text:
    Mrs. Vera Mae ROBINSON et al., Plaintiff-Appellant, v. BEAUREGARD PARISH POLICE JURY, Defendant-Appellee.
    No. 5717.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 31, 1977.
    Rehearing Denied March 3, 1977.
    Writ Granted May 4, 1977.

      E. M. Nichols, Lake Charles, for plaintiff-appellant.
    William C. Pegues, III, DeRidder, for defendant-appellee.
    Before HOOD, DOMENGEAUX and HUMPHRIES, JJ.
   HOOD, Judge.

This is a wrongful death action instituted by Mrs. Vera Mae Robinson, individually and as natural tutrix of her minor children, against Beauregard Parish Police Jury. Judgment was rendered by the trial court in favor of defendant, and plaintiff has appealed.

The determining issue presented is whether the accident which resulted in the death of plaintiff’s husband occurred on a public road or bridge which the defendant Police Jury was legally obligated to maintain and repair.

Plaintiff’s husband, Thomas Robinson, lost his life on December 20, 1971, when a large logging vehicle being operated by him overturned as it was being driven across a wooden bridge in a wooded area of Beauregard Parish. The vehicle fell upside down into the river or stream which was spanned by the bridge, and Robinson was drowned. There are no living eye witnesses to the accident.

The decedent was working as a tractor operator for Galloway and Sons, logging contractors, at that time. The vehicle which he was operating is known as a “Paek-a-back.” It was a relatively large and heavy machine, it being a type of vehicle which was used in the logging industry to pick up logs and haul them to designated points where they are loaded onto trucks. The machine was about nine feet wide and eleven feet high, and it was equipped with large rubber tires.

The decedent’s employer, Galloway, was engaged in cutting and hauling timber from a wooded, swampy, relatively uninhabited area, located west of a small river or stream which ran generally north and south. There were no roads of any kind on the west side of the river. There, however, was a wooden bridge which spanned the above river at a point near the place where Galloway was conducting his logging operations. The accident which resulted in Robinson’s death occurred on that bridge.

A blacktopped highway, running north and south, was located a little less than one mile east of the above bridge. An unpaved road, which was graded but otherwise was unimproved, ran from the blacktopped highway west to a point where a camp was located on a hill, about 100 to 150 yards east of the bridge. This unpaved road terminated at that camp. There was no road from the camp, or from the point where the above unpaved road terminated, to the bridge. In order for a vehicle to get from the camp to the bridge, it was necessary for it to travel downhill and around a curve, along an ungraded or unimproved trail. The evidence shows that no work had been done- on the trail leading from the camp to the bridge. It, in fact, would have been impossible for a grader to do road work between the end of the above described unpaved road and the bridge.

The bridge where the accident occurred, therefore, did not connect with any public road at all. There were no roads west of the bridge, and there was a space or distance of about 100 to 150 yards between the east end of the bridge and the nearest thoroughfare which might be considered to be a public road.

The bridge was constructed of wood some time prior to 1960, and since that time it has been used almost exclusively by cattlemen, by hunters and by persons engaged in the logging industry. It is about 12 or 14 feet wide. When the bridge was built originally, the State Highway Department installed the pilings, stringers and caps, and the Beauregard Parish Police Jury placed the decking on the bridge. Since that time, the bridge has been repaired from time to time by cattlemen, hunters and loggers, and the Police Jury also has furnished some materials and labor in connection with the repair of that structure.

Plaintiff contends that the Police Jury has kept up, maintained or worked on the bridge for a period of three years prior to the date this accident occurred, and that the bridge thus had become a public road under the provisions of LSA-R.S. 48:491, the pertinent part of which reads:

“All roads or streets in this state that are opened, laid out or appointed by virtue of any act of the legislature or by virtue of an order of any parish governing authority in any parish, or any municipal governing authority in any municipality, or which have been or are hereafter kept up, maintained or worked for a period of three years by authority of any parish governing authority in its parish or by authority of any municipal governing authority in its municipality shall be public roads or streets as the case may be.” (Emphasis added).

The evidence tending to show the amount of work which had been done by the Police Jury on that bridge consists largely of the testimony of Wade Cooley, who has served as a police juror in Beauregard Parish since 1960. He stated that the bridge was built •originally for cattlemen, that stockmen, hunters and fishermen “volunteered their labor” in repairing the bridge, and that “every now and then” employees of the Police Jury would “put a few boards” on the decking of the bridge. He explained that the Police Jury performed work on the • bridge “off and on” at the request of cattlemen, who had to use it to get their cattle out of the swamp when the water got high, but that the Police Jury employees who did the work “had cattle back there too.” Cooley testified that on or about October 1, 1971, less than three months before the accident occurred, employees of the Police Jury replaced some of the decking on the bridge.

A part of the bridge collapsed at the time the accident occurred, and the damage was repaired shortly thereafter. Cooley testified that the Police Jury did no repair work on the bridge after the accident, that the men who were engaged in logging operations patched it up and finished their logging in that area, and that thereafter some cattlemen went in and reworked the bridge.

One witness who resided near the scene of the accident confirmed Cooley’s statement that some parish employees did some work on the decking of the bridge a few months before the accident occurred. Another witness, who hunts in that area and crosses the bridge frequently, testified that on one occasion when high water damaged the bridge he and other deer hunters repaired it. He stated that he has never seen anyone else working on the bridge despite the fact that he has hunted in that immediate area for a long time.

Neither the bridge nor the unpaved road which runs from the blacktopped highway to a point about 100 or 150 yards east of the bridge have ever been formally dedicated for public use, and there is nothing in the record to indicate that the Police Jury has ever taken any action relating to that road or bridge. The work which was done on the bridge by parish employees apparently was done solely under the direction of Cooley and not pursuant to any action of the Police Jury. Cooley testified that neither the bridge nor the unpaved road were in the parish road system.

The trial judge concluded that “this bridge was not a part of a public road as defined in R.S. 48:491 and the jurisprudence of the state.”

A road which has been kept up, maintained or worked for a period of three years by authority of a Police Jury in its parish may become a public road, even though there has been no formal dedication of it for public purposes. LSA-R.S. 48:491; Police Jury, Parish of Catahoula v. Briggs, 291 So.2d 472 (La.App. 3 Cir. 1974); Winn Parish Police Jury v. Austin, 216 So.2d 166 (La.App. 2 Cir. 1968); Town of Sorrento v. Templet, 255 So.2d 246 (La.App. 1 Cir. 1971). In such a case the law infers that there has been an implied or a tacit dedication of a servitude of passage to the public. The rule is based on the principle that the landowner, through his words or conduct, has assented to the public use of the road or passageway. Town of Eunice v. Childs, 205 So.2d 897 (La.App. 3 Cir. 1967); Bomar v. City of Baton Rouge, 162 La. 342, 110 So. 497 (1926); Chargois v. St. Julien, 280 So.2d 847 (La.App. 3 Cir. 1973).

The law is settled, however, that the occasional “brushing up” or the “token maintenance” of a private road is not sufficient to establish an implied or a tacit dedication of that road for public use. Chargois v. St. Julien, supra; Martin v. Cheramie, 264 So.2d 285 (La.App. 4 Cir. 1972).

In Chargois v. St. Julien, supra, a dirt road running across private property was used by the public, and on a few occasions a parish road grader was used to grade it. We held that the maintenance work performed on that road was not sufficient to establish a tacit dedication of it to public use under LSA-R.S. 48:491. In that connection we said:

“The jurisprudence is settled to the effect that a mere ‘brushing up’ or token maintenance of a private road is not sufficient to establish a tacit dedication to public use of private properties so maintained. Martin v. Cheramie, 264 So.2d 285 (La.App. 4th Cir., 1972); Bordelon v. Heard, 33 So.2d 88 (La.App. 1st Cir., 1947).”

In Rowe v. Harvey, 307 So.2d 103 (La. App. 1 Cir. 1974), parish owned road graders were used to grade or to “clear out any rough spots,” on a private road if the equipment was in the area. The trial court found that the road had been maintained by the parish for three years and that that was sufficient to constitute a dedication under LSA-R.S. 48:491. The First Circuit Court of Appeal reversed, holding that “the mere occasional brushing of a pathway does not constitute working or maintenance within the meaning of the statute (LSA-R.S. 32:491).” The court said:

“Further, we do not believe that under the facts presented in this case, i. e., the minimal amount of work performed with parish equipment, justifies the invocation of the provisions of L.R.S. 48:491 when it is the clear intention of the governing authority and the abutting landowners that a dedication was not contemplated. While we can not condone the use of parish equipment on any non-public road, to hold this road as having been tacitly dedicated under the particular facts of this case would force upon the governing authority the future maintenance and upkeep of a road contrary to its wishes and that of the abutting property owners.”

In the instant suit the evidence shows that the defendant Police Jury put decking on the newly constructed bridge some time before 1960, and it again replaced some boards on the decking about October 1, 1971. Between those two dates employees of the Police Jury worked on the bridge “on and off” or “every now and then,” primarily when it was necessary to enable cattlemen to get their cattle out of the flooded swamp area lying west of the river. We are unable to determine from the testimony when any of these additional repairs were made, or whether the parish employees made them in the performance of the duties of their employment or simply to enable them to get their cattle out of the swamp. We also are unable to determine the nature of the repair work they performed. The evidence indicates that other repair work on the bridge was performed during that same period of time by cattlemen, hunters and logging operators. Actually, it appears to us that considerably more work was done on the bridge by the latter than by Police Jury employees. The bridge was not connected to a public road. It was used only by cattlemen, hunters, fishermen and loggers, and the evidence indicates that on the few occasions when the parish employees made repairs on it they did so at the request of cattlemen and to assist the latter in emergencies.

We feel that the repairs performed on the bridge by the defendant Police Jury were not sufficient to constitute an implied or tacit dedication of the bridge to public use, under LSA-R.S. 48:491. In our opinion, the work performed by the parish employees amounted to no more than a “brushing up” or “token maintenance” of the bridge, as those terms are used in the above cited jurisprudence. The actions of the Police Jury, and the action or inaction on the part of the landowner, whoever he might have been, considered with all of the other facts, do not justify an inference that either of those parties intended that the bridge was to become a “public road or street,” or that it was to be dedicated for public use.

We agree with the trial judge that the bridge on which the accident occurred was not a public road or bridge, that the defendant Police Jury was not legally obligated to maintain or repair it, and that the Police Jury thus is not liable to plaintiff for the damages sustained by her arising out of the death of her husband.

In view of our conclusion that the defendant was not under a legal duty to maintain and repair the bridge, it is unnecessary for us to consider plaintiff’s argument that defendant failed to perform that duty.

