the owner of one of the vehicles, and is against Wilmer Louis Serpas and his insurer, The Travelers Indemnity Company. The Lower Court gave judgment in favor of petitioner and the defendant has appealed.

The facts show that the collision occurred at the intersection of Royal Street and Louisiana Avenue in the City of Baton Rouge, Louisiana. Royal Street runs north and south, while Louisiana Avenue runs east and west. Both streets are the same width (24 ft.) and neither is a favored or “through” street. Petitioner’s vehicle was being driven south on Royal Street and defendant’s vehicle was being driven west on Louisiana Avenue. Each party testified that his speed immediately prior to the accident was from 20 to 25 miles per hour. The streets are both black-topped and were wet at the time of the accident. Although it was not raining at the moment of impact, it had rained shortly prior thereto.

The Lower Court assigned no written reason for its judgment in favor of petitioner. The defendant has taken a suspen-sive appeal from the judgment of the Lower Court.

The petitioner testified that he was proceeding in a southerly direction on Royal Street immediately prior to the accident. As he approached the intersection with Louisiana Avenue, he testified that he slowed down and looked to see whether any automobiles were approaching on Louisiana Avenue. He could see clearly for a distance of some fifty (50) yards to his left but did not see anyone approaching, prior to his entry into the intersection. The defendant’s vehicle struck the left rear end of the petitioner’s vehicle, spinning the petitioner around 180 degrees and petitioner’s car came to rest approximately thirty (30') feet further south and with the rear end resting against a telephone pole on the west side of Royal Street south of the intersection. It is evident that, had it not been for the pole, the petitioner’s vehicle would have gone considerably further, as the force of the impact with the pole did considerable damage to the petitioner’s vehicle.

The defendant on the other hand testified that he was proceeding from 20 to 25 miles per hour in a westerly direction on Louisiana Avenue immediately prior to the accident. He testified that he saw the petitioner’s vehicle approaching and applied his brakes. The evidence discloses that the defendant’s vehicle skidded some thirty-five (35') feet before the impact, and that after the impact the defendants vehicle traveled an additional distance of eight (8') feet in a westerly direction. The defendant claims that the petitioner was guilty of contributory negligence in entering the intersection in the face of oncoming traffic, which he had seen or should have seen.

There is no question but that the defendant was guilty of negligence. The evidence discloses that the accident occurred between 7:00 and 7:30 o’clock p. m. on November 18th, 1954. The front of defendant’s automobile collided with the left rear fender of the plaintiffs car in the approximate center of the intersection. There is no question but that the defendant skidded thirty-five (35') feet prior to the impact and that his car moved an additional eight (S') feet after the impact. The table in Blashfield Cyclopedia of Automobile Law & Practice shows that a car proceeding at thirty (30) miles per hour would travel a distance of forty-four (44') feet per second. The reaction time of a driver of such vehicle traveling at such a speed would require a distance of thirty-three (33/) feet between the time he first noticed the danger and the time he would actually apply his brakes. After application of the brakes, the car would travel a distance of forty (40') feet before coming to a stop. The total stopping distance at thirty (30) miles per hour would therefore be seventy-three {73') feet. Now it appears to us that the defendant must have been traveling in excess of thirty (30) miles per hour at the time he first noticed the danger. Such conclusion is based upon his skid of thirty-five (35') feet prior to the impact, the force of the impact which spun the other car around and did considerable damage thereto, and the further fact that he traveled an additional eight (S') feet after the impact. Of course, we fully realize that the street was wet which very possibly would require a longer stopping distance. However, in view of the wet street, we believe it was more apparent for the defendant to exercise more precaution and proceed at a lower rate of speed.

The law of 'our state is to the effect that when neither street has been specifically designated a right of way street, and when two vehicles approach or enter an intersection at approximately the same time, the car approaching from the right shall be favored and shall have the right of way. This rule, in this particular case, would give the petitioner the right of way. Another rule of our state is that the person who preempts an intersection shall have the right of way. This rule, however, is based upon the fact that at the time of entering the intersection, the party had a reasonable possibility of clearing the right of way without interfering with oncoming traffic. Certainly, under the facts of this case the right of preemption does not apply to the defendant.

Under the situation presented in this case, the petitioner had the right of way over the defendant, who was approaching from his left. We feel that the petitioner had the right to enter the intersection assuming that such persons would respect his superior right. This assumption would prevail unless it is shown that the petitioner knew of the apparent danger or should have known of the apparent danger in time to stop and avoid the accident. The petitioner claims that he looked and saw no one approaching. The mere fact he failed to see whether the other automobile stopped to respect his right of way or did not stop does not necessarily constitute contributory negligence. To bar recovery, the deficient lookout must be a proximate cause of the accident. See Gautreaux v. Southern Farm Bureau Casualty Company, La.App., 83 So.2d 667. A motorist crossing an intersection has the right to rely on the assumption that those approaching it will respect his right of way and accordingly he may proceed. If, however, in driving on the favored street he sees, or in the exercise of due care should see, that the other vehicle neglected to make the stop required by law, the motorist may himself be under a duty of stopping if by the exercise of reasonable care on his part the accident could have been avoided. Under the facts in the case at bar, plaintiff, who had the right of way, stated that he looked before entering the intersection of only 24 feet wide and saw no one. Assuming he had seen defendant’s vehicle at that time we are still of the opinion that he could not have avoided the accident. Plaintiff contends that in approaching the intersection he was traveling approximately 20 to 25 miles per hour and that he slowed down for the intersection and that at the moment of impact he may have been moving at about 15 to 20 miles per hour. According to the chart in Blashfield an automobile traveling at 20 miles per hour is moving at the speed of 29 feet per second, that it requires 22 feet for reaction time and a total distance of 40 feet in which to stop. At this speed some charts place the total stopping distance at fifty-nine feet. Using either of these charts, we do not believe plaintiff’s deficiency was or can be considered a proximate cause of the accident when we consider the relative rights and duties of the respective parties and the width of the intersection.

We feel that the proximate cause of the accident was the excessive rate of speed of the defendant plus the fact that he failed to accord the right of way to a favored traffic. We further feel, and we believe that the evidence justifies our conclusion, that the petitioner was driving as a reasonably prudent driver, and that he was guilty of no negligence which would be a proximate cause of the accident. The record shows that there were cars parked on both sides of Louisiana Avenue which required the defendant to drive approximately in the center of said street. This could possibly account for the fact that the petitioner did not see the defendant approaching. The record further discloses that this was an uncontrolled intersection; there were no signal lights or stop signs on either street. As petitioner was approaching from the defendant s right, the petitioner had the right of way. The record further shows that, upon noticing the danger, defendant applied his brakes, skidded some thirty-five (35') feet, struck the petitioner’s vehicle, and then proceeded an additional eight (S') feet. The petitioner’s vehicle, as a result of the blow, skidded around a 180 degree circle, jumped the curbing, and was stopped a distance of thirty (30') feet south of the point of impact by a telephone pole.

This Court has recently upheld the rule that right of way traffic is entitled to approach and enter an intersection even if it observes traffic approaching on an inferior thoroughfare, because superior traffic is entitled to rely upon the assumption that the others will respect the superior’s right of way. Brashers v. Tyson, La.App., 86 So.2d 255; Bahry v. Folse, La.App., 83 So.2d 912; and Gautreaux v. Southern Farm Bureau, La.App., 83 So.2d 667. This-rule applies unless the superior motorist should reasonably realize the danger in time to stop and avoid the accident. Miller v. Abshire, La.App., 68 So.2d 143 and Droddy v. Southern Bus Lines, La.App., 26 So.2d 761.

