author: AYRES, Judge.

text:
    Eugene B. SCOTT et al., Plaintiffs-Appellants, v. CITY OF WEST MONROE, Louisiana, Defendant-Appellee.
    No. 8629.
    Court of Appeal of Louisiana. Second Circuit.
    April 26, 1957.

      Fred Fudickar, Jr., Monroe, for appellants.
    John F. McCormick, West Monroe, for appellee.
   AYRES, Judge.

The object of this action is to have decreed null and void Ordinance No. 1212 of the City of West Monroe which prohibits-parking of all types of vehicles or things on Cypress Street between its intersections, with North Seventh Street and with Bridge Street, and on Bridge Street from the new traffic bridge on the Ouachita River and the street’s intersection with Cypress Street, as-well as on the east side of Cypress Street between its intersection with Natchitoches- and Bridge Streets.

The plaintiffs are eight owners of businesses located on property abutting and fronting on Cypress Street, within the zone in which parking has been prohibited by the aforesaid ordinance. The ordinance is attacked a9 an unreasonable, arbitrary and unfair regulation of traffic, the enforcement of which would be injurious to petitioners and others similarly situated, and would impair their property rights. Additionally, it was contended that the ordinance violates Article 1, Section 2, of the Louisiana Constitution — LSA providing that no person shall be deprived of life, liberty or property, except by due process of law.

In an answer to a rule for a preliminary injunction against the enforcement of the provisions of said ordinance, the defendant City denied ‘that the ordinance was unreasonable, unfair or arbitrary or that its enforcement would be oppressive, and alleged that, due to the great and constantly increasing volume of traffic on this street, which, as a part of U. S. Highway 80, formed a main thoroughfare, the enactment and enforcement of the ordinance, in the interest of public safety, convenience and welfare, was not only imperative but a proper and valid exercise of its police power.

Defendant’s contentions were upheld by the trial court, and from a judgment denying a preliminary injunction, plaintiffs have appealed.

The facts, as established by the record, are not seriously disputed, and may be briefly stated. Cypress Street runs in a .■general northwest and southeast -course from Wood Street to its intersection- with North Seventh Street. Between Wood and Bridge Streets, Cypress is of the usual type •of a two-lane street. Continuing from Bridge Street to North Seventh Street, it is a four-lane thoroughfare having a width •of- 40 feet. Bridge Street, only two blocks in length, is likewise a four-lane street with a width of 47 feet. Bridge and Cypress-Streets, for a distance .of approximately -one and one-half miles, constitute a portion of U. S. Highway 80.

Important in the determination of the reasonableness vel non of the ordinance is-the volume of traffic on that portion of the street and/or highway where parking is prohibited. The evidence adduced on the trial showed that in. 19S0, at the east end of-Bridge Street, the traffic volume was 18,070 vehicles every 24 hours; 19,600 daily in December, 1953, and 21,000 daily in Féb-ruary, 1955; that on Cypress Street, between Crosley and Vernon Streets, in the ■second block northwest of the intersection ■of Bridge and Cypress Streets, in 1950 the daily traffic volume was 11,170, which, in February, 1955, had increased to 13,260 vehicles daily; that immediately beyond the •intersection of Cypress and North Seventh Streets and just beyond the northwest end ■of the four-lane thoroughfare, the daily traffic count in' 1950 was 7,530; in December, 1953, 8,220, and in 1954, 9,370.

On May 10 and 11, 1955, a Tuesday and .a Wednesday, covering two periods of 24 hours each, an hourly count of the traffic volume was made at two points on Cypress Street, the first, between Vernon and Cros-ley Streets in the second block beyond the ■intersection of Bridge and Cypress Streets, .and the second, between Travis and Drago Streets, a point approximately midway between . the approach to the new traffic 'bridge and North Seventh Street; At the -first of these locations, on May 10, the ve-hide count for the 24-hour period was 14,-409 and on May 11, 14,421. At the second point, the count on May 10 was 13,310 and on May 11, 13,666. At the first of these points, the tabulation showed that between 6:00 o’clock A.M. and 8:00 o’clock P.M. the traffic count ranged from 692 vehicles to 1,148 per hour, and at the second point the count between the same hours ranged from 574 to 1,049 vehicles per hour.

The first of these tabulations shows there has been a general and constant increase in volume of traffic on this street. Before undertaking the widening of this street, it was concluded by the Department of Highways that, in' order to properly expedite traffic through this area, a four-lane highway or thoroughfare was required. To permit the parking of vehicles on each side of this highway would be to reduce a four-lane highway to a fwo-lane highway and return to the conditions as existed prior to the widening of this highway. The traffic analyst of the Department of Highways testified that the highways were planned to expedite traffic and not for parking purposes.

The hourly computation of traffic herein-above referred to shows that, during normal -business hours ai either location, the traffic count was- never less than 669 vehicles per hour and ranged to as many as 1,148 per hour, or, ranged from an average of one vehicle approximately every 5Yz seconds to one vehicle during every three seconds, or, from an average of one vehicle every 22 seconds in each of the four lanes to one vehicle every 12 seconds "in each lane. Therefore, if the traffic were confined to only two lanes, as would result from parking on both sides of the street, as sought by plaintiffs, the average would range for each lane, or for each direction, from one vehicle every eleven seconds to one for every six seconds, not excluding stoppage for signal lights. From this it was reasonable to conclude some provision was necessary- to relieve the traffic congestion. existing at the time and as was constantly increasing.'-

Moreover, the record discloses that a vast percentage of the traffic accidents in the City of West Monroe occurred on the streets wherein parking is prohibited by this ordinance. The minimizing of such accidents is sufficient to motivate the Council in the enactment of the ordinance under attack.

It is conceded, and correctly, so, that a municipality may, under its police power, regulate in a reasonable manner vehicular traffic on its streets. For instance, in City of Shreveport v. Breazeale, 191 La. 1088, 187 So. 33, 34, in construing an ordinance regulating the operation of vehicles transporting persons for hire, where it had been charged that the ordinance deprived defendant of his property without due process of law, in violation of Art. 1, Sec. 2, (the Bill of Rights) of the Louisiana Constitution, as well as the Fourteenth Amendment to the Constitution of the United States, it was stated:

“There is no merit in these attacks. That a municipal corporation may, under it police power, regulate in a reasonable manner vehicular traffic on its streets is well settled by the jurisprudence of this country. It has been so held by every court, so far as we know, which has spoken on the subject.”

It was also said in City of New Orleans v. Schick, 167 La. 674, 120 So. 47, 49:

“The police power, as generally defined, extends to the protection of the lives, health, and property of the citizens, and to the preservation of good order and the public morals. The entire property and business within the local jurisdiction of the several states is within its control. The pursuit of any lawful trade or business may be subjected to reasonable regulations under the police power of the state, for the protection of the public health or safety, and the courts will interfere with the action of the local legislative authority only when it is plain and palpable that such action has no real' or substantial relation to the public health, or safety, or to the general welfare.”

That a city, through its governing authority, is vested with control over its-streets and may make reasonable regulations for their use, and is only precluded' from exercising that power in an arbitrary and discriminatory manner, has been recognized by the courts. City of New Orleans v. Badie, 146 La. 550, 83 So. 826, 827; City of Baton Rouge v. Hutton, 218 La. 371, 49 So.2d 613, 616.

It has likewise been held that the legitimate exercise of the police power is-not subject to restraint by constitutional' provisions for the general protection of the-rights of individual life, liberty and property. State v. Schlemmer, 42 La.Ann. 1166, 8 So. 307, 10 L.R.A. 135; City of New Orleans v. Schick, supra.

Due process of law and the equal protection of the law are had when the laws-affect alike all persons similarly situated. State ex rel. Civello v. City of New Orleans, infra, and the authorities therein cited. Archer v. City of Shreveport, La.App., 85 So.2d 337.

While reference has been made to the heavy traffic load borne by this segment of the highway upon which the ordinance prohibits parking of all kinds of vehicles or things, evidence of which was-introduced to substantiate the City’s contention that such facts warranted, justified and required such prohibition of parking, it is not necessary for the validity of the ordinance that we should deem the ordinance justified by consideration of public health, safety, comfort or the general welfare; it is sufficient that the municipal council could reasonably have had such consideration in mind, in which event, we must assume that, if such considerations could have justified the enactment, they did so justify it. State ex rel. Civello v. City of New Orleans, 154 La. 271, 282, 97 So. 440, 444, 33 A.L.R. 260. However, if the City’s governing authority deemed any substantial reason sufficient for the adoption of the ordinance, it is not the province of the courts to take issue with the council and substitute its judgment for that of the City’s governing authority. Archer v. City of Shreveport, supra; State ex rel. Civello v. City of New Orleans, supra.

In the Civello case, the court stated:

“If the municipal council deemed any of the reasons which have been suggested, or any other substantial reason, a sufficient reason for adopting the ordinance in question, it is not the province of the courts to take issue with the council. We have nothing to do with the question of the wisdom or good policy of municipal ordinances. If they are not satisfying to a majority of the citizens, their recourse is to the ballot — not the courts.”

See also City of New Orleans v. Schick, supra, 167 La. 674, 120 So. 47, 50, wherein the principle was further emphasized. It was there stated:

“It belongs to the legislative branch of the government to exert what are known as the police powers of the state and to determine, primarily, what measures are appropriate or needful for the protection of the public morals, health, or safety, * * *. Jacobson v. [Commonwealth of] Massachusetts, 197 U.S. 11, 26, 25 S. Ct. 358, 49 L.Ed. [643] 649, 3 Ann.Cas. 765; Garrett v. Aby, 47 La.Ann. 618, 630, 17 So. 238.”

We are concerned as a court only with the question as to whether the City’s governing authority, as a body, acted within the legitimate scope of the police power delegated to the City of West Monroe or whether such action was unreasonable, arbitrary and oppressive. This question must be determined by the provisions contained in the ordinance itself, with due regard to the traffic situation and to the public safety, convenience and welfare. In giving consideration to the reasons advanced as justifying the adoption of the ordinance, particularly in view of the traffic load on the street during all hours of a normal business day, and in applying the aforesaid principles, we find nothing in the ordinance or its enforcement that is unreasonable or arbitrary, and consequently no manifest error in the conclusions reached by the trial court that the ordinance affords a reasonable regulation of traffic in the interest of safety.