For the reasons herein set out, the judgment appealed from is affirmed. The costs of this appeal are assessed to plaintiff-appellant.

AFFIRMED.


source: Caselaw Access Project

author: HUMPHRIES, Judge.

license: Public Domain

text:
    BYLES WELDING & TRACTOR CO., INC., Plaintiff-Appellee, v. CAP-CON INTERNATIONAL, INC., Defendant-Appellant.
    No. 5733.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 31, 1977.
    Rehearing Denied March 3, 1977.

      Shuey, Smith & Carlton by James H. Campbell, Jr., Shreveport, and Robert C. Lowther, Jr., Many, for defendant-appellant.
    Davis & Simmons by Kenneth N. Simmons, Many, for plaintiff-appellee.
    Before HOOD, DOMENGEAUX and HUMPHRIES, JJ.
   HUMPHRIES, Judge.

Defendant-appellant appeals from the judgment rendered against it in the amount of $2,011.54 for equipment it rented from the plaintiff-appellee.

Defendant-appellant’s only contention on this appeal is the denial by the trial court of its exception of improper venue and the trial on the merits in Sabine Parish rather than Caddo Parish.

The facts which gave rise to this litigation are conceded by all parties. The defendant, a Delaware Corporation, was engaged in laying a pipeline for Tennessee Gas Corporation. During this operation defendant rented a tractor from the plaintiff to accomplish this task. The record reflects that this tractor was used at least in Sabine and Natchitoches Parish. The record does not reflect how far the pipeline extended across the State of Louisiana. Upon completion of its project, the defendant failed to pay the plaintiff for the use of the tractor and plaintiff instituted this suit for recovery, in Sabine Parish, its domicile.

Two questions are at issue in this case. First is the annual report filed with and certified by the Secretary of State admissible and evidence that the defendant is licensed to do business in this state? Secondly, is the venue of this suit in Sabine Parish?

The first question is disposed of easily. R.S. 13:3711 and 13:3712 provide that documents and papers properly within the possession of a governmental body when properly certified are admissible in evidence over a hearsay objection. Further, that such documents are prima facie proof “. . .of any act, transactions or occurrence or event as a memorandum of which said books, records, papers, or documents were kept or made.” (R.S. 13:3712). We note that according to R.S. 12:309 this annual report is filed with the Secretary of State and included in the Secretary of State’s files as being from a foreign corporation licensed to do business within the State of Louisiana.

It follows from the above paragraph that this certified report must be admitted and accepted as evidence that the defendant was licensed to do business in the State of Louisiana.

In dealing with the problem of venue, plaintiff contends that the action was brought under the long-arm statute R.S. 13:3201, et seq., and that specifically, R.S. 13:3203 provides for proper venue in the parish of plaintiff’s domicile. We observe, although defendant did not object to deficiency of service, that plaintiff is wholly inconsistent. R.S. 13:3204 provides for service of process by registered or certified mail to the defendant. In the instant case, service was mailed to defendant’s registered agent for service of process C. T. Corporation System in New Orleans, not defendant, Cap-Con International, Inc. The fatal defect to plaintiff’s argument is that the term “non-resident”, as defined in R.S. 13:3206 for application of the long-arm statute, does not include a foreign corporation licensed to do business in this state, with a registered agent.

Because the defendant is licensed to do business in this state, the long-arm statute and its venue provisions are inapplicable and the general venue provisions apply.

The general venue provision, C.C.P. Art. 42(4), provides that an action against a foreign corporation, licensed to do business in Louisiana, shall be brought in the parish where its principal business establishment is located. The record in this case indicates that Caddo Parish is the parish where defendant’s principal business establishment is located and where suit should be brought.

The trial court’s failure to sustain defendant’s timely exception to the venue was erroneous.

The judgment of the lower court is reversed and the cause remanded with directions to transfer the ease to the First Judicial District Court in and for the Parish of Caddo. (C.C.P. Art. 121). All costs in the district court and this appeal are taxed to plaintiff-appellee.


author: WATSON, Judge.

text:
    Mary Ellen COOK, Plaintiff-Appellant, v. NATCHITOCHES PARISH SCHOOL BOARD, Defendant-Appellee.
    No. 5754.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 31, 1977.
    Rehearing Denied March 2, 1977.
    Writ Refused May 4, 1977.
    Makar & Whitaker by John B. Whitaker, Natchitoches, for plaintiff-appellant.
    Ronald C. Martin and Eric Harrington, Watson, Murchison, Crews & Arthur by R. Raymond Arthur, Michael Henry, Natchi-toches, for defendant-appellee.
    Before HOOD, DOMENGEAUX and WATSON, JJ.
   WATSON, Judge.

Plaintiff, Mary Ellen Cook, is a tenured school teacher who was dismissed by the defendant, Natchitoches Parish School Board, after a hearing held May 6, 1975. Her dismissal was reviewed by the Tenth Judicial District Court and was upheld. A judgment was entered maintaining her dismissal and she has appealed to this court.

The district court reviewed the school board’s action by stipulation only on the basis of the transcript of the May 6 hearing and it found as follows:

“This Court holds that Mrs. Cook has been accorded all of her rights under the Louisiana Teacher Tenure Law, that all procedural safeguards have been closely observed and fulfilled, and that there is a rational basis for the School Board action.” (TR. 269)

Our review on appeal is to determine “. . . whether the action of the school board was (1) in accordance with the authority and formalities of the Louisiana Teachers Tenure Act, and (2) supported by substantial evidence . . .” Howell v. Winn Parish School Board, 332 So.2d 822, 825 (La.1976).

The errors specified by plaintiff form the issues as follows:

(1) Was Ms. Cook accorded the 15 days notice required by LSA—R.S. 17:443?
(2) Did the school board unlawfully discharge Ms. Cook for “emotional incompetence”?
(3) Was Ms. Cook unlawfully discharged without being given a warning?
(4) Is there substantial evidence in the record to support the school board’s decision to discharge Ms. Cook?

Ms. Cook is a permanent or tenured teacher whose removal from office is governed by LSA-R.S. 17:443. She holds, according to her testimony, two undergraduate degrees from Northwestern State University, and two masters degrees from LSU. She has been a teacher for several years in the Natchitoches Parish school system. During the school year 1972-1973, she was at Natchitoches Central High School; in 1973-1974, at Natchez Elementary School; and in 1974-1975, at Ashland High School.

The first notice of charges was that directed on March 10, 1975 to Ms. Cook from W. J. Bullock, superintendent of schools in Natchitoches Parish, which stated that he was recommending to the school board that she be discharged as a teacher because of “incompetency” for the following reasons:

“Specific deficiencies leading to incompetency are as follows:
“1. Non-cooperative attitude toward the administrators of the schools to which you have been assigned.
“2. Ineffectiveness in rendering the students a wholesome learning environment due to poor attitude and improper conduct in the classroom and in performing school duties.
“3. Failure to establish good working relationship with students, co-workers, and community.” (TR. 262)

This letter suggested that if Ms. Cook desired a hearing, Mr. Bullock would present his recommendations at 1:15 p. m. on March 27, 1975, to the school board. A copy of the letter was directed to Ms. Cook’s attorney.

To this letter, Ms. Cook’s attorney replied, requesting that the charges of the March 10 letter which were couched in general terms be made more specific. A second letter was written on April 25, 1975, addressed to Ms. Cook’s attorney, and this letter listed 30 specific acts which it described as “. . . neglect of duty, emotional incompetence, insubordination, discrimination and disruption of school operations, . . .” (TR. 248)

The record does not reflect how the date was selected when the hearing was held by the school board. . The previously scheduled hearing of March 27 was not held, but the matter was taken up on May 6, 1975 by the Natchitoches Parish School Board. Ms. Cook was present with her attorney and she was given the option of having either a closed or open hearing. Through her counsel, she chose a closed hearing, but a transcript of the proceedings was made. It is significant that the proceedings on May 6 contained no indication of an objection to the hearing on that date or a request for a continuance of any sort. The board held a lengthy hearing as reflected by the 236 pages of transcript, the board hearing many witnesses on behalf of the charges against Ms. Cook but only Ms. Cook in her own defense.

There is no indication that Ms. Cook was denied the opportunity to call witnesses; in fact, she testified that she concluded not to do so. There is no indication that she and her counsel were not afforded amply opportunity to prepare to meet the charges leveled against her.

Only at the conclusion of the hearing and after all witnesses had been heard and Ms. Cook herself had testified did her attorney raise the matter of 15 days notice. (TR. 239, et seq.)

NOTICE

The first issue is whether Ms. Cook was given the statutory fifteen days notice. The sequence of events preceding the hearing establishes notice to Ms. Cook in accord with the statutory requirements. She was first informed of the charges against her almost two months prior to the hearing. Upon her request for more specific charges, these were supplied. While a fifteen-day delay did not run between the final detailing of the charges and the hearing, there is no indication that she did not have the opportunity to meet the charges against her. In fact, she stated that she had no intention of calling any witnesses. Ms. Cook also waived further delay by not objecting to the hearing on May 6 and by proceeding to participate in it without a request for more time to prepare. Cf. Fleming v. Concordia Parish School Board, 275 So.2d 795 (La.App. 3 Cir. 1973); writ denied, 279 So.2d 204 (La., 1973).

Apparently, according to a statement from the school board’s attorney in the record (TR. 243) the hearing had been scheduled on two previous dates but it had been upset after communications with counsel for Ms. Cook. However, there is no indication in the record that Ms. Cook’s counsel had agreed to the May 6 date.

Even at the point where counsel for Ms. Cook raised the question of fifteen days’ notice at the conclusion of the hearing, there was no motion or request that the matter be held open or that it be continued. The assertion was merely that the proceeding, in the opinion of Ms. Cook’s counsel, was null because the requirement for the fifteen days’ delay had been violated. Under the circumstances presented, Ms. Cook was afforded all of the statutory formalities.

EMOTIONAL INCOMPETENCE

The record does not substantiate the charge that Ms. Cook was released for “emotional incompetence”. The statutory grounds for removal of teachers from office are, insofar as herein pertinent, “wilful neglect of duty, or of incompetency, or dishonesty.” (LSA-R.S. 17:443). The record does not contain a formal statement as to the findings of the school board. It is conceded by all parties that Ms. Cook was discharged and her appeal to the district court was based on the ground that she had been discharged. The letter of March 10 and the letter of April 25 refer to incompetency and neglect of duty. As noted below, there is an abundance of evidence, which, when reasonably considered, can indicate neglect of duty.