The only question before the-Court is that of fact. It appears that the-proximate cause of the accident was the excessive speed of the defendant, coupled’ with his failure to recognize petitioner’s right of way. Furthermore, this court will’ not reverse the decision of a Lower Court on questions of fact, except for manifest-error. We have found no manifest error-in the conclusion of the Lower Court.

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

Judgment affirmed.


author: TATE, Judge.

text:
    Fred L. BEARD, Plaintiff-Appellant, v. A. R. BLOSSMAN, Inc., et al., Defendants-Appellees.
    No. 4389.
    Court of Appeal of Louisiana. First Circuit.
    March 25, 1957.
    France W. Watts, Jr., Franklinton, for appellant.
    Christovich & Kearney, New Orleans, Dalton J. Barranger, Covington, Reid & Reid, Hammond, for appellees.
   TATE, Judge.

This personal injury suit arises from a rear-end collision. While driving his Dodge automobile southerly, plaintiff Beard ran into the rear of a large truck owned by defendant A. R. Blossman, Inc. This company, its liability insurer, and the liability insurer of a State Department of Highways automobile parked on the road immediately in front of the Blossman truck at the time of the accident, were made co-defendants. This appeal is from dismissal of plaintiff’s suit after trial. Plaintiff’s wife, Mrs. Myrtis F. Beard, a passenger in his vehicle, brought suit for her personal injuries sustained in a companion suit, 94 So.2d 89.

The accident occurred shortly after dusk on March 14, 1954, on State Highway 34, three miles north of Franklinton. The rear wheels of the State automobile, a Ford, had suddenly locked. The driver had unsuccessfully attempted to move the vehicle off the highway. The Ford stopped immovably at a place where the shoulders were only three feet wide, and although the driver had drawn onto the shoulder, the major portion of the State vehicle, facing south, was parked protruding into the southbound lane of the blacktop highway, which at the point of the accident was 18' in width. The protruding Ford left room for only one car at a time to go past it on the highway. At the time of the accident, the driver had gone to Franklinton to get a wrecker, experiencing some difficulty in locating one because it was Sunday and most trade places were closed; and in fact he did not return until several minutes after the collision

Immediately before the accident, a large southbound Blossman tank-truck had come according to its driver to a slow stop in back of the protruding parked vehicle. The large rear taillights and various clearance lights were lit and clearly visible, according to the testimony of all witnesses. (Plaintiff and his wife, an elderly couple in their late sixties, were unable to testify as to the events immediately surrounding the accident due to amnesia thereto resulting from the shock of the accident.)

Smith, the driver of a northbound car coming from the opposite direction with the town policeman to investigate a report of the car blocking the highway, slowed to a stop 75'-100' south of the parked car to estimate whether the Blossman truck (which had just stopped) was going to proceed past the obstacle of the parked car; then (on perceiving that the truck deferred to Smith’s passage) had continued past the protruding car, past the Blossman truck which was about SO' behind same, and had crossed plaintiff’s oncoming car about 75' further behind the Blossman truck. Smith testified that plaintiff’s car lights were on bright, that it was approaching at 45-50 mph, and that his own lights were on dim. Smith had gone approximately 50 feet further when he heard the crash

It is virtually conceded that the Bloss-man truck was free from negligence. It was clearly lit with at least four large rear lights, some of them red, and by clearance lights, and in addition the directional signal indicating the driver’s intention to pull out to the left was on. There was no sudden stop in plaintiff’s immediate path. Both the Blossman driver and Smith estimated their pause to decide whether the other was going to proceed past the parked car as lasting about thirty seconds, showing the lapse of time before plaintiff’s car appeared on the scene.

Plaintiff’s principal argument is that the codefendant liability insurer of the State car is liable, since the negligence of the driver of the State vehicle in leaving his Ford unattended blocking a travelled State highway at least contributed to the subsequent accident; that the driver left it an unreasonably long time on the highway; and that the leaving it with taillights was an unsufficient warning to oncoming traffic.

But conceding arguendo that the driver of the State vehicle was negligent in leaving the disabled Ford unattended protruding onto the highway, such negligence was not a proximate cause of this accident.

The Blossman truck had perceived the lighted taillights of the parked vehicle in time to come to a slow stop from a speed of 40 mph, terminating approximately 50 feet to the rear of said vehicle; and had paused approximately 30 seconds permitting the oncoming Smith vehicle to pass in the other lane. The Smith vehicle had proceeded about 125 feet further north past the truck (crossing plaintiff’s car as it approached at 40-50 mph 75' behind the stopped truck) before the actual collision occurred. Whether the State vehicle had just stopped on the highway a few seconds before the accident, or several hours, such parking was not a contributory proximate cause of the accident.

Southbound traffic such as plaintiff had an unobstructed view of the site of the accident for at least the 900 feet of straight highway immediately north of the scene of the accident.

Under the facts and circumstances of this case, the District Court correctly found that the sole proximate cause of this accident was plaintiff Beard’s lack of lookout and control and heedless approach towards and into the well-lighted rear of the Blossman truck. August v. Delta Fire & Cas. Co., La.App. 1 Cir., 79 So.2d 114; Mellow Joy Coffee Co. v. Continental Cas. Co., La. App. 1 Cir., 63 So.2d 888; McDaniel v. Capitol Transport Co., La.App. 1 Cir., 35 So.2d 38.

For the above and foregoing reasons the judgment of the District Court is affirmed.

Affirmed.


text:
    Mrs. Myrtis F. BEARD, Plaintiff-Appellant, v. A. R. BLOSSMAN, Inc. et al., Defendants-Appellees.
    No. 4390.
    Court of Appeal of Louisiana. First Circuit.
    March 25, 1957.
    France W. Watts, Jr., Franklinton, for appellant.
    Christovich & Kearney, New Orleans, Dalton J. Barranger, Covington, Reid & Reid, Hammond, for appellees.
   TATE, Judge.

This is a companion case to Beard v. Blossman, La.App., 94 So.2d 87. Since the negligence of the driver of the car in which plaintiff was riding as passenger was held to be the sole proximate cause of the accident, the District Court correctly dismissed her suit for the resultant damages.

Accordingly, the judgment is affirmed.

Affirmed.


text:
    HODGES THEATRE SUPPLY COMPANY, Inc., v. A. W. FUSSELL.
    No. 4384.
    Court of Appeal of Louisiana. First Circuit.
    March 25, 1957.

      Talley & Anthony, Bogalusa, for appellant.
    France W. Watts, Jr., Franklinton, for appellee.
   LOTTINGER, Judge.

The trial judge disposed of this matter in the following manner:

“Plaintiff brings this suit seeking the recovery of $934.20 as a balance on an open account for goods, wares and merchandise consisting of moving picture equipment, sold by the plaintiff to the defendant, and particularly described in an itemized statement of the account annexed to the petition.

“Defendant in answer denied that he owed the account, and further set forth that, being desirous of purchasing certain equipment for a theatre which he owned in Franklinton, Louisiana, he went to the plaintiff concern and bought the equipment on the recommendation of the employees of the plaintiff, who are experts in the theatre field; that the said equipment was installed by the plaintiff’s employee, and after a trial of same it was found unfit for the purpose intended, because it would not reflect and project moving pictures as they should have been reflected and projected. In other words, the defendant seeks the avoidance of the sale on account of vices or defects in the equipment sold.