Plaintiffs, however, contend that as owners of the property abutting this street and upon which they reside and/or operate their businesses, they have been deprived of their rights to the street as well as have their customers and/or their friends and neighbors. These rights, such as are not common to the public in general, are the rights of access of view, of light and of air and of lateral support. Plaintiffs, by the adoption of the aforesaid ordinance, have not been deprived of these or any similar rights, all of which, however, are subordinate to the right of passage in the public.

39 C.J.S. Highways § 141, pp. 1080-1081, states the general rule:

“The rights of abutting owners are subordinate to the right of the public to proper use of the highway. Thus .the exercise of the rights of abutting owners is subject to reasonable regulation and restriction for the purpose of providing reasonably safe passage for the public; but regulations or limitations can not be sustained which unduly delimit or unreasonably intermed-dle with the rights of the abutting owners. The mere disturbance of the rights of the abutting owners by the imposition of new uses on the highway consistent with highway purposes must be tolerated.”

The streets of the cities and towns in Louisiana are classified among the things that are “public” and “for the common use”; no individual, as a general rule, can have a property right in such use for the purposes of his private business. City of New Orleans v. Calamari, 150 La. 737, 91 So. 172, 22 A.L.R. 106.

Moreover, the record discloses that the problem of parking on this street within the limits prescribed by the ordinance has been generally recognized by a great majority of the owners of the businesses concerned, who have made provisions for off-street parking or by parking on intersecting streets.

Plaintiffs have cited for consideration authorities from other jurisdictions. Among these is the case of City of Cleveland v. Antonio, 124 N.E.2d 846, from the Court of Appeals of the State of Ohio, wherein defendant had been charged and convicted of operating a commercial vehicle of more than four tons gross weight over a street where such operation was prohibited between the hours of 10:00 o’clock P.M. and 6:00 o’clock A.M. Defendant’s employer’s factory was located on a dead-end street and the effect of this ordinance was to deprive defendant during the prohibited hours of all means of access by commercial vehicles to his property, as the prohibition applied to all streets over which defendant’s factory could be reached. Another case is Morris v. City of Salem, Or., 174 P.2d 192, which was an action directed towards the prevention of the installation of parking meters in the City of Salem, State of Oregon. These cases are, therefore, easily distinguished on the facts from the instant case.

Additionally cited were the cases of Blumenthal v. City of Cheyenne, Wyo., 186 P.2d 556, and Haggenjos v. City of Chicago, 336 Ill. 573, 168 N.E. 661, 663, on the proposition that prohibition is not regulation and the power to regulate does not include the power to prohibit in the sense of absolute prohibition. The ordinance attacked in the first of these cases established a truck route through the City of Cheyenne in the State of Wyoming, as-apparently is the common practice in many cities and towns throughout the country. While the court declared that the power to regulate did not carry the power to-prohibit, yet it recognized that regulation was, at least, a partial prohibition and the ordinance was upheld as a valid “regulation” and not an invalid “prohibition”, even, though the ordinance prohibited the use of' certain streets by trucks at all times.. Neither do we think the second of these-cases supports wholly the proposition for which it was cited. The ordinance there-concerned not only prohibited parking on a. particular street but on all streets in a. prescribed section of the city covering an area of a half mile square. No comparable situation was encompassed in the ordinance-of West Monroe. The court nevertheless there recognized that under certain conditions the prohibition of parking absolutely had been upheld as a valid regulation, for it stated:

“Ordinances prohibiting the parking of vehicles in certain restricted localities between certain hours, or at all times, or limiting the parking privilege to an hour, to 30 minutes, to 20 minutes, are common, and have been sustained. Pugh v. City of Des Moines, 176 Iowa 593, 156 N.W. 892, L.R.A. 1917F, 345; Commonwealth v. Fenton, 139 Mass. 195, 29 N.E. 653; Taylor v. Roberts, 84 Fla. 654, 94 So. 874; Veneman v. Jones, 118 Ind. 41, 20 N.E. 644, 10 Am.St.Rep. 100.” (Emphasis supplied.)

While the case from which the above-quotation is taken would apparently lend some support to plaintiffs’ position, we do-not think the conclusions reached there are-controlling here. The instant case is governed by our own laws and jurisprudence.. Another distinguishing feature in the instant case is that Cypress and Bridge-Streets, where parking is prohibited, constitute a part of a national thoroughfare.

While plaintiffs are recognized as having rights as owners of property abutting the street and highway and of the businesses located thereon, such as access, or. the right of ingress and egress, and similar rights, none of which have they been deprived or unduly restricted in the exercise of, the primary use of this thoroughfare is for the purpose of travel, which right is primarily in the public. Plaintiffs’ rights, being subordinate, are subject to reasonable regulation.

Under the established facts, we are unable to conclude that the ordinance is unreasonable, arbitrary, unjust or oppressive or that it violates Art. 1, Sec. 2, ■ of the Louisiana Constitution. As it has not been shown that the ordinance was unreasonable or arbitrary, the conclusion necessarily follows that the validity of the ordinance should be upheld.

Accordingly, the judgment appealed is affirmed at appellants’ cost.

Affirmed.


source: Caselaw Access Project

author: HARDY, Judge.

license: Public Domain

text:
    Faye Ola SMITH, Plaintiff-Appellee, v. The ADMINISTRATOR, DIVISION OF EMPLOYMENT SECURITY of The DEPARTMENT OF LABOR of the State of Louisiana, Defendant-Appellant.
    No. 8653.
    Court of Appeal of Louisiana. Second Circuit
    April 26, 1957.

      Lewis D. Dunbar, Marion Weimer, Baton Rouge, for appellant.
    John C. Wagnon, Farmerville, for ap-pellee.
   HARDY, Judge.

This action was instituted by plaintiff, Faye Ola Smith, by a petition for a judicial review of an adverse decision of the Board of Review of the Division of Employment Security of the Department of Labor of the State of Louisiana. After first hearing, upon plaintiff’s application, the matter was remanded by judgment of the district court to the Board of Review for the taking of additional evidence. After complying with the order of remand the Board of Review reinstated its holding disqualifying plaintiff from unemployment benefits, and the matter was again tendered to the Third Judicial District Court in and for Union Parish. After hearing and submission there was judgment in favor of the claimant in the sum of $325 representing unpaid unemployment compensation benefits. From this judgment the Administrator of the Division of Employment Security prosecutes this appeal.

The facts are established without serious dispute. Plaintiff was discharged from her employment with Commercial Solvents at Sterlington, Louisiana, on November 25, 1955, for an alleged violation of company rules in marrying a man who was also an employee in the same plant. Claimant filed .an application for unemployment benefits •on January 5, 1956, and the agency dis•qualified claimant, effective November 25, 1956, “for being discharged for misconduct ■connected with the work” from which action claimant appealed. A hearing on the appeal was conducted in the Monroe office •of the agency on February 28, 1956, before the Chief Appeals Referee, at which hearing claimant was the only witness. The sole issue presented at the hearing, as evidenced by the statement of the Referee incorporated in the transcript of the proceedings of the hearing, was stated as follows:

“The issue is discharge for misconduct connected with the work.”

It is evident that the only basis for the charge of misconduct was claimant’s alleged violation of a company rule in marrying a fellow employee. The testimony on this point was conclusive and the finding of the Referee was positive that there was no misconduct chargeable to claimant within the intent of the act. It was clear that no company rule or regulation was involved, and, at worst, it could only be concluded that there was some sort of “custom” on the part of the employer which prohibited the employment of both husband and wife. Certainly it is unnecessary in this connection to dwell upon the question of marriage, under such circumstances, constituting misconduct justifying denial of eligibility for unemployment benefits.

However, the hearing, which was called and held for the purpose of determining the alleged question of misconduct, developed, under questioning by the Referee, an entirely extraneous issue involving disqualification on the ground of the finding that claimant was “not available for work” and therefore was held “ineligible for benefits as of February 28, 1956.” We pause to observe that this proceeding is somewhat analogous to charging an accused with petty larceny and finding him guilty of armed, robbery.

From the conclusion of disqualification claimant appealed to the Board of Review, whose unfavorable holding was predicated upon the following statement:

“Since she became unemployed she has not shown by any positive demonstration that she has been on the available labor market. She has failed to meet the eligibility requirements insofar as her availability is concerned; therefore the Appeals Referee was correct in so holding.”

The district judge found that the evidence before the Board of Review did not support the conclusion reached and rendered judgment in favor of claimant.

Counsel’s first complaint of error is set forth in the following statement contained in brief before this court:

“The record in this case shows that claimant became unemployed by her own act in marrying contrary to the employer’s opposition to married women working in their plant. This act on the part of claimant constitutes a voluntary quitting entailing the application of the disqualification provisions of [LSA-] R.S. 23:1601-(1).”

The above stated proposition is untenable. There is no evidence whatsoever in the record that claimant’s employer had any rule, regulation or instruction with reference to the employment of married persons. Plaintiff was notified by her foreman on the day upon which she was to be married that she could pick up her check on the way out. These were the findings of the Appeals Referee who held that claimant was separated under “non-disqualifying conditions”. This holding has never been disturbed by any agency of the defendant nor by any judicial tribunal. We find no ground for its consideration in connection with this appeal, but, in any event, we are firmly resolved that claimant’s exercise of the inalienable right to contract marriage cannot be considered as a voluntary quitting of employment because it conflicts with some unexplained idiosyncrasy of the employer.

The remaining issue which is here presented concerns the question as to whether claimant was available for work within the provisions of the statute dealing with unemployment compensation, particularly Sections 1600 and 1601 of Title 23 of the LSA-Revised Statutes.

Section 1600 deals with the eligibility of an individual to receive unemployment benefits and requires, in part, that claim must have been made for benefits within the provisions of the statute; that the claimant has registered for work and has continued to report at an employment office “in accordance with such regulations as the administrator may prescribe”; and that the claimant be able to work and available for work.

In the face of the facts established in the instant case there can be no serious contention that the claimant has failed to-comply with the eligibility requirements.

