source: Caselaw Access Project

author: FOURNET, Justice. PIAMITER, Justice McCALEB, Justice. O’NIELL, C. J., FOURNET, J.,

license: Public Domain

text:
    213 La. 276
    BYRD et al. v. FORGOTSON et al.
    No. 37457.
    Supreme Court of Louisiana.
    Feb. 19, 1945.
    On Rehearing Dec. 15, 1947.
    Rehearing Denied Feb. 16, 1948.
    Robert H. Wimberly, of Arcadia, for plaintiffs-appellants.
    J. R. Goff and Blanchard, Goldstein, Walker & O’Quin, all of Shreveport, ‘ of amici curia:.
    Wilkinson, Lewis & Wilkinson, Smither-man, Smithérman & Purcell, F. Leonard Hargrove, James A. Van Hook and Tucker, Bronson & Martin, all of Shreveport, for defendants and appellees.
   FOURNET, Justice.

The surviving widow in community and legal heirs of the late W. J. Byrd instituted a jactitation or slander of title suit against the defendants, J. M. Forgotson, J. E. Smitherman, Mrs. Mabel M. Palmer, John R. Palmer, Nellie Norton, the Atlantic Refining Company, and the Triangle Drilling Company, Inc., to have cancelled and erased from the conveyance records of Claiborne Parish the instruments whereunder Byrd transferred and the defendants procured the mineral rights affecting the SE}4 of the NWi/4 of Section 17, T. 19 N., R. 5 W., Claiborne Parish, on the ground that this mineral interest has become prescribed because of nonuse for a period of ten years.

The defendants, admitting their right to the mineral interest in question is dependent upon the instruments thus sought to be can-celled, asserted this interest has not prescribed by nonuse because such prescription was interrupted by the drilling of a well on the tract of land affected by the servitude created by Byrd’s sale of an undivided half interest in the minerals to W. M. Brothers in 1925 (which includes the 40-acre tract in controversy) and by the acquisition by minors through inheritance of fractional parts of the servitude. In reconvention they pleaded that they be recognized as the owners of an undivided half of the mineral interest in this property in the proportions assertedly owned by them, which are as follows : J. E. Smitherman, l,/8th; Mrs. Mabel Palmer and John R. Palmer, as the widow in community and only heir of E. G. Palmer, l/8th; the Atlantic Refining Company, 1 /8th; Nellie Norton, l/16th; J. M. For-gotson, l/48th; and the Triangle Drilling Company, Inc., l/24th.

After the case had been tried on an agreed stipulation of fact, supplemented by the various mesne conveyances through which the defendants claim their mineral interest, the trial judge rendered judgment rejecting the demand of the plaintiffs and decreeing the defendants to be the owners of the mineral interest in the proportions prayed for.

From this stipulation of fact and the instruments in evidence, it appears that on April 6, 1925, W. J. Byrd, then the owner in full and perfect ownership of the S% of the NW)4 and the NE14 of the NW}4 of Section 17, and the SEJ4 of the NE1^ of Section 18, T. 19 N„, R. 5 W., Claiborne Parish, Louisiana, executed a mineral deed whereby he conveyed to W. M. Brothers an undivided half interest in and to all of the minerals affecting these four 40-acre tracts that are contiguous, and, together, comprise 160 acres. Brothers, in turn, and before the end of 1925, sold all of the undivided mineral interest thus acquired by hirn to various other parties in fractional parts, with the result that all of the mineral rights affecting the SE14 of the NW^ of Section 17 thus acquired by Brothers in 1925 is now owned by the defendants in the proportions just above given. However, it appears that of the parties acquiring the Brothers mineral interest in the remainder of the 160-acre tract, Wilson T. Peter-man, whose interest affected the SW14 of the NW% of Section 17, died intestate on March 22, 1930, leaving a surviving widow and three children, one of whom died on November 18, 1935, leaving a minor child who had been born on November 2, 1930, while J. M. Melton, whose interest affected the SE% of the NE14 of Section 18, died intestate on April 23, 1934, leaving three minor children. The rights of none of these four minor children had been disposed of at the time this suit was instituted. In addition, drilling operation's were begun on April 16, 1927, on the NEJ4 of the NW% of Section 17, under a mineral lease covering the entire 160-acre tract executed by Byrd in favor of the Triangle-Drilling Company, Inc.,- on March 18, 1924, prior to Byrd’s execution of the mineral deed in favor of Brothers, such sale having been made subject to this lease. The well thus begun was abandoned on May 12, 1927, at a depth of 2,812 feet. Further, drilling operations were begun on the SEJ4 of the NWi/4 of Section 17 (the tract in controversy) in February of 1943 under a lease executed by Byrd on April 1, 1937, in favor of 'O. J. Rowe (subsequently assigned to and now held by Roy Lee as the trustee for the Hassie Hunt trust), and a well was completed under these operations as a producer on March 30, 1943. After the completion of this well, the defendants in this suit, between August and October of 1943, sought to concur in the lease from Byrd to Rowe by the execution of co-lessor agreements. Feeling that the execution of these agreements constituted a slander of their title, the plaintiffs instituted this suit on November 5, 1943.

