text:
    233 La. 374

    BOARD OF COMMISSIONERS FOR THE LAKE BORGNE BASIN LEVEE DISTRICT et al. v. Lawrence W. BERGERON, Edmond Collins and Selma Picarella.
    No. 43254.
    Supreme Court of Louisiana.
    June 28, 1957.
    Allen J. Tillery, and Thomas M. McBride, III, Arabi, for defendants-appellants.
    L. H. Perez, New Orleans, and E. W. Gravolet, Jr., Pointe-a-la-Hache, for plaintiff s-app ellees.
   McCALEB, Justice.

On September 11, 1956, defendants herein, Lawrence W. Bergeron, Edmond Collins and Selma Picarella, were each appointed and commissioned by the Governor as a commissioner for the Lake Borgne Basin Levee District. These appointments were made under authority of R.S. 38:1071, as amended by Act 35 of the Extraordinary Session of 1956, which granted to the Governor in office the right to appoint the Levee Commissioners for the Lake Borgne Levee District, said commissioners to hold their offices “during the term of office of the Governor appointing them or until their successors are appointed and qualified”.

On September 16, 1956, the three commissioners in possession of the offices as Commissioners of the Levee District, who had been appointed by a previous administration, filed this suit alleging that the three new appointees were attempting to take over the Board of Commissioners of the Levee District and to dispossess them of their offices and that the appointments of the defendants to the offices were illegal because Act 35 of the Extraordinary Session of 1956 is unconstitutional, null and void, being violative of Section 14 of Article 5 of the Constitution in that the call for the Extraordinary Session did not include reference to the amending and reenacting of R.S. 38:1073, which provides for the appointment of the Levee Commissioners for the Lake Borgne Levee District and their terms of office, and in that R.S. 38:1071, as amended by Act 386 of 1956 (which was reenacted by Act 35 of the Extraordinary Session of 1956), embraced seven separate and distinct objects in violation of Section 16 of Article 3 of the Constitution and is further violative of Section 8 of Article 3 as the Act was introduced after the thirty-day deadline and was not adopted by a yea and nay vote. They accordingly prayed for the issuance of a temporary restraining order and a preliminary and permanent injunction, restraining and prohibiting the defendants from interfering with petitioners and any officers and employees of said Levee Board.

On the showing made by plaintiffs, a temporary restraining order issued and defendants were cited to show cause why the relief prayed for should not be granted. On the appointed day defendants appeared and resisted the demand by way of exception of no right or cause of action and answer, in which they denied the unconstitutionality ■of the statute and asserted that their appointments were legal. Following a hearing, the judge found for plaintiffs holding that Act 35 of the Extraordinary Session of 1956 was unconstitutional for the reasons advanced in the petition and that the commissions issued by the Governor to defendants under authority of that statute were null and void. He thereupon issued a preliminary injunction as prayed for, from which defendants applied for an order of suspensive appeal, which was denied. Application was then made to this Court by defendants for remedial writs and, acting under the authority of Act 15 of the Second Extraordinary Session of 1934 (R.S. 13:4431-432) and Wall v. Close, 201 La. 986, 10 So.2d 779, we granted a suspensive appeal without bond.

After the appeal was lodged in this Court, plaintiffs sought to have it transferred to the Court of Appeal for the Parish of Orleans on the ground that the amount in dispute did not exceed the minimum monetary requirement of $2,000 provided by Section 10 of Article 7 of the Constitution. This, we refused to do, holding that this court was vested with appellate jurisdiction of the case since the trial judge had declared a law of this State to be unconstitutional. See Board of Commissioners, etc. v. Bergeron, 232 La. 519, 94 So.2d 652.

In their brief and oral argument in this Court on the merits of the appeal, counsel for plaintiffs have completely abandoned the charge upon which the suit is founded, i.e., the unconstitutionality of Act 35 of the Extraordinary Session of 1956, and are contending, for the first time, that the judgment granting a preliminary injunction should be affirmed on the ground that the evidence introduced by defendants does not show that they have complied with the law (R.S. 42:141 and R.S. 42:161) by filing their oaths in the office of the Secretary of State within thirty days after the oaths were administered and, thus, have vacated their right to the offices. Counsel attempt to justify this unique reversal of position on the basis of an asserted enlargement of the pleadings, notwithstanding that the issue was not raised .below, the pleadings of both parties being .directed solely to the authority of the Governor to issue the commissions pursuant to Act 35 of the Extraordinary Session of 1956. Counsel theorize that, since defendants did introduce some evidence anent their qualifications (testimony of the Clerk of Court that defendants had filed their oaths with him) to .which plaintiffs did not object, this had the effect of enlarging the original pleadings and put at issue the question of defendants’ title to the offices. From this premise it is asserted that, as defendants failed to establish full compliance with the law by filing their oaths with the Secretary of State within the thirty-day period, they were properly enjoined by the district court.

We find no merit in the contention. Forasmuch as defendants did not place at issue title to the offices (compare Guillory v. Jones, 197 La. 165, 1 So.2d 65 and Alleman v. Dufresne, La.App., 17 So.2d 70) the admission of the evidence without

objection concerning their qualifications did not effect an enlargement of the pleadings which were at all times, during the trial and since,, addressed exclusively to the question of the constitutionality of Act 35 of the Extraordinary Session of 1956. While it is true that reception of evidence without objection on issues not pleaded will have the effect of enlarging the pleadings so as to include the new matter, provided the evidence was not otherwise admissible, this rule creates the new issues only in favor of those offering the unpleaded evidence; it cannot be extended so as to produce new claims for the benefit of the litigant, who has not tendered the evidence which is relied on as introducing the' new issue.

The judgment appealed from is annulled and set aside and plaintiffs’ demands are rejected. All costs are to be paid by the three plaintiffs, who have sued in their individual capacities.

PONDER, J., absent.

      . Lake Borgne Basin Levee District represented by its President, one of the plaintiffs, joined with the individual commissioners as party plaintiff in the ease.

      . Defendants could have, but did not, reconvene and thus place at issue title to the offices. See Guillory v. Jones, 197 La. 165, 1 So.2d 65 and Alleman v. Dufresne, La.App., 17 So.2d 70, distinguishing prior jurisprudence. See Guillotte v. Poincy, 41 La.Ann. 333, 6 So. 507, 5 L.R.A. 403; Goldman v. Gillespie, 43 La.Ann. 83, 8 So. 880; Wheeler v. Board of Dire Commissioners, 46 La.Ann. 731, 15 So. 179; State ex rel. Kulilman v. Rost, 47 La. Ann. 53, 16 So. 776; State ex rel. Keller v. Rost, 47 La.Ann. 61, 16 So. 663; Peters v. Bell, 51 La.Ann. 1621, 26 So. 442; Sanders v. Emmer, 115 La. 590, 39 So. 631; Jackson v. Powell, 119 La. 882, 44 So. 689; Gleason v. Wisdom, 120 La. 632, 45 So. 530; State ex rel. Bourg v. Turner, 152 La. 828, 94 So. 411; State ex rel. Eerry v. Buchler, 166 La. 743, 117 So. 814 and State ex rel. Porterie v. Smith, 182 La. 662, 162 So. 413.

      . Furthermore, even were we able to deduce that the pleadings had been enlarged by the admission of the evidence referred to, we would have no jurisdiction to determine the question belatedly raised by counsel for plaintiffs as our jurisdiction of this appeal has been invoked and sustained only on the basis that a statute of this State has been declared unconstitutional. It is well settled that, when an appeal is taken to this Court on the sole ground that a statute has been held unconstitutional, our inquiry is limited to that specific issue and all other other questions raised on appeal will not be considered unless it affirmatively appears that this Court has jurisdiction of -the case on some other basis. See State ex rel. Chehardy v. New Orleans Parkway Commission, 215 La. 779, 41 So.2d 678 and State v. Verret, 229 La. 934, 87 So.2d 297.


source: Caselaw Access Project

author: TATE, Judge.

license: Public Domain

text:
    Tommie B. WHITE, Plaintiff-Appellant, v. CALCASIEU PAPER COMPANY, Inc., Defendant-Appellee.
    No. 4424.
    Court of Appeal of Louisiana. First Circuit.
    June 4, 1957.
    Rehearing Denied June 28, 1957.
    Writ of Certiorari Denied Oct. 8, 1957.
    Wood & Jackson, Leesville, for appellant.
    Gist, Murchison & Gist, Alexandria, for appellee.
   TATE, Judge.

Plaintiff’s suit for workmen’s compensation benefits was dismissed on the ground that he had not borne his burden of proving that an accident had occurred in the course of his employment with defendant, as the cause of his disability.

Plaintiff White filed suit alleging that he was injured at work “on or about December 10, 1953.” At the initial hearing, he produced evidence that he was injured in defendant’s machine room, transferred to the lighter outside guard duty a few weeks later, re-transferred 'back to the heavier inside work but found he was unable to continue working, and hence for the first time on January 26, 1954 reported his accident and injury to his employer. (He had thought the pain would pass off; instead, he testified, it increased.) White, several co-workers, and his wife all estimated, with varying degrees of certainty, that the accident had occurred in December of 1953.

Defendant produced evidence that White had been transferred from the machine room to guard duty on September 11, 1953. Therefore it was impossible that the described accident could have happened in December, 1953.