Section 1601, as amended by Acts of 1952' and 1954, covers disqualification for benefits, and, among other provisions, establishes as ground for disqualification the-failure on the part of claimant “without good cause, either to apply for available,, suitable work when so directed by the administrator or to accept suitable work when-offered him, * * Again, under the-facts, it is to be noted that there is no evidence that the claimant has been directed: by the Administrator to apply for any character or nature of work and the record, completely negatives any refusal on the part of the claimant to accept an offer of' work.

Counsel for. appellant correctly makes-the distinction between the eligibility requirements, which are conditions precedent to the award of compensation, and the-grounds for disqualification for benefits under which an initially eligible claimant may be deprived of the continuance of payment of unemployment compensation benefits. Nevertheless, we are of the opinion that learned counsel is guilty of confusing the-very distinction he has made by contending that a claimant found to be eligible for benefits may be disqualified on the ground that he is not “available” for work. The cause of this confusion, in our opinion, is-found in an erroneous definition and application of the term “available”. Counsel! would read into the use of the word “available” a meaning which is not implicit either by definition or by any evidence of legislative intent.

Counsel relies upon the holding of the Supreme Court of Florida in the case of Florida Industrial Commission v. Ciarlante, 84 So.2d 1, which comprehends a learned consideration of a number of cases from other states bearing upon the use of the term “available for work”. We are not impressed with the holding in the cited case as authority or precedent for a similar interpretation in the matter before us. The facts are completely at variance and thej basis of the court’s finding is predicated upon reasons which are not appropriate to the case here under consideration.

The facts in the instant case show that claimant lived in a small, rural community; that the only' industrial plant in the vicinity was the one from which she had been summarily discharged; that the opportunities for employment were few; that claimant was registered in defendant’s Monroe office, to which she reported once a week over a period of 20 weeks; that on each occasion she was asked and affirmatively answered as to her ability, willingness and availability for work; that she made some contacts in search of employment, and that she never at any time indicated a lack of availability for employment.

The applicable definition of the word “available” as given in Webster’s New International Dictionary, Second Edition, is:

“at disposal; accessible or attainable; obtainable.”

Counsel zealously contends that there should be read into the definition and the legal intent of the term “available” the obligation upon a claimant to engage in a continuous and unceasing search for employment. Such an interpretation would be an unwarranted extension of the usual and accepted meaning of the term. In truth, the word “available” entails a somewhat passive connotation. We think it is a sufficient enlargement of the term to hold that a claimant must show an active interest and effort in securing employment. These requirements have been evidenced in the instant case.

It should be pointed out that under the specific provisions of the act the entire burden does not rest upon a claimant but there are commensurate responsibilities and obligations on the part of the Administrator. There is no showing whatsoever in this case that the claimant was ever offered employment or directed by the office of the Administrator to make any special application for employment at any designated place or places. As we have pointed out, the labor market in the area in which claimant lived wa9 restricted and there is not the slightest evidence in the record before us that any opportunity for employment actually existed. At the time of the second hearing before the Appeals Referee on August 1, 1956, claimant had found part-time employment at a much lower rate of pay than that which she had earned in the employ of Commercial Solvents.

Our thorough consideration of the record in this case convincingly justifies the conclusion that defendant’s action in disqualifying claimant or declaring her ineligible on the ground that she was not available for work, was unsupported by the evidence, and, accordingly, the judgment appealed from is affirmed.


text:
    David C. BROWN, Plaintiff-Appellant, v. Donald E. HOCKENJOS et ux., Defendants-Appellees.
    No. 8660.
    Court of Appeal of Louisiana. Second Circuit.
    April 26, 1957.
    Hale M. Walker, Ruston, for appellant.
    Fred W. Jones, Jr., Ruston, for appellees.
   AYRES, Judge.

For a term of five years, beginning September 1, 1955, plaintiff leased to defendant, D. E. Hockenjos, a two-acre tract of land, together with the improvements thereon, located adjacent to U. S. Highway 80 in or near Simsboro, Lincoln Parish, Louisiana, for a rental of $50 per month, payable monthly, with the provision that, upon lessee’s failure to pay three consecutive monthly installments thereof, the lease, at the option of the lessor, would terminate. On the leased premises, defendant, Nell Flockenjos, wife of the lessee, operates a cafe.

For the alleged non-payment of rent for and beyond the month of September, 1956, plaintiff instituted this action, praying that the aforesaid lease be canceled and, in addition, that he have judgment in his favor against the defendants for an alleged balance of accrued rent, for a sum allegedly loaned to defendants for use in renovating and/or otherwise improving the leased premises, and for an amount allegedly due on an. open account for merchandise and groceries allegedly sold and delivered to defendants.

Defendants, in response to plaintiff’s demands, admitted the execution of the aforesaid lease but denied any rent was past due or that they purchased any merchandise or groceries from plaintiff or that they borrowed any money from him, thereby denying they were indebted unto plaintiff for any amount whatsoever.

The principal contention concerns the question of whose obligation it was to make the improvements to the leased premises, the expenditures for which, made by plaintiff, are sought herein to be recovered of the defendants. The issue as to the accrued rent has been eliminated by plaintiff’s remission of the amount claimed therefor. As to the alleged sale of the merchandise and groceries, the question is only one of proof of an open account.

From an adverse judgment, plaintiff has appealed.

No reference is made in the lease as executed as to the repair or improvement of the leased premises. The record, the statement of facts by the trial court in the absence of a transcription of the evidence, and the statements of accounts for materials and labor show that the renovation of the premises and the making of the improvements were made or caused to be made by plaintiff and the bills therefor paid by him. His claim for reimbursement of the expenditures so made is predicated upon a purported loan agreement entered into between him and Mrs. Hockenjos. It is strenuously urged by plaintiff’s learned counsel that parol evidence offered on behalf of the defendants is inadmissible to establish any obligation upon plaintiff to make, or cause to be made, at his expense, the improvements and renovation of the leased premises, inasmuch as the written lease imposed no such obligation. The jurisprudence supports plaintiff’s position in this regard and it is so well established under LSA-C.C. Art. 2276 that parol evidence, in the absence of allegations and proof of fraud or error, is inadmissible to contradict, alter or vary, or add to or subtract from a written contract as to obviate the necessity of citing authorities in support of the proposition. Therefore, so far as such testimony purports to place upon plaintiff a more onerous obligation than contracted in the aforesaid lease, such evidence is amenable to this rule of evidence, and the objection thereto, at least, to the extent and purpose, if it be, of altering, contradicting or varying the written lease, should have been sustained and, for such purpose, will not be given consideration in the resolution of the issues presented here.

Had plaintiff contended under the terms of the lease that defendants were obligated for the improvements and renovation of the premises, he would have been caught, at least, on the other, if not on the same horn of the dilemma, as such exclusion of evidence would have equal application to him. Therefore, plaintiff, of necessity, relies upon a separate and distinct agreement, subsequently arrived at, towit, that several days following the execution of the lease, he and Mrs. Hockenjos, allegedly acting for and on her own behalf and as agent for her husband, entered into a verbal agreement whereby plaintiff would malee a loan to defendants for the purpose of making alterations to and otherwise improving the premises.

The parol evidence rule that plaintiff would have us invoke is inapplicable. Plaintiff had the right to offer any legal and competent evidence in support of his claims. Likewise, the same course was open to defendants in their efforts to refute plaintiff’s contention. Plaintiff required of the defendants no note or other written evidence of such contract or of the obligation allegedly incurred by defendants. Other than itemized statements of the materials and labor charged to plaintiff and his checks given in payment therefor, the parties rely entirely upon parol evidence, plaintiff in support of his claim and defendants in denial thereof. The alleged obligation being in excess of $500, the ■proof to establish it is governed by LSA-C.C. Art. 2277, which requires it to be proved by at least one credible witness and other corroborating circumstances.

The testimony of the parties at interest could hardly be more in conflict. Plaintiff and his wife are positive that plaintiff did not agree to make the repairs and alterations but that plaintiff loaned the money to Mrs. Hockenjos for that purpose, of which amount $800 was to be paid in two months and the remainder in monthly installments of $42 each. According to plaintiff and his wife, this agreement was made subsequent to the execution of the written lease. To the contrary, defendants swear just as positively and deny any agreement for incurring the expense of the repairs and alterations.

The district judge in this written opinion, given in the nature of a statement of facts, carefully analyzed the testimony of each of the witnesses and carefully weighed and considered all the facts and circumstances. It was considered that these facts would tend to support plaintiff’s position — that defendants obtained an estimate of the cost of needed additions from the Lincoln Plumbing Company; first made an application for a loan for funds from the Federal Housing Administration with which to make the improvements and obtained a comparatively long-term lease — from which it may be concluded justified them in making the improvements and alterations at their expense. On the contrary, it was considered that these facts supported defendants’ position — that it was unlikely that plaintiff would make expenditures of the amount claimed and established for the improvements and alterations without requiring a note or some other written evidence of defendants’ obligation to reimburse him for such expenditures; that the improvements would have the effect of enhancing the value of plaintiff’s property; that plaintiff contracted with the Lincoln Plumbing Company for the improvements and alterations, supervised the work, paid the laborers and suppliers of materials, and, after having unsuccessfully made an application for an F. H. A. loan for funds to pay for the improvements, he borrowed the money from a local bank, secured by a mortgage on his property.

Additionally, it was shown that the lease on the property where plaintiff was operating his own store was about to expire and that he was unable to renew the lease thereon. It was, therefore, considered that after the lessee herein refused plaintiff’s request for permission to construct a store building on a portion of the lot covered in the lease, plaintiff had a motive other than that alleged for seeking the cancellation of defendants’ lease. It is also shown that prior to the institution of this suit, plaintiff made demand for a sum of approximately $500 less than the amount now claimed.

After giving consideration to all the facts and circumstances of this case, the trial judge arrived at the ultimate conclusion that plaintiff had not sufficiently proved his demands nor established his claims by a preponderance of the evidence. Under the facts and circumstances, we can not say that his conclusions are manifestly erroneous.