When oil was first discovered in this state and the interests of those asserting rights therein became controversial, the courts decreed that the sale of a mineral was nothing more than the granting of a right or privilege to go upon the land for exploration and exploitation purposes, classified such a right as being in the nature of a servitude, and applied the provisions of the Revised Civil Code relative to servitudes in determining the rights of those claiming such an interest. One such provision is that the right to a “servitude is extinguished by the non-usage of the same during ten years” (Article 789), such prescription beginning to run from the day the servitude ceases to be used. Article 790. But “If among the coproprietors there be one against whom prescription can not run^ as for instance a minor, he shall preserve the right of all the others.” Article 802. See, also, Sample v. Whitaker, 172 La. 722, 135 So. 38; State ex rel. Bourgaux v. Fontenot, 192 La. 95, 187 So. 66; Ohio Oil Company v. Cox, 196 La. 193, 198 So. 902; and Standard Oil Co. of Louisiana v. Futral, 204 La. 215, 15 So.2d 65.

Counsel for the plaintiffs, however, contends that inasmuch as Brothers disposed of the servitude on this entire 160-acre tract of land by selling it piecemeal and fractionally to numerous persons, each interest thus sold affecting a different surface area, no portion of his undivided half mineral interest in and to the entire tract being sold to any one individual, and inasmuch as none of the co-owners or co-proprietors of the SEJ4 of the NW14 of Section 17 are minors or other persons incapacitated under our law (the Melton and Peterman heirs not being co-owners of the mineral interest affecting this particular 40-acre tract), the provisions of Article 802 of the Revised Civil Code have no application.

When, in 1925, the ancestor in title of the plaintiffs executed the mineral deed to Brothers affecting the entire 160-acre tract of land, all parts of which are contiguous, he created only one servitude. Lee v. Giauque, 154 La. 491, 97 So. 669; Patton v. Frost Lumber Industries, 176 La. 916, 147 So. 33; Hodges v. Norton, 200 La. 614, 8 So.2d 618. Such servitude is indivisible. The subsequent sale of this servitude in fractional parts affecting different surface areas of the tract did not have the effect of dividing the single servitude thus created on the entire tract. Hodges v. Norton, supra.

Counsel for the plaintiffs, however, contends the Hodges case has no application and is not controlling here because the owners of the original servitude in that case never relinquished all of their interest in the ’servitude, retaining a half interest affecting the entire tract, and that it was, therefore, immaterial whether the transferee of a portion of their interest in this entire servitude did dispose of the interest acquired by him by selling the portion affecting approximately half of -the surface area, retaining the remainder for himself, because in the instant case the “defendants themselves, in effect, divided this servitude as to the surface area by designating the superficial area to which they wanted their mineral rights to apply, that is, the SE14 of the NW14 of Section 17. * * * They knew they were not acquiring mineral rights over the entire 160 acres and over the entire original servitude. * * * These minors are not coproprietors of the defendants in the SE% of the NW}4 of Section 17.”

We think counsel has misinterpreted the issues in the Hodges case. In that case Es-mond Hodges and his wife, Augusta Ann, on November 6, 1915, sold a tract of some 440 acres of land to A. J. Hodges, reserving unto themselves an undivided half interest in the oil, gas, and other minerals thereunder for a restricted period of fifteen years. Thereafter Hodges died and his widow and heirs, on October 29, 1923, sold an undivided one-fourth interest in the minerals in the entire acreage to J. A. Selby, Jr., or an undivided half of their reserved undivided half interest, though no mention was made of the fifteen year restriction. Two days later, on October 31, 1923, Selby sold the interest thus acquired by him from Augusta Ann Hodges and her children to R. W. Norton, but only inasmuch as this interest affected two non-contiguous tracts of the 440 acres, — one of 80 acres and the other of 140 acres — he retaining the min-