The District Court permitted plaintiff to reopen the hearings on an amended and supplemental petition that the accident had truly happened in August, 1953, and that plaintiff had been mistaken in the earlier testimony that the accident had occurred in December. But, principally on the ground of the variance in the testimony as to the date of the accident, the conscientious District Court held that plaintiff had not proved the industrial accident in the course of employment upon which his claim was based.

It should be remarked at this point that there is no substantial doubt as to plaintiff’s total disability by reason of a ruptured inte-vertebral disc or nerve root irritation in the lumbar region of the back, as corroborated by Dr. Sutton and Dr. Claude Pollard, neurosurgeons, Dr. Overdyke and Dr. Hatchette, orthapedists, and Dr. Reid, a general practitioner. Dr. T. E. Banks, a specialist employed by defendant, who had initially diagnosed the condition, himself admitted that his last examination on March 20, 1955 (prior to the examinations by these other physicians) might have found plaintiff’s disc condition in a state of “remission”, i. e. where the symptoms were not readily observable. (The only other physician involved, Dr. Schneider, examined plaintiff once on May 10, 1955, soon after Dr. Banks’ final examination at the request of a former counsel for plaintiff and found no symptoms; which likewise in view of the overwhelming contrary testimony must be regarded as explained by the same reason, i. e., that the symptoms were in a period of “remission”.) The company physicians, when they examined White, also had found him disabled at the inception of the disability.

It should further be remarked that defendant’s personnel manager admitted that a personnel check showed that White had not followed any gainful employment since the time of the injury, which is corroborated by all the lay testimony.

We think our learned brother below fell into error, under the facts of this case, in the importance'which he attached to plaintiff’s not proving the correct or exact date of the accident, 'both as needed to satisfy plaintiff’s burden of proving by a preponderance of the evidence that the accident had occurred and as reflecting upon his credibility.

Because of the importance attached to this discrepancy, we will set forth in full the initial reports to his employer by plaintiff of the accident. On January 26, 1954, having according to his testimony (corroborated somewhat by co-employees) found that he could no longer perform the heavier inside work to which he had been retransferred from guard duty, he reported to the company physician, a Dr. Martinez. This physician’s initial report on January 26, 1954 of the accident sets forth:

“ * * * About 2 months ago he [White] ‘believes after mid-nite’ patient working on big winder and pulled shaft, [in the machine room] slipped and fell back on ‘square outfit made of steel that plugs are in’ and then fell sideways and struck left hip on cement floor. ‘Dont remember either month or week or day or time of injury.’
“Made no report.
“First stated he didn’t think it would amount to anything and later stated that he thought he had busted a rib on the right side.” * * * (Italics ours.)

White was referred -by the company physicians to Dr. T. E. Banks, an orthopedic specialist, who examined him on February 3, 1954, and diagnosed a possible ruptured disc. It is to be noted that at this examination White gave the same history of the accident and chronological sequence of his duties as he has consistently thereafter; that while pulling backwards on a shaft in the machine room, he fell back, striking and twisting his body; that,in Dr. Banks’ summary of the history given to him by White, then “he had pain in the left hip and leg and was placed on light duty which he stated was guard duty for about six weeks. When he went back to heavy work the sprain recurred in more severe intensity in the left hip and thigh.” (Tr-166).

Subsequently, defendant’s personnel man- ■ ager took a written statement from White, ■ investigated the circumstances of the accident with co-employees (Tr-204-205), and placed White on weekly compensation at a rate of $30 per week, commencing January 25, 1954, which payments were not terminated until April 7, 1955 (or 65 weeks later) , The statement taken by defendant’s personnel manager on February 12, 1954, is, in full:

“ * * * My name is Tommy White. I was working for Calcasieu Paper Co. at Elizabeth, La. in the machine room. I was hired in January, 1953 in the finishing room, and then asked for and received a transfer to the machine room. I can’t remember the date but I know it zvas about two months ago on graveyard shift I was pulling on a shaft and the lever slipped out and I fell 'backward and hit the steel plug trough and it throwed me sideways on the concrete. I hit the trough with my right side and fell sideways on my left side to the concrete floor. I got up and kept working. Grady Johnson asked me if I was hurt and I said I didn’t think so only I got hit in the side and kinda knocked the wind out of me. In about three weeks I noticed a hurting in left hip and left leg. I then commenced to try to get out of the machine room. I then talked to Reeves Thompson who was in charge of the guards and asked him if he needed anybody else and he said yes and if I could get a transfer he would like to get me. I went to see Mr. Harper and he told me it was OK and then Reeves came in the machine room and got me. I worked as a guard until January this year and then Reeves sent me back in the mill and I went to the finishing room and I worked there until I had to go to the doctor and I haven’t worked any since.
"/s/ Tommy White” (Italics ours.)

Plaintiff, a 270-lb. common laborer, 37 years of age, illiterate, had been employed at hard manual labor during his entire life. In January of 1953 he was employed by defendant, passing his pre-employment physical. He worked first in the finishing room, then was transferred to the “machine room” where the alleged accident occurred; worked two or three weeks after the accident under (he says) increasing pain and was transferred to the lighter guard duty on September 11, 1953; worked at this lighter guard duty until December 20, 1953, when he was retransferred back to the heavier and less paying work inside the plant because he was caught sleeping at his post for approximately the third time; was off about two weeks waiting to get back to work, hoping to get assigned back to guard duty; returned to hard work inside the plant approximately January 15, 1954, worked approximately nine days when (according to him) he could take the work no longer, due to the condition in his hip and leg which he had first noticed as a result of the accident back when he was employed in the “machine room”. He then reported to the company physician on January 26, 1954.

Plaintiff’s testimony of the accidental slipping in the machine room, his subsequent transfer to the lighter guard duty, and then his short return to heavier work immediately preceding his report of the injury to the company physician, are corroborated by his co-workers at the time of the accident, Homer James', William Grady Johnson, and Billy Guy Johnson, and is not contradicted or denied by defendant or defendant’s witnesses. In the initial hearing, these co-employees estimated that the accident had happened in December, 1953.

Of course, it is impossible that plaintiff White sustained the accident in the machine room in December, 1953, because he had been transferred to guard duty from the machine room on September 11, 19S3, as the company records show and as, in fact, White does not deny. It is of course apparent that White was mistaken as to the time succeeding the injury that he had worked on guard duty; not only did he tell Dr. Banks soon after the injury that he had been on guard duty only about six weeks, but even at the trial two years later he testified and reiterated under oath that succeeding the injury he worked on guard duty “about two months”. (Tr-216.)

Of course, it is proven unquestionably that White worked on guard duty about 3i/á months rather than the shorter period. But this testimony does not cast any more doubt on the fact that White actually worked 3j/¿ months (rather than 6 weeks or 2 months) on guard duty, or indicate any intentional misstatement by White; than, in our opinion, does White’s testimony, based on this mistaken estimate of the length of the intervening guard service, that the accident occurred in December rather than August cast doubt upon his corroborated testimony that the accident in the course of his employment with defendant had indeed taken place, or upon his intended veracity in so testifying.

Likewise, we are unable to attach the importance that able counsel for defendant-appellee earnestly urges should be placed upon White’s failure to inform the examining physician at the time of his employment by defendant, or at least two of the subsequent examining physicians, of a pri- or compensation claim. Although not commendable, these misstatements were not given under oath, and do not necessarily reflect upon White’s credibility as a sworn witness in court, even if regarded as material deceptions in view of the minor nature of the previous compensation claims. But more important, Dr. Banks (who testified White had not truthfully informed him of these prior industrial accidents) found White disabled at the time of his examination by objective symptoms; and Dr. Pollard, informed during his deposition of this withholding of information by White at the time of the medical examination, testified that it did not change his diagnosis of disability.

The company officials testified that White had asked for transfer from the machine room to the lighter guard duty because the concrete caused his feet to hurt, not because of pain from a prior injury. In rebuttal, White testified that they may have misunderstood his complaints which were that the machine room work made his leg and hip hurt (which the medical testimony indicates is a natural result of the disc injury). If this be regarded as a serious discrepancy, we do not regard it as so weighty as to overcome the uncontra-dicted testimony of an accident corroborated so strongly by surrounding circumstances. The phenomena of the employee, sustaining what initially seems to be a slight injury, endeavoring to continue on in his employment despite increasing pain in order to earn a living for himself and his family, is not unusual in our jurisprudence. Wallace v. Remington Rand, Inc., 229 La. 651, 86 So.2d 522; Bigham v. Swift & Co., 229 La. 341, 86 So.2d 59; Johnson v. Cabot Carbon Co., 227 La. 941, 81 So.2d 2; Mottet v. Libbey-Owens-Ford Glass Co., 220 La. 653, 57 So.2d 218.

We believe the learned trial court, unintentionally but in effect, placed a burden upon the employee of proving that his disability did not result from an accident outside of the course of his employment. The employee’s uncontradicted testimony of the accident at work is strongly corroborated by surrounding circumstances and the testimony of his co-workers. We are required to reverse this finding that no compensable accident had occurred. Fee v. Calcasieu Paper Co., La.App. 1 Cir., 89 So.2d 434; Turner v. Southern Industries Co., La.App. 1 Cir., 88 So.2d 238, certi-orari denied; Hebert v. Hartford Acc. & Indemnity Co., La.App. 1 Cir., 88 So.2d 243; Bailey v. Long-Bell Lumber Co., La. App. 1 Cir., 63 So.2d 452, certiorari denied.