WARNING

The contention on behalf of Ms. Cook concerning the necessity for a warning is based on Lewing v. DeSoto Parish School Board, 238 La. 43, 113 So.2d 462 (1959) where it was held that a school board was arbitrary in discharging a teacher for tardiness without giving a warning and an opportunity to correct the situation. It is apparent that the difficulties of Ms. Cook in discharging her professional responsibilities exceeded considerably the history of tardiness in Lewing. She was given an opportunity to teach in three different schools in a period of three years prior to her discharge, and she encountered problems at each. According to the testimony of her supervisors, there were numerous conversations about her difficulties and the evidence establishes that she had the opportunity to correct the situation.

SUBSTANTIAL EVIDENCE

We do not consider it necessary to detail the 35 charges against Ms. Cook and the evidence presented as to each of them. The record does not substantiate some of the charges, but there is no question that there is substantial evidence, which, if believed by the members of the school board, was sufficient to constitute wilful neglect of duty and even incompetence. For example, there are several charges that in September and October, 1974, Ms. Cook left her class unattended for prolonged periods of time, that she left the campus without authority, and that she left the schoolground during her regularly assigned noon duty hour. (It cannot be seriously argued that leaving one’s students unsupervised and unattended for prolonged periods is not wilful neglect of duty.) These charges were supported by testimony of the school principal. There was a charge that on February 5, 1975 the teacher left the school and went to the home of a school bus driver to talk about a report that she passed a stopped school bus. This was substantiated by the testimony of the school bus driver.

A charge relating to her activities during the previous year at Natchez Elementary School included her telling parents of a student that the principal was engaging in improper conduct with some of the older girls. This charge was supported by testimony of the parents. Another charge relating to that school was that Ms. Cook had personally picked up the principal’s wife to bring her to the school in order that she might observe improper conduct between the principal and some of the teacher aides. The principal’s wife testified that her husband was taking up tickets for a school function when she arrived at the school with Ms. Cook.

Other witnesses testified as to the other charges, but the preceding are illustrative of the complaints against the teacher which were found by the school board to be of sufficient gravity to discharge Ms. Cook.

The only defense presented to these charges was Ms. Cook’s testimony which was to the effect that there was either a lack of communication, a misunderstanding, or a plot against her by some unknown parties. There is a substantial evidentiary basis for the discharge of Ms. Cook on the grounds of wilful neglect of duty or incompetence.

We conclude as did the trial court that there was a rational basis for the school board’s action. (TR. 269).

Therefore, the decision of the trial court, upholding and maintaining the school board’s action, is affirmed. Costs of the appeal are taxed against plaintiff-appellant.

AFFIRMED.


author: FORET, Judge.

text:
    Hubert DeCUIR, Plaintiff-Appellant, v. OLD REPUBLIC LIFE INSURANCE COMPANY, Defendant-Appellee.
    No. 5769.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 31, 1977.
    Rehearing Denied March 2, 1977.
    Writ Refused April 22, 1977.

      Gravel, Roy & Burnes by Christopher J. Roy, Alexandria, for plaintiff-appellant.
    Gist, Methvin & Trimble by H. B. Gist, Jr., Alexandria, for defendant-appellee.
    . Before DOMENGEAUX, WATSON and FORET, JJ.
   FORET, Judge.

.This is a suit in which plaintiff, Hubert DeCuir, sought to recover disability benefits, plus penalties and attorney fees under an insurance policy issued by the defendant. The trial court rendered judgment in favor of the defendant, dismissing plaintiff’s suit. Plaintiff has appealed from that judgment.

The facts reveal that quite a few years ago, Hubert DeCuir, plaintiff-appellant, hereinafter referred to as DeCuir, purchased a home which was financed through the Federal Land Bank of New Orleans. Old Republic Life Insurance Company, defendant-appellee, hereinafter referred to as defendant, issued a life insurance policy to appellant to cover the loan. Subsequent riders and amendments thereto were made, the pertinent one being a cash disability benefit rider, effective January 1, 1973, which rider was a blanket rider issued to all of the defendant’s policy holders who had existing loans with the Federal Land Bank of New Orleans. No physical examination was required of DeCuir.

Plaintiff had been a school teacher for a number of years. About the year 1970 De-Cuir developed arteriosclerosis, and prior to January 1, 1973 had been hospitalized on at least two occasions and treated for this illness. However, he had always returned to his teaching profession. On May 10, 1973, plaintiff suffered a stroke or cardiovascular accident which left him paralyzed, speechless, and otherwise totally disabled. From that time he has never been able to return to work. There is no dispute between the parties about the facts herein-above mentioned.

POLICY PROVISIONS

The material provisions of the policy relating to this case are as follows:

“ . . . The Company, subject to the provisions, conditions and limitations contained herein, agrees to pay a disability benefit in the event of total and permanent disability of an Insured Debtor as hereinafter provided.”

The policy defines total and permanent disability in the following manner:

“If any Debtor, while insured hereunder, shall become disabled during the . initial term of his insurance or any renewal thereof while this Rider is in force, as a result of bodily injury or sickness, and is thereby prevented .from engaging in any occupation, qr from performing any work for compensation or profit, and shall require regular treatment by a licensed physician other than the Insured Debtor, he shall be deemed to be totally disabled.”

Bodily injury and sickness are defined in the rider as follows:

“Bodily Injury as used in this Rider means bodily injury which causes disability directly and independently of all other causes, and which is effected solely as a result of an accident while this Rider is in effect as to the Insured Debtor.”
“Sickness as used in this Rider means sickness or disease not hereinafter excepted, contracted and commencing after the effective date of the Insured Debtor’s insurance under this Rider and causing disability commencing while this Rider is in force as to the Insured Debtor.”

The policy then contains an exception with the following pertinent language:

“The insurance afforded by this Rider does not cover any disability: .
(3) resulting from an accident incurred, or from sickness contracted and commencing prior to the effective date of the certificate issued to the Insured Debtor.”
The trial court stated:
“The Court feels and holds, that plaintiff’s disability is a result of sickness rather than bodily injury-accident, and that such commenced and was evident with paralysis symptoms and hospitalization shown to exist long before January 1, 1973.”

ACCIDENT-BODILY INJURY ISSUE

The trial court found that no accident-bodily injury had occurred. We disagree. The decision of the trial court contradicts the letter and spirit of Jennings v. Louisiana Southern Life Insurance Company, La., 290 So.2d 811; Ferguson v. H.D.E., Inc., La., 270 So.2d 867. In Jennings the Louisiana Supreme Court was confronted with the issue of whether or not silicosis was a bodily injury or an accident, or at least as much an accident as a disease. We agree with plaintiff that the cardiovascular accident or stroke involved in the case at bar was a much more acute or devastating event than the gradual problems resulting from the silicosis disability in Jennings. From the very definition of silicosis as contained in Jennings, it is obvious that the plaintiff was afflicted with silicosis for a long period of time, and that at a certain point it became disabling. An even stronger case of bodily injury or accident disability is found in this case where DeCuir’s stroke or accident of May 10, 1973, was the acute attack or episode which produced permanent and total disability which had not theretofore existed. Dr. Michel states in his deposition that the plaintiff had no paralysis in January of 1973, and likewise had no paralysis in August of 1972, although he had weakness of the left arm and leg.

In Ferguson v. H.D.E., Inc., supra, the Supreme Court held that there was coverage (hence, an accident) under the Workmen’s Compensation Act when a workman suffered either cerebral thrombosis or cerebral hemorrhage caused by ordinary mental and emotional stress without any physical trauma. Defendant herein attempts to distinguish Ferguson on the basis that being a workmen’s compensation case, and with the legislative directive to interpret the compensation act liberally, that the decision of the Ferguson case was probably justified, but that such liberal interpretation should not apply to an insurance contract such as is involved herein. We do not agree with this contention. See also Lipscomb v. Equitable Life Assurance Society of the United States, 205 La. 738, 18 So.2d 167 where food poisoning was considered an accidental event.

For the foregoing reasons, we disagree with the findings of our brother in the court below where he found that no bodily injury or accident occurred, and we further find that plaintiff’s total and permanent disability was a direct result of the stroke which he suffered on May 10, 1973. We further find that prior to May 10, 1973 plaintiff was not disabled within the terms of the policy in that he was not prevented by bodily injury or sickness from engaging in any occupation, or from performing any work for compensation or profit.

ISSUE OF PRIOR EXISTING ARTERIOSCLEROSIS

Defendant relies heavily on the provision in the rider which states that bodily injury as used in the rider means bodily injury which causes disability directly and independently of all other causes, and which is effected solely as a result of an accident while the rider is in effect. Defendant relies on the Supreme Court case of Fre-richs v. Loudon and Lancashire, 169 La. 182, 124 So. 821 (1921) where an accident policy contained language similar to the above. In Frerichs, the insured died of a cerebral hemorrhage, and plaintiff contended that the insured had bumped his head on a post then clung to the post to avoid falling. The defendant claimed that the insured had a cerebral hemorrhage caused by arteriosclerosis and had grabbed the post to avoid falling, thereby bumping his head. The Court found that the cerebral hemorrhage was a result merely of arteriosclerosis and denied recovery to plaintiff.

Richard v. Southern Farm Bureau Casualty Insurance Co., La.App., 128 So.2d 806 (3 Cir., 1961) is a case holding that a fatal heart attack resulting from an automobile accident, acting on pre-existing high-blood pressure was within the policy insuring death caused by accident, directly and independently of all other causes. Of course in Richard the insured died instead of being disabled as in the case at bar. The medical evidence indicated in Richard that the accident, together with the emotional upset caused by it, aggravated a latent cardiovascular condition (principally, the hardening of the arteries leading to the heart) and contributed to the fatal heart attack. Prior to the accident the only symptom of the decedent’s pre-existing condition was high-blood pressure for which he had been under medical treatment for a year, but which was well controlled so that plaintiff, without difficulty, performed most of the labor in operating his own 120-acre farm. Richard approvingly quotes from Thibodeaux v. Pacific Mutual Life Insurance Company, 237 La. 722, 112 So.2d 423 which rejected contentions similar to defendant’s herein, and allowed recovery for accidental disability under a similar insuring agreement with a somewhat similar exclusion clause at 112 So.2d 427, 428:

“ ‘We think that if the accident is the proximate cause of the death and sets in motion or starts a latent or dormant disease, and such disease merely contributes to the death after being so precipitated by the accident, and is not a proximate cause of the death nor a contributing cause within the meaning of the terms of the policy.’ .
“ . . . the injury was independent of plaintiff’s pre-existing condition which was awakened by the occurrence.
“A review of authorities convinces us that where an insured has a dormant condition and such condition is awakened by accident, the condition is not deemed the cause of the disability or loss which the insured suffered . . . ”

Richard further cites Lipscomb v. Equitable Life Assurance Society of the United States, 205 La. 738, 18 So.2d 167 (La., 1944). In Lipscomb, decedent had been disabled for approximately two years due to a serious heart attack. He ate some stuffed crabs, had an attack of food poisoning, and died. The defendant resisted liability under an insuring clause similar to the one at issue, contending that there could be no recovery for an accidental death when the decedent suffered from pre-existing disease or bodily infirmity which acted as a material contributing factor in causing the death. In allowing recovery the Supreme Court then quoted with approval statements, that, 18 So.2d 172:

“The fact that the physical infirmity of the victim may be a necessary condition to the result does not deprive the injury of its distinction of the sole producing cause .
“If the injury, by aggravating the disease, accelerated the death of the assured, then it resulted ‘directly, independently and exclusively of all other causes.’
“In other words, if death would not have occurred when it did but for the injury resulting from the accident, it was the direct, independent, and exclusive cause of death at that time, even though the death was hastened by the diseased condition.”