Here, as was stated by the Supreme Court in During v. Thibodeaux, 224 La. 814, 70 So.2d 882-883:

“The case resolves itself upon the credibility of the witnesses. The trial judge had the opportunity to observe them when testifying and to judge the degree of credibility which could be placed in their testimony. Under such circumstances we cannot say that his findings are erroneous. Rouzan v. Rouzan’s Curator, 18 La. 425; Cormier v. Douet, 219 La. 915, 54 So.2d 177, 178. In the Cormier case this Court stated:
‘Since tbe requirement of Article 2277 R.C.C. is such that it of necessity draws into its legal vortex the sufficiency of proof shown by the record, and since the evidence is correlated with the credibility of the witnesses, the district judge’s conclusions must be accepted, unless they are manifestly erroneous. Barnes v. LeBlanc, 207 La. 989, 22 So.2d 404; Thornton v. Ellington, 209 La. 613, 25 So.2d 282; Meridian Land & Mineral Corp. v. Bagents, 211 La. 627, 628, 30 So.2d 563, and Martin v. Martin, 212 La. 1092, 34 So.2d 329.’ ”

See also Vath v. Gay, 226 La. 873, 77 So.2d 519.

With reference to the claim for merchandise and groceries, the trial court found the evidence just as conflicting, in which finding we concur.

For the reasons assigned, the judgment is affirmed at appellant’s cost.

Affirmed.


author: GLADNEY, Judge.

text:
    Julius R. WHITE, Jr., Plaintiff-Appellant, v. MOREHOUSE PARISH POLICE JURY, Defendant-Appellee.
    No. 8665.
    Court of Appeal of Louisiana. Second Circuit.
    April 26, 1957.

      Madison, Madison, Files & Shell, Bastrop, McHenry, Lamkin, Snellings & Breard, Monroe, for appellant.
    Albín P. Lassiter, Monroe, Mack E. Barham, Bastrop, for appellee.
   GLADNEY, Judge.

The plaintiff, J. R. White, Jr., brought this suit attacking the validity of a local option election held December 18, 1956 in Ward One of Morehouse Parish, Louisiana. Made defendants are the Morehouse Parish Police Jury and Sheriff E. L. Hinton, against whom injunctive relief was sought to prevent enforcement of Ordinance No. 818 of the Morehouse Parish Police Jury prohibiting within the said ward sale of beverages of high alcoholic content. Exceptions of no cause or no right of action were filed by each of said defendants and ruled upon by the trial court. Following trial on the merits, judgment was rendered rejecting plaintiff’s demands, from which orders of appeal were taken to this court.

Upon consideration of the pleadings and evidence submitted to him, the judge a quo held: (1) that any elector qualified to vote in a local option election is expressly authorized by Section 590 of the local option statute, LSA-R.S. 26:581-26:595, to sue for the purpose of having the election declared illegal and ineffective; (2) a court is without authority to enforce injunctive proceedings to restrain a sheriff and his deputies from enforcing a criminal ordinance; (3) where a petition calling for a local option election, after legal withdrawal of the names of twenty-three petitioners, contains less than twenty-five per cent of the qualified electors residing in the ward, as required by LSA-R.S. 26:582, such petition fails to substantially comply with the law; and (4) when the capacity of the plaintiff to institute this action was expressly denied in the answer, it was incumbent upon plaintiff to present affirmative evidence that he was an elector qualified to vote in .said election, and upon his failure to adduce such proof his suit would be dismissed.

No serious contention is made as to, and indeed, all parties herein concede, the correctness of the court holdings enumerated (1), (2) and (3). However, appellant assigns error to the court’s finding that proof of plaintiff’s capacity as an elector was insufficient and, therefore, justified dismissal of his suit. We, therefore, direct our attention to a consideration of this, the only serious issue presented on the appeal.

The petition alleges that petitioner was on December 18, 1956, the date of the election, a qualified elector and registered voter in Ward One of Morehouse Parish, Louisiana. Prior to filing its answer, counsel in behalf of Morehouse Parish Police Jury filed an exception styled “exception of no cause or right of action.” This pleading moved the dismissal of plaintiff’s suit on the ground that he was without capacity to sue exceptor for reasons stated to be: (1) that any elector qualified to vote in the election was privileged under LSA-R.S. 26:591 to demand a recount of ballots or to contest the election in the same manner as provided by law for the recount of ballots or contest of elections under the general and special laws of this state. The exception then recites the method of procedure under our general election statute and particularly LSA-R.S. 18:1251. Under this section of the statute, in order to attack an election the party contesting the ward election is required to hie with the court a petition signed by at least ten voters, residents of the ward; and (2) exceptor also contended the action should be tried in all respects as ordinary suits and such suits are entitled to trial by preference, all in accordance with LSA-R.S. 18:1251. Reference herein is made to the exception not for the purpose of giving consideration to the ruling thereon by the trial judge, which admittedly is correct and not in dispute, but to disclose the exception does not charge plaintiff is not an elector of the ward as so alleged in his petition. The exception simply urges as a point of law' this action should have been commenced by ten electors as prescribed by the general election statute.

Being urged as an exception of no cause or right of action it necessarily admits all questions of fact well pleaded in the petition and especially that plaintiff was at the time of the ward election an elector entitled to vote in the election. For the purpose of this suit such capacity was thereby admitted. The exception of capacity is dilatory in character and must be pleaded in limine. Otherwise, the same is cut off by default or pleading to the merit. Articles 330, 331, 332 and 333 of the Code of Practice. The last mentioned article provides that in every case dilatory exceptions must be pleaded in limine litis, otherwise they shall not be admitted, "nor shall such exception-s hereafter be allowed in any anszver in any causeForasmuch as the exception filed by the Morehouse Parish Police Jury did not expressly attack in limine litis plaintiff’s allegations he was an elector and as such, entitled to bring this suit, the holding of the court that such fact was not adequately proved, is erroneous and prejudicial.

The allegations of the petition, supported by its proper verification, established proof the action was instituted in the proper capacity. See : Dunlevy Packing Co. v. Juderman, 1 La.App. 476; McDonald v. Burns, 2 La.App. 1; Powe v. Morgan’s Louisiana & T. R. R. & S. S. Co., 7 La.App. 51; Dickens v. Singer Sewing Machine Co., Inc., 1932, 19 La.App. 735, 140 So. 296; Equipment Finance Corporation v. Atkins, 1932, 19 La.App. 834, 139 So. 154; Didier v. Pardue & Pardue, La.App. 1932, 144 So. 762; Central Surety & Insurance Corporation v. Canulette Shipbuilding Co., Inc., La.App.1940, 195 So. 114; Outdoor Electric Advertising, Inc., v. Saurage, 1945, 207 La. 344, 21 So.2d 375; City of New Orleans v. Leeco, Inc., 1951, 219 La. 550, 53 So.2d 490; Post Office Employees Credit Union v. Frosina, La.App.1955, 77 So.2d 213; Liberal Finance Corporation v. Hills, La.App.1955, 81 So.2d 450. See also: McMahon, Parties Litigant in Louisiana, The Exception of Want of Capacity, 11 T.L.R. 538, 546, 547.

We find it unnecessary to pass on appellant’s attack on the refusal of the trial judge to grant a new trial or rehearing, or to reopen the trial for the purpose of submitting additional evidence. As a rule the granting or refusal of a new trial or rehearing rests within the sound discretion of the trial judge. It is only for good cause shown and where the ruling is manifestly prejudicial that the appellate court will review such a ruling. In this case the entire record is before us for consideration and therefore, the ruling complained of cannot be said to be prejudicial to the rights of the appellant. Succession of Robinson, 1937, 186 La. 389, 172 So. 429; In re Succession of Bright, 1941, 197 La. 251, 1 So.2d 94; Anderson v. May, La.App.1942, 6 So.2d 174; Huderston v. American Mutual Liability Co., La.App. 1943, 14 So.2d 489; Oil Field Supply & Scrap Material Co. v. Gifford Hill & Co., La.App.1943, 16 So.2d 77.

The ruling of the court on the exception of no cause or right of action filed on behalf of Sheriff E. L. Hinton is not before us for consideration. No judgment was signed maintaining the exception and apparently the correctness of the decision was acquiesced in by all parties.

Where the local option election has been declared invalid it is unnecessary to act upon the prayer for injunctive relief against the enforcement of a parish ordinance enacted to effectuate results of the election, since resolutions of the Police Jury based on a void election are without legal efficacy. McCrary v. Police Jury of Caddo Parish, La.App.1953, 66 So.2d 416, affirmed 225 La. 489, 73 So.2d 431; Tuggle v. Police Jury of Webster Parish, La.App. 1953, 66 So.2d 414, affirmed 225 La. 490, 73 So.2d 431; McGee v. Police Jury of Caddo Parish, La.App.1953, 66 So.2d 408, affirmed 225 La. 471, 73 So.2d 424, opinion followed in McCrary v. Police Jury of Caddo Parish, 225 La. 489, 490, 73 So.2d 431.

The record discloses beyond doubt that the action taken by the Police Jury in calling the election was contrary to mandatory provisions of the state local option statute, in that the petition for the election when presented to the Police Jury did not contain twenty-five per cent of the registered voters as required by LSA-R.S. 26 :582. The invalidity of the election and ordinance No. 818 is virtually conceded by counsel for appellee.

In argument counsel for appellant directed our attention to the assessment of costs when a Police Jury is cast. The parish is exempt from ordinary cost in a suit, but is subject to the payment of fees due a court stenographer under the provisions of LSA-R.S. 13:4521. See McGee v. Police Jury of Caddo Parish, supra.

For the reasons hereinabove set forth, the judgment from which appealed is annulled, reversed and set aside, and it is now ordered, adjudged and decreed that there be judgment in favor of plaintiff, Julius R. White, Jr., and against the defendant, Morehouse Parish Police Jury, declaring the resolution of said Police Jury adopted on November 2, 1956, calling, ordering and fixing an election for Ward One of Morehouse Parish, Louisiana, to vote on whether or not alcoholic beverages can be sold therein, and any and all other resolutions pertaining to said election, and Morehouse Parish Ordinance No. 818, adopted on January 3, 1937, to be illegal, null and void. It is further ordered that as provided for in LSA-R.S. 13:4521, the Morehouse Parish Police Jury pay only the stenographer’s costs incurred herein.


text:
    Troy NOLAN, Plaintiff-Appellee, v. FIDELITY AND CASUALTY COMPANY OF NEW YORK, Defendant-Appellant.
    No. 8668.
    Court of Appeal of Louisiana. Second Circuit.
    April 26, 1957.

      Charles H. Morton, Jonesboro, for ap-pellee.
    Albin P. Lassiter, Robert T. Farr, Monroe, for appellant.
   AYRES, Judge.