“The facts in this case show that sometime prior to March 15, 1955, the defendant had operated a moving picture theatre in the town of Franklinton off and on for maybe a year or two, however, a year prior to entering into a contract for the purchase of the equipment which is the basis of this suit, the theatre had been rented to a man by the name of Welch and had not been in operation; apparently Welch’s lease had expired and the defendant, again intending to go into the motion picture business for himself, went to New Orleans and talked to the President of the plaintiff concern relative to the type equipment which he should install to show the best pictures.

“The evidence shows that the old screen which was in the defendant’s theatre was ten feet high by thirteen and a half feet long, and that prior to the time the defendant went to New Orleans to enter into the contract for the purchase of the equipment, the plaintiff’s Engineer, Mr. Ballam, measured the width of the stage of the defendant’s building and found it would accommodate a screen twenty-two feet in width. In the conversation which the defendant had with the plaintiff’s President, Mr. Hodges, it is obvious that what the defendant desired to purchase was a screen for cinemascope pictures. This is apparent from the testimony, not only of the plaintiff’s President, Mr. Hodges, but from the contract which the defendant signed for the purchase of the equipment. This contract is in the record and marked for identification ‘P-12,’ and the fourth item on said contract which the defendant agreed to purchase were to Bausch & Lomb anamorphic attachments. The evidence shows that the only way that a cinemascope picture can be shown is with anamorphic attachments. While it is true the anamorphic attachments were not shipped to the defendant immediately, because of the fact, as reflected by the evidence, he had not made arrangements to obtain the cinema-scope pictures, yet it is apparent that he had in mind showing this type picture at a subsequent date. The evidence shows that the stage in the defendant’s theatre would not accommodate a wider screen than twenty-two feet and that the proper ratio for the showing of cinemascope pictures between the width and length of the screen is about two to one, accordingly, Mr. Hodges, the plaintiff’s President, recommended a screen twenty-two feet in width by ten feet six inches in height, and accordingly furnished this size screen to the defendant. Of course, it was not the intention of either of the parties that the defendant would show nothing but cinema-scope pictures, for as I understand it, a man could not operate a show successfully by showing only this type picture, because he would not be able to get a sufficient number of them, and if he could, the cost would no doubt he prohibitive in a small town for showing them regularly. So, in order to compensate for this factor, it has been necessary for the furnishers of moving picture screens to make one that will not only suffice for the cinemascope picture, but for the old wide, or 2-D, pictures as well. In order to show these old pictures on the cinemascope screen, it is necessary to decrease the width of the picture in order to make it fit a screen ten and a half feet in height. This is done by increasing the size of the projection lens, and also with adjustment of the aperture plates. The plaintiff concern furnished the defendant with Wollensak projection lens, and I am satisfied from the testimony that these lens, with proper adjustment, would project a picture seventeen and a half feet in width and the proper length for the screen, provided the picture was one of the newer type pictures. However, if the picture was a 2-D, or a real old picture, such as a Western, and was even larger as to height, while it would fit this screen in so far as the width was concerned, the effect on the screen of this type picture would be that a part of the face and the feet of the actor would be deleted from the picture. This, of course, could be remedied to a certain extent by dropping the picture and deleting more of the feet and thus seeing more of the face and head of the actor, or by adjustment of the aperture plates, to make the picture smaller, and thereby include the whole of said picture. Thus, it is apparent that in the moving picture field there are pictures of three sizes, and it is not an easy matter for a person to successfully carry on a movie operation with one screen, unless the operator of the equipment is proficient in his field. The testimony in this record reflects that the defendant did not have an operator of his picture show that knew how to make the necessary adjustments with the projector, such as framing in order to drop the picture, or to increase the size of the aperture plates in order to reduce the size of the picture, and I am of the opinion that this is what caused the defendant’s trouble with his picture, rather than any defect in the screen or the other equipment that was sold to him. Of course, the testimony of Mr. Hodges, the President of the plaintiff concern, shows that in a small town it would be prohibitive to use a different lens for each different type film shown, and that the type lens he furnished would show all type pictures on the screen furnished with certain operative adjustments.

“After the defendant attempted to operate the show with the screen and lens that were furnished by the plaintiff, and according to his testimony, he was unable to do so successfully, he purchased another screen and other projection lens from the Southeastern Theatre Supply Co. This screen, as is shown by the testimony of Mr. Gre-million, who installed it, and who was produced as a witness by the defendant, was twenty-two feet wide by fourteen feet in height, and the old type, or 2-D picture, will fit on this screen without the head or feet of the actor being deleted from the picture. His testimony further shows that this new screen as furnished by the Southeastern Theatre Supply Co. was no different for the purpose of projecting the picture on the screen from that furnished by the plaintiff. In other words, it is apparent from Gremillion’s testimony, that had he known, as did Mr. Hodges, that the defendant was going to show cinemascope pictures in his theatre, he would have furnished the same size screen as did Mr. Hodges, the President of the plaintiff concern. Mr. Gremillion’s testimony also shows, however, even though it is possible to use the size screen furnished by Southeastern Theatre Supply' Co. for cinemascope, it is not recommended by the movie industry for cine-mascope, for the reason that there will he a blank space at the top and bottom of this screen when cinemascope is shown. Apparently at the time Mr. Gremillion installed this screen he was not told by the defendant that he was going- to use cine-mascope in his theatre, for I note his answer to a question on page No. 66 of the transcript as follows:

“ ‘Q. If, when you sold this screen to them you knew at that time they were going to install cinemascope, or it was contemplated they would, you would have kept the size screen that Mr. Hodges had in there, because otherwise, when you changed from 2-D, or wide arrangement to Cine-mascope, you had to decrease the height of the picture, which is against the recommendations of the motion picture industry? A. That is correct.’

“I am of the further opinion that after a careful reading of all the testimony in this record that the size screen that was furnished is the proper size screen for the purpose of showing all type pictures and consequently, it was fit for the purpose intended. I further feel that with the projection lens furnished, together with the other equipment, if the defendant had had an efficient operator, all types of pictures could have been successfully shown on this screen.

“I am further satisfied from the testimony in this record that all the materials were furnished to the defendant as shown on the itemized statement of the account and that he was given proper credits for materials that were returned by him, as well as credit for the amount of $150.00 which he paid at the time of the signing of the contract.

“I also feel that the charge of $50.-00 for engineering services in connection with the installation of the equipment was reasonable, for the plaintiff’s Engineer Ballam, came from New Orleans to Frank-linton and spent three days in said installation.

“Accordingly, for the above reasons, I will sign a judgment when presented to me in favor of the plaintiff and against the defendant in the amount prayed for.”

A careful review of the record fails to disclose any manifest error in either the legal or factual conclusions of the trial court and for that reason the judgment appealed from is affirmed.

Judgment affirmed.


text:
    The PENNSYLVANIA FIRE INSURANCE COMPANY, Plaintiff-Appellee, v. Robert E. HARRISON et al., Defendants-Appellants.
    No. 4396.
    Court of Appeal of Louisiana. First Circuit.
    March 25, 1957.

      McDougall & Rodrigue, Horace R. Alexius, Jr., Covington, for appellants.
    Iddo Pittman, Jr., Hammond, for ap-pellee.
   TATE, Judge.

Plaintiff was the collision insurer of a car owned by co-defendant Sunseri. This “Henry-J” automobile was totally wrecked on May 8, 1955, through the negligence of co-defendant Bobby Harrison, the 15-year-old son of the third co-defendant, Robert Harrison (who was liable for the tort of his minor son, LSA-Civil Code Article 2318).