In Richard this Court stated that Frerichs v. Loudon and Lancashire Indemnity Company, supra, and other cases cited by the defendant, were, where not distinguishable under their facts, nevertheless not controlling as having been decided prior to the later and more definitive expressions of our jurisprudence by our Supreme Court i. e. Thibodeaux v. Pacific Mutual Life Insurance Company, supra, Lipscomb v. Equitable Life Assurance Society of the United States, supra; see other cases cited in Richard at 128 So.2d 808, and Hendry v. John Hancock Mutual Life Insurance Company, 251 So.2d 500 (1 Cir., 1971), writ refused 259 La. 900, 253 So.2d 222.

Two recent Louisiana Supreme Court cases considered policy language

“against loss . . . resulting from bodily injuries effected solely, directly, and independently of all other causes through external, violent, and accidental means which . . . shall not be caused wholly or in part, directly or indirectly, by any disease, defect, or infirmity.”

In Martin v. American Benefit Life Insurance Company, 294 So.2d 200 (La., 1974) the Court held that where an arthritic condition, even if it was pre-existing, was merely a pre-disposing tendency which might well have never manifested itself and was so aggravated by an automobile accident as to cause insurance disability, insured was entitled to recover under the policy. We quote from Page 202 of that decision as follows:

“The rule to be applied in such cases was stated to be that if there is a pre-existing disorder or illness at the time an injury is received, recovery may be had if the injury is severe enough to have caused considerable damage and if the disease was not the proximate cause or principal cause of the disability.”

Martin cited Thibodeaux v. Pacific Mutual Life Insurance Company, supra, and the authorities cited therein, and also the case of Moore v. The Prudential Insurance Company of America, 278 So.2d 481 (La.1973). See also Murphy v. Continental Casualty Company, 269 So.2d 507 (La.App. 1 Cir., 1972).

In Moore the policy language mentioned above was considered. The Court held that where a disease of osteomyleitis which had contributed to a prolonged treatment required to bring about the union of prior fractures of a leg had become dormant pri- or to the third fracture, and amputation of the leg was performed because of the probability that the osteomyleitis infection would flare up after the third fracture, accidental fracture rather than osteomyleit-is was the predominant, moving, or proximate cause of amputation, and the policy, which excluded coverage for loss resulting from disease, provided coverage for the amputation. In Moore the Court was considering an accidental death and dismemberment policy. The Court stated that the authorities generally agree that the insurer is liable if an accident is the proximate cause of the death or disability, and it recognized the difficulty which is presented when the insured is afflicted with a pre-existing disease at the time of the accident.

We find that the above cited jurisprudential authorities tacitly overruled, or simply declined to follow the reasoning of Frerichs, supra. To quote from Mitchell v. Equitable Equipment Company, 330 So.2d 919 (La.1976) wherein Justice Tate quotes from 13 Appleman, Insurance Law and Practice, Section 7440, pp. 170-171:

“The meaning of disability clauses in insurance policies must be determined largely from the language of the contract itself, interpreted in the light of the particular circumstances of each case. A disability policy is to be construed as a whole, and if such construction be reasonable, to receive that construction which would give effect to every part of the policy. Such provisions should be construed reasonably and given a practical application; or, as otherwise stated, should be given a reasonable, rather than a literal, construction.
“A disability contract must be construed, if possible, so as not to defeat a claim to benefits, since the law does not favor forfeitures. The paramount consideration of the parties at the execution of the contract being insurance against total and permanent disability, any construction of the policy which nullifies such consideration should be avoided . . ”

Having reached the above conclusions, we need not consider plaintiff’s alternative claim under the sickness provisions of the policy.

Accordingly, for the reasons assigned, the judgment of the trial court is reversed, and it is ordered, adjudged and decreed that there be judgment in favor of plaintiff, Hubert DeCuir, and against defendant, Old Republic Life Insurance Company, in the amount of $170 per month, beginning May 10, 1973, and each month thereafter, not to exceed $3,600 per year for five years, or a total of $18,000, with legal interest on each past due monthly payment from due date until paid.

On oral argument, counsel for plaintiff did not press the claim for penalties and attorney fees. We find that an award for penalties and attorney’s fees is not appropriate under the circumstances.

All costs of these proceedings on trial and on appeal are assessed against defendant, Old Republic Life Insurance Company.

REVERSED AND RENDERED.


text:
    CARDEAN, INC., Plaintiff-Appellant, v. Jack Y. CANON et al., Defendants-Appellees.
    No. 5777.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 31, 1977.

      Carol J. Aymond, Jr., Bunkie, for plaintiff-appellant.
    Thomas E. Guilbeau, Lafayette, for defendant-appellee.
    Before DOMENGEAUX, WATSON and FORET, JJ.
   WATSON, Judge.

Plaintiff, Cardean, Inc., has appealed from a trial court judgment denying its claim for damages allegedly resulting from the delay of defendants, Jack Y. Canon and his wife, Irma Josette Regard Canon, in complying with a buy and sell agreement. Cardean had received a prior judgment May 21,1975, granting it specific performance of the contract for the sale of two tracts of immovable property from the Canons to Cardean.

The Canons have answered the appeal, contending that Cardean’s appeal is frivolous and has prevented them from investing the proceeds of the prior judgment. The Canons ask damages and attorney’s fees.

FACTS

The original “contract to buy and sell” dated March 19, 1974, describes two tracts of land by their boundaries, one containing 79.86 acres, more or less, and the second containing 72.81 acres. It is executed on behalf of Cardean, Inc. by Carol J. Aymond, Jr. The consideration is stated to be $800 per acre for the cleared land and $300 per acre for the wooded land. The agreement recites a deposit of $15,000 by the prospective buyer, Cardean, Inc., to be applied to the purchase price and not constituting earnest money. The uncomputed balance was to be paid in cash on the day of sale, to be within 15 to 60 days depending on title requirements. The prospective sellers were Jack Y. Canon and Mrs. Irma Josette Regard Canon. The agreement states that “Rentals . . . for . . . 1974 will be payable to the buyer.”

The price to be paid under this agreement was litigated; the dispute was over the actual acreage involved, as well as the number of acres cleared and wooded. A prior judgment of this court concluded that summary judgment ordering specific performance was inappropriate since there was a genuine issue of material fact as to the price. See Cardean, Inc. v. Canon, 307 So.2d 818 (La.App. 3 Cir. 1975). After a jury trial, a judgment ordered conveyance of the two tracts of land and fixed the consideration at $800 an acre for 103.86 acres of cleared land, and $300 an acre for 48.81 acres of wooded land, or a total of $97,731. This sum was $16,300 in excess of the amount which Cardean had been willing to pay, and interest was awarded on the differential. That judgment also ordered that a warranty deed be executed within thirty seven days and provided that, in case of default by the Canons, the judgment itself would be a conveyance of title to the property upon deposit by Cardean of the price, less payment of a mortgage indebtedness to Equitable Life Assurance Society of the United States. This mortgage is not mentioned in the buy and sell agreement. Cardean received possession of the property under this judgment on June 27,1975, when the money was deposited.

Cardean claims that it lost the 1975 crop on the property, worth $36,800 in sugar cane and soybeans, or, in the alternative, worth $11,200 in soybeans. Cardean also contends that the productivity of the cleared portion of the two tracts has diminished by $45,000 because noncultivation has resulted in the growth of weeds, grasses, and small trees. The tracts are referred to as the Lake Pearl property and the Highway 29 property.

Cardean, Inc. has three stockholders: its president, Carol J. Aymond, Jr.; its secretary-treasurer, Carol J. Aymond, Sr.; and Arthur Aymond. The corporation is operated on an informal basis. The testimony of the junior and senior Aymonds about the damages claimed by the corporation is general and speculative. It is not related to the specific property in question. Aymond, Jr. admitted that Cardean’s records of farming operations are not broken down by tracts. Terry Aymond testified that he is currently farming the Lake Pearl property for Cardean and would have been willing to farm it in 1974 but was not asked to do so.

Jack Canon testified that he had an oral agreement with Cardean’s representative that: (1) his tenants would remain on the land; and (2) an agreement between Canon and a Mr. Dorsey (also oral) to clear the land would continue. These two stipulations, which Canon later understood Carde-an would not honor, as well as the dispute about the acreage and price, kept the property from being transferred, as agreed. Canon said he and his wife considered the $81,431 Cardean tendered to be inadequate.

ISSUES

The issues are:
(1) Is Cardean entitled to damages for the Canons’ delay in consummating the sale?
(2) Are the Canons entitled to damages for frivolous appeal?

CONCLUSION

The trial court concluded that the Canons’ failure to transfer the property to Cardean resulted from the parties’ mutual fault. We agree and affirm; neither party is entitled to damages.

Cardean bases its claim for damages on LSA-C.C. art. 2486:

“In all cases, the seller is liable to damages, if there result any detriment to the buyer, occasioned by the non-delivery at the time agreed on.”

This article is qualified by the following article, LSA-C.C. art. 2487:

“The seller is not bound to make a delivery of the thing, if the buyer does not pay the price, and the seller has not granted him any term for the payment.”