Plaintiff instituted this action to recover the maximum statutory benefits payable under the Workmen’s Compensation Statute (LSA-R.S. 23:1021 et seq.) as provided for total and permanent disability, due to accidental injuries allegedly sustained August 7, 1956, while employed by the Arkansas-Louisiana Gas Company at its plant at Spencer, Union Parish, Louisiana. The defendant is the employer’s compensation insurance carrier.

From a judgment in plaintiff’s favor, defendant has appealed.

The question for determination is one of fact. The facts of plaintiff’s employment and rate of wage and compensation and of his total and permanent disability are either conceded or have been established by evidence to such a degree of certainty as to eliminate any peradventure of a reasonable doubt.

There remains for resolution the one and only question of whether plaintiff has established that he sustained accidental injuries while in the employ of the Arkansas-Louisiana Gas Company and while discharging and performing the duties of his employment. The facts pertaining to or having some bearing on this issue may be briefly reviewed. Plaintiff had been in the employ of the Arkansas-Louisiana Gas Company for approximately 10 years. While working in the employer’s pipe yard where pipe was being prepared for use in a welded line through a process of beveling, plaintiff, on picking up an oxygen or acetylene gas tank weighing approximately 150 pounds, experienced a catch or pull or strain in his back, accompanied by pain, and after walking some 30 or 40 feet in carrying.this tank to the beveling machine to replace an empty tank, plaintiff bent over and dropped the tank and was injured.

Defendant contends there is no evidence of this occurrence or accident other than plaintiff’s own testimony and that he is not sufficiently corroborated by facts and circumstances so as to establish the occurrence of the same beyond a mere possibility and not to that degree of certainty as required by law. We think, however, the evidence preponderates to the contrary. Plaintiff says he told two fellow employees on the afternoon of the accident that he hurt his back. Louie Tucker, one of these, corroborates plaintiff when he testified:

“Well, I was on one pipe rack helping one beveling machine, helping on it and I happened to look across on the other rack and I saw him (plaintiff) pick up an oxygen bottle (tank) and he went probably thirty or forty feet with it and dropped it and he sorta stooped over and I thought he had got too hot, it had got awfully hot and after a while I went over there and asked him what was the trouble and he said he must have hurt his back, his back hurt him”.

The other fellow employee, T. T. Gray, recalled a conversation with plaintiff as plaintiff came by the beveling machine with the tank. The witness admonished plaintiff about carrying such a load without assistance. Because of the noise made by the machine, the witness did not grasp or understand what plaintiff said.

The next morning following the accident, plaintiff was unable to report for work, whereupon, according to his and his wife’s testimony, she phoned his foreman and advised him of the fact of plaintiff’s injury. A few days later the foreman called by a store operated by plaintiff’s wife to obtain plaintiff’s signature to the payroll record, as it was the custom and practice that each of the employees sign the payroll. On that occasion the wife and daughter testified they were present and heard the plaintiff inform Milford, the foreman, that he had hurt himself.

Plaintiff and other employees residing in Farmerville and vicinity were transported to and from the place of employment, some 18 miles distant, by bus. Plaintiff alleged, and so testified, that the accident occurred only a short time prior to the end of the day’s work. On returning to Farmerville, plaintiff was observed walking away from the bus by another fellow employee, who, from plaintiff’s manner of walking, observed that something was evidently wrong with plaintiff, about which the fellow employee inquired at the time.

After reaching Farmerville, plaintiff went the same afternoon of the accident to the Norris-Booth Clinic and saw Dr. Booth concerning his back. Among the complaints, Dr. Booth reported that plaintiff complained that riding in a car caused him considerable pain. Later, plaintiff reported to the Green Clinic at Ruston, Louisiana, where he was first examined and treated by Dr. Henry Roane and later by Dr. L. C. Bleich, the latter ordering plaintiff to be hospitalized from August 27 to August 31, 1956, followed by treatment as an out-patient since that time. Due to an accident sustained by Dr. Roane, his testimony could not be secured.

Dr. Bleich reported plaintiff’s condition, as he observed him during his initial treatment and subsequently on September 17 and 25 and November 30, 1956, as a herniated intervertebral disc with definite evidence of a low back derangement, possibly from more than one source but particularly from a deranged disc. Under this condition, plaintiff suffered the usual pain and discomfort, muscle spasms and tenderness, back and sciatic pain, and limitation of motion of the spine and of leg raising usually accompanying such condition. On a test being made, he found the left leg could only be raised 20 degrees from horizontal and the right leg only 45 degrees.

Plaintiff was referred by defendant’s counsel to Dr. Alfons R. Altenberg, an orthopedic surgeon, of Monroe, Louisiana, who made an examination December 10, 1956, and from which he made a diagnosis that plaintiff was suffering from a ruptured lumbar intervertebral disc. In his testimony the doctor says that plaintiff’s pain was quite severe and that he was totally disabled, on the basis of his last examination, from performing heavy manual labor such as he was doing at the time he was injured, and he thought at the time that surgical intervention was advisable, as, without surgery, there could be, usually, no practical recovery in a case as severe as this one.

While some of defendant’s witnesses, such as the foreman, either deny or do not recall plaintiff’s report or complaints as to his injury, yet the testimony, as a whole, is convincing that plaintiff did sustain an accident as alleged and that from such accident he sustained injuries from which he immediately became disabled.

Defendant contends that plaintiff may have been injured in some other accident not occurring upon the employer’s premises or while he was not engaged in the performance of his employment but elsewhere. The sequence of events refutes this contention. Plaintiff left the place of employment on a bus furnished for his transportation to Farmerville, where he immediately went to a physician for examination and treatment. There is no evidence whatsoever that would lead to the slightest suspicion that an accident occurred after plaintiff left the bus in Farmerville prior to his engagement with Dr. Booth on the same afternoon. The interval of time intervening is so brief as to practically eliminate any possibility of an accident after plaintiff left his work and reported to a doctor. Had an accident occurred in that brief space of time and while plaintiff was going from the bus stop to the doctor’s office, it appears there would have been little difficulty in establishing that fact.

There is no question but what plaintiff was fully able to and did discharge his duties in the performance of hard manual labor to and until almost the closing of the work day of August 7, 1956, at which time he claims to have sustained accidental injuries. The record further establishes beyond any reasonable doubt and certainly by a preponderance of the evidence that from that day forward until this time plaintiff has been and is totally incapacitated from the performance of his work or work of the same or similar character.

The trial court, in a written opinion, most carefully and painstakingly analyzed the evidence and concluded that plaintiff had sufficiently established the occurrence of the accident and his injuries and disability resulting therefrom. Notwithstanding the excellent, thorough and most exhaustive brief filed by defendant’s most learned counsel, we are not convinced that His Honor committed any manifest or reversible error; on the contrary, the evidence convinces us that the judgment appealed is clearly correct, except that the judgment should have been limited to the weekly compensation payable to the period of plaintiff’s disability, beginning August 7, 1956, not, however, to exceed a total of 400 weeks, and that the witness fee of Dr. Alfons R. Altenberg, taxed as costs, should have been fixed as required by the statute.

Accordingly, the judgment should be, and it is hereby, amended so as to limit the payment of the weekly compensation to the period of plaintiff’s disability, beginning August 7, 1956, not, however, exceeding a total of 400 weeks, and fixing the expert witness fee in the sum of $35, and, as thus amended, the judgment appealed is affirmed at appellant’s cost.

Amended and affirmed.


text:
    William C. PARDUE, Plaintiff-Appellant, v. David E. NORRED et al., Defendants-Appellees.
    No. 8669.
    Court of Appeal of Louisiana. Second Circuit.
    April 26, 1957.

      Holloway & Baker, Jonesboro, for appellant.
    McBride & Goff, Ruston, for appellee.
   GLADNEY, Judge.

In this appeal plaintiff is aggrieved by a judgment rejecting his demands. This suit was brought as a result of an intersectional automobile collision which occurred in Jonesboro, Louisiana, and in which plaintiff’s Ford automobile sustained damage. After trial on the merits the judge a quo sustained a plea of contributory negligence filed by the defendants, the effect of which was to bar plaintiff’s right to recover.

The material facts relating to the accident are not difficult to ascertain. During daylight hours on October 8, 1955, William C. Pardue, accompanied by J. T. Burnum, was proceeding in Pardue’s automobile to their place of employment at a nearby paper mill. As their automobile proceeded north along Michigan Avenue in the Town of Jonesboro at a speed of about twenty-five miles per hour, the vehicle entered an intersection with Sixth Street and was struck by an enclosed panel milk truck, being driven westerly by David Edgar Norred. Riding with Norred was James Thrift, a young man who assisted Norred in the delivery of milk for their employer, Lowell F. Lynde. Michigan Avenue is a blacktopped street and Sixth Avenue is blacktopped up to the west side of Michigan, but west of Michigan, Sixth Street changes its name to First Street, and is not paved. Plaintiff has impleaded as defendants Norred, Lynde and Manufacturers Casualty Insurance Company, Lynde’s liability insurance carrier.

Plaintiff charges that Norred was guilty of actionable negligence in several particulars : excessive speed, failing to respect a stop sign and right-of-way street, failing to properly observe the intersection and have his car under control. Alternatively, the last clear chance or discovered peril doctrine is invoked. There is no substantial evidence to support charges of excessive speed, the existence of any stop sign, or the allegation that Michigan Avenue is designated as a right-of-way thoroughfare by local ordinance. Thus, plaintiff must rely upon his averments that Norred failed to maintain proper observation while approaching the intersection and failed to have his car under proper control.

Defendants deny Norred was in any wise negligent and support their charge of contributory negligence on the part of Pardue by alleging excessive speed, failure to maintain a proper lookout and in not keeping his vehicle under control. It is further claimed Norred preempted the street and in any event he was entitled to the right-of-way under LSA-R.S. 32:237, subd. A.

Of special significance is testimony by Norred, Burnum, Thrift and Pardue that Pardue did not observe the milk truck until the instant of collision. The evidence which contains the aforementioned admission of plaintiff is so conclusive there can be no doubt of the negligence of Pardue in not maintaining proper observance as he drove into the intersection.