Plaintiff’s wages in the machine room were $1.12 per hour. Based upon a six-day week, Carrington v. Consolidated Underwriters, 230 La. 939, 89 So.2d 399, sixty-five per cent of these wages exceeds the then-applicable maximum weekly compensation rate of $30.

Since plaintiff’s wages subsequent to the accident and during the five months before the disability became legally manifest were paid at a different rate and for a different type of work (except for two or three weeks), and were fully earned and not paid pursuant to an express or implied agreement that such wage payments were to be received in lieu of compensation, defendant is entitled to no credit for same. Wallace v. Remington Rand, Inc., 229 La. 651, 86 So.2d 522; Mottet v. Libbey-Owens-Ford Glass Co., 220 La. 653, 57 So.2d 218; Myers v. Jahncke Service, Inc., La. App. Orleans, 76 So.2d 436. The Wallace and Mottet cases indicate that in such instances the date that compensation liability commences is the date the disability becomes legally manifest, that is, when the employee is no longer able to perform his duties and his employment terminates; in the present instance, January 25, 1954. Defendant is of course entitled to credit for the weekly compensation payments made by it to White from January 25, 1954 until April 17, 1955.

Plaintiff-appellant’s request that the fees of Dr. Pollard and Dr. Sutton as expert witnesses be increased to $50 and to $35 (see Tr-198), should be granted. Fee v. Calcasieu Paper Co., La.App. 1 Cir., 89 So.2d 434.

For the above and foregoing reasons, the judgment of the District Court dismissing plaintiff’s suit is reversed; and judgment is rendered herein in favor of plaintiff, Tommie White, and against defendant, the Calcasieu Paper Company, Inc., for compensation at the rate of $30 per week during disability, not to exceed 400 weeks in all, commencing January 25, 1954, subject to credit for compensation heretofore paid, together with legal interest on all compensation installments from date of delinquency until paid, and for all costs of these proceedings. The fees of the medical experts testifying are .as fixed by the District Court, except that the fee of Dr. Pollard is increased to $50 and that of Dr. Sutton to $35. It is further ordered that the fee of Wood and Jackson, attorneys at law, is hereby approved and fixed in the amount of 20%' of the amounts collected under this judgment, not to exceed $1,000 in all.

Reversed and rendered.

      . Compensation was not discontinued a year later on any ground that no accident had occurred; it was because plaintiff, feeling he could not perform the duties, refused to return to light work as tentatively recommended by Dr. Banks.

      . Of., testimony of Homer James, T”. 262-.3:

        “Q. Were you working with Mr. White during the month of December, 1953?
      A. Yeh, I guess I was. It was in the winter time when he got transferred over to the machine room, I believe.
      “Q. “Do you remember whether you were working with him on or about December 10, 1953? A. Yeh, I guess I was. I didn’t notice the calendar. Didn’t Iceep up with that.

        “Q. Were you working with him when he had an accident? A. Yeh, I was working with him when he fell.
      “Q. Did you ever see him have more than one accident while you were working with him? A. That’s the onliest time I ever saw.
      “Q. And that was on or about December 10, 1953? A. Yeh, it was about then. Now, I’m not saying it was then because I don’t remember if it loas in December — the 10th of December or not.'’

      Of. also testimony of William G. Johnson, e. g.,
      “Q. Do you remember if you were working with Mr. White here on or about the 10th or middle part of December in 1953? A. Well, somewhere along in through there I worked. (Tr-254.)
      Well, it was somewhere through that month when we were working together” (that is, that White got hurt).
      White and Johnson worked together in the machine room, until White was transferred to the lighter guard duty; Johnson remained in the machine room.

      . This prior injury had occurred on May 2, 1949, almost four years before his employment by defendant, and had been settled for $200. Plaintiff had been continuously employed in hard manual labor since that time, without complaint of back injury until the present accident. (Several years before that he had drawn about $60 compensation over two or three weeks for a cut ear.)


author: PONDER, Justice.

text:
    233 La. 382
    Albert A. WILSON v. Carleton KING.
    No. 43206.
    Supreme Court of Louisiana.
    June 10, 1957.
    Rehearing Denied June 28, 1057.
    Baldwin, Haspel & Molony, Robert R. Rainold, New Orleans, for plaintiff (defendant in rule) appellant.
    Oliver P. Schulingkamp, John H. Far-relly, New Orleans, for defendant (plaintiff in rule) appellee.
   PONDER, Justice.

This is an appeal from a judgment of the district court dismissing plaintiff’s suit as being abandoned under the provisions of Article 3519 of the LSA-Civil Code.

On October 2, 1940 the plaintiff brought suit against the defendant seeking to r«cover $4,840. Judgment was entered by default on November 11, 1940. On June 26, 1950 plaintiff brought proceedings to revive the judgment of 1940 which was opposed on the ground of want of legal citation. On appeal this Court decreed the default judgment a nullity and rejected plaintiff’s demand to revive the judgment. Wilson v. King, 227 La. 546, 79 So.2d 877.

Thereafter, on November 10, 1955, the plaintiff obtained personal service of the original petition on the defendant. After personal service was obtained, the defendant excepted to the service of the citation on the ground that the service of citation and petition were nullities under the laws of this State. This exception was filed on November 21, 1955. On May 22, 1956 the defendant moved to dismiss the plaintiff’s petition on the ground that the plaintiff has allowed more than five years from the date of the filing of the original petition (October 2, 1940) to elapse without taking any valid steps in the prosecution of the suit and that under the provisions of Article 3519 of the LSA-Civil Code the plaintiff is considered as hiving abandoned his suit. The motion to dismiss is based on the ground that this Court having annulled the judgment for want of citation that no steps were taken from the time the original petition was filed in 1940 until the purported service of citation was made on the defendant on November 9, 1955.

The plaintiff, defendant in the rule to show cause, excepted on the ground that the defendant had waived his rights to any abandonment when he filed an exception to the service and citation of the petition on November 21, 1955, and that Article 3519 of the LSA-Civil Code is not applicable. On hearing the trial judge made the rule absolute and dismissed plaintiff’s suit at his cost. The plaintiff has appealed.

The appellant contends (1) that Article 3519 LSA-C.C. does not apply for the reasons that the plaintiff showed no intention at any time to abandon the suit having obtained final judgment on November 11, 1940 and attempted on several occasions to execute same, and could take no further steps until after the rendition of the judgment of this Court decreeing the default judgment a nullity when plaintiff caused service of citation to be made personally on the defendant; (2) that the defendant by filing the exception to the service and citation has waived any right that he might have for the abandonment of the suit.

Article 3519 of the LSA-Civil Code provides :

“If the plaintiff in this case, after having made his demand, abandons or discontinues it, the interruption shall be considered as having never happened. Whenever the plaintiff having made his demand shall at any time before obtaining final judgment allow five years to elapse without having taken any steps in the prosecution thereof, he shall be considered as having abandoned the same. * * * ”

It is apparent from the facts in this case that this article of the Civil Code is not applicable. It would indeed be unreasonable to apply this article where the plaintiff has done everything in his power to recover under his suit. It is obvious from a reading of the article itself that it was meant to apply to a situation where suit was filed and no steps were taken for five years, but it was never intended to apply to a case where a suit was prosecuted to final judgment even though that judgment was afterwards set aside. Metairie Bank in Liquidation v. Lecler, La.App., 4 So.2d 573.

Moreover, the defendant, if he had a right to move for the abandonment of the judgment, waived that right by the filing of the exception to the service of citation prior to the filing of his motion to dismiss on the ground of abandonment. It has been held that a defendant must file a motion to dismiss for abandonment for that purpose alone and, if he couples with it any plea to the merits of the case, he will be considered as having waived his right to abandonment. Green v. Small, 227 La. 401, 79 So.2d 497; State ex rel. Shields, Inc., v. Southport Petroleum Corporation of Delaware, 230 La. 199, 88 So.2d 25.

For the reasons assigned, the judgment appealed from is set aside and the case is remanded to the district court to be proceeded with according to law and consistent with the views herein expressed. All costs to await the final determination of the case.

HAMLIN, J. ad hoc, recused.


author: SIMON, Justice.

text:
    233 La. 388
    STATE of Louisiana v. Willie D. MARSH, Alvin R. Clinton, Herbert K. Morgan, Frank V. Gann, Myron G. Hinds, Alfred Black, and David H. Puckett.
    No. 43459.
    Supreme Court of Louisiana.
    June 28, 1957.
    Leon A. Picou, Jr., St. Francisville, for de f endants-appellants.
    Jack P. F. Gremillion, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., and Richard Kilbourne, Dist. Atty., Clinton, for appellee.
   SIMON, Justice.

The defendants-appellants herein were jointly charged in a bill of information with having committed the offense of simple escape as defined by LSA-R.S. 14:110 in that they intentionally departed from the lawful custody of an official of the Louisiana State Penitentiary and from a place where they were lawfully detained by an official of the Louisiana State Penitentiary. They were tried by a twelve-man jury, and each of them was found guilty of attempted simple escape and sentenced to imprisonment in the State Penitentiary for a period of two and one-half years, said sentence to run consecutively with any sentence being served by him.

During the course of the trial no bills of exception were reserved save the one reserved to the ruling by the trial judge on a motion in arrest of judgment wherein it is contended that the record contains manifest error in that Act 122 of 1954 (LSA-R.S. 14:110), the statute under which the defendants were prosecuted, is unconstitutional, and that, therefore, no judgment against them can be lawfully rendered, being violative of Art. 1, Sec. 10, Const. La.1921, LSA, and the 14th Amendment of the U. S. Constitution.