The full amount due was not tendered by Cardean until judgment was rendered after trial on the merits. The contract of sale was not perfected until then, because the price was undetermined. LSA-C.C. art. 2464 states:

“The price of the sale must be certain, that is to say, fixed and determined by the parties. * * * ”

Cardean and the Canons had a bilateral promise of sale or contract to sell, which was binding. See the analysis of the distinction between a contract of sale and a bilateral promise of sale in Bornemann v. Richards, 245 La. 851, 161 So.2d 741 (1964). The agreement provided for determination of the price by a stated formula, but the sale could not be concluded or perfected until the character of the acreage had been determined by a survey. No transfer of title to the property could take place until the price was known. Although the price was determinable and ultimately fixed, it depended on how many acres were wooded and how many cleared. Compare Clark v. Comford, 45 La.Ann. 502, 12 So. 763 (1893). The situation here is analogous to that contemplated by LSA-C.C. art. 2465. Survey by a third person was essential to perfection of the sale. See Lee Lumber Co. v. Hotard, 122 La. 850, 48 So. 286 (1909) which applies LSA-C.C. art. 2458 to sale of timber.

Cardean is not entitled to damages, as well as the specific performance previously obtained. Fontenot v. Manuel, 281 So.2d 156 (La.App. 3 Cir. 1973) is cited as authority for recovery of damages by Cardean. However, there is no proof that any fruits and revenues were obtained from the property by the Canons during the interim period. In fact, the Canons’ failure to cultivate the property is alleged as an item of damages. Cardean’s proposed use of the property and anticipated profits therefrom are speculative and cannot be recovered. Fontenot v. Manuel, supra; Doriocourt v. La-croix, 29 La.Ann. 286 (1877). There is no showing of fraud or bad faith on the part of the Canons. LSA-C.C. art. 1934.

We find no merit in the contentions asserted in the answer to the appeal; damages for frivolous appeal are not warranted under the circumstances.

For the foregoing reasons, the judgment of the trial court is affirmed. Costs are assessed to plaintiff-appellant, Cardean, Inc.

AFFIRMED.

      . Mr. Canon signs his name as shown herein. The spelling used in the previous case is incorrect.

      . LSA-C.C. art. 2465:
      “Art. 2465. The price, however, may be left to the arbitration of a third person; but if such person can not, or be unwilling to make the estimation, there exists no sale.”

      . LSA-C.C. art. 2458:
      “Art. 2458. When goods, produce, or other objects, are not sold in a lump, but by weight, by tale, or by measure, the sale is not perfect, inasmuch as the things so sold are at the risk of the seller, until they be weighed, counted or measured; but the buyer may require either the delivery of them or damages, if there be any, in case of non-execution of the contract.”


author: REDMANN, Judge.

text:
    Patricia COOK et al. v. AAA WORLDWIDE TRAVEL AGENCY et al.
    No. 8329.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 15, 1977.
    Gerard J. Hansen, New Orleans, for Patricia Cook and others.
    Frank J. Varela, New Orleans, for American Automobile Association, Inc.
    John W. Haygood, Jones, Walker, Wae-chter, Poitevent, Carrere & Denegre, New Orleans, for Dynimex, Inc.

      Before REDMANN, LEMMON and GU-LOTTA, JJ.
   REDMANN, Judge.

Defendants move dismissal of this appeal on the ground that the record was not lodged in this court until almost a year after the return day, and the costs and appellate filing fee were not paid to the trial court clerk three days prior to the “return day or extended return day,” C.C.P. 2126.

The circumstances are that appellants timely filed an appeal bond which the clerk’s office misplaced. As a result of that misplacing, the court reporter did not transcribe the testimony.

It is the trial clerk’s duty, art. 2127, to lodge the record with this court by the return day upon timely payment to him of costs and fee. The return day may be extended, art. 2125, “on the application of the clerk, or of the deputy clerk preparing the record of appeal.” “Failure of the clerk to prepare and lodge the record on appeal either timely or correctly shall not prejudice the appeal”; art. 2127. “An appeal shall not be dismissed because of any irregularity, error or defect unless it is imputable to the appellant”; art. 2161.

The practice in some courts in our jurisdiction is that, once the appeal bond is filed, the clerk will obtain extensions of the return day if the court reporter has not yet prepared the transcript of testimony. Once the transcript is prepared, counsel is notified or can otherwise learn of its cost and then — for the first time — is placed in a position to fulfill the obligation to pay the costs. (In fact, at the time of this appeal court reporters in Jefferson Parish typically obtained from an appellant an advance deposit to cover the transcript cost, and would not begin transcribing until the deposit was made; see Lewis v. Collins, La.App. 4 Cir. 1976, 329 So.2d 485.) Moreover, multiple extensions of return days totaling a year are not uncommon.

Here, the court reporter’s failure to file the transcript until over 11 months after the return day appears not to be attributable to any fault of appellants. Had the clerk not misplaced appellants’ bond, the court reporter would presumably have transcribed the testimony and the clerk would have prepared the record and (as a matter of practice, though not law) billed appellants for the transcript and other charges, obtaining any necessary extensions of return day. We surely cannot dismiss an appeal by supposing that appellants would not have paid the costs forthwith had they been able to know the amount.

This case differs from Louisiana Power & L. Co. v. Lasseigne, 1970, 255 La. 579, 232 So.2d 278, in which the transcript was prepared ten months before the last (valid) extended return day. There it was not failure to prepare the transcript (a fault not attributable to appellant), but failure to provide, for an already-prepared transcript, “necessary documents or exhibits in the possession of appellant” (a fault expressly held attributable to appellant, 232 So.2d at 282), which caused the failure to lodge the record by the return day or extended return day.

Motions denied.


author: BEER, Judge.

text:
    Jake MAUS, Administrator of the Estate of his minor son, Christopher Lee Maus v. Vesta M. SCHOUEST.
    No. 7741.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1977.
    Rehearing Denied Feb. 15, 1977.
    Writ Refused March 31, 1977.
    Daniel E. Becnel, Jr., Robert R. Fau-cheux, Jr., Reserve, Taylor, Porter, Brooks & Phillips, W. Arthur Abercrombie, Jr., Baton Rouge, for plaintiffs-appellants.
    Lemle, Kelleher, Kohlmeyer & Matthews, Vance E. Ellefson, New Orleans, for defendant-appellant.
    Wiedemann & Fransen, Lawrence D. Wiedemann, Edmund W. Golden, New Orleans, for defendant-appellee.

      Before BOUTALL, SCHOTT and BEER, JJ.
   BEER, Judge.

Notwithstanding the multifaceted and complicated pleadings, exhibits and testimony that fill this record, the issues before us on this appeal are uncomplicated and straightforward and deal only with the claim by Mr. Jake Maus in behalf of his minor son, Christopher. Specifically, we must determine the effect of an erroneous jury charge upon the overall validity of a jury verdict which had the ultimate effect of dismissing all of the claims made in this litigation.

Mr. Maus, through learned counsel, contends that the jury was improperly instructed by the trial judge regarding the alleged contributory negligence of Christopher, who was five years of age when he was painfully injured in the accident which forms the basis for this litigation.

That contention is correct. The able trial judge was overzealous in his interpretation and application of the rule set forth in Turner v. Bucher, 308 So.2d 270 (La., 1975), for that opinion contains the following language which we find clear and unequivocal:

“This opinion in no way affects the long line of jurisprudence which holds that certain minor children are incapable of contributory negligence. We do not set the standard of care to which a victim is subject with regard to such a nondiscern-ing person. Our holding in this case is limited to a situation such as the one before us where the victim is unwarned and unsuspecting of any impending harm from the acts of a child.”

Accordingly, we must conclude that the trial court erred in its instruction to the jury regarding the alleged contributory negligence of young Christopher Maus.

However, the effect of our determination that the instruction was incorrect is the basic issue which requires our most careful consideration of this record.

At the conclusion of the trial which had aired the issues of the claims, including those leveled by the driver, Mrs. Schouest, against Christopher’s parents for the damages allegedly occasioned to her resulting from her upset following the accident, the jury was asked to respond to a total of twelve interrogatories. These were handwritten and handed to the foreman by the presiding judge. They are as follows:

“Verdict
We, the jury, find the following verdict:
l.A. Was Vesta M. Schouest negligent? _
1.B. If so was this negligence a proximate cause of the accident? _
2.A. Was Christopher Lee Maus negligent? _
2.B. If so was his negligence a proximate cause of the accident? _
If your answers to each 1A, IB, 2A and 2B were YES, then do not answer further:
If your answers to both 1A and IB were YES and your answers to both 2A and 2B were NO then answer Question 3A, B, C & D:
3.A. Did Jake Maus suffer damages from the accident? _
3.B. If so to what extent for:
1. Past medical expenses $_
2. Future medical expenses $_
3.C. Did Christopher Lee Maus suffer damages from the accident? _
3.D. If so to what extent for:
1. Past and present pain and suffering $_
2. Future pain and suffering $_
If your answers to both 1A and IB were NO and your answers to both 2A and 2B were YES then answer questions 4A and 4B.
4.A. Did Vesta M. Schoest suffer damages from the accident? (sic)
4.B. If so to what extent for:
pain, suffering, mental anguish past and future $_
FOREMAN”

When the judge charged the jury, he referred to the first four interrogatories noted above (1A, IB, 2A and 2B) and stated:

“When you have answered these four questions — actually if you find you have answered yes, yes, yes, yes, then that’s it. You need not answer any further questions. You bring that into the courtroom.”

Thereafter, the judge discussed the procedure to be followed “if you have not answered each of these questions yes, if in here there are some no’s, . . .”

After the jury had retired to deliberate, the foreman sent a handwritten note into the judge which asked:

“If we vote three yeses and one no how do we fill the bottom part?”

The presiding judge had the jury return to the courtroom bringing the handwritten interrogatories which they had taken with them, and he thereupon reviewed same, making, inter alia, the following comment:

“All four yes as to 1A, IB, 2A, 2B, that concludes your problem.”

The jury again retired and, thereafter, returned with its verdict which was arrived at by answering “yes” to interrogatories 1A, IB, 2A and 2B and leaving the balance of the interrogatories unanswered.

The court polled the jury, determined that its verdict was unanimous, thanked the jury for a job well done and indicated that the court would write a judgment in conformity with the verdict.

The judgment dismissing the demands of all parties was, thereafter, read, rendered and signed in open court on June 26, 1975.

Able counsel for appellant energetically contends that, on its face, the jury’s response to one of the interrogatories propounded at the conclusion of the trial signals a factual finding, on their part, that Mrs. Schouest, the driver of the automobile, was negligent. Thus, there is, he contends, support for his thesis which is as follows: Since Christopher cannot, as a matter of law, be contributorily negligent, and since the jury has concluded that Mrs. Schouest was negligent as evidenced by their answer to the interrogatory dealing with that issue, then, a fortiori, Mrs. Schouest’s negligence must be the cause in fact of the painful injury to Christopher.