Plaintiff company and Sunseri, its insured, had on May 19, 1955, settled on the “actual cash value” of the automobile destroyed (after deducting the net salvage value) at $563.30. They executed a subro-gation agreement, subrogating the insurer to the $513.30 loss paid (after deducting $50 per the policy provision).

On May 21, 1955, Sunseri received $150 from Harrison, Sr.,' and subsequent thereto received an additional $150 from the mother of another boy who had accompanied Harrison, Jr.

Pursuant to an alternative prayer in plaintiff’s petition, the District Court allowed Harrison a credit of $150 against the total loss of $563.30 sustained through the unquestioned negligence of his son. A net judgment in the amount of $413.30 was awarded the insurer against the Harrisons; and judgment was given it additionally against Sunseri in the amount of $100 (the additional $50 paid by Harrison being allowed Sunseri as a credit against the first $50 damages, deducted by the insurer before paying the loss).

The Harrisons appeal from the judgment. Sunseri did not do so. Plaintiff insurer, while stating that it believed the judgment to be equitable, appealed to protect its rights should appellate review allocate the damages otherwise among the defendants.

The Harrisons’ appeal is based upon the legal proposition that the insurer’s subrogation claim against the tortfeasor (Harrison) is ordinarily defeated by a full release for the subrogated damages given by the insured (Sunseri) to the tortfeasor, 29 Am. Jur. 1005, Verbo “Insurance”, Section 1344.

Sunseri had been made a co-defendant by the insurer because, in this latter event, the insurer which has already paid the insured for the loss caused by the tortfeasor’s negligence may obtain reimbursement from the insured from the funds received by the latter from the tortfeasor, or the insured may even be liable to the insurer for any loss which his releasing the tortfeasor has caused the insurer, 29 Am.Jur. 1007, Verbo “Insurance”, Section 1346. See also Travelers Fire Insurance Company v. Ackel, La.App., 2 Cir., 29 So.2d 617; Annotation, “Collision insurance; Insured’s release of tortfeasor * * * as releasing insurer from liability”, 38 A.L.R.2d 1095; 46 C.J.S. Verbo Insurance, § 1209, p. 152 et seq.

However, the uncontradicted evidence shows that Harrison Sr. paid the sum of $150 to Sunseri with full knowledge that the latter had settled with his collision insurer for the amount allowed under its policy, but furnished (together with the other parent) the additional amount needed by Sunseri to replace the destroyed car with another second-hand car. That is, Sunseri felt that the amount allowed under the policy did not fully cover the loss sustained by him through the negligence of defendant Harrison’s son, and they paid him the difference.

The District Court felt unable to credit the $150 so paid to Sunseri by Harrison entirely to damages not at all covered by the policy, because it was stipulated by counsel in this suit that the net value of the destroyed car was only $563.30. Defendant Sunseri has acquiesced in this determination as equitable.

The District Court’s judgment is supported by the following legal doctrines: “A settlement by the insured for the amount of the loss in excess of the insurance only, with the tortfeasor * * *, does not affect the insurer’s right of action against the tortfeasor”, 29 Am.Jur. 1006-1007, Verbo “Insurance”, Section 1345 (italics ours); Blashfield, Cyclopedia of Automobile Law, Section 4184, Volume 6 (Part 2), pp. 441-442; see, also, Union Automobile Insurance Company v. Cox; 12 La.App. 649, 126 So. 711. When the insured recovers from the tortfeasor an amount which, with the amount already received from his insurer, exceeds the loss actually sustained by him, he holds the excess as trustee for his insurer to whom it belongs, see authorities cited in Moncrieff v. Lacobie, La.App., 1 Cir., 89 So.2d 471, 474-475.

Under the stipulation that the actual loss sustained by Sunseri was only $563.30, the judgment of the District Court correctly holds Sunseri liable to his insurer for the excess received by him over his loss.

Alternatively, co-defendant Harrison Sr. urges that he should receive credit not only for the $150 paid by him, but also for the $150 paid by Mrs. Clark, the mother of the other boy involved in the wreck.

Insofar as the testimony in this suit indicates, young Clark was merely a passenger in the wrecked car and not a joint tortfeasor. The record is devoid of any reason why Harrison Sr. should receive the benefit of this contribution by a stranger to the present proceedings.

It is not inappropriate to state that, despite the stipulation entered into by counsel as to the actual value of the loss sustained, the District Court found that Sunseri sincerely bargained for the excess valuation over the mere “actual cash value” covered by the collision policy, needed by him to purchase an equivalent second-hand car. Harrison Sr. was apparently willing to bargain on this basis, partially because (as the District Court noted) of an implicit hope to avoid criminal prosecution of his boy for unauthorized use of the wrecked automobile, although Sunseri never mentioned the matter, and this hope (or illegal consideration) played no part whatsoever in the negotiations.

For the above and foregoing reasons, the judgment of the District Court is affirmed.

Affirmed.


author: ELLIS, Judge.

text:
    Earl H. WHITE v. LOUISIANA & ARKANSAS RAILWAY COMPANY et al.
    No. 4370.
    Court of Appeal of Louisiana. First Circuit.
    March 25, 1957.

      Morrison & Newell, New Orleans, for appellant.
    Kermit B. Guidroz, Baton Rouge, for appellees.
   ELLIS, Judge.

Wabash Railroad Company, a defendant herein, has appealed from a judgment on a rule nisi in which it was adjudged in contempt of court for failing to answer interrogatories within the time allotted by judgment rendered in the prior rule nisi, and in which it was further orderd to pay all costs pertaining to said motions and rules previously issued for extension of time within which to answer the interrogatories and costs of the two rules, both being for contempt, and further ordering the defendant to pay to plaintiff’s attorney as attorneys fees the sum of $300 which the lower court designated as reasonable expenses incurred in obtaining compliance with the order of the court requiring the defendant to answer the interrogatories.

In connection with plaintiff’s main demand, on November 17, 1955 some eighty interrogatories were propounded to the Wabash Railroad Company in accordance with the provisions of LSA-R.S. 13:3781 and 13:3784. On November 28, 1955 certain written objections were made to the interrogatories and the lower court on December 13, 1955 rendered judgment overruling the objections and directing and ordering the Wabash Railroad Company to answer the interrogatories in not less than 45 days from date of the judgment. Motion for an extension of time in which to answer the interrogatories was made by Wabash Railroad Company in which counsel for the plaintiff in writing waived objection and same was granted until March 1, 1956. On February 29, 1956 Wabash Railroad Company filed its answer to certain interrogatories and objected for certain written reasons to answering the remainder.

On March 5, 1956 counsel for plaintiff prayed for the issuance of a rule directed to Wabash Railroad Company “to show cause if any it has on a day and at an hour to be fixed by this Honorable Court, why said defendant should not be found in contempt of court for refusal to answer the interrogatories, refusal to make discovery, and failure to comply with the order of this Honorable Court read and signed in Open court on the 13th day of December, 1955, and why a judgment by default should not be rendered and signed in favor of the plaintiff, Earl H. White, and against the defendant, Wabash Railroad Company, as prayed for in plaintiff’s original petition, according to law;” and then in the alternative prayed for the relief outlined in LSA-R.S. 13:3792, subd. B, “Other consequences”. Counsel for plaintiff in rule further prayed for a judgment in accordance with LSA-R.S. 13:3791, “Refusal to answer”.

The rule was tried and the court for written reasons rendered judgment recalling the rule for the contempt and ordering the defendant to answer the interrogatories propounded with certain objections within thirty days from the date of the judgment which was signed on May 3, 1956.