Defendants herein were confined in the Louisiana State Penitentiary and escaped from their dormitories sometime during the nighttime and were apprehended the following morning hiding in a pile of sand in the prison compound. They never left the penitentiary grounds.

The defendants contend that under Act 122 of 1954 it is impossible for persons having been sentenced to the penitentiary to commit the crime of simple escape, but that said crime can be committed only in two ways, i. e.: (1) from an official of the penitentiary, and (2) from a place where the offender is lawfully detained by an official of the penitentiary. They contend that the penalty cause provided in this statute provides a penalty only for escape from the lawful custody of an official of the penitentiary, but does not provide a penalty for escape from a place where the offender is lawfully detained by an official of the penitentiary.

Defendants further contend that the statute fails to define the terminology “lawful custody” or “place where lawfully detained.”

In 1942, the Legislature adopted Act 43, defining the crime of simple escape and providing penalties therefor, as follows:

“Simple escape is the intentional departure of a person, under circumstances wherein human life is not endangered, from lawful custody of any officer or from any place where he is lawfully detained by any officer.
“Whoever commits the crime of simple escape shall be fined not more than five hundred dollars, or imprisoned for not more than one year, or both; provided that such imprisonment shall not run concurrently with any other sentence.”

In 1954 the Legislature, by Act 122 (LSA-R.S. 14:110), amended and reenacted the prior simple escape statute so as to provide as follows:

“Simple escape is the intentional departure of a person, under circumstances wherein human life is not endangered, from lawful custody of any officer or official of the Louisiana State Penitentiary or from any place where he is lawfully detained by any officer or official of the Louisiana State Penitentiary.
“Whoever commits the crime of simple escape other than from the lawful custody of an official of penitentiary and who has not been sentenced to the penitentiary shall be imprisoned for not more than one year, provided that such imprisonment shall not run concurrently with any other sentence.
“Whoever commits the crime of simple escape from the lawful custody of an official of the penitentiary, or, having been sentenced to the penitentiary, commits the crime of simple escape before having been incarcerated in the penitentiary, shall be imprisoned at hard labor for not less than two years and not more than five years; provided that such sentence shall not run concurrently with any other sentence. As amended Act 1954, No. 122, § 1.”

In the case of State ex rel. Priest v. Coverdale, 204 La. 448, 15 So.2d 849, we said that the universal and most effectual way of discovering the true meaning of á law, when its expressions are dubious, is by considering the reason and the spirit of it, or the cause which induced the Legislature to enact it.

When the meaning of a statute appears doubtful it is well recognized that we should seek the discovery of the legislative intent. However, when the language of a statute is plain and unambiguous and conveys a clear and definite meaning, there is no need of construction. State v. Arkansas Louisiana Gas Company, 227 La. 179, 78 So.2d 825.

It is common knowledge that by the adoption of Act 122 of 1954 the Legislature undertook to remedy a situation which was almost intolerable for citizens of West Feliciana Parish, Louisiana, and Wilkinson County, Mississippi, who reside in the vicinity of the penitentiary, and to effect a deterrent on penitentiary prisoners bent on escape. Prior to the amendatory statute, Act 43 of 1942 applied to escapees from lawful custody of any officer or from any place where such escapees were lawfully detained by any officer. The penalty in such instances was a fine and/or imprisonment in the parish jail for not more than one year. By Act 122 of 1954, the Legislature extended the scope and meaning of simple escape so as to specifically provide a penalty whereby escapees from the lawful custody of any officer or official of the Louisiana State Penitentiary or from any place where they were lawfully detained by said officer may be condemned to imprisonment at hard labor for not less than two years and not more than five years. The effect of such amending statute was to relieve the Parish of West Feliciana from confining these escapees in the parish jail at the expense of the parish. Furthermore, it is evident that the increased penalty had for its purpose to effect a deterrent on penitentiary prisoners bent on escape.

In the instant case, when the defendants were confined in their dormitories, they were placed in a state of being guarded or watched to prevent escape and manifestly were in the lawful custody of an officer of the Louisiana State Penitentiary. When they escaped from that custody they became fugitives therefrom. Custody in criminal law implies physical force sufficient to restrain a person from going at large. Here the prisoners were confined in the dormitory which was sufficient in itself to restrain them from going at large. The record discloses that they removed a ventilator from one of the dormitory walls and thus provided the means by which they escaped confinement and the lawful custody of the officers or officials of the State Penitentiary, thereby making them amenable to the penalties contained in our simple escape statute.

Defendants further contend that the act is unconstitutional in that the terminology “lawful custody” or “place where lawfully detained” is not defined by the statute. This contention is without merit, for it is axiomatic that in statutory construction the words used therein are to be taken according to their fair import, in their usual common or ordinary meaning, in connection with the context, and with reference to the purposes to be served. See State v. Truby, 211 La. 178, 29 So.2d 758.

In the case of State v. Arkansas Louisiana Gas Company, supra, we announced the following principle [227 La. 179, 78 So. 2d 828]:

“Among the best known of our rules of statutory construction is the phrase ‘nos-citur a sociis’ and ‘ejusdem generis’. The maxim has been defined as follows:
“ 'It is known from its associates. * * * The meaning of a word is or may be known from the accompanying words. * * * Under this rule general and specific words, capable of analogous meaning, when associated together, take color from each other, so that g'eneral words are restricted to a sense analogous to less general. * * *

We find no merit in the bill of exception assailing the constitutionality of Act 122 of 1954, LSA-R.S. 14:110.

Accordingly, for the reasons assigned, the conviction and sentence are affirmed.

      . Willie D. Marsh, Alvin R. Clinton, Herbert K. Morgan, Frank V. Gann, Myron G. Hinds, Alfred Black and David H. Puckett, all prisoners at the Louisiana State Penitentiary at Angola, were jointly charged in a bill of information with the crime of simple escape. All of the defendants pleaded not guilty when they were arraigned on November 13, 1958, and their case was fixed for trial on December 5, 1956. Before the case could be tried, Frank V. Gann escaped from custody of the penitentiary and was not apprehended. On the day the case was , fixed for trial, Alfred Black withdrew his plea of not guilty and pleaded guilty. The remaining five defendants are the appellants herein.


text:
    233 La. 397
    C. E. SIMMONS v. Roscoe B. G. COWPER.
    No. 43184.
    Supreme Court of Louisiana.
    June 10, 1957.
    Rehearing Denied June 28, 1957.

      Herbert C. Harrison, Shreveport, for plaintiff-appellant.
    Gaharan & Richey, Jena, for defendant-appellee.
   SIMON, Justice.

Plaintiff and defendant entered into a written contract dated May 26, 1955, wherein the plaintiff obligated himself to drill and complete an oil well for the defendant for the sum of $5,600 in cash, payable upon its completion. The money was deposited in escrow in the Olla State Bank of Olla, Louisiana. Each of the parties agreed to furnish certain supplies and equipment. In particular, plaintiff agreed to furnish a drilling rig of a sufficient size to drill a well of 2,250 feet, necessary labor, fuel, water and all drill pipe. The defendant, who was the owner of an oil and gas lease covering 40 acres of land in LaSalle Parish, agreed to furnish passable roads, slush pits, derrick and other things as provided by the contract.

Drilling operations were commenced on or about May 29, 1955 and continued until about June 10, 1955, when a drill pipe stuck and the derrick used in drilling said well collapsed or was pulled down. A disagreement between the parties as to the obligation and condition of replacing said derrick culminated in this suit instituted by plaintiff.

In his petition plaintiff alleged that the fall of the derrick was due to a defective and inadequate foundation; that upon the collapse of the derrick he requested its replacement, but that the defendant failed and refused to replace same thereby causing plaintiff to permanently lose approximately 2,000 feet of drill stem and a core barrel in said well which cannot be retrieved unless and until the derrick is replaced. The defendant being a non-resident of the parish and state, plaintiff caused a writ of attachment to issue attaching money held in escrow by the Olla State Bank, and further caused the Olla State Bank to be made garnishee.

Plaintiff also coupled with this action in rem a suit for damages caused when the derrick collapsed over and across his drilling rig and one of his trucks, for the loss of other equipment and for standby time of his rig, all said damages alleged to be in the sum of $31,152. He also claimed damage due for standby time for his idle rig, allegedly continuing and increasing during the pendency of this suit.

An exception to the jurisdiction ratione personae interposed by defendant to plaintiff’s claim for damages, exceptor being a resident of the State of Texas, was heard and sustained by the trial court. Exceptions of no cause or right of action thereafter urged by the defendant to the action in rem were overruled.

In defense to plaintiff’s suit in rem defendant denied that plaintiff was entitled to the contractual price held in escrow or that the derrick was pulled over as the result of a defective foundation, and averred that the derrick, meeting all standards for ¡drilling purposes, was furnished in accordance with the terms of the contract and was accepted by plaintiff. Defendant denied any liability whatsoever for the accidefit as a result of any alleged negligence or as the result of any failure on his part to comply with any obligations under the contract, but averred that the accident was wholly caused as a result of the negligent operation on the part of plaintiff, his agents and employees, in the drilling of the well and in permitting the drill pipe to become stuck.