Counsel for all litigants encourage this court to finally decide the case consistent with the mandate of the Supreme Court generally expressed in Gonzales v. Xerox Corp., 320 So.2d 163 (La., 1975). Essentially, all counsel acknowledge the error in the jury charge and now say to us: In view of this error, which might ordinarily signal the need for remand, we ask, instead, that you decide the case on the record as it is now before you.

We accept the mandate of Gonzales, supra, and the suggestions of counsel. In so doing, we must, necessarily, free ourselves from any persuasions ascribable to the jury’s verdict, for we cannot, on one hand, acknowledge the incorrectness of the charge and, yet, on the other hand, accept, without question, certain answers that the jury has given to the interrogatories propounded to them. Furthermore, we are of the view, all factors considered, that the jury had, in fact, resolved the case in such a manner as to call for a judgment dismissing all claims and simply answered the particular interrogatories in a somewhat indiscriminate though well intentioned manner based upon the belief that, in doing so, they would be giving practical effect to their decision. Stated another way, we believe that the jury concluded that there was no legal or factual basis for any of the claims put forward by any of the claimants and also believed that the easiest and most practical way to evidence that ultimate conclusion was by answering “yes” to all of the first four interrogatories propounded to them even if such answers were not definitive of their specific determinations.

Notwithstanding certain of the answers to the interrogatories, we believe that the record unequivocally supports a finding that Mrs. Schouest neither saw nor should have seen Christopher at any time until he was located under her automobile.

The great weight of uncontradicted testimony adduced at trial preponderates toward the following findings of fact: During the late afternoon of Sunday, October 7, 1973, Mrs. Vesta Schouest was driving her automobile in a northerly direction in the three hundred block of West Eighth Street, a two-way street in a residential section of Reserve, Louisiana. Her sister, Mrs. Ella Aldridge, was accompanying her. Although dusk was near at hand, there was ample daylight and good visibility for driving purposes. Mrs. Schouest testified that prior to the accident, she was looking for the home of some friends. As she proceeded on West Eighth Street, she encountered a group of adults standing next to a parked red Chevrolet sedan which protruded partially into Mrs. Schouest’s lane of traffic directly in front of the home of Mark Keller, owner of the parked car. As she approached the sedan, Mrs. Schouest slowed her vehicle, honked the horn, and proceeded to circumvent the parked sedan by briefly entering the opposite (clear) lane of traffic. After completing her passing maneuver, Mrs. Schouest returned to the righthand lane of traffic and proceeded at a speed of approximately 5 miles per hour.

A redwood fence is visibly situated on the property line between the contiguous lots belonging to Carol Keller and Mark Keller respectively. The lots front on West Eighth Street. From the perspective of a person driving north on West Eighth Street, this fence is on the driver’s right. The fence commences eight feet from the street and stands four feet high although its height increases and levels off at six feet as it extends further away from the street and between the lots separated by it. As the Schouest vehicle passed the fence and a driveway leading to the Carol Keller residence (which was approximately fifty feet past Mark Keller’s parked red sedan), both Mrs. Schouest and Mrs. Aldridge heard a “thump,” on the right side of the car. Prior to hearing the “thump,” neither woman had seen any children in the vicinity. Thereafter, Mrs. Schouest’s vehicle traveled about nine or ten feet before it was brought to a standstill, directly in front of Keller’s house. Mrs. Aldridge got out and discovered Christopher Maus pinned under the car. Mrs. Katherine Keller, the wife of Carol Keller, lives directly across the street from Jake Maus. Although not a witness to the actual event, she testified that she was inside her home at the time of the accident and, when she heard her dogs barking, went outside. She did not see anyone else look underneath the car, did so herself and discovered Christopher Maus. After obtaining a jack from her own car, Mrs. Keller assisted in extricating young Christopher Maus from underneath the Schouest vehicle. Two state troopers arrived and, with the use of Mrs. Keller’s jack, also assisted in dislodging Christopher Maus from underneath the vehicle. Thereafter, the child was placed in the trooper’s car. On route to the hospital, the trooper’s car was intercepted by an ambulance. Young Maus was transferred to the ambulance, after which he was taken to East Jefferson Hospital where it was diagnosed that his injuries included multiple fractures and burns on the left side of the cheek and left arm, the burns requiring skin grafts resulting in permanent scarring to the face and hand. Reconstructive surgery was necessitated.

Although both counsel refer us to Kelly v. Messina, 318 So.2d 74 (La.App.4th Cir., 1975), that case is factually distinguishable from the case at bar insofar as it involved a' ten year old bicyclist struck from the rear by a vehicle driven by a motorist who actually observed children in the road prior to the accident.

We are more influenced by Campo v. Vampran, 183 So.2d 57 (La.App.1st Cir., 1966), writs ref. 249 La. 64,184 So.2d 735, in which the defendant motorist was proceeding at less than twenty miles per hour on a residential street, keeping a proper and careful lookout ahead, with no prior warning or notice that a child of less than three years of age was on the sidewalk since his view of the child was obscured by the height and size of a parked Buick automobile. The child entered the street from a position near the Buick. The court noted that the duty to exercise greater than ordinary care to avoid injury to a child only becomes operative when the presence is known or should have been known to the motorist. Also note Danos v. Central National Insurance Company of Omaha, 211 So.2d 106 (La.App.1st Cir., 1968), where the facts and conclusions of law were almost identical. Very recently, in Raphile v. Alexander, 315 So.2d 836 (La.App.4th Cir., 1975), we observed:

“The degree of care a motorist should exercise when confronted with a child darting in front of his vehicle is succinctly stated in Layfield v. Bourgeois, 142 So.2d 799, 801 (La.App.3d Cir., 1962):
‘There is no dispute as to the law, it being well established in our jurisprudence that a motorist who sees or should see children near the roadside, must exercise a high degree of care in view of the propensity of young children to dart or run into the street, heedless of their own safety. * * On the other hand, a motorist is not an insurer of the safety of children playing near the street. If the motorist is proceeding at a lawful and reasonable speed and obeying all of the rules of the road as to proper lookout etc. he will not be held liable where a child suddenly darts or runs into his path from a concealed position in such a manner that the motorist is unable to avoid striking the child. * *’
The courts have repeatedly emphasized the fact that the duty to exercise greater than ordinary care to avoid injury to a child does not become operative or exist in favor of such child until his presence is known or should have been known under the existing facts of the particular case to the operator or driver of the motor vehicle. LeBoeuf v. McCoy, 273 So.2d 580 (La.App.1st Cir., 1973); Chappetta v. Jones, 237 So.2d 435 (La.App.4th Cir., 1970); Ward v. Southern Bell Telephone & Telegraph Co., 189 So.2d 750 (La. App.1st Cir., 1966); Campo v. Vampran, 183 So.2d 57 (La.App.1st Cir., 1966).”

We believe that the record fully supports Mrs. Schouest’s testimony regarding her slow rate of speed, the physical configuration of the neighborhood, including the location of the fence which divided the Keller properties, the presence of the parked red Chevrolet, and, most important of all, the lack of discernible presence of Christopher.

Just prior to the accident, young Christopher had been playing with two of the Keller children, Naomi and Myra Elizabeth, at the Carol Keller residence. The two little girls, several years older than Christopher, had decided to walk to the drugstore and had departed shortly prior to the accident, leaving Christopher behind.

Whether these actions precipitated some responsive action on Christopher’s part can only be conjectured. The record does, however, reveal that the two little girls were some distance away from the Keller house when the accident happened, for they came back after the accident occurred. There is nothing in the record to indicate that their presence at some point substantially removed from the point of impact constituted a signal to Mrs. Schouest that small children were playing in the neighborhood for they were past the parked red Chevrolet moving in the opposite direction from that of Mrs. Schouest’s car.

We are convinced that Mrs. Schouest was not negligent and that the accident, insofar as her actions were concerned, was unavoidable.

Accordingly, we are of the view that the judgment of the 29th Judicial District Court is substantially correct, and it is, therefore, in all respects, affirmed. Each party to this appeal is to bear its own costs.

AFFIRMED

SCHOTT; Judge, assigning reasons for voting to grant plaintiff-appellant’s application for rehearing.

In answer to special interrogatories the jury found that Mrs. Schouest was negligent and her negligence was a proximate cause of the accident. Recovery was denied to plaintiff because of the erroneous inclusion of the issue of Christopher’s contributory negligence.

I would like to reconsider our rationalization of the verdict as an attempt by the jury to reach the result of dismissing all claims. If this rationalization were repudiated I would then like to reconsider the jury findings regarding Mrs. Schouest’s negligence pursuant to the guidelines set forth in Canter v. Koehring, 283 So.2d 716 (La.1973), i.e., I would determine whether there is evidence in the record to furnish the jury with a reasonable basis for their findings.

I am influenced to vote for the rehearing because I am now of the opinion that the record does contain such evidence. Mrs. Schouest was going only five miles per hour. The investigating officer gave testimony which supports an inference that she failed to see the child when she should have in time to avoid striking him.

I would like to provide plaintiff with a rehearing and have all parties address themselves to these issues.

      . Mr. Maus describes Christopher at the time of the accident as being . about four feet tall.”


author: MARVIN, Judge.

text:
    BOARD OF COMMISSIONERS OF the CADDO LEVEE DISTRICT, Plaintiff-Appellee, v. The S. D. HUNTER FOUNDATION et al., Defendants-Appellants.
    No. 13112.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 10, 1977.
    En Banc. Rehearing Denied Feb. 14, 1977.

    Writ Granted April 6, 1977.

      Wilkinson, Carmody & Peatross by W. Scott Wilkinson, Shreveport, for defendants-appellants.
    Burnett, Sutton, Walker & Callaway by Glenn E. Walker, Shreveport, for plaintiff - appellee.
    Before BOLIN, PRICE and MARVIN, JJ.

       Hall, J., recused.

   MARVIN, Judge.

In dispute here is the ownership of an 83-acre strip of land lying between property owned by the Hunter defendants (known as Oak Ridge Plantation, the ownership of which is not contested) and the Soda Lake Canal north of Shreveport in Township 19 North, Range 15 West, Caddo Parish.

Hunter prevailed in an earlier possessory action against the Levee District and this court affirmed Hunter’s being maintained in possession of the disputed acreage. S. D. Hunter Foundation, et al. v. Board of Commissioners of the Caddo Levee District, 286 So.2d 525 (La.App. 2d Cir. 1973). The Levee District then brought this petitory action, claiming ownership of the acreage lying between the government meander line (or traverse line) of Soda Lake and the canal or bayou as lands granted by Congress to the State under the Swamp Land Grant Act of 1850, 43 U.S.C. § 982, and conveyed to the Levee District.

The Hunter defendants claim title to the disputed acreage by the acquisitive prescription of ten years and of 30 years.