It is well settled in our jurisprudence that a driver is guilty of contributory negligence in not seeing what a reasonably prudent person should have seen and would have avoided. Sexton v. Stiles 1930, 15 La.App. 148, 130 So. 821; Woodley & Collins v. Schusters’ Wholesale Produce Company, Inc., 1930, 170 La. 527, 128 So. 469; Raziano v. Trauth, 1931, 15 La.App. 650, 131 So. 212; Waters v. Meriwether Transfer Company, Inc., 1931, 18 La.App. 18, 137 So. 578; Safety Tire Service, Inc. v. Murov, 1932, 19 La.App. 663, 140 So. 879; Bordelon v. T. L. James & Company, La.App.1933, 148 So. 484; O’Rourke v. McConaughey, La.App.1934, 157 So. 598; Blahut v. McCahil, La.App. 1935, 163 So. 195; Hutchinson v. T. L. James & Company, Inc., La.App.1935, 160 So. 447; Louisiana Power & Light Company v. Saia, La.App.1937, 173 So. 537; Hemel v. United States Fidelity & Guaranty Company, La.App.1947, 31 So.2d 38; Plaquemines Parish School Board v. Davis, La.App.1947, 32 So.2d 391; Allen v. Joshlin, La.App.1953, 66 So.2d 428; Hubble v. Bourg, La.App.1953, 68 So.2d 639; La Rocca v. Dabria, La.App.1955, 78 So.2d 541. In Maher v. New Orleans Linen Supply Company, Inc., La.App.1949, 41 So.2d 101, the court stated motorists’ duty to look ahead and observe never ceases; they must see what they can see and in legal contemp-plation do see, and their failure to see what they could have seen by exercising due diligence, does not absolve them from liability for resulting injuries to others. In determining whether a motorist has exercised due care, his conduct is to be gauged in connection with the particular conditions presented to him at the time of an accident, the speed at which he is driving, the control he maintains over his automobile, and the alertness of his observation must reasonably conform to the surrounding traffic conditions. Culpepper v. Leonard Truck Lines, Inc. 1945, 208 La. 1084, 24 So.2d 148; Lopreore v. New Orleans Public Service, Inc., La.App. 1946, 27 So.2d 737. As paraphrased in a recent decision by this court “ ‘the greater the danger the greater the necessity for caution’ ”. National Retailers Mutual Insurance Company v. Harkness, La.App. 1954, 76 So.2d 95, 98.

The collision between the vehicles driven by Pardue and Norred occurred at a time and place where conditions were most favorable for observation of traffic. We entertain little doubt the accident might well have been avoided had either driver been reasonably diligent in maintaining a lookout for approaching traffic as he arrived at the intersection. Pardue and Norred were frank in their testimony that neither saw the other driver until the instant of the collision. The negligence of each is clearly indicated.

Our finding that plaintiff was guilty of contributory negligence in failing to maintain a proper lookout is sufficient to dispose of his claim and affirm the judgment of the trial court. However, we deem it appropriate to consider several contentions made by appellant. The first is that Michigan Avenue was respected by the local community as if it were a right-of-way street and Norred should have so recognized it as a favored street, for Sixth Street did not continue on as a blacktopped street, but west of Michigan was simply a non-paved street. The argument is not sound. The uncontradicted evidence shows Michigan Avenue has never been designated as a favored street by authorization of municipal ordinance of the Town of Jonesboro, and, therefore, under the provisions of LSA-R.S. 32:237, subd. A, of the State Highway Regulatory Act where neither of the two streets or highway is by municipal ordinance given the right-of-way over the other, the vehicle approaching the intersection from the right has the right-of-way over a vehicle approaching the intersection from the left. Brazzel v. Farrar, La.App.1952, 61 So.2d 517; National Retailers Mutual Insurance Company v. Harkness, La.App.1954, 76 So.2d 95. It is admitted Pardue was traveling north and Norred west as the two vehicles entered the intersection; consequently Nor-red was driving the vehicle approaching the intersection from the right, and was entitled to the right-of-way.

Another argument presented by appellant, although not reflected in the pleadings, is that Pardue preempted the intersection. The evidence shows this not to be true. Both vehicles entered the intersection almost simultaneously and the testimony of Norred, Thrift and Burnum, as well as other corroborating evidence, indicates the collision occurred almost in the center of the intersection. The damage to the Ford automobile was approximately at the right front wheel and that sustained by the milk truck was near the left front wheel. There is, therefore, no basis for plaintiff’s claim he entered the intersection sufficiently in advance of Norred so that the latter should have yielded.

Finally, it is argued by counsel for appellant the last clear chance doctrine has application in his favor. Under the facts as determined herein, we are certain Nor-red had no opportunity to avoid the collision. Manifestly, therefore, the last clear chance or discovered peril doctrine cannot be invoked in the instant case.

The judge a quo has assigned written reasons for his decision and we concur in the sound reasoning advanced therein. We have repeatedly declared that judgments based upon facts will not be disturbed upon appeal unless clearly erroneous and where only issues of fact are involved in the trial court, the appellate court will affirm where the judgment is clearly correct, and will reverse only when it is manifestly erroneous. Bogan v. Caldwell Bros. & Hart, La.App.1938, 184 So. 413; Falgout v. Johnson, La.App.1939, 191 La. 823, 186 So. 349; Russel v. Reed, La.App.1939, 192 So. 548; Redden v. Blyth, La.App.1943, 12 So.2d 728; Coca-Cola Bottling Company, Inc., v. Williams, La.App.1943, 14 So.2d 319; A. M. Edwards Company Inc., v. Hammond Box Company, Inc., La.App.1944, 17 So.2d 53; Schutzman v. Munson, La.App.1951, 51 So.2d 125.

Therefore, for the reasons hereinabove assigned, the judgment from which appealed is affirmed at appellant’s cost.


text:
    Mrs. Grace L. MIDDLETON, Plaintiff-Appellant, v. Jesse M. McKAY, Defendant-Appellee.
    No. 8661.
    Court of Appeal of Louisiana. Second Circuit.
    April 26, 1957.
    Rehearing Denied May 27, 1957.

      Warren Hunt, Rayville, DeBlieux & Cobb, Baton Rouge, for appellant.
    Cotton & Bolton, Rayville, for appellee.
   HARDY, Judge.

This is a petitory action in which plaintiff claims to be the owner of certain described property located in Richland Parish, Louisiana. Defendant filed a plea of prescription of two, five, ten and thirty years under Articles 3543, 3542, 3478 and 3499, respectively, of the LSA-Civil Code; an exception of no right of action, coupled with a plea of estoppel and laches, and then answered the merits of plaintiff’s suit. The various pleas and exceptions interposed by defendant, as above noted, were referred to the merits, and after trial on the merits there was judgment in favor of defendant sustaining the pleas of prescription of ten and thirty years, the exception of no right of action, the plea of estoppel and laches, and rejecting plaintiff’s demands. From this judgment plaintiff has appealed.

Most of the facts involved have been established without dispute, many of them by stipulation of counsel, and we recite those which are pertinent to a determination of the appeal.

In her petition plaintiff alleged herself to be the owner of certain property in Rich-land Parish, described as follows:

EVi of SEj4, Section 29; and Eastern Three-quarters of the N14 of SWJ4 of the SE14, Section 29, Township 16 North, Range 7 East, containing 95 acres, more or less.

During trial plaintiff dismissed her claims to the NE}4 of SEJ4 of Section 29, Township 16 North, Range 7 East, and this appeal therefore concerns only the remaining fifty-five acres out of the property above described.

This property was included in the sale of a larger tract, comprising some 200 acres, more or less, which was made by William T. Ivy to W. H. L. Lagrone by credit deed dated December 20, 1900. At the time of the acquisition of this property the vendee, W. H. L. Lagrone, was married to Ida Marie Freeman and there was one child of this union, plaintiff in this suit, Grace Lagrone, who was born in the year 1895. Plaintiff’s father, W.- H. L. Lagrone, died on July 25, 1901.

By sheriff’s deed dated February 11, 1911, under foreclosure proceedings, the same tract of land was conveyed to D. A. Lagrone, grandfather of this plaintiff, who subsequently sold the property, which plaintiff claims in this suit, under deed dated October 13, 1924, to Jesse M. and D. B. McKay in the proportion of an undivided one-half interest each. Jesse M. McKay, the defendant in this suit, later acquired the outstanding one-half interest and became the owner of the whole.

On August 13, 1923, plaintiff, Grace L. Middleton, authorized by her husband, J. H. Middleton, entered into an act of compromise with her grandfather, D. A! La-grone, under the terms of which the said parties recognized each other as the owners of an undivided one-half interest each in the property described therein, which was the identical property acquired by W. H. L. Lagrone from William T. Ivy and then by D. A. Lagrone, under the sheriff’s deed as above noted. Because we deem the recitals of the act of compromise to be of primary importance in the resolution of the issue tendered, we quote the agreement, in which D. A. Lagrone was designated as grantor and Mrs. Grace Middleton as grantee, as follows:

“That whereas each claim to own that certain plantation situated in the Parish of Richland, La. described as; S1/2 of SEl/4 an(i NW}4 of SE14 and NE14 of SW14 and W2 of SW14 of SEj4 and of SE14 of SWJ4 of Sec 29 T 16 N R 7 E, containing 200 acres more or less and commonly-known as the Lagronne place, and comprising the same property acquired by W. H. L. Lagronne from W. T. Ivy, and subsequently acquired at Sheriff’s sale by the grantor, all under deeds of record in the Conveyance Records of said Parish and state, and which deeds by reference is adopted and made part of this act for greater certainty of description;
“And whereas after a full, fair and free discussion of the subject matter, each acting on the advice of counsel, they have concluded that their best interest will be subserved by compromising their respective claims to said plantation and the rents and revenues arising therefrom for the purpose of preventing litigation, and which each one of them prefers to hope of gaining balanced by the chance of losing.
“Now wherefore in consideration of the premises the grantor and grantee have agreed and do by this act agree to compromise and settle all of their differences in regard to the ownership of said plantation, and in regard to all rents and revenues arising therefrom as well as all expenses incurred in improving and clearing the lands, as follows:
“The grantor.and grantee each recognize the other as the legal and bona fide owner of an undivided 1/2 interest in said lands, together with all buildings and improvements thereon situated, and all appurtenances thereto belonging, including the revenues of the current year 1923, provided there shall be deducted from said revenues the taxes for the said year, and the costs of such improvements as has been placed on said plantation during said year, and the revenues shall be divided between grantor and grantee equally.
“It is further agreed and understood that this compromise settlement also includes all claims and counter claims which the grantor and grantee may have or claim to have against each other in connection with said plantation and operation of same since the purchase to January 1, 1923.
“The true, intent, and purpose being that this compromise settlement shall be a full and complete compromise settlement not only of the ownership of said plantation but also of all claims and counter claims which the grantor and grantee may have against each other or may think they have against each other, arising from the operation of said plantation and rents and revenues therefrom since it was acquired as aforesaid.”