Defendant further averred that he offered to supply an additional derrick to replace the original one, but that the plaintiff refused to accept same in order to proceed with the completion of his obligations under the contract unless the defendant agreed to pay additional day work time over and above the amount of the contract price agreed upon in the written contract sued on herein.

After the trial on the merits, the trial court rendered judgment in favor of the defendant and rejected plaintiff’s suit at his cost. He appealed.

The only issue presented herein is one of fact, whether the plaintiff has, in legal contemplation, fulfilled his obligations under the contract , and is therefore entitled to receive the money held in escrow; or whether the plaintiff can be permitted tp impose additional conditions or demand increased consideration for the completion of the drilling of the well.

Plaintiff contends that the most important question for the court to determine is whether it was the duty of the plaintiff or that of the defendant, under the terms of the contract, to replace the fallen derrick. This contention was made in full view of the abundance of evidence to prove that an additional derrick was immediately made available to the plaintiff for completion of the well, but that he refused to accept same unless, as. above stated, the defendant would assume the obligation of payment of additional day work time over and above the amount of the contract price agreed upon.

The evidence discloses that the derrick supplied by the defendant for use by the plaintiff in drilling the well was erected by W. L. Holmes, a reputable derrick builder, and that said derrick was accepted by the plaintiff as a “good derrick,” without inspecting same before setting up his drill rig to drill the well, whereas customary precaution demands that the contractor inspect said derrick and re-leg same as a preventive measure against placing excessive strain of sudden jars and pulls on the derrick such as was imposed on the derrick herein in attempting to dislodge the drill pipe which had become stuck during the course of the drilling. The plaintiff’s first attempts to recover the stuck drill pipe were unsuccessful and apparently he realized that it would be an expensive procedure to retrieve the drill pipe and complete the well. He thereupon wrote a letter dated June 11, claiming the money in escrow on the ground that he had drilled the well to the contract depth and further demanded that the defendant assume full responsibility of retrieving the drill pipe and completing the well. In this letter defendant charged the plaintiff with having supplied a defective or unsafe derrick, erected on old cement blocks on an uneven bottom, and further charged that the defective construction was cleverly disguised by piling up dirt around the sides of the concrete corners so that the said faulty workmanship was not discernáble to the naked eye.

Plaintiff testified variably that the derrick was good and capable of drilling “a hundred wells;” that it was shaking at one time and that he indicated this condition to Mr. Tidwell, agent for defendant, and offered to supply the legs to re-leg the derrick; that a heavy rain washed out the foundation from under the derrick and caused its collapse. None of plaintiff’s testimony was corroborated, yet it was en-cumbent upon him to establish, if he could, all the facts and circumstances surrounding the accident by testimony of the employees employed by him to conduct the drilling operations or other witnesses. None of these employees was summoned to clarify the actual facts and circumstances surrounding the accident. Plaintiff himself was not present at the time of the accident.

It is shown by a preponderance of the evidence that the collapsing of the derrick did not cause the drill pipe to stick, but that, on the other hand, the sticking of the drill pipe and the pull on the derrick caused it to collapse.

By the terms of the contract the defendant was obliged to pay to plaintiff the sum of $5,600 upon completion by the plaintiff of the drilling of the well and plaintiff was= obliged to process the drilling of the well with due diligence until completed. Failure-on the part of plaintiff to do so rendered! the contract null and void, and stipulated! that the money so .escrowed be returned by the Olla State Bank to the defendant.

The plaintiff contends that he was prevented from performing his obligations under the contract by failure on the part of the defendant to supply a derrick for the completion of the well, and that therefore he is excused from further performance or from fulfilling the contract; and being prevented from performing his obligations, he may consider the contract breached. He relies on and cites 17 C.J.S. Contracts § 468, p. 966; LSA-Civil Code, Articles 2040, 2037, 1926, 1931, 1934; Southport Mill, Ltd. v. Friedrichs, 171 La. 786, 132 So. 346; Morrison v. Mioton, 163 La. 1065, 113 So. 456.

On the other hand, defendant contends that the plaintiff cannot enforce benefits under the contract as flow in his favor where he is unwilling or unable to discharge his own undertaking therein, and relies upon the case of Seeger v. Seeger, 169 La. 611, 125 So. 732.

Under these facts and circumstances we conclude that the plaintiff having refused to accept an additional derrick and thus complete the drilling of defendant’s well under the terms of the original contract between them, failed to perform or complete his obligations under the contract and is therefore not entitled to be paid the money deposited in escrow and attached in this proceeding. The record is barren of any proof tending to show that the defendant caused or contributed to the non-performance of the contract. We further conclude that the defendant was not obliged to enter into another contract, verbal or written, in order to accommodate the increased expense of recovering the stuck pipe. The plaintiff was obliged to complete the drilling of the well in accord-anee with his contract entered into on May 26, 1955, in order to recover the benefits therein flowing in his favor.

In the case of Seeger v. Seeger, supra, we held that a party seeking to compel a specific performance of a contract must himself show a specific compliance with his own obligation, since the contracting party who is himself in default cannot put the other contracting party in default. In the instant case the plaintiff’s refusal to accept a derrick proffered to him by the defendant on the day following the accident, his refusal being based on defendant’s refusal to assume additional operational expenses beyond the price and consideration specifically contracted for, constituted a failure and omission on plaintiff’s part to have strictly complied with his own obligation, rendering the contract between the parties impossible of specific performance. Pratt v. McCoy, 128 La. 570, 54 So. 1012.

We agree with the principles of law announced in the authorities cited and relied upon by plaintiff; but these authorities are inapposite and inapplicable here in that they present factual situations totally at variance with the facts and circumstances here presented.

The record is barren of any proof tending to show that defendant in any manner caused or contributed to the nonperformance of the contract. Conceding for the sake of argument that performance by plaintiff was made impossible by the fortuitous event or irresistible force, thus relieving him from performance, his refusal to accept a substitute derrick unless the terms of the contract were changed, thereby throwing a heavier financial burden on defendant than that contracted for, the nonfulfillment of the contract cannot be held to be the result of a fortuitous event ■or irresistible force. Defendant did not prevent the performance of the contract.

Plaintiff also contends that though the exception to the jurisdiction, ratione personae, filed by the defendant was properly sustained by the trial court, by the subsequent actions of the defendant in his defense to the action in rem he subjected himself personally to the court’s jurisdiction, and that therefore he is amenable to a judgment for damages and that therefore its merits should be considered and determined. We find no merit in this contention. The plea to the jurisdiction ratione personae was specially interposed in limine to the action in damages, and properly sustained; and the trial on the issues in the proceeding in rem was properly proceeded with to judgment.

Accordingly, for the reasons assigned, the judgment of the trial court is affirmed.


author: HAMITER, Justice.

text:
    233 La. 409
    MAGNOLIA PETROLEUM COMPANY v. Vivian V. BOUDREAUX et al. and Leonard Wing et al.
    No. 42737.
    Supreme Court of Louisiana.
    June 28, 1957.

      S. W. Plauche, Jr., Lake Charles, for appellant.
    King, Anderson & Swift, Lake Charles, for appellees.
   HAMITER, Justice.

This concursus proceeding, provoked by Magnolia Petroleum Company for the purpose of determining to whom payment is due for gas and gas distillate royalties derived from a well drilled by it, presents a title dispute between heirs of Nathaniel Vincent (on the one hand) and heirs of Josephine Vincent Wing (on the other hand) over a one-tenth interest in and to. the West Half of Section 18, Township 14-South, Range 10 West, in Cameron Parish. Both sets of claimants assert title from a common ancestor — one Simeon Vincent who obtained a patent to the 320 acre tract in 1882 from the State of Louisiana,

The heirs of Nathaniel Vincent, who was a son of Simeon, alleged that Nathaniel “ * * * acquired this property at administrator’s sale from and through the succession of Simeon Vincent on November 17, 1888, which sale was held pursuant to an order of court rendered on October 4, 1888, which deed and procés verbal of sale are not presently of record in either of the parishes of Calcasieu or Cameron if they were ever recorded in the Conveyance Records of said parishes.” They also pleaded the acquisitive and liberative prescriptions of 30 years.

The heirs of Josephine Vincent Wing, who was a daughter of Simeon and a sister of Nathaniel, claim ownership by inheritance from the common ancestor, they contending that there is no evidence of the administrator’s sale relied on by their opponents. (There appear to be numerous other heirs of Simeon Vincent — heirs of children other than Josephine and Nathaniel- — who are not contesting the one-tenth interest involved in this proceeding.)

The district court, after trial, rejected the demands of the heirs of -Nathaniel Vincent and rendered judgment in favor of the heirs of Josephine Vincent Wing. The former, thereupon, requested and obtained this devolutive appeal.

Appellants do not urge that we presently recognize them to be the owners of the disputed interest. Admitting that the transcript of this appeal is inconclusive and inadequate on the crucial question of whether Nathaniel Vincent purchased the property in 1888 at the succession sale of Simeon Vincent, they request only that we remand the case so as to permit the introduction of new and additional evidence (such as was not available when the case wa.s originally tried) bearing upon the alleged administrator’s sale. Thus, to quote from the brief of their counsel, they say: “The critical issue in this case * * * is whether appellants’ ancestor, Nathaniel Vincent, purchased the disputed property in 1888 at the succession sale of his father, Simeon Vincent. * * *

******

“Since the evidence on the crucial issue in this case is so inconclusive and incomplete * * * the brief which follows will be devoted entirely to the appellants’ motion to remand this cause. In the present inadequate state of the record appellants cannot conscientiously urge this Court to reverse the district judge’s decision on the merits.