«ral interest acquired by him in and to the remaining- 220 acres. Again no mention was made of this restricted period of fifteen years. On November 21, 1923, A. J. Hodges released Selby from the “rever-sionary” rights in so far as they affected the undivided fourth interest purchased by Selby from Mrs. Hodges and her children and on the following day Selby reconveyed this release back to A. J. Hodges, limited, however, to the mineral rights sold Norton by Selby. Two wells were drilled in 1924 under a lease executed by Mrs. Hodges, her children, and A. J. Hodges prior to the sale of this undivided fourth mineral interest to Selby. These wells were located on the land not affected by the interest purchased from Selby by Norton, and they continued to produce until 1931. It was contended that Hodges — by the conveyance of the reversionary rights to Selby on November 21, 1923, and the re-conveyance of these rights back to Hodges on the following day, with the exception of the 220 acres a'ffected by Selby’s mineral sale to Norton — intended to establish a new servitude in favor of Norton by reducing it from the fifteen year restrictive period provided in the original reservation by Esmond Hodges and his wife to the ten-year prescriptive period provided in Article 789 of the Revised Civil Code. In disposing of that issue the coiirt said: “The land upon which the servitude was established is one continuous tract. There was but one indivisible servitude and the mere fact that the mineral owners conveyed undivided interests in the right to others did not have the effect of dividing it. See Lee v. Giauque, 154 La. 491, 97 So. 669; Patton v. Frost Lumber Industries, Inc., 176 La. 916, 147 So. 33; Connell v. Muslow Oil Co., 186 La. 491, 172 So. 763, and Ohio Oil Company v. Cox, 196 La. 193, 198 So. 902. The reason for this is that a servitude can only be created by the owner of the land. Therefore, when the widow and children of E. W. Hodges conveyed an undivided one-fourth interest in minerals to Selby, the servitude convering the entire land remained intact. Likewise, when Sel-by conveyed to Norton a one-fourth interest in the minerals in and under 220 acres of the tract, the servitude was not divided and exercise of the servitude on any portion of the land preserved it as to the whole.” (Italics ours.)

It is our opinion, therefore, that the fact that the interest of the minors is limited to the rights and benefits accruing from the exploitation of these minerals on the small tract of land affected by their interest does not prevent the suspension of the prescription running against the entire servitude. Such suspension enures to the benefit -of the major co-owners of the servitude (although their right to benefit by the exploitation of the minerals is limited to a different surface area than that in which the interest of the minors is vested) the same as if the servitude had been exercised by the drilling of a well on the surface area affected by the interest of the minors and the prescription thus interrupted had begun to run again as to all parties owning an interest in the servitude.

For the reasons assigned, the judgment appealed from is affirmed, at the cost of the appellants.

PIAMITER, Justice

(dissenting).

Assuming for the sake of argument that a mineral interest is a servitude (the assumption being for that purpose only because I doubt seriously the correctness and soundness of our jurisprudence under which a mineral interest is held to be a servitude), I am of the opinion that the ten year non-user prescription has not been suspended' as to the rights contested herein. The suspension is claimed under the provisions of Civil Code, Article 802, reading: “If among the coproprietors there be one against whom prescription can not run, as for instance a minor, he shall preserve the right of all the others.” Among the coproprietors or co-owners of the forty-acre tract involved in this controversy, admittedly there are no minors or other incapacitated persons.

The cases of Sample v. Whitaker, 172 La. 722, 135 So. 38; Ohio Oil Company v. Cox, 196 La. 193, 198 So. 902; State v. Fontenot, 192 La. 95, 187 So. 66; Standard Oil Company of Louisiana v. Futral, 204 La. 215, 15 So.2d 65; and Hodges v. Norton, 200 La. 614, 8 So.2d 618, cited in support of the majority holding’, are not directly applicable here. In the first four cited cases the incapacitated persons owned fractional interests throughout the tracts of land involved. The case of Hodges v. Norton is distinguishable in that it in no manner concerned Civil Code Article 802; it presented only a question relative to the interruption of prescription by the exercise of the purported servitude.

For these reasons I respectfully dissent.

On Rehearing

McCALEB, Justice.

A rehearing was granted in this case because our later decision in Ohio Oil Company v. Ferguson et al., La.Sup., 34 So.2d 746 was directly contrary in principle to the original opinion herein. Subsequently, a rehearing was granted in the Ohio Oil Company case and both matters have been argued and submitted at the same time for our final decision.

The important question presented in these cases is whether owners of a fractional area of a mineral servitude may avoid the extinguishment of their rights by prescription of non-user, where the running of prescription has been interrupted as to others by use of the servitude in another area (or, as in this matter, suspended by ownership of minors), on the theory that to sustain prescription would sanction a division of the servitude in violation of Article 656 of the Civil Code and contrary to the prior jurisprudence.