Thus we see at this point that the court on the trial of the rule, while compelling Wabash Railroad Company to answer certain interrogatories held in effect that its refusal was not without substantial justification and, therefore, denied “to the examining party the amount of the reasonable expenses incurred in obtaining the order, including reasonable attorney’s fees,” under LSA-R.S. 13:3791.

The Wabash Railroad Company failed to file its answers to the interrogatories within the thirty days allotted to them by the judgment of May 3, 1956 and counsel for plaintiff on the 5th day of June, 1956 filed a rule in which he asked that the Railro'ad Company show cause why it should not be adjudged in contempt of court for refusal to comply with the written judgment. He also prayed alternatively for all costs pertaining to all proceedings “in this cause relative to and constituting a part of the exception to the jurisdiction here-inbefore filed, the interrogatories, the objections to the interrogatories, the judgment ordering the answering of the interrogatories, the motion for extension of Thirty (30) days time to answer the interrogatories, all costs arising in this proceedings out of the question of interrogatories, the Rule taken on March 12, 1956, the judgment of this Honorable Court on May 3, 1956 and the cost of this Rule; and why defendant, Wabash Railroad Company should not pay to petitioner's attorney, reasonable expenses incurred in obtaining the order of this court ordering defendant to answer said interrogatories which judgment was rendered on the 13th day of December, 1955, and reasonable Attorney fees in obtaining that order and for' the preparation of the Rule of March 12, 1956, and for the order of this Court of May 3, 1956, and of this Rule in contempt.” (Emphasis added.)

The rule was heard and the court in its written reasons stated:

“This matter is before the Court on a rule for contempt filed by plaintiff on June 5th, 1956, and heard July 2nd, 1956, growing out of defendant, Wabash Railroad Company’s failure to answer interrogatories addressed to it in connection with an exception to the jurisdiction of this court previously filed.”

Although the rule was clearly one for contempt as stated by the Court and would, therefore, necessarily be governed by LSA-R.S. 13:3792, the court awarded to “petitioner’s attorney, attorney’s fees in the sum of Three hundred ($300.00)” and ordered the defendant held responsible for all costs pertaining to the motions and rules and the extension of time in which to answer the interrogatories and costs of said contempt rules, in addition to holding the Wabash Railroad Company in contempt for failing to answer.

LSA-R.S. 13:3791 lays*down the procedure to be followed in the event a deponent refuses to answer any interrogatory submitted under LSA-R.S. 13:3771 through 13:3773 or under LSA-R.S. 13:3781. It states that upon reasonable notice to all parties affected thereby, the proponent of the interrogatory “may apply to the court in which the action is pending or in which the judgment was originally rendered for an order compelling an answer * * * ”. (Emphasis added). * * *. “If the motion is granted and if the court finds that the refusal was without substantial justification the court shall require the refusing party or deponent and the party or attorney advising the refusal or either of them to pay to the examining party the amount of the reasonable expenses incurred in obtaining the order, including reasonable attorney’s fees * * *

From the above, it is clear that in the present case counsel for plaintiff upon the refusal or failure of the Wabash Railroad Company to have answered the original interrogatories should have applied to the court for an “order compelling an answer,” and praying also for payment by Wabash Railroad Company of the amount of reasonable expenses incurred in obtaining the order including reasonable attorneys fees. In his first application for a rule he prayed mainly that the Wabash Railroad Company be adjudged in contempt but he also asked for relief in the nature of expenses and attorneys fees which was refused. He then obtained an order for them to answer. Therefore, the Wabash Railroad Company was placed in the position of being guilty of contempt of Court if it failed to answer in accordance with the judgment rendered on the first rule directing it to answer certain interrogatories. When it failed to answer, counsel for plaintiff properly ruled it into court for contempt which comes strictly under LSA-R.S. 13:3792, and it will be noted by a mere reading of same that no attorney fees nor reasonable expenses incurred in obtaining the ord|r to compel one to answer is allowed under the last cited statutes. The Court held the Wabash Railroad Company guilty of contempt in accordance with LSA-R.S. 13:3792, subd. A, for its failure to comply with the court’s order compelling it to answer, but did not impose or grant to plaintiff in rule any of the relief outlined under, subd. B, “Other consequences” (1), (2), (3), (4). Before a party is entitled to proceed under LSA-R.S. 13:3792 for a rule for contempt, he must have successfully proceeded under LSA-R.S. 13:3791, and it is in this rule that he can obtain reasonable expenses incurred in obtaining the order to compel the answer which also may include reasonable attorney fees. He is not given this right specifically under LSA-R.S. 13:3792. However, under, subd. B, “Other consequences” we find it does state:

“ * * * the court may make such orders in regard to the refusal as are just and among others the following: sjs s{s Ms

Under this broad language it would appear that a court would be authorized to impose the costs and attorney fees as was done in the present case.

One adjudged guilty of contempt can also be punished under Article 131 of the Louisiana Code of Practice which reads as follows:

“The judges of the Supreme Court, Courts of Appeals and District Courts have the power to punish all contempt of their authority by fine not exceeding fifty dollars and imprisonment for a period not exceeding ten days for each offense of that kind. And provided that no publication of utterance out of court, respecting the conduct of such courts or its officers, jurors, witnesses or parties in any cause after judgment shall he construed to be a contempt and punished as such; reserving to the parties aggrieved their remedies by prosecution for libel or action for damages,”

or if it be an attorney at law, with which we are not concerned in this case, under Article 132 of the Code of Practice.

We find a short but comprehensive statement with regard to contempt in Tulane Law Review, Vol. 17, page 656, which reads in part as follows:

“In Louisiana contempts are of two kinds; ‘direct’, those committed in open court; ‘constructive’, those committed out of view and hearing of the court. State ex rel. DeBuys v. Judges of Civil Dist. Ct., 1880, 32 La.Ann. 1256; Graham v. Jones, 1942, 200 La. 137, 7 So.2d 688. The theory of punishment for contempt is that it is to vindicate the authority and dignity of the court for a disrespect or disobedience shown it. See State ex rel. Heffner v. Judge of First Judicial Dist. Ct., 1898, 50 La.Ann. 552, 557, 23 So. 478, 480; City of Gretna v. Rossner, 1925, 154 La. 117, 97 So. 335. The courts in this state have been expressly granted power by the constitution to punish for both types of contempt. La.Const. of 1921, Art. 19, § 17; Art. 131, La.Code of Practice of 1870. Nevertheless, it has been pointed out that the power to punish for contempt is inherent in both the courts and the legislative bodies even without constitutional grant. See State ex rel. Morton v. Meyers, 1930, 171 La. 313, 131 So. 31, 34. This inherent power to punish for contempt is manifested by the decisions to the effect that the court against which the disrespect is shown is the exclusive judge in determining whether the act committed constitutes a contempt. State ex rel. O’Malley v. Houston, 1883, 35 La.Ann. 1195; State ex rel. Barthet v. Judge of Civil District Court, 1888, 40 La.Ann. 434, 4 So. 131; State ex rel. Dowling v. Ray, 1922, 150 La. 1030, 91 So. 443. From this 'general principle is deducted the ruling applicable in the instant case that the court commanding the doing of a certain act by a public body is alone vested with the right to determine whether or not the order has been complied with, or a sufficient reason has been given for failure to comply. City of Gretna v. Rossner, supra; State ex rel. Connerly v. Tangipahoa Parish School Board, La.App.1942, 9 So.2d 826. This absolute right of the court over matters pertaining to contempt is the rationale for the rule that a judgment imposing a sentence for contempt is not appealable. State ex rel. Farmer v. Judge of Parish Ct., 1879, 31 La. Ann. 116; City of Gretna v. Rossner, supra. But it has been held that the case in which the contempt has been committed is appealable. State ex rel. Farmer v. Judge of Parish Ct., supra; see City of Gretna v. Rossner, 1923, 154 La. 117, 121, 97 So. 335, 336. Because of the non-appealability from a judgment imposing a sentence for contempt, it becomes important to inquire into the supervisory jurisdiction of the supreme court. The conservatory writs appropriate for cases of contempt are certiorari and prohibition. La.Const. of 1921, Art. 7, § 2; Arts. 846, 855, La. Code of Practice of 1870. Prior to the adoption of the Louisiana Constitution of 1879 these writs issued only when invoked in aid of appellate jurisdiction * * * >>

It is well settled that as shown by cases cited in the above quoted article there is no appeal from a judgment of contempt, the remedy being for writs to the Supreme Court under its supervisory jurisdiction. This Court, however, has no jurisdiction to entertain this appeal from a judgment holding the Wabash Railroad Company in contempt of Court for failure to answer. The proper recourse was to apply to the Supreme Court for writs.