“By the same token, it is submitted that in the interest, and so as to prevent a miscarriage, of justice in this case appellants’ motion to remand should be granted for the purposes stated therein.”

Under the authority of Code of Practice Article 906 we can and do remand cases for the introduction of additional evidence when we feel that by such action the ends of justice would best be served. Succession of Addison, 212 La. 846, 33 So.2d 658; Reich v. Grieff, 214 La. 673, 38 So.2d 381; United Brotherhood of Carpenters & Joiners of America, Local No. 1846 v. Stephens Broadcasting Co., Inc., 214 La. 928, 39 So.2d 422; Dietz v. Dietz, 227 La. 801, 80 So.2d 414. In the instant cause we experience a feeling of that nature; and, for the reasons hereinafter set forth, appellants’ motion to remand will be granted.

The record before us discloses that Simeon Vincent was a resident of and owned other property in Calcasieu Parish, and that his succession was opened in the district court there. In 1910 the Calcasieu Court House burned, destroying all of the Calcasieu Parish public records. Hence, if an administrator’s sale of the disputed property to Nathaniel Vincent occurred in the succession proceedings of Simeon Vincent, as appellants have alleged, the public record thereof was destroyed by the fire. And, as a result, appellants became .entitled to produce secondary evidence, if they could, to establish the existence of their asserted title. Revised Civil Code Article 2279; Willett v. Andrews, 106 La. 319, 30 So. 883; Babington Bros. Limited v. Barber, 124 La. 1042, 50 So. 844; Grotevant v. Dorrestein, 152 La. 734, 94 So. 372; and Little v. Barbe, 195 La. 1071, 198 So. 368.

Some of the new and additional secondary evidence proposed to be introduced by appellants on a remand of the case are the following items:

1. The original patent to Simeon Vincent, the reverse side of which contains this notation in the handwriting of the administrator of Simeon’s succession : — “S. Vincent to N. Vincent in Cameron.”;
2. A written acknowledgment executed in 1942 by appellees (or their ancestors in title), in connection with property other than that involved here, that “the succession of Simeon Vincent was fully and completely administered in the Probate Court of the Parish of Calcasieu during the year 1888, in the course of which proceeding, No. 577 upon the docket of that court, all assets of the succession, both movable and immovable, were sold at public sale and the succession proceeding finally closed after the homologat-ing of the account of the administrator and a proper distribution of the remaining proceeds of such sale amongst the heirs”;
3. A disclaimer of interest affecting the property here in controversy signed in 1945 by numerous heirs of Simeon Vincent (other than these appellees or their ancestors) in favor of appellants;
4. Testimony of a person who allegedly attended the administrator’s sale;
5. Testimony of an heir, who would profit in the same fashion as these ap-pellees if the alleged sale is not recognized, that he had signed the disclaimer in 1945 because he knew the property belonged to Nathaniel Vincent, his mother and Nathaniel having told him of the sale;
6. Evidence of admissions against interest by vaiious other heirs of Simeon Vincent.

In examining and making reference to this new and additional evidence which appellants propose to introduce we are not passing upon its weight, nor have we considered whether its introduction will necessarily change the result originally reached by the district court. With respect to the motion to remand, our duty is merely to determine whether there is a strong possibility that the introduction will cause a change in the original conclusion. After considering the proposed new and additional evidence we are of the opinion that it, if not contradicted or its effect rebutted, might well justify the mentioned change. Consequently, in the interest of justice the cause will be remanded for the purpose of receiving from both appellants and appel-lees further evidence bearing on the alleged administrator’s sale of 1888, it, of course, to be relevant, material and otherwise admissible. After the hearing the district judge will render such judgment as the law and evidence warrant.

For the reasons assigned the judgment appealed from is set aside and the cause is remanded to the district court for further proceedings according to law and consistent with the views hereinabove expressed. Costs of this appeal shall be paid one-half by appellants and one-half by appellees. All other costs shall await the final determination of the litigation.


author: McCALEB, Justice. HAMITER, Justice.

text:
    233 La. 417
    Zeola Koen BRINSON v. Effie Mae King BRINSON.
    No. 42839.
    Supreme Court of Louisiana.
    Feb. 25, 1957.
    On Rebearing June 28, 1957.

      Eugene J. Coen, Shreveport, and Walter E. Doan, New Orleans, for defendant-appellant.
    Cook, Clark, Egan, Yancey, & King, Shreveport, for plaintiff-appellee.
   McCALEB, Justice.

This litigation concerns the ownership of the estate of Willie Leon Brinson who died on February 9, 1952, at his residence in Caddo Parish, which he occupied as a common dwelling with Efiie Mae King Brinson.

On April 14, 1952, Effie Mae King Brinson (hereinafter referred to as defendant), appearing as surviving widow, together with Walter B. Brinson, Hugh D. Brinson and Fred N. Brinson, appearing as the sole surviving heirs of their father, opened the succession of Willie Leon Brinson in the First Judicial District Court for the Parish of Caddo and, on the same day, obtained an ex parte judgment placing them in possession of the estate in the proportions of one-half to defendant and an undivided one-sixth interest to each of the three above named sons. Thereafter, defendant purchased the respective interests of the three sons by warranty deed for a cash consideration of $2,000.

On August 1, 1952, Zeola Koen Brinson, a resident of Hattiesburg, Mississippi, alleging herself to be the true and lawful widow of Willie Leon Brinson and entitled as such to the ownership of an undivided one-half interest in and to all the property of which he died possessed, filed this suit against defendant in the First Judicial District Court for the Parish of Caddo seeking, in effect, a nullity of the ex parte judgment under which defendant and the sons of decedent were placed in possession of his estate. The sons of Brinson, who were non-residents, were joined as defendants and cited through a curator ad hoc.

Plaintiff’s claim that she is the lawful widow of Brinson stems from the following state of facts:

Willie Leon Brinson was first married to Annie Lillian Taylor by a ceremonial marriage at Brookhaven, Mississippi, on May 22, 1921. Four children were born of that union, one of whom died unmarried and without issue, the other three being the three sons made defendants herein.

On September 11, 1931, during the existence of his marriage to Annie Lillian Brinson, Willie Leon Brinson was ceremonially married to plaintiff, Zeola Lee Koen, pursuant to a license issued to “Walter Leonard Brinson”. Following this marriage, Brinson and plaintiff lived openly and publicly as husband and wife at various places in Mississippi and other states and, in September of 1932, Brinson went to Arkansas where he filed a suit for divorce, based on desertion, against his first wife, Annie T. Brinson. In that proceeding, plaintiff appeared as a witness for Brin-son by deposition executed in Little Rock, Arkansas, on September 26, 1932, in which she stated, in substance, that she had known Brinson and his first wife for ten years; that his wife had deserted him on many occasions; that she last deserted him in June of 1930 and that they had not lived together since then.

On the strength of this deposition (another deposition of plaintiff’s brother, Sankey Koen) and verbal evidence of Willie Leon Brinson and one A. N. Sexton, a decree of divorce was entered on November 3, 1932, by the Pulaski Chancery Court for the County of Pulaski, Arkansas.

In the following year (October 10, 1933), Annie Lillian Brinson, evidently ignoring the Arkansas divorce decree, obtained a judgment of absolute divorce against Willie Leon Brinson in the Chancery Court of the County of Lincoln, State of Mississippi. As aforesaid, during the period following their ceremonial marriage in 1931, plaintiff and Willie Leon Brinson lived as man and wife in Mississippi and other states and, in 1945, they acquired a home in Hattiesburg, Mississippi under a deed describing them as husband and wife. No children were ever born of this relationship which apparently continued until Brinson’s death.

On June 9, 1946, Brinson married defendant, Effie Mae King, by a ceremonial marriage performed in Bossier Parish, Louisiana and immediately thereafter established a matrimonial domicile in Caddo Parish where the parties lived openly and publicly as husband and wife in a home purchased by them, which deed of purchase described them as husband and wife. No children were born of this relationship which continued uninterruptedly until Brinson’s death in Caddo Parish.

The theory of plaintiff’s case is twofold — (1) in her original petition, she averred that the ceremonial marriage of September 11, 1931, in Gulfport, Mississippi, between Brinson and herself was a valid marriage and (2) in the alternative, by supplemental petition, she claimed that, should it be held otherwise, her relationship with Brinson constituted a valid common-law marriage under the laws of Mississippi, which should be recognized in Louisiana, and thát, therefore, the marriage between Brinson and defendant in 1946 was a nullity.

In answer to the demand, defendant asserted that plaintiff was not the lawful wife of Brinson under the laws of Mississippi either as the result of the attempted ceremonial marriage between them in 1931 or by reason of their living together thereafter in the relationship of common-law husband and wife.