On March 25, 1924, the same parties, D. A. Lagrone and Mrs. Grace Middleton, executed a formal notarial act of partition, and again we quote the material provisions of said act as follows:

“They declare they are now the joint owners of the Ni/á of SE14 and SEJ4 of SE14 and m/2 of SW1/4 of SE14 and NE14 of SWj4 and of SEJ4 of SW14 of Sec 29 T 16 N R 7 E situated in Richland Parish, La. containing 200 acres more or less, and comprising what is commonly known as the Lagronne Place, except and less that portion of said land embraced in the right-of-way of the Mo. Pac. Railroad and in the public road crossing the western portion of said tract of land and that they have partitioned and do by this act partition said tract of land as follows:
“The said D. A. Lagronne shall have and receive as his half of said land the Ei/£ of SE}4 of Sec. 29, and eastern three-quarters of the Ni/á of SWJ4 of the SE14 Sec 29 T 16 N R 7 E, containing 95 acres more or less, together with all buildings and improvements situated thereon, and all appurtenances thereunto belonging, and accordingly the said Mrs. Grace Middleton has relinquished and set apart in partition unto the said D. A. Lagronne all of her right, title and interest in and to said described land.
“The said Mrs. Grace Middleton shall have and receive as her half of the said land the NWJ4 of SEJ4 and NE14 of SW14 of Sec 29 and W/2 of SEJ4 of SWJ4 and the western one-quarter of the Nj/á of SW|4 of SE14 of Sec 29 T 16 N R 7 E, except and less that portion of said land embraced in the Mo. Pac. Railroad and in the public road running thru the western portion thereof — together with all buildings and improvements situated thereon, and all appurtenances thereunto belonging, and accordingly the said D. A. Lagronne has relinquished and set apart in partition unto said Mrs. Grace Middleton all his right, title and interest in and to that portion of said tract of land last described — ■ containing 95 acres more or less.
“Parties hereto bind and obligate themselves to warrant this act of partition as between themselves and all persons whomsoever.”

By deed dated August 2, 1928, Mrs. Grace Middleton conveyed a small portion of the property, to which she had obtained ownership under the act of partition, to the Louisiana Highway Commission, and by deed of date August 26, 1929, Mrs. Grace Middleton sold the remainder of the said property, allotted to her in the act of partition, to Leo L. McConnell.

This suit was filed June 18, 1954. It should be noted that at the time of the execution of the agreement of compromise with D. A. Lagrone plaintiff was some 28 or 29 years of age.

Despite the numerous defenses which have been urged in the instant case, we have determined, after thorough consideration, that it is necessary to consider only the plea of estoppel, inasmuch as we are firmly convinced that the effect of this plea serves to conclusively dispose of the question of ownership of the property involved in this suit.

It would be difficult to imagine an agreement so complete in all essential details, so carefully drawn and so definite in its compliance not only with the requirements of law but with the protection of the interests of the parties thereto, as is the act of compromise which was executed between this plaintiff and her grandfather, D. A. Lagrone, on August 13, 1923. The written agreement executed by the parties before a notary and two competent witnesses carefully recites the opposing claims of the parties to the properties, the full discussion of their respective claims, the conclusion reached upon the advice of counsel as to the settlement of such opposed claims, and, as a consequence, formally establishes the agreement of the parties in recognition of their respective rights. The intent and effect of this agreement was later emphasized and reinforced by the action of the parties in effecting an equitable partition of their ownership.

Except in some instances where bad faith, fraud or coercion was alleged and proven, none of which elements appear in the instant case, it is almost inconceivable that the law would intend or permit either of these parties to nullify the effect of this solemn agreement against the will or to the detriment of the other, or one holding under him in good faith.

The factual situation which is here presented is covered by a recognized principle of estoppel which was approved by our Supreme Court in Jackson v. United Gas Public Service Co., 196 La. 1, 198 So. 633, 640, which principle was quoted by the court as follows:

“ ‘If in making a contract or in a course of dealing the title of one party or the other to the property involved in the transaction is recognized, and the dealing proceeds upon that basis, both parties are ordinarily estopped to deny that title or to assert anything in derogation of it.’ ”

The above rule was quoted by the court from Corpus Juris and is to be found in 31 C.J.S. verbo Estoppel § 125, p. 393.

On this point the opinion in the Jackson case cited Robbins v. Martin, 18 La.App. 223, 138 So. 132, and Watson v. Succession of Barber, 105 La. 456, 29 So. 949. In the Watson case the parties had entered into a partition under the assumption that property was owned by them in certain proportions, and, subsequently, they attempted to deny ownership of the interests which they had recognized and acknowledged in the partition. The court applied the principle of estoppel as against this contention. In the instant case the act of partition serves only to support and reinforce the solemn and binding covenant of compromise and agreement which had been previously executed by the parties.

We think it is abundantly clear in the instant case that the plea of estoppel is sufficient to justify the rejection of plaintiff’s demands as against one who holds under conveyances from the other party to the agreement upon which the plea is based. For this reason, as we have above observed, we think it completely unnecessary to complicate this opinion by a consideration of the other specified pleas and defenses which were interposed on behalf of defendant.

For the reasons set forth the judgment appealed from is affirmed at appellant’s cost.


text:
    QUAKER HILL, Incorporated, Plaintiff-Appellant, v. H. H. GUIN, Defendant-Appellee.
    No. 8667.
    Court of Appeal of Louisiana. Second Circuit.
    April 26, 1957.
    Rehearing Denied May 27, 1957.

      Hudson, Potts & Bernstein, Billye Adams, Monroe, for appellant.
    McHenry, Lamkin, Snellings & Breard, ■ Monroe, for appellee.
   GLADNEY, Judge.

This appeal is from a judgment sustaining an exception of want of capacity leveled at a foreign corporation charged with doing business in Louisiana without having met the qualifications therefor. The basis for the trial court’s decision stems from the provisions of LSA-R.S. 12:211, which prohibits a corporation doing business in this state from presenting any judicial demand before any court of this state until it has complied with the laws for doing business within the state.

The single issue raised is whether the appellant, Quaker Hill, Incorporated, is engaged in doing business within the state. The contention is made by its counsel it is engaged exclusively in interstate business and enjoys immunity from the Louisiana statute under the commerce clause of the Federal Constitution. (Const.U.S., art. 1, § 8, cl. 3). Whether or not a foreign corporation is, in legal contemplation, doing business in Louisiana, is a mixed question of law and fact, to be determined by the particular facts of its operations here. Dyer & Co. v. Ferguson, La.App.1946, 25 So.2d 92, Proctor Trust Co. v. Pope, La.App.1943, 12 So.2d 724.

Exceptor tendered in support of his exception the testimony of Milton E. Weaks, the District Sales Manager for the plaintiff corporation, having his residence in Baton Rouge, Louisiana, V. J. Pleasant, the local Sales Manager for plaintiff corporation, residing in Monroe, Louisiana, and Rene Casadaban, a florist or horticultural dealer from Abita Springs, Louisiana.

Also placed in evidence was a certificate of the Secretary of State, certifying that as of December 19, 1956, the records of his office did not indicate Quaker Hill, Incorporated, a New York corporation, had ever filed a charter and qualified to do business in the State of Louisiana.

The testimony of Pleasant added nothing to that of Weaks. Casadaban testified over objection by counsel for appellant that he sold merchandise consisting of nursery stock, having a value of about $55,000 in 1956 to C. W. Stewart and Company of New York for shipment to either New York or Columbus, Mississippi. He further stated he knew Quaker Hill, Incorporated and C. W. Stewart and Company were in some way connected, but he did not know if the latter was the parent company of Quaker Hill, Incorporated. The testimony does not furnish any competent evidence as to the volume of business transacted by Quaker Hill, Incorporated, within the state.

Testimony of Weaks was the principal source of information concerning appellant’s business in Louisiana. A résumé thereof discloses that Quaker Hill, Incorporated, has no property within the state; it employs four District Managers or salesmen, three of whom reside in Louisiana; its salesmen take orders for nursery stock from prospective customers in Louisiana, which orders, together with the purchase price or a part payment thereof, are transmitted to the New York office for acceptance or rejection there, and, if accepted, the plants so ordered are shipped from there or from Columbus, Mississippi; it does not require its salesmen to make collections, but they may take replacement orders for stock which has failed to grow; and further, the evidence shows that Quaker Hill, Incorporated, does not, itself, make any purchases of nursery stock in Louisiana. The method by which its sales are accomplished, together with comments thereon, is stated in the opinion of the District Judge:

“The method of making the sale is that the local salesman in Louisiana goes to the home of the prospective buyer and talks to him about his yard, what he should plant and how he should plant it and that he then makes an actual drawing on the premises of the lot and house to scale am,d marks thereon where each individual item that he seeks to sell should be planted. One of the plans in question of this company marked ‘Landscape Drawing was exhibited to one of the witnesses on the stand, although it' was not offered in evidence, it was identified by the witness. There is no question that this was landscape work, that is what landscaping is. Now Louisiana has certain laws governing the right to do that kind of work. It is admitted here the agents and salesmen of plaintiff have not complied with these laws. These salesmen, after doing this work and submitting this scale model plat to the purchaser, secure an order from the purchaser for the necessary-plants to carry out the landscaping plan. It has been testified by the agents, both the local and the agent in charge of both states, that an order is then signed here in Louisiana by the prospective purchaser. The wording in this order which is printed by the plaintiff in his blank provides that for the services rendered before the signing of the order the purchaser obligates himself not to cancel this order and to be 'bound thereby. It was also testified that the only services rendered prior to the signing of this order by the salesman is this drawing of the plat and advice as to what to plant and where to plant it, in other words, the actual landscaping. That service is made part of the contract under which the purchaser agrees to buy the plants to use in carrying out the landscaping plan. So there can be no question that the price paid therefor includes not only the price of the plants but covers the expense and costs referred to in the order, to-wit, the expense and. costs of preparing the landscaping plan.- The Court does not see how any Court could hold this is not doing business in Louisiana.” (Emphasis as supplied by District Judge.)