For the above and foregoing reasons the appeal is hereby dismissed.


text:
    Eugene WILLIS v. Daisey Sanders GORDON.
    No. 4369.
    Court of Appeal of Louisiana. First Circuit.
    March 25, 1957.

      Joel B. Dickinson, Baton Rouge, for appellant.
    Laycock, Stewart & Gordon, Baton Rouge, for appellee.
   LOTTINGER, Judge.

The petition in this matter reads as follows:

1.
“That plaintiff and Lillian Gordon were married on the 19th day of November, 1928, and have lived together as man and wife since that date. That at the time of their marriage, Lillian Gordon Willis did not have any separate property or funds and she has not received any separate property or funds by donation or otherwise since said date. That all of the property accumulated by either of them entered the community of acquets and gains existing between them. That there has never been a separation of bed or board or of property between petitioner and his said wife.
2.
“That on December 11, 1943, plaintiff’s wife, Lillian Gordon Willis, with plaintiff’s knowledge and consent, purchased from Mrs. Mary Wells for a
consideration of $285.00 cash, the following described property, to-wit:
(Herewith follows a description of Lots 17 and 19 of Square 2 of Wells-place in the City of Baton Rouge)
as will be more fully shown by deed passed before John T. Laycock, Notary, and recorded in Conveyance Book 555, page 437, of the Records of the Parish, a certified copy thereof being attached hereto and made a part hereof.
3.
“That although the above referred to deed stated that the property described therein was purchased with her separate and paraphernal funds, under separate management and for her separate estate, plaintiff’s wife had no separate paraphernal funds as any funds that she had at that time or since was earned during their marriage and while living together as man and wife; therefore, entered the community of acquets and gains existing between them.
4.
“Plaintiff further alleges that he signed the above referred to deed only as an accommodation to his wife, and under the belief that his signature was necessary in order to authorize her to purchase the said property; he being without knowledge that the separate and paraphernality clause was embodied in said deed, and/or the meaning of same.
5.
“Plaintiff further alleges that his said wife, Lillian Gordon Willis, without his knowledge or consent, did, on February 13, 1947, sign a document which purported to transfer said above described property to her father, Charles J. Gordon. That said document shows a cash consideration of Two Hundred Fifty ($250.00) Dollars when in realty there was no consideration paid for the purchase of said property. That the document further shows that it was passed and executed before William M. Fauver, a Notary Public, and Harry Sharp and Mirt Strenzke, witnesses, when in fact plaintiff’s wife Lillian Gordon Willis, executed the purported act of sale in her own home, and out of the presence of either witnesses or a Notary Public.
6.
“Plaintiff further alleges that there was never any intent on the part of his wife to deed said property to her said father, but that she was laboring under the impression that she was assisting him in borrowing some money in order to buy food and clothing as he was aged and in bad health at the time. That regardless of her intent, his wife could not have deeded said community property to her father without the authorization of petitioner, as head and master of the community.
7.
“That, therefore, the above referred to deed from Lillian Willis to Charles J. Gordon is null and void ‘ab initio’, and did not have the effect of conveying this property to the said Charles J. Gordon.
8.
“Plaintiff alleges further that the said deed from his wife to her father was a simulation, and a sham as there was no consideration paid for the said property, and the act was not passed before a notary and two witnesses as required by law, and is therefore not a deed translative of title.
9.
“That plaintiff did not authorize his said wife to execute said deed; in fact that he had no knowledge of said purported transfer of said property until after the death of his wife’s father as they had permitted him to live on and occupy the premises during his lifetime as an accommodation and without the payment of rent therefor.
10.
“That the said Charles J. Gordon died on or about July 23, 1954, leaving a will in which he willed and bequeathed all of his property to Daisey Sanders Gordon, to whom he was married and with whom he was living at the time of his death, as will be more fully shown by the probate proceedings No. 9460 and the Judgment rendered therein on August 10, 1954 and recorded in Conveyance Book No. 1104, page No. 371 of the records of this Parish.
11.
“That the said Daisey Sanders Gordon, having been appointed executrix of said Charles J. Gordon’s estate, took possession of the above described property, after the death of Charles J. Gordon, and has rented said property since August 10, 1954, or for a total of twenty five (25) months, at a monthly rental of Twenty Five and no/100 ($25.00) Dollars per month, having received a total of Six Hundred Twenty Five and no/100 ($625.00) Dollars as rental therefor to which plaintiff is entitled as owner of said property.”

The prayer is for judgment decreeing the purported sale from Lillian Gordon Willis to Charles J. Gordon null and void and further seeks the recovery of the sum of $625 received by the defendant as rental on the property.

The defendant filed an exception of no right of action and a plea of estoppel, both of which were maintained by the Lower Court, and the matter is now before us on an appeal taken by the plaintiff.

We find the judgment appealed from to be correct. Our Supreme Court in the case of Pfister v. Casso, 161 La. 940, 109 So. 770, was presented with a similar set of facts, the question being whether the property was community and thus inherited by the husband, or was separate and thus was inherited by collaterals. The court said:

“Of course, such a declaration by the husband does not bind his forced heirs nor his creditors (or creditors of the community) whose claims arose before such purchase, Kerwin v. [Hibernia] Insurance Company, 28 La.Ann. 312; Kerwin v. [Hibernia] Insurance Company, 35 La.Ann. 33. But, except as to these, ‘the rule has been repeatedly affirmed that a husband who has been a party to an act of purchase in which it is declared that the price belonged to the wife in her paraphernal right, and that the property is to be such, cannot afterwards contradict it; * * * the rule is founded on considerations of public policy and for the security of titles.’ ”

In this case, as in the Pfister case, there are no forced heirs of the husband, as he is still living, and there is no suggestion that there are any creditors whose rights may be affected by the estoppel resulting from the said declaration in the deed where plaintiff’s wife acquired the property.

The petition does contain the recital that the plaintiff signed the deed without knowledge that the declaration was in same, but as stated by the Supreme Court in the case of Rousseau v. Rousseau, 209 La. 428, 24 So.2d 676, 677, where a similar allegation was involved, it was held:

“It is incumbent on a person before signing an instrument to read it if he ' can read, and if not, to have it read to him and to listen attentively thereto.”