After a hearing on these issues, the trial judge rejected plaintiff’s original claim that her ceremonial marriage was valid but, being of the opinion that a common-law marriage came into existence by reason of their continued relationship of living together as man and wife following the divorce granted to Mrs. Annie T. Brinson in 1933, held that plaintiff was the lawful common-law widow of Willie Leon Brinson and, therefore, entitled to be recognized as owner of an undivided one-half interest in his estate in Louisiana. In reaching this conclusion, the judge, while expressing his belief that both Willie Leon Brinson and plaintiff were in bad faith at the time their ceremonial marriage was performed in Gulfport, declared that this factor did not preclude the holding that a valid common-law marriage came into existence following the divorce of Brinson by his first wife for the reason that the law of Mississippi does not require any new agreement between the parties when the ceremonial marriage is not contracted in good faith and that the mere continuance of the relationship as husband and wife suffices. The judge further ruled that defendant was the putative wife of decedent entitled, as such, to the other one-half of the estate.

From this judgment defendant appealed to this Court but we ordered the matter transferred to the Court of Appeal, Second Circuit, finding that the case was not within our appellate jurisdiction. See 228 La. 350, 82 So.2d 36. After a review of the case, the Court of Appeal affirmed the judgment of the trial court recognizing plaintiff as the lawful common-law widow of Willie Leon Brinson. However, in arriving at this conclusion, the appellate court disagreed with the trial judge’s finding of fact that the ceremonial marriage between Brinson and plaintiff was meretricious insofar as plaintiff was concerned. Being of the opinion that plaintiff was in good faith, it was held, in accordance with the pronouncement of the Supreme Court of Mississippi in Sims v. Sims, 122 Miss. 745, 85 So. 73, that a valid common-law marriage became extant as soon as the existing legal impediment to the marriage was removed by the continuous relationship of the parties as husband and wife, notwithstanding that the ceremonial marriage was void.

On application of defendant, we granted certiorari and the matter has been argued and submitted for our decision.

At the outset, we observe that plaintiff’s original claim of a valid ceremonial marriage between Brinson and herself was properly rejected by both the district court and the Court of Appeal and is no longer an issue in the case. Therefore, since it has been many times held that common-law marriages which are valid and legal in the state where contracted will ordinarily be given recognition by the courts of Louisiana, the issues for determination are (1) whether the continued relationship of plaintiff and Brinson as husband and wife following the divorce of Brinson and his first wife in 1933 effected a valid common-law marriage under the law of Mississippi and (2), if so, whether such a marriage is subject to recognition in Louisiana when the original relationship of the parties is contrary to the public policy of this state and produces no civil effects as to any party thereto who is not in good faith. These questions present for decision issues of law and fact. Initially, we must determine the question of fact as to whether plaintiff was in good faith when she contracted the ceremonial marriage in Gulfport in 1931.

Plaintiff testified that she did not know that Willie Leon Brinson was married to Annie Lillian Taylor at the time of her ceremonial marriage to him at Gulf-port and she also denied that she executed the deposition of September 26, 1932, in Little Rock, Arkansas, in which she stated that she was a trained nurse then residing in Little Rock; that she had known Brin-son and his first wife for ten years; that the latter had deserted him on many occasions, the last time being in June of 1930 and that they had not lived together since then.

Despite plaintiff’s denial, the district judge was of the opinion that the deposition was genuine and that, taking it into consideration with other evidence, the conclusion was inescapable that she had knowledge that Brinson had a wife from whom he was not divorced at the time of the ceremonial marriage in Gulfport. • While he declared that it was unnecessary for him to decide the factual issue of plaintiff’s good or bad faith in entering into the ceremonial marriage with Brinson in 1931, in view of his belief that the law of Mississippi recognized a common-law cohabitation even though it originated in bad faith, the judge commented on the credibility of plaintiff’s testimony as follows:

"We may observe, however, that there is much .evidence in the record to indicate that she knew at the time of Brinson’s prior marriage, his wife was still living and undivorced from him. This she categorically denies in her testimony in the case at bar and she further categorically denies that she gave the deposition in the Little Rock, Arkansas, divorce proceeding here-inabove referred to. Although, from all the evidence, her denial is not too impressive to the court.” (Emphasis ours.)

However, the Court of Appeal would not accept the trial judge’s appraisal of plaintiff’s testimony, choosing, instead, to give full credence to her unsupported statement that she did not execute the deposition bearing her name before a notary public in Little Rock, Arkansas, and in the presence of the lawyer who handled Brinson’s divorce action. The reasons given by the Court of Appeal for its confidence in plaintiff’s testimony were that she was steadfast in her denial that she executed the deposition even after the trial judge had taken occasion to meticulously explain the meaning of the word “deposition” and the legal consequence which might result in case she gave false testimony. The court also pointed out that defendant made no attempt to incorporate in the record any testimony which would have detracted from plaintiff’s sworn denial and it further indicated, in accordance with a suggestion by plaintiff, that it was entirely probable that Brinson would have forged plaintiff’s signature without her knowledge and consent. See 84 So.2d at page 892.

We cannot subscribe to this reasoning. In the first place, direct and circumstantial evidence was adduced to contradict plaintiff’s sworn denial or, rather, her denial followed as a natural sequence to her sworn claim of good faith after defendant had introduced the damaging deposition in evidence. The fact is, of course, that there was introduced in evidence in the Arkansas divorce proceedings a deposition bearing plaintiff’s name and it was shown by the evidence of Mr. Quinn Glover, a reputable attorney practicing in Little Rock since 1924 (who testified by deposition), that a person identifying herself as Zeola Koen was personally present in his office where her deposition was taken and signed by her and that, as disclosed by said deposition, she stated, among other things, that she was a trained nurse and had been living in Little Rock and Hot Springs for some time. Added to this is the circumstance that plaintiff was admittedly a trained nurse at the time the deposition was given and also that her brother, Sankey Koen, gave a similar deposition in the divorce case.

Furthermore, while the Court of Appeal was not obliged to accept the trial court’s conclusion that plaintiff did not testify truthfully, it is patent, in a case such as this, that the district judge, having had the opportunity of hearing plaintiff’s evidence and of observing her demeanor on the stand, was in a far better position than either the appellate court or this Court to determine her credibility and his appraisal of it should not be lightly overturned. For our part, we not only fail to perceive error in the judge’s evaluation of plaintiff’s testimony but we think, after a consideration of all circumstances of the case, that it was manifestly sound.

Since we find that plaintiff, as well as Brinson, was in bad faith at the time they contracted the ceremonial marriage in Gulfport, we now consider the legal consequence of the continuance of their relation as husband and wife after the first Mrs. Brinson obtained a decree of divorce in 1933. The trial judge ruled that the cases of Howard v. Kelly, 111 Miss. 285, 71 So. 391 and Sims v. Sims, supra, were authority for the conclusion that a bigamous marriage contracted in bad faith by both parties could nevertheless be transformed into a valid common-law marriage by the mere continuance of their relationship of husband and wife after the impediment to marriage had been removed and that neither a ceremony nor a new express* agreement is essential. Whereas, a reading of Howard v. Kelly would seem to sustain this view, the subsequent decision in Thompson v. Clay, 120 Miss. 190, 82 So. 1, is directly contrary thereto as the court held in the Clay case that, where a marriage is contracted in bad faith, a new agreement between the parties is necessary after the impediment is removed in order for the relation to attain validity.

In the still later case of Sims v. Sims, which, although decided by a divided court, has become the leading case in Mississippi on the subject, the court found the parties to be in good faith at the time of the void marriage and the prevailing opinion is predicated on this factual conclusion. The court said [122 Miss. 74S, 85 So. 74]:

“It is not clear, or at least we will assume that it is not, from the appel-lee’s testimony, that she and the appellant entered into a new marriage agreement after she obtained the divorce from Perrin, but no such new agreement was necessary, for the reason that her marriage with the appellant in Indiana was entered into by both of them, according to her testimony, which the court evidently accepted as true, in good faith, under the belief that her marriage with Perrin had been dissolved, and after its dissolution in 1902 they, the appellant and appellee, continued in good faith to live together as, and comidered themselves to be, husband and wife" (Emphasis ours.)

Thus, it would appear that, but for the good faith of the parties, a new agreement would have been necessary following the removal of the impediment in order to effect a valid marriage.

It is true that after coming to the above quoted conclusion the author of the opinion in Sims v. Sims went on to set forth the general rule in common-law states, with respect to cases such as the one now under consideration, and, pointing out that the majority of the states recognize the transformation of the illegal marriage into a valid common-law marriage by the mere continuance of the relationship between the parties after the removal of the impediment, whether the void marriage was contracted in good faith or not, asserted that Howard v. Kelly, supra, was to be classified with that line of jurisprudence whereas the later decision in Thompson v. Clay came under a second class of cases requiring a new agreement. Obviously, this dissertation was purely obiter dicta as the court had already determined that the parties were in good faith.

In the last expression of the Supreme Court of Mississippi on the subject, In re McCaskill’s Estate, 219 Miss. 313, 68 So.2d 495, where the decision in Sims v. Sims is cited and quoted from with approval, the ruling of the court upholding the validity of the marriage was again founded on the good faith of the parties. Accordingly, far from subscribing to the doctrine that good faith is not essential in order for a valid common-law marriage to be transformed out of a void marriage by the mere continuance of the marital relationship, it would appear that the jurisprudence of Mississippi, except for Howard v. Kelly, is that good faith is essential.

But, should we be mistaken in our interpretation of the views of the Mississippi Supreme Court with relation to common-law marriages, there is another ground on which we rest our decision in refusing to sanction plaintiff’s claim. This is that it would be contrary to the public policy of this state to hold that a bigamous marriage contracted in bad faith in another state may nevertheless produce its civil effects under our law. While this Court has heretofore recognized, as a matter of comity, common-law marriages valid where contracted, none of the cases has involved a situation like this where the alleged common-law marriage is the outgrowth of a ceremonial marriage, void at its inception and contracted in bad faith by both parties.