The facts of this case have been fully stated in our original opinion and it would serve no useful purpose to repeat them here. Suffice it to say that plaintiffs, who are the widow and heirs of W. J. Byrd, are seeking to have cancelled and erased from the conveyance office of Claiborne Parish the instruments whereunder Byrd transferred to W. M. Brothers a one-half interest in and to the minerals underlying a 160 acre contiguous tract of land insofar as they affect the SEJ4 of the NWj4 Section 17, Township 19 N., Range 5 W. (now held by the defendants under conveyance from Brothers), on the ground that their mineral interest in this 40 acre tract has been extinguished by the ten year pre-cription of non-user provided by Article 789 of the Code.

The contention of the defendants is that, since a portion of the area of the-servitude (of which the 40 acre tract forms a part) is fractionally owned by minors, the running of prescription has been suspended under Article 802 of the Code even though the minors are not their co-proprietors because the area acquired by the minors is outside of the 40 acre tract in controversy.

This proposition has this day been rejected by our decision on rehearing in Ohio Oil Company v. Ferguson et al., where all of the points raised by the defendants have been fully discussed and resolved against them. The reasons given in that matter control the result here and compel a reversal of the judgment below.’

For the reasons assigned, the judgment appealed from is reversed and it is decreed that there be judgment herein in favor of plaintiffs, Etta B. Byrd, Leonard H. Byrd, Horace G. Byrd, Elvy B. Watson, Vyna B. Pierce, Novice B. Gantt, Nevis B. Harmon and Varner M. Byrd and against the defendants, J. M. Forgotson, J. E. Smitherman, Mrs. Mabel M. Palmer, John R. Palmer, Nellie Norton, the Atlantic Refining Company and Triangle Drilling Company, Inc., sustaining the plea of prescription of ten years liberandi causa and ordering and directing the cancellation of any and all insti-uments filed of record in the Parish of Claiborne under which the defendants claim any right, title and interest in and to the minerals underlying the SE14 of the NWJ4 of Section 17, Township 19 N., Range 5 W., Claiborne Parish, Louisiana.

All costs of this suit are to be paid by defendants. We reserve to them the right to apply for a rehearing.

O’NIELL, C. J.,

concurs in the decree for the reasons given in the majority opinion rendered on the original hearing of the case of Ohio Oil Co. v. Ferguson, La.Sup., 34 So.2d 746.

FOURNET, J.,

dissents for the reasons assigned in the original opinion and for the reasons assigned in his dissenting- opinion to the case of Ohio Oil Co. v. Ferguson et al., La.Sup., 34 So.2d 746.

PONDER, J., dissents.

HAMITER, J., concurs in the decree.

BOND, J., absent.


author: BOND, Justice.

text:
    213 La. 290
    MOSER v. MOSER.
    No. 38829.
    Supreme Court of Louisiana.
    Feb. 16, 1948.
    Rehearing Denied March 22, 1948.
    Andrew H. Thalheim, of Gretna, for appellant.
    Waverly A. Henning, of New Orleans, for appellee.
   BOND, Justice.

This case is before us for consideration of defendant’s motion to dismiss that part of the appeal taken by plaintiff from the judgment of the district court decreeing a divorce between him and the defendant.

The plaintiff brought this action for divorce on the ground of two years separation. In his petition he prayed for a judgment decreeing a divorce between him and the defendant and for the permanent custody of their minor child. The defendant reconvened, praying for the permanent custody of the child, for alimony for herself and the child, and for a partition of the community property. There was judgment in the lower court in favor of the plaintiff decreeing a divorce between him and the defendant, but granting the defendant custody of the child and alimony for her own and the child’s support, and enjoining the plaintiff from alienating the community property. The plaintiff appealed. The defendant filed a motion to dismiss the appeal insofar as it relates to the decree of divorce in favor of the plaintiff.

The plaintiff has no right to appeal from that portion of the judgment which gives him the relief prayed for in his petition i. e., a judgment of divorce between him and the defendant. State ex rel. John T. Moore Planting Co., Ltd., v. Howell, 139 La. 336, 71 So. 529; White v. Hill, 168 La. 92, 121 So. 585. He should not be allowed to persist in his appeal from the divorce decree and thereby delay the defendant iii exercising her right to have the community property partitioned.

For the reasons assigned, the appeal, insofar as it relates to the judgment of divorce, is dismissed at plaintiff’s cost.