Incidentally, in the Rousseau case, the rule of estoppel was affirmed by use of the following language:

“ * * * The acts by which the titles were acquired, and in the execution of which appellant joined, contained the declarations that the wife was purchasing with her separate and paraphernal funds, under her own administration and control, and for her separate estate. Thus, the ruling was predicated on the well settled principle of law, that a husband who has been a party to an act of purchase in which it is declared that the price belonged to the wife in her paraphernal right, and that the property is to be such, cannot afterwards contradict it.”

For the reasons assigned, we are of the opinion that the plea of estoppel- is sound and should be maintained.

Judgment affirmed.


author: JANVIER, Judge. PER CURIAM.

text:
    Mr. and Mrs. Joseph A. DIECIDUE v. Robert KILPATRICK et al.
    No. 20790.
    Court of Appeal of Louisiana. Orleans.
    March 25, 1957.
    Rehearing Denied April 15, 1957.
    Writ of Certiorari Denied June 10, 1957.

      See also 86 So.2d 757.
    Ernest L. Salatich, New Orleans, for plaintiffs-appellees.
    Frank P. Krieger, New Orleans, for Warren A. Doll, defendant-appellant.
   JANVIER, Judge.

This suit to quiet title to a tax title was brought under authority of LSA-R.S. 47:2228.1.

The appeal by Warren A. Doll was taken to the Supreme Court which transferred it to this Court because of lack of jurisdiction. Diecidue v. Kilpatrick, 228 La. 1004, 84 So.2d 801.

It is not necessary that the description of the property be set forth since the only question which remains before us is whether or not one of the parties defendant, Warren A. Doll, should be required to pay the costs incurred by him.

It is his contention that he should not have been made a party defendant for the reason that there was no question about the perfection of the title of plaintiffs, and that therefore Doll, although he had at one time made an effort to have the title claimed by him recognized, he could not possibly have been successful because of the prescription of six years which, according to Doll, absolutely put an end to any possibility of a successful contest over the title of plaintiffs.

The prescription of six years which, according to Doll, absolutely perfects the title of plaintiff against the State and against any other possible party, is found in LSA-R.S. 9:5661 which reads as follows:

“Actions, including those by the State of Louisiana, to annul any patent issued by the state, duly signed by the governor and the register of the state land office, and of record in the state land office, are prescribed by six years, reckoning from the day of the issuance of the patent.”

In the original petition of plaintiffs it was alleged, and it has since been shown, that the property which was owned by and assessed to Robert Kilpatrick was adjudicated to the State of Louisiana for nonpayment of taxes for the year 1938, and that, at a sale held on June 8, 1946, Bernard Gulotta bid in the property and that, under authority of Act No. 237 of 1924, a patent was issued by the State of Louisiana to the said Bernard Gulotta and that the said Gulotta, by notarial act, sold the property to the present petitioners.

Petitioners did not know whether the tax debtor, Robert Kilpatrick, was still alive, nor who might be his heirs, and they therefore prayed that a curator ad hoc be appointed to represent the said former owner or his heirs and that there be judgment against any such former owner or owners, recognizing petitioners as the full and complete owners of the said property.

It later developed that the former owner of the property, the said Robert Kilpatrick, had, on May 7, 1934, mortgaged the said property and that, because of nonpayment of the mortgage indebtedness, the said mortgage had been foreclosed and that, at a sale under the foreclosure proceedings, the said property had been adjudicated by the Civil Sheriff to the mortgage creditor, Samuel Cresap. It also developed that-thereafter the said Cresap transferred to Warren A. Doll any rights which he may have had under the adjudication at the foreclosure sale.

Doll demanded that the Civil Sheriff for the Parish of Orleans execute to' him a deed in confirmation of the adjudication at foreclosure which had been made to Cresap, and when the Sheriff refused to execute such a deed Doll, by mandamus proceeding, compelled the Sheriff to do so. Thereafter the deed which the Sheriff executed to Doll was duly registered in C.O.B. 577, at folio 692.

When these facts transpired, petitioners, by supplemental petition, set them forth and alleged that, since Doll had registered his deed in the Conveyance Office, it was necessary that he be made a party defendant and that the title of petitioners which had been derived by Gulotta from the State of Louisiana be declared perfect against any possible attack by Doll, as well as against any possible attack by the former owner, Kilpatrick or his heirs or any other former owner. To this amended petition Doll, who was then made a party defendant, filed several exceptions.

It is interesting to note that in no one of them did Doll contend that there was no necessity that he be made a party defendant by petitioners and that he did not then admit that the title of petitioners was good against any possible claim by him.

His exceptions were overruled and Doll filed answer in which he denied practically every allegation made by petitioners and in which he prayed that the suit of petitioners, to have their title declared perfect, be dismissed.

After the filing of another supplemental petition, Doll then, for the first time, raised the contention that he should not have been made a party defendant. He averred that, since the title of petitioners had been derived by patent from the State of Louisiana, and that that patent had been issued more than six years, the title of petitioners was good as against the world as a result of LSA-R.S. 9:5661, which we have already set forth in full, and that therefore, since the title of petitioners was good as against the world, Doll should not have been made a party defendant since he could not possibly successfully contend that his foreclosure title was good.

After a trial there was judgment in favor of petitioners against all possible former owners and against Doll, and in the judgment it was provided that Doll should pay the costs incurred by him. He has appealed from that judgment, and in his motion for appeal he did not limit it to the question of costs. Now, however, his counsel concedes that the title of petitioners is perfect and contends that therefore the only question before us is whether Doll should have been required to pay his own costs.

Had Doll, when he was first made a party defendant, immediately answered and conceded that the title of petitioners was good even as against his foreclosure title, there might be some sound basis for his , contention that he should not be cast for his own costs. However, when he was brought into the suit, he had already compelled the Civil Sheriff to execute to him a deed purporting to convey title to the identical property which petitioners were asking to perfect and not only had he had that purported title registered in the Conveyance Office, but he had answered the suit of petitioners and had prayed that their suit be dismissed.

In view of the fact that he had registered his purported title which, if good, would have defeated the claim of petitioners, and in view also of the fact that when he was brought into the suit Doll attempted to have it dismissed, it seems entirely proper that he should be required to pay the costs incurred by him in his unsuccessful effort to have the suit of petitioners dismissed. Furthermore, under LSA-R.S. 13:4444:

“All appellate courts may tax the costs of the lower or appellate court, or any part thereof, against any party to the suit, as in its judgment may be deemed equitable.”

It is unnecessary that we consider or discuss the question of whether the title of petitioners was absolutely perfect as a result of the application of LSA-R.S. 9:5661.

The judgment appealed from is affirmed at the cost of appellant.

Affirmed.

On Application for Rehearing.

PER CURIAM.

Counsel for Warren A. Doll in an application for rehearing now states that, when the matter was orally argued before us, he did not state that the only remaining issue was whether Doll should be required to pay his own costs. Counsel did make that statement in unequivocal language and the position which he now takes convinces us that sometimes, though happily not often, it would be best to require that counsel, who, in oral argument, make concessions, should state those concessions in writing.

Fortunately, in this case we have in counsel’s application a statement in writing which indicates that there was and could have been no issue other than that involving costs, for in that application appears the following:

“Defendant Doll pleaded that he - should not have been sued because, under numerous cases * * * the plaintiffs’ Patent, after the lapse of said ' six years, is immune from any attack on any ground, on the part of anyone, including the State „ * * .

There is- no doubt whatever as to what counsel said in his oral argument. 'In fact, in the application for rehearing counsel admits that he made the statement and refers to it as a chance remark, saying: “A chance remark in oral argument can be easily misapplied or misunderstood; * * * ”.

The statement made by counsel was not a chance remark. He opened his argument with the unambiguous statement that the only issue remaining was whether Doll should be required to pay his own costs.