It is a well established rule of conflict of laws that the spirit of comity between states does not require a state to recognize a marriage which is contrary to its own public policy. Succession of Gabisso, 119 La. 704, 44 So. 438, 11 L.R.A., N.S., 1082; SS C.J.S. Marriage § 4, pp. 813 and 814. The public policy of this state with respect to the effects produced by a null marriage is to be found in our Civil Code and jurisprudence.

Articles 117 and 118 of the Civil Code, which treat of the civil effects of null marriages, affirmatively state that no civil effects can flow from a marriage which is null unless the claimant was in good faith. Hence, since our Code and jurisprudence (see Thomas v. Thomas, 144 La. 25, 80 So. 186 and Dillon v. Traders & General Ins. Co., La.App., 183 So. 553) require absolute good faith on the part of a spouse claiming the civil effects of a bigamous union, it would be inimical to public policy for this Court to conclude that such a relationship, conceived in bad faith, will be given effect in Louisiana merely because it may be sanctioned in the state wherein it existed.

The judgment of the District Court, which was affirmed by the Court of Appeal, is reversed and plaintiff’s suit is dismissed at her costs.

PONDER, J., recused.

HAWTHORNE, J., absent.

On Rehearing

HAMITER, Justice.

A further consideration of the evidence in this cause convinces us of the correctness of our conclusion reached on the original hearing that both plaintiff and defendant were in bad faith when they contracted the bigamous ceremonial marriage in Gulfport, Mississippi, in 1931. Accordingly, for the reasons heretofore assigned, we reaffirm that conclusion.

Whether their subsequent relationship as husband and wife, particularly that existing after the decree of divorce obtained by the first Mrs. Brinson in 1933, transformed the illegally commenced union into a common law marriage valid under the laws of Mississippi is a question we need not decide herein. Assuming arguendo that it did, such marital arrangement should not and cannot he recognized in this state.

As was pointed out in our original opinion, common law marriages valid and legal in the states where contracted will ordinarily he given recognition, as a matter of comity, by the courts of Louisiana. On that basis we have several times recognized their validity (although in no case has such been done where, as here, the union “is the outgrowth of a ceremonial marriage, void at its inception and contracted in bad faith by both of the parties”). But we are not bound to give effect to a common law marriage, even if valid in the state where contracted, when it contravenes the public policy of Louisiana and good morals generally. This concept is stated in 35 American Jurisprudence, verbo Marriages, Section 170, as follows: “ * * * Ordinarily, of course, when a person changes domicil, the personal status which he carries with him will be recognized by the courts of the state or country to which he changes his domicil, and this applies to the marital status of a person, but there are certain well-recognized exceptions to this general rule. If the marital status has been acquired by a violation of an express provision of the positive law of the state in which its recognition is asked, or if it is contrary to the spirit and genius of its institutions or opposed to its settled policy or the good order and well-being of its society, or to its conceptions of public morality and decency, in all such cases the status would not and should not be recognized by the courts of such state.” And in 55 C.J.S., Marriage § 4(2), this is said: “The rule that the lex loci contractus is controlling as to the validity of a marriage rests on comity alone, and an exception thereto exists where the marriage is repugnant to the public policy of the domicile of the parties or is contrary to its positive laws.” (Italics ours.)

For us to recognize as a valid marriage the mere continuation of the meretricious relationship as existed between plaintiff and decedent — that which commenced in bad faith and continued without those persons having entered into a ceremonial marriage or a specific marital agreement subsequent to the removal of the impediment — would be contrary to our public policy, opposed to the well being of society, and violative of the spirit of our laws concerning the institution of marriage.

For the reasons assigned the decree heretofore rendered is now reinstated and made the final judgment of this court.

PONDER, J., recused.

SIMON, J., dissents.

      . See Article 2400 of the Civil Code and Succession of Dill, 155 La. 47, 98 So. 752.

      . See Grant v. Succession of Grant, 159 La. 535, 105 So. 611; Gibbs v. Illinois Central Railway Co., 169 La. 450, 125 So. 445 and Succession of Marinoni, 177 La. 592, 148 So. 888.

      . Examination of specimens of plaintiff’s signature appear to be practically identical with the signature affixed to the deposition. Conversely, specimens of Brinson’s handwriting and his signature show a distinct dissimilarity between his handwriting and that of plaintiff.

      . The general rule is succinctly summed up in 35 Am.Jur., “Marriage”, Sec. 172, p. 287 et seq., thusly:
      “Although, the general rule is that the validity of a marriage contract is determined by the lex loci contractus and celebrationis, it is not every marriage which may be valid by such law that will be recognized as legal everywhere else. Every sovereign state is the conservator of its own morals and the good order of its society. Consequently, where marriages between certain persons are prohibited by the public policy and law of one jurisdiction as contrary to morals and soeial order, they will not be deemed valid therein, although they are deemed valid in the state or place where they were celebrated, and although the parties to the marriage were there domiciled *

      . Article 117 reads: “The marriage, which has been declared null, produces nevertheless its civil effects as it relates to the parties and their children, if it has been contracted in good faith.”
      Article 118 provides: “If only one of the parties acted in good faith, the marriage produces its civil effects only in his or her favor, and in favor of the children born of the marriage.”


author: HOBSON, Justice.

text:
    In re: ESTATE of Frank MITCHELL, Deceased.
    Supreme Court of Florida.
    July 10, 1957.
    Rehearing Denied Sept. 9, 1957.
    Herbert A. Williams, Jacksonville, for appellants.
    Greene, Ayres & Greene, Ocala, for ap-pellee.
   HOBSON, Justice.

Frank Mitchell died testate in Marion County, Florida, on or about May 7, 1954. His will was duly proven and admitted to probate, the executor was qualified, and letters testamentary were issued. The testator had left neither wife nor children him surviving. The sole surviving heirs were the testator’s three sisters, who were the residuary legatees under his will.

The testator, at the time of his death, had two life insurance policies, the proceeds of which were payable to his estate, and these proceeds were paid over to the executor. The residuary legatees filed separate petitions by which they sought to have the exemptions provided by F.S. § 222.13, F.S.A., applied to the life insurance policies and to require the executor to pay the insurance money over to them, share and share alike, free and clear of the claims of creditors and costs of administration.

After hearing on a motion to dismiss, the County Judge entered his order dismissing each of said petitions. The effect of this order was to hold that the provisions of the cited statute are inapplicable to this case, and that the proceeds of the insurance policies are properly in the hands of the executor for use in paying the debts and costs of administration of the estate. The order of the County Judge was affirmed by the circuit court, and it is from this judgment of affirmance that the present appeal is taken by the residuary legatees.

Since the testator died in 1954, the 1955 amendments to F.S. § 222.13 are inapplicable and we are concerned with this section as it read in Florida Statutes 1953, F.S.A., which was as follows:

“Whenever any person shall die in this state leaving insurance on his life, the said insurance shall inure exclusively to the benefit of the child or children and husband or wife of such person in equal portions, or to any person for whose use and benefit such insurance is declared in the policy; and the pro ceeds thereof sliall in no case be liable to attachment, garnishment or any legal process in favor of any creditor of the person whose life is so insured, unless the insurance policy declares that the policy was effected for the benefit of such creditor; provided, however, that whenever the insurance is for the benefit of the estate of the insured or is payable to the estate or to the insured, his executors, administrators or assigns, the proceeds of the insurance may be bequeathed by the insured to any person whatsoever or for any uses in like manner as he may bequeath or devise any other property or effects of which he may be possessed, and which shall be subject to disposition by last will and testament.” (Emphasis supplied.)

The history of this statute is minutely described in an opinion by this court; speaking through Mr. Justice Whitfield, in Milam v. Davis, 97 Fla. 916, 123 So. 668, certiorari denied, Tiffany & Co. v. Davis, 280 U.S. 601, 50 S.Ct. 82, 74 L.Ed. 646. In that case it was pointed out that the portion of the statute preceding the proviso took, in substance, its present form in 1872, while the proviso was originally added in 1897 but took its present form in 1903. In 1917 in Sloan v. Sloan, 73 Fla. 345, 74 So. 407, 408, it was held that proceeds of an insurance policy made payable to the insured, “his executors, administrators and assigns” could validly be bequeathed as part of a general residuary legacy. See also In re Seaton’s Estate, 154 Fla. 446, 18 So.2d 20. And in the subsequent case of Milam v. Davis [97 Fla. 916, 123 So. 671], which we have cited above, we said that the portion of the act preceding the proviso, and the proviso,

“ * * * afford alternative provisions for the disposition of the proceeds of life insurance policies that are made payable to the insured or to his estate. One provision of the statute operates if the policies are not bequeathed, and the other provision operates if the policies are bequeathed. In either case the policies are not subject to the debts of the insured." (Emphasis supplied.)

It is evident that the action challenged by appellants was in error under these authorities, and the judgment appealed from must accordingly be reversed and the cause remanded for further proceedings not inconsistent with this opinion. We have been shown no authority, however, for the proposition that the insurance proceeds should not be made subject to the costs of administration and we shall not disturb the ruling below upon this point.

Reversed and remanded.

TERRELL, C. J., and DREW, THOR-NAL and O’CONNELL, JJ., concur.