This reproduction of details, roughly to scale from plats and surveys in the record, depicts the geographical situation:

In written reasons for judgment, the lower court (1) rejected defendants’ claims of ten year prescription acquirendi causa (finding no “good faith”); and (2) found that even though it could be said that defendants had proved requisite acts of possession of more than 30 years, an acquisitive prescriptive title had not accrued because one or more acts of the Louisiana Legislature effectively interrupted the accrual of prescription against levee districts.

The Hunter defendants appeal from the judgment below which recognized title in the Levee District and rejected defendants’ demands for recognition of title by acquisitive prescription. We reverse.

The 1850 Swamp Land Grant Act allowed states to select and take title to swamp and overflowed lands of the United States. By Legislative Acts, the State selected and accepted title to certain lands in Caddo Parish, including the disputed tracts. In 1901, the State conveyed title to the plaintiff Levee District. The traverse line shown on the above reproduction was established in the original government survey of the area before 1850 and was used as the boundary of tracts in this area selected under the Swamp Land Grant Act.

No contention is made here that Soda Lake was navigable in 1812. See Shell Oil Co. v. Bd. of Com’rs of Pontchartrain Dist., 336 So.2d 248 (La.App. 1st Cir. 1976) for issues arising in cases of navigable lakes.

The Levee District’s title satisfies the holding of Pure Oil Co. v. Skinner, 294 So.2d 797 (La.App.1974) and shall prevail unless defendants’ claims of prescription ac-quirendi causa are recognized. C.C.P. Arts. 3651, 3653.

A levee district, even though an agency of the state, has not always been immune from the plea of acquisitive prescription. Until Act 76 of 1938 (repealed by Act 247 of 1944), the plea was available against a levee district. Haas v. Board of Commissioners of Red River, etc., 206 La. 378, 19 So.2d 173 (1944); C.C. Art. 3521.

Sam D. Hunter (ancestor and predecessor in title of defendants) acquired the Powell tract in October, 1948, and the George tract in November, 1951. The Powell tract is so named because for many years (dating from 1866) property in section 13 and 14 was acquired and farmed by the ancestor or predecessor in title of James C. Powell, who sold the property to Frank Hemenway, Jr. in 1946 for $48,000. Hemenway sold the property in 1948 to Hunter for $60,000. The deed to Hemenway and the deed to Hunter, as to warranty, prescriptive clauses and description of property conveyed are identical. Each deed reads in part:

“. . . SELL, CONVEY AND DELIVER, with full guarantee of title and with complete transfer and subrogation of all rights and actions of warranty against all former proprietors . . . , together with all rights of prescription, whether acquisitive or liberative, to which said vendor may be entitled . the following described property: “[lands in sections 13 and 14, said to contain approximately 635 acres],
“The vendor furthermore transfers, assigns, conveys and delivers to vendee herein all lands owned or claimed by vendor, either legal or equitable, contiguous to the land hereinabove specifically described, whether the same be inside or outside the said specific description, or inside or outside of the sections, township or range hereinabove described, and whether the same be held under fence by vendor or not, and whether such lands be more or less than the estimated acreage herein conveyed of 635 acres.
“The property herein conveyed being more particularly shown delineated in red and yellow on plat attached to deed from James C. Powell to this vendor . . . ”

The property shown in red on the plat of survey attached to the Powell-Hemenway 1946 deed is the Oak Ridge Plantation property south of the government traverse or meander line which is specifically described in the deeds. The property shown in yellow on this survey (the shaded tract on the survey reproduction above) is the disputed Powell tract above the meander line in sections 13 and 14. The survey supplies description to the disputed Powell tract. Acadia-Vermilion Rice Irrigating Co. v. Miller, 178 La. 954, 152 So. 576 (1933); Gibson v. Johnson, 244 So.2d 713 (La.App. 2d Cir. 1971).

The preponderance of the evidence below establishes that fences perpendicular to the bayou (the easterly and westerly boundary of the shaded area in sections 13 and 14) existed before 1908 and have since been maintained in varying states of repair. An old fence similarly existed along the bank of the bayou, joined with the other fences immediately north of and roughly parallel to the meander line to enclose the shaded area with the Powell property (Oak Ridge Plantation) south of the meander line. Witnesses below who lived in the area from as early as 1893 until the trial were unequivocal in testifying that the shaded area (down to the bayou) and the several hundred acres to the south had always been known as Powell property until Hemenway and then Hunter acquired it. Earlier acts of possession included some farming (cotton and corn) on the disputed strip while more recent acts have been limited to the grazing of cattle. Johnson v. Merritt, 131 So.2d 562 (La.App. 2d Cir. 1961).

In written reasons for judgment, the lower court said:

“For purposes of discussion only, it can be stated that defendants [Hunter] proved possession of the disputed lands for a period considerably more than 30 years through the testimony of six witnesses who were well acquainted with the property in question.”

We agree, but without the qualification expressed by the lower court, and find that James C. Powell acquired as early as February 10, 1903, portions of the property now known as Oak Ridge Plantation in a partition with other heirs of James F. Powell, and that James C. Powell continued his ancestor’s earlier possession of the disputed shaded area until he sold to Hemenway in 1946.

In the 1946 deed to Hemenway, Powell expressly conveyed his acquisitive prescriptive rights to the shaded area. It is not contradicted that Hemenway and Hunter maintained possession of the shaded area from the time of their respective deeds.

Additionally, we find that Hunter meets the requisites of the ten year good faith acquisitive prescription. The lower court concluded Sam D. Hunter was not in good faith when he acquired the property from Hemenway in 1948 (1) because the deed to the disputed strip was conveyed without warranty; (2) because he also recorded with the Hemenway deed, a deed from the widow and only heir of James C. Powell he obtained about one week before he acquired from Hemenway, and (3) because of the holding in Board of Commissioners for the Lafourche Basin Levee District v. Elmer, 268 So.2d 274 (La.App. 4th Cir. 1972), writ refused.

Pertinent articles of the Civil Code read as follows:

“The possessor in good faith is he who has just reason to believe himself the master of the thing which he possesses, although he may not be in fact; as happens to him who buys a thing which he supposes to belong to the person selling it to him, but which, in fact, belongs to another.” Art. 3451.
“Good faith is always presumed in matters of prescription; and he who alleges bad faith in the possessor, must prove it.” Art. 3481.
“It is sufficient if the possession has commenced in good faith; and if the possession should afterwards be held in bad faith, that shall not prevent the prescription.” Art. 3482.

The exclusion of warranty must be clear, express and unequivocal and any claim of exclusion of warranty will be strictly construed against him who claims it. The arrangement or structure of the 1948 deed from Hemenway to Hunter, in our opinion, cannot be construed even by implication to exclude warranty to the property outlined in yellow on the survey (the disputed Powell tract). C.C. Art. 2503. Hob’s Refrigeration and Air Conditioning, Inc. v. Poche, 304 So.2d 326 (La.1974). We do not view the 1948 deed from Hemenway to Hunter to exclude warranty.

Warranty of title, whether excluded or not, is not the test of good faith for the purposes of prescription acquirendi causa. Dupuy v. Joly, 197 La. 19, 200 So. 806, 810 (1941). In Elmer, at 268 So.2d 282, the court stated:

“We believe that a more complete approach in the case of a nonwarranty deed is that such a deed is not alone sufficient to preclude good faith on the past [sic] of the possessor (as held in the early cases), but must be considered with other evidence that the possessor doubted the validity of his title. A person ignorant of defects in his title is a good faith possessor. C.C. arts. 503, 3451, and a person who knows of defects in his title is a bad faith possessor, C.C. art. 3452. The determination must stand or fall on the facts and circumstances of each case.”

The fact that a purchaser acquires (or attempts to acquire) title from two or more people likewise does not of itself preclude good faith on the part of the buyer. Dupuy v. Joly, supra ; Reeves v. Towles, 10 La. 276 (1836). James C. Powell died within a few months before Hemenway sold the property to Sam D. Hunter. Hunter acquired' the quitclaim deed from Powell’s widow about the time he acquired the He-menway deed. One can only speculate why the quitclaim was acquired, but in any event, this fact is not sufficient to overcome the presumption of good faith.

The inquiry here is whether information was possessed by Sam D. Hunter when he purchased the property in 1948 which would have been sufficient to “excite inquiry” of what the public records would have revealed about the title to the property delineated in yellow on the survey attached to the deed of his vendor. Juneau v. Laborde, 219 La. 921, 54 So.2d 325 (1951); Bishop Homes, Inc. v. Derail, 336 So.2d 313 (La.App. 1st Cir. 1976). Sam D. Hunter is not shown to have sought a title examination before he purchased from Hemenway. The price he paid (approximately $250 per acre) was not a bargain-basement price for rural property in Caddo Parrish in 1948. The record is devoid of evidence on which it can be found or inferred that Sam D. Hunter possessed information which should have excited his inquiry into the title of the disputed strip. We find no factual basis to overcome the presumption of good faith. C.C. Art. 3481.

In Elmer, supra, the court found the absence of good faith in this summary:

“. . . the combination of a sale at a suspicious price by non-warranty deed, which recites the acquisition by tax sale and the fact of the vendor’s taking possession of the property immediately after the tax sale, should have instilled a doubt into the mind of a reasonable purchaser or excited inquiry as to the validity of his vendor’s title.” 268 So.2d 284.

None of these factors are present here. We can only conclude the good faith presumption has not been overcome and that the lower court’s reliance on Elmer, supra, was misplaced.

In Nugent v. Urania Lumber Company, 16 La.App. 73, 133 So. 420 (2d Cir. 1931), we said:

“It is contended that, because the deed from Mills to defendant expressly excepted from warranty the land here involved, it was not such a legal and transferable title of ownership to the defendant that would sustain a plea of prescription of ten years. This question has been forever settled by the Supreme Court of this state in a number of cases, and in the case of Land Development Co. of La. v. Schulz, 169 La. 1, 124 So. 125, 128, the court said: ‘The fact that the sale by Watts to Mrs. Schulz was made without warranty of title does not affect her plea of prescription of 10 years. A stipulation in an act of sale that the seller does not warrant the title might be regarded as an indication that the seller lacked faith in his title, but it is not an indication that the buyer lacked faith in the title’ — citing Templet v. Baker, 12 La.Ann. 658; Brewster v. Hewes, 113 La. 45, 36 So. 883; Read v. Hewitt, 120 La. 288, 45 So. 143; Kinchen v. Redmond, 156 La. 418, 100 So. 607; and Clayton v. Rickerson, 160 La. 771, 107 So. 569.
$ $ # >k # *
“Plaintiffs’ other contention is that defendant was not in good faith in taking deed to this property, basing their contention on the fact that the land in question was specially excepted from the warranty, and the further fact of defendant’s requiring the affidavit by Mills as to his possession and ownership, which affidavit is attached to the deed. The judge of the lower court upheld the contention of plaintiffs and held that the defendant was in bad faith, or at least put on its guard. We cannot agree with the lower court in this finding.
“ ‘Good faith is always presumed in matters of prescription; and he who alleges bad faith in the possessor, must prove it.’ Civ.Code, art. 3481.” 133 So. 420, 423.