The judge a quo concluded appellant was actually doing business in Louisiana, principally because its salesmen solicited orders by use of a planting plan prepared by them, and the expense of preparing the plan was included in the price of the plants ordered, and, therefore, consists of selling services. Appellant strongly questions these findings, contending the evidence does not establish the expense and costs incident to preparation of the planting plan were included in the price for which the customer was billed. It is pointed out the subject clause in the contract, “because of services rendered and expenses incurred by the seller, I agree not to countermand this order”, refers only to Quaker Hill, Incorporated, which is the seller. The services and expenses, it is argued, refer to the processing of the order, that is to say—preparation for shipping, shipping tags, etc.

Well recognized is the legal principle that under comity and general jurisprudence, there is a presumption in favor of the right of a foreign corporation to engage in commerce within the State of Louisiana. Thus, in Hess Warming & Ventilating Co., Inc., v. Home Comforts Corporation, 1944, 205 La. 1045, 18 So.2d 611, 612, our Supreme Court said:

“The rule is founded upon the presumption in favor of the right of a foreign corporation to do business or to sue, because it is always presumed that persons obey the law * * *.”

As long as the business transacted by a foreign corporation is exclusively engaged in interstate commerce, it is protected by the commerce clause of the Federal Constitution Const.U.S., art. 1, § 8, cl. 3. However, when such commerce is not solely of an interstate character, • the protection of the commerce clause can no longer be invoked and it is appropriate for a state to prohibit the presentation of any judicial demand by such a foreign corporation, unless and until it has complied with the laws of this state for doing business herein. R. J. Brown Co. v. Grosjean, 1938, 189 La. 778, 180 So. 634. Therefore, the State of Louisiana through the provisions of LSA-R.S. 12:211 may legally prohibit the use of its courts to a foreign corporation doing business within the state, where it has not so qualified. The subj ect statute reads in part:

“A. No corporation doing business in this state shall be permitted to present any judicial demand before any court of this state, unless it has complied with the laws of this state for doing business herein, and has paid all taxes, excises, and licenses due to the state. This Section shall not be construed to prevent the bringing of a cause of action against any corporation.
“B. The burden of proof shall rest upon the corporation to establish that it has complied with the laws of this state for doing business herein. The only legal evidence of such compliance shall be the certificate of the Secretary of State or a duly authenticated copy thereof.
“C. The burden of proving that a corporation has not paid any tax, excise or license due to the state shall rest upon the party asserting such fact, which fact may be proved by a certificate from the proper tax collector or by any other competent evidence.”

We revert to the principal question posed herein: Does the operation by plaintiff corporation constitute doing business with the State of Louisiana ? The appellant herein is not attempting to establish it has complied with the laws of this state for doing business herein, or to prove payment of taxes, and, therefore, references in the statute to the burden of proof are inapt in the case at bar. The exception of want of capacity presents an affirmative defense, the burden of proving which rests upon the party urging it. McAllister v. Srodes, 1840, 14 La. 442; Diggs v. Parish, 1841, 18 La. 6; Ford v. Simmons, 1858, 13 La.Ann. 397; Sullivan v. Goldman, 1867, 19 La.Ann. 12; Orleans Discount Co., Inc. v. Derbes, 1930, 170 La. 660, 129 So. 121; Hess Warming & Ventilating Co. v. Home Comforts Corporation, 1944, 205 La. 1045, 18 So.2d 611.

In R. J. Brown Co. v. Grosjean, supra [189 La. 778, 180 So. 636], the test of interstate commerce as announced in International Text-Book Co. v. Pigg, 217 U.S. 91, 30 S.Ct. 481, 54 L.Ed. 678, 27 L.R.A., N.S., 493, was referred to with approval, the court saying:

“The test of interstate commerce is transportation from one state into another. If the goods are already in the state when sold, there can be no transportation into the state under the contract and the transaction cannot be interstate. The court said:
“ ‘Importation into one state from another is the indispensable element, the test of interstate commerce.’ ”

Interpretations placed by the courts upon the power conferred upon Congress by the commerce clause of the Constitution declare that such power is broad, general, continuing, complete, and plenary, and it is subject to no limitations other than those presented by the Constitution itself. 15 C.J.S. verbo Commerce § 6, p. 261.

In Reynolds Metal Co. v. T. L. James & Co., Inc., La.App. 1954, 69 So.2d 630, Judge McBride of the Orleans Court of Appeal, when confronted with an exception of want of capacity, based on LSA-R.S. 12:211, took occasion to review many of the decisions of this state which discussed the question of what constitutes doing business within the state. Among the decisions so reviewed were: Proctor Trust Co. v. Pope, La.App. 1943, 12 So.2d 724; State v. Best & Co., 1939, 194 La. 918, 195 So. 356; Norm Advertising, Inc. v. Parker, La.App.1937, 172 So. 586; National Pumps Corporation v. Bruning, La.App.1941, 1 So.2d 320; J. R. Watkins Co. v. Goudeau, La.App.1953, 63 So.2d 161. In each of the cases cited the particular transactions questioned were found not to constitute doing business within the state. We shall briefly refer to the reasoning of some of the decisions.

In Reynolds Metal Co. v. T. L. James & Co., Inc., the corporation’s representatives in the state were merely employed to solicit orders and had no power to bind the corporation, and their acts of courtesy to customers in settling complaints where possible, and in receiving checks for transmission to the home office of the corporation did not destroy the interstate nature of the commerce. In State v. Best & Co., a foreign corporation employed salesmen who displayed samples of their merchandise in a hotel room for the purpose of securing orders but the salesmen had no authority to deliver any merchandise or accept payment therefor and were solely authorized to take orders subject to approval of the corporation at its home office in New York, from which the merchandise was shipped to the customers, and it was held the transaction could not be regarded as local business. In Norm Advertising, Inc. v. Parker the fact that the agents of plaintiff were authorized to receive the initial payment for the order was held to be of no importance because it accompanied the order and became the property of the corporation only upon its approval of the order. In J. R. Watkins Co. v. Goudeau, this court held plaintiff was not engaged in business in Louisiana, so as to bring it under the ban of the provisions of LSA-R.S. 12:211, although it had dealers in this state whose credit was secured by the signature of local guarantors and such dealers were set up in business by plaintiff to sell its products in certain areas. In People’s Tobacco Co. v. American Tobacco Company, 246 U.S. 79, 38 S.Ct. 233, 235, 62 L.Ed. 587, Ann.Cas.1918C, 537, the Supreme; Court of the United States declared:

“ * * * As to the continued practice of advertising its wares in Louisiana, and sending its soliciting agents into that State, as above detailed, the;
agents having no authority beyond solicitation, we think the previous decisions of this court have settled the law to be that such practices did not amount to that doing of business which subjects the corporation to the local jurisdiction for the purpose of service of process upon it. Green v. Chicago, Burlington & Quincy Ry. Co., 205 U.S. 530, 27 S.Ct. 595, 51 L.Ed. 916; Philadelphia & Reading Ry. Co. v. McKibbin, 243 U.S. 264, 268, 37 S.Ct. 280, 61 L.Ed. 710.”

The Supreme Court of the United States, on the other hand, in Cheney Bros. Co. v. Commonwealth of Massachusetts, 246 U.S. 147, 155, 38 S.Ct. 295, 297, 62 L.Ed. 632, 637, a case where a Minnesota corporation had an office in Massachusetts where it employed several salesmen for the purpose of •soliciting and taking orders from retailers and then turned the orders over to the wholesale dealer, who filled them, found that the corporation was engaged in doing business in Massachusetts, saying :

“ * * * Thus the salesman, although not in the employ of the wholesaler, is selling flour for him. Of course, this is a domestic business — inducing one local merchant to buy a particular class of goods from another— and may be taxed by the state, regardless of the motive with which it is conducted.”

Case v. Mills Novelty Co., 1940, 187 Miss. 673, 193 So. 625, 126 A.L.R. 1102, is a decision wherein it was likewise held the acts of the foreign corporation constituted doing intrastate business. There, an Illinois corporation accepted in Illinois a written order from a Mississippi resident for an ice cream dispenser. The contract of sale, however, contained a service agreement, the performance of which required the corporation to employ a local mechanic. The opinion resolved that the acts of servicing the dispenser constituted doing business in the state.

Cheney Bros. Co. v. Commonwealth of Massachusetts and Case v. Mills Novelty Company illustrate clearly how transactions may be characterized with an intra-state character. In the first named case a foreign corporation actually was selling flour on behalf of the local wholesale dealer. In the latter case in order to service the ice cream dispenser the corporation engaged local labor for the duration of its service contract, and this part of the transaction impressed the deal with an intra-state character.

We are of the opinion exceptor has failed to sustain his burden of proof by showing by a preponderance of the evidence plaintiff was engaged in business within the state. All the acts comprising the transaction herein involved constitute an integral part of interstate commerce. The sketch of customers’ premises with the number and location of the plants suggested by the salesmen was simply for the purpose of solicitation, of inducing the customers to give an order. Apparently, it was a simple drawing, and although drawn to scale, its acceptance was optional with the customer, and was a gratuity. The order, when obtained, brought goods into interstate commerce, and no servicing was performed.

Under the decision herein reached, there is no need for comment on the ruling which dismissed plaintiff’s suit with prejudice. However, we opine that when an exception of want of capacity is sustained in limine litis, a dismissal should be as of non-suit so as to preserve the cause of action, which is not destroyed by sustention of the exception.

For the reasons hereinabove set forth, the judgment from which appealed is reversed and set aside and the exception of want of capacity is overruled. The cause is remanded to the Fourth Judicial District Court for the Parish of Ouachita, for further proceedings, according to law and not inconsistent with the views herein expressed. Appellee is taxed -with costs of this appeal. All other costs shall await the final outcome of the suit.