The application for rehearing is refused.

Refused.


author: REGAN, Judge.

text:
    STATE of Louisiana ex rel. Louise and Ernest KABEL v. REGISTER OF CONVEYANCES FOR THE PARISH OF ORLEANS and McKinney Realty Company, et al.
    No. 20760.
    Court of Appeal of Louisiana. Orleans.
    March 11, 1957.
    Rehearing Denied April 15, 1957.
    Writ of Certiorari Denied June 10, 1957.

      S.J. Parlongue, New Orleans, for plaintiffs-appellees.
    Polack & Rosenberg, Robert G. Polack, New Orleans, for defendants-appellants.
   REGAN, Judge.

Plaintiffs, Louise and Ernest Kabel, owners of Oak Ridge Park Subdivision, pray for the issuance of a writ of mandamus directed against defendants, the Registrar of Conveyances for the Parish of Orleans and the McKinney Realty Company, a real estate agency partnership composed of J. William McKinney and A. Thomas Weidert, ordering the cancellation and erasure of the inscription of a contract providing, among other things, for the payment of a commission of ten percent by the owners to' the broker on all lots sold in the subdivision.

The defendant, Registrar of Conveyances, answered and admitted the registration of the contract in his office and in all other respects denied the allegations of plaintiffs’ petition. He was a nominal party, therefore, he made no further appearance herein.

The defendant, McKinney Realty Company, pleaded the exceptions of no right or cause of action and of misjoinder of parties plaintiff and defendant; it further excepted to the pleadings on the ground that the suit was an illegal effort to have the rights of the parties emanating from an ordinary contract tried by rule in a summary manner.

These exceptions were overruled and McKinney Realty Company then answered and asserted that the contract was still in force, but that Louise Kabel desired to sell the property in breach thereof so as to deprive the McKinney Realty Company of its right to earn its commission thereon despite the fact that McKinney Realty Company had carried out its part of the agreement and had accomplished the improvements and development of plaintiffs’ property; that the rights and obligations of the parties by virtue of the contract are matters for determination in an ordinary suit and not in a summary proceeding; that the plaintiffs were not appearing herein with clean hands and that they should not be permitted to use the court as a means to further their illegal and wrongful objectives.

From a judgment in favor o.f plaintiffs and against the defendants making the writ peremptory and ordering the defendants to .cancel and erase from the hooks of the Registrar of Conveyances for the Parish of Orleans the inscription of the contract between Ernest and Louise Kabel and McKinney Realty Company, registered in COB 598, Folio 45, and bearing on the realty therein described, the McKinney Realty Company has prosecuted this devol-utive appeal.

The record reveals that upon the trial of the rule the matter was submitted to the Court for its decision predicated on the pleadings and in conformity with a stipulation that admitted the execution of the contract by the parties and the subsequent registration thereof in the office of the Registrar of Conveyances for the Parish of Orleans; that the contract now forms the basis of an ordinary suit which is pending in the Civil District Court for the Parish of Orleans, entitled McKinney Realty Company v. Louise and Ernest Kabel; that the defendants refuse to cancel and erase the inscription of this contract from the public records; the plaintiffs do not intend to pay McKinney Realty Company any further commissions for the sale of any lots in the Oak Ridge Park Subdivision; the owner of the property has received an offer of $50,000 for ten lots in the subdivision, which will be accepted provided that this inscription is removed from the records; and, finally, that the plaintiffs consider the inscription of the contract to be a cloud upon their title which the defendants deny.

The only question which the pleadings and the stipulation has posed for our consideration is whether the plaintiffs may proceed by mandamus, a summary remedy, to cancel the inscription of the contract providing for an exclusive agency agreement to sell real estate, from the records of the Registrar of Conveyances.

Defendants have asserted no claim to the ownership of the property which was the subject matter of this contract to sell real estate on a commission basis nor have they attempted to show that there exists in their favor a statutory lien and privilege emanating from the agreement-to sell the property as agents for the owners.

In Louisiana no claim is secured by a lien unless a lien to secure the claim, or to secure the payment of the class of claims to which it belongs, has been created by statute. LSA-Civil Code, Article 3185.

The Legislature granted no such lien or privilege to a real estate agent for his commission. His only claim for breach of contract is a suit for monetary damages.

It appears that the litigants herein belatedly recognized this fact for, as we stated hereinabove, there appears in evidence a subsequent suit entitled McKinney Realty Company v. Louise and Ernest Kabel. In that suit the McKinney Realty Company, relying on the identical contract which it registered in these proceedings, is endeavoring to obtain a monetary judgment against the Kabels for breach of contract.

In State ex rel. Ernest Realty Co. v. Moore, Blane & Merklein, 1936, 183 La. 927, 165 So. 147, 149, the Supreme Court had occasion to consider a case, the rationale of which is analogous to this one. There, the plaintiff, as owner of certain real estate, brought a mandamus suit against the defendants, an insurance agency and the Registrar of Conveyances for the purpose of having cancelled from the records a notice of lis pendens, asserting that the recordation of the notice was illegal because the insurance agency had no lien or privilege of any kind against the property and no color of right to affect the title thereto. The insurance agency pleaded the exceptions of no right or cause of action, which were overruled, and then answered averring that it had a lien and privilege on the immovable property resulting from the furnishing of fire and other insurance policies covering the property. The court reasoned thus:

“ * * * a. plaintiff in an ordinary suit could not by mere bold allegations claim a lien and privilege on immovable property, or color of title thereto, and compel the * * * owner to await the determination of that litigation, where the allegations of the petition showed, as a matter of law, that the plaintiff was not entitled to either a lien or color of title to the property, but that the * * * owner in such a case was entitled to proceed summarily by mandamus proceedings to have the cloud on his title to the immovable property * * * cancelled.”

Defendants, in asserting that “the authorities are unanimous that one party to a written contract relating to or affecting real estate, which has been recorded in the conveyance records, cannot force its erasure from these records summarily in a mandamus suit naming the Registrar of Conveyances and the other party to said contract as respondents”, cite in support thereof two cases. We take no issue with the principle of law enunciated in the decisions cited in support thereof except to point out that the statement and the cases cited are not apposite or even analogous to the factual or legal situation which this case has posed for our consideration. In both of those cases the agreement which one of the litigants was endeavoring to have cancelled from the records of the Conveyance Office was one wherein ownership to the real property was being asserted or, more briefly, the litigant in each case was the vendor and the vendee thereof. Obviously a mandamus suit would not lie, as those cases reveal, against the Registrar of Conveyances to cancel the inscription of an agreement to buy or sell for the reason that the ownership of the property is in contest, whereas here the only claim asserted by the McKinney Realty Company is one for a real estate agent’s commission.

We are, therefore, of the opinion that the registration of a contract providing for. the payment, by the owner of the property, of a real estate agent’s commission in the Office of the Registrar of Conveyances constitutes a cloud on the plaintiffs’ title and they are entitled to have it can-celled and erased by the sumfnary remedy of mandamus.

For the reasons assigned the judgment appealed from is affirmed.

Affirmed.

      . The record of which, No 342 229 of the docket of the Civil District Court, has been offered in evidence in this suit.

      . In re Standard Homestead Association, 1946, 207 La. 789, 22 So.2d 119, and innumerable cases cited therein.

      . State ex rel. Hymel’s Heirs v. Johness, Inc., 1940, 196 La. 159, 198 So. 890; Calcasieu Building & Loan Association v. Goudeau, 1935, 182 La. 247, 161 So. 599.