The evidence is not sufficient, however, to support a finding of title by 30 year acquisitive prescription as to the disputed George tract. The several witnesses who testified regarding early possessory acts referred almost exclusively to the disputed Powell tract. It was established that the disputed George tract was fenced and possessed as early as 1942 as a portion of the “George part” of the Oak Ridge Plantation. One witness testified that he farmed it in those days. Since Hunter’s acquisition in 1951, Hunter has maintained and improved fences surrounding the George tract and has grazed cattle on it. Johnson v. Merritt, supra.

For the same reasons and authorities mentioned as to the Powell tract, we hold defendants have acquired title to the George tract by the acquisitive prescription of ten years. The record is devoid of evidence to overcome the presumption of good faith afforded Hunter when he acquired the property in 1951.

Act 76 of 1938 was repealed by Act 247 of 1944. See footnote two. For twenty years afterward (until Act 408 of 1964) levee districts were subject to acquisitive prescription. The Act of 1938 which proscribed against acquisitive prescription of levee district property was held not to have been retroactive in Haas v. Board of Com’rs of Red River, etc., supra. Therefore, prior to 1938, prescription did accrue against levee districts. Prior to 1964, prescription did accrue against levee districts. Between 1944 ánd 1964 there was no proscription against the acquisitive prescription of levee district property. Before 1938 there was no proscription.

We have found the requisites of 30 year acquisitive prescription to have been met by James C. Powell before 1938 as to the Powell tract. We have further found the requisites of the 10 year good faith acquisitive prescription to have been met by Hunter, since 1948 as to the Powell tract, and since 1951 as to the George tract.

The right to claim title to the disputed Powell tract on the basis of 30 year acquisitive prescription arose in James C. Powell’s favor sometime before 1938. This right was thereafter conveyed to Hemenway and then to Hunter. The right to claim title to the disputed Powell tract on the basis of 10 year good faith acquisitive prescription arose in favor of Hunter and his successors in 1956. The right to claim title to the disputed George tract on the basis of 10 year good faith acquisitive prescription arose in favor of Hunter in 1961.

None of these parties renounced their rights to claim title by the respective acquisitive prescription. Instead, the possession as owner in each instance continued interrupted until the respective rights were exercised in this litigation. C.C. Arts. 3500, 3501, 3460, 3461. See also C.C. Arts. 3449 and 3517.

Haas, supra, expressly held the 1938 Act would not be applied retroactively to rights or prescriptive titles which accrued against a levee district before the passage of the Act. We believe Haas controls here, not only to the 30 year acquisitive prescription of the disputed Powell tract, but as to effect of the three Acts (1938, 1944 and 1964) as against the prescriptive rights or titles of defendants, whether 10 year good faith or the 30 year, acquisitive prescription.

The Levee District strongly urges that the passage of the 1938 Act “killed” any acquisitive prescriptive rights accruing or accrued against its property by way of a legal interruption. The lower court agreed. In Chapter 3, Title XXIII, of Book III of the Civil Code are found the Causes Which Interrupt, (Sec. 2, Par. 5) and the Causes Which Suspend, (Sec. 2, Par. 6), Prescription. We do not find the 1938 Act to fall within the purview of the Articles on interruption of prescription (3516-3520) and they shall not be extended by analogy or implication. Should we be required to pass on the contention of whether the 1938 Act suspended or interrupted prescription, we would be more inclined to categorize the Act as suspending, instead of interrupting, prescription because of the course the legislature has followed. The 1964 Legislature apparently considered that acquisitive prescription was running against levee districts between 1944 and 1964. Otherwise there would have been no need for R.S. 38:295. While the intent, of the 1964 Legislature may not have been the same as the 1938 or the 1944 Legislatures, it is one small beam of enlightenment on what the intended effect was of the three Acts. Haas was decided in 1944 before the effective date of the 1944 repeal of the 1938 Act. We will not speculate as to what effect, if any, the 1944 repealing Act may have had on the Haas court. We hold simply that prescriptive titles or rights vested as we have indicated and that none of the three Acts will be given retroactive effect.

Other contentions relate to an apparent offer being made by Sam D. Hunter in 1952 to purchase property owned by the Caddo Levee District. Even should we construe this evidence most favorably to the Levee District, the offer arose after Hunter acquired and went into possession of both the Powell and the George tract. C.C. Art. 3482. We do not view this evidence as the Levee District would have us do. It was not shown that Hunter acknowledged title in the Levee District to the disputed tracts.

For the reasons given, IT IS ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of defendants, the S. D. Hunter Foundation and Mrs. Mil-ryn M. Hunter, and against the plaintiff, the Board of Commissioners of the Caddo Levee District, recognizing defendants’ title to and ownership of the following described property:

Two tracts of land forming a part of the Oak Ridge Plantation more particularly described as follows:
All that portion of Section 14 and the West Half of the Southwest Quarter of Section 13, Township 19 North, Range 15 West, bounded on the South and West by the Soda Lake Traverse Line and on the North and East by Twelve Mile Bayou also known as Soda Lake Canal, said property being delineated in yellow on plats annexed to a deed from Mrs. Mattie Bickham Powell to Sam D. Hunter, dated September 29,1948, and recorded in Conveyance Book 581, Page 304, bearing instrument No. 35399, and plat attached to deed from Frank Hemenway, Jr. to Sam D. Hunter, dated October 5, 1948, and recorded in Conveyance Book 581, Page 311 of the records of Caddo Parish, Louisiana, bearing instrument No. 35398, containing forty-six (46) acres more or less. Also a tract of land containing thirty-seven (37) acres more or less being that portion of the Northwest Quarter of Section 24, Township 19 North, Range 15 West, lying North and East of the Traverse Line of Soda Lake.

IT IS FURTHER ORDERED that all costs of these proceedings, including appellate costs, be paid by plaintiff.

REVERSED AND RENDERED.

      . Soda Lake Canal is better known as Twelve Mile Bayou.

      .Act 76 of 1938 provided in part:
      “Prescription shall not run against any Levee District . . [Sec. 2]
      “As to [all] such lands and all rights therein, no Levee District shall be divested of any property or property right by virtue of any prescription or adverse possession whatsoever. [Sec. 3]
      “No court within the State of Louisiana shall have authority to apply, enforce or maintain against any Levee District any prescription acquirendi causa or liberandi causa. [Sec. 4]”
      Act 247 of 1944 expressly repealed the above act, with this proviso, “. . . that nothing in this [repealing] act shall be construed to affect pending litigation.”
      By Act 408 of 1964 (now R.S. 38:295), the Legislature declared that acquisitive prescription shall not run against any Levee District of the State.

      . Act 74 of 1892; Act 90 of 1894.

      . C.C. Art. 3521 provides: “Prescription runs against all persons unless they are included in some exception established by law.” See Acts quoted in footnote two.

      . The “heirs of J. F. Powell” partitioned among themselves by several deeds in 1903 property in sections 13 and 14. J. C. Powell, by deed recorded February 10, 1903, in Conveyance Book 32, page 548, acquired the N/2 of NW/4 of SW/4 and SW/frac. 4 of NW/4 of Section 14. [sic]
      C.C. Arts. 3493, 3494 and 3496 make it clear that the possession of an heir or buyer may be joined (“tacked”) to that of the possessor whether he acquired his right by universal or particular title.

      . This satisfies the rule that tacking is recognized when there is privity of contract between possessor and his vendor(s) or predecessor(s). “Privity” denotes merely a succession of relationship to the same thing whether created by deed or other act or by operation of law. C.C. Art. 3499; Bunn v. A. J. Hodges Industries, Inc., 279 So.2d 268 (La.App. 2d Cir. 1973), writ denied.

      . La. C.C. Arts. 3478, 3479. The latter article reads:
      “To acquire the ownership of immovables by the species of prescription which forms the subject of the present paragraph, four conditions must concur:
      “1. Good faith on the part of the possessor.
      “2. A title which shall be legal, and sufficient to transfer the property.
      “3. Possession during the time required by law, which possession must be accompanied by the incidents hereafter required.
      “4. And finally an object which may be acquired by prescription.”
      The incidents are found in C.C. Art. 3487:
      “To enable one to plead the prescription treated of in this paragraph, it is necessary that the possession be distinguished by the following incidents:
      “1. That the possessor shall have held the thing in fact and in right, as owner; when, however, it is only necessary to complete a possession already begun, the civil possession shall suffice, provided it has been preceded by the corporal possession.
      “2. That the possession shall have been continuous and uninterrupted, peaceable, public and unequivocal; a clandestine possession would give no right to prescribe; but he who possesses by virtue of a title can not be considered as a clandestine possessor, for his title leads to the supposition that the possession commenced in good faith, and that is sufficient to enable him to plead prescription.”


text:
    LITTON SYSTEMS, INC. v. Renee BURROWS.
    No. 48925.
    Supreme Court of Mississippi.
    Jan. 26, 1977.
    Rehearing Denied March 9, 1977.
    White & Morse, Eldon L. Bolton, Jr., Gulfport, for appellant.
    Cumbest & Cumbest, John L. Hunter, Donald W. Cumbest, Pascagoula, for appel-lee.
   Appeal from Circuit Court, Jackson County; Merle F. Palmer, Judge.

Before PATTERSON, P. J., and SUGG and WALKER, JJ.

REVERSED AND JUDGMENT HERE FOR APPELLANT.

GILLESPIE, C. J., INZER, P. J., and SMITH, ROBERTSON, BROOM and LEE, JJ.


text:
    FINCH & MONTISI, INC. v. Dr. S. C. TIWARI et al.
    No. 49121.
    Supreme Court of Mississippi.
    Feb. 9, 1977.
    Gwin & Gwin, L. C. Gwin, Natchez, for appellant
    Adams, Forman, Truly, Ward, Smith & Bramlette, Everette Truly Natchez, for ap-pellee.
   Appeal from Chancery Court, Jefferson County; Fred C. Berger, Chancellor.

Before INZER, P. J., SUGG and LEE, JJ., and HOWARD R. PIGFORD, Commissioner.

AFFIRMED.