O’NEILL, C. J., absent.


author: PONDER, Justice.

text:
    213 La. 292
    DE LATOUR v. MORRISON et al.
    No. 38463.
    Supreme/ Court of Louisiana.
    Feb. 16, 1948.
    Henry G. McCall, City Atty., and Henry B. Curtis, Asst. City Atty., both of New Orleans, for defendants-appellants.
    Milton R. de Reyna, Clarisse P. de Reyna and H. C. Keith, Jr., all of New Orleans, for plaintiff-appellee.
   PONDER, Justice.

This is an appeal from a judgment of the lower court decreeing a certain ordinance of the City of New Orleans null and void and permanently enjoining the mayor and commission council from attempting to enforce the annulled ordinance.

The City of New Orleans adopted a comprehensive zoning law on June 1, 1929 which has been amended from time to time. On June 14, 1944 the City published a handbook on its comprehensive zoning law, revised to include all amendments u'p to that date. This comprehensive zoning law is in reality ordinance No.'11,302, Commission Council Series, as amended. The plaintiff, Louis De Latour, is the owner of twenty-four lots of ground in square 49A in the City of New Orleans. Under the comprehensive zoning law, this property was placed in the zoning category as “A” residential property. On May 3, 1946 the commission council of the City of New Orleans adopted ordinance 16,480, C.C.S.', amending the comprehensive zoning law by changing the' zoning classification of the plaintiff’s property from “A” residential to “E” commercial. This ordinance changing the classification of plaintiff’s property was adopted in compliance with the provisions of the comprehensive zoning, law. The comprehensive zoning law provides a procedure for the amendments of its provisions and that such amendments can be made only upon the observance of such, procedure. The methods of amendments of the zoning law is set forth in section 27. An amendment or change may be initiated by the Commission Council or by a property owner. An amendment or proposed change in the zoning law, after properly presented, must be advertised and posted in a certain manner for thirty days. After these steps are taken, the city planning and zoning commission holds a public hearing in order that parties at interest and citizens shall have an opportunity to be fully heard. After holding the hearing, it is the duty of the planning and zoning commission to forward its recommendation on such proposed changes to the commission council. No amendment or change, whether the proposal be initiated by the commission council or on the petition of property owner or owners, can become effective unless and until a public hearing is held before the planning and zoning commission and such further hearing as may be granted by the commission council. A final Yea and Nay vote must be taken on the proposed amendment within ninety days from the introduction of the ordinance. After the ninety day period has elapsed, whether the amendment was voted on by the commission council or not, it shall be considered by the commission council as a closed case and no rehearing will be heard on the subject matter until the expiration of two years. Whenever the commission council has finally acted upon a proposed amendment to the zoning law or taken no action within the ninety day period, or when the petition or ordinance has been advertised for public hearing, but subsequently withdrawn, the commission council cannot consider any further petition or introduce any ordinance proposing a change of the zoning law with ■respect to the property involved therein within a period of two calendar years from the date of the commission, council’s final legal action on the petition or ordinance or from the expiration of ninety days in case no action has been taken.

On May 17, 1946, the commission council adopted ordinance No. 16,496, C.C.S., repealing ordinance 16,480, C.C.S. This latter ordinance was adopted without complying with any of the procedure set forth in the comprehensive zoning law required for a change or amendment of it. It appears that ordinance 16,480, C.C.S., was adopted by an outgoing commission council and ordinance No. 16,496, C.C.S., was adopted by a new and incoming commission council. The plaintiff brought this suit against the city officials seeking the annulment of the latter ordinance, ordinance No. 16,496, C.C.S., and to enjoin them from enforcing it. The lower court gave judgment annulling the ordinance and permanently enjoined its enforcement. The city officials and a number of organizations and property owners, who intervened in the suit, have appealed.

The appellants contend that ordinance No. 16,496, C.C.S., the repealing ordinance, was legally adopted after all the required procedure had been complied with. They are of the impression that the commission council had authority to change its action within the ninety day period. On the other hand, the appellee contends that, after the commission council had adopted ordinance 16,480, C.C.S., changing the zoning classification of his property, by a Yea and Nay vote, it constituted final action on part of the commission council which could not be reconsidered until the two year period had elapsed.

From a mere reading of Section 27 of the comprehensive zoning law, it is apparent that the adoption of an ordinance changing or amending the zoning law by a 'Yea and Nay vote constitutes final action on the part of the commission council and under the provisions of this section it cannot be reviewed or changed by the commission within the two year period and then only after a compliance with the procedure required for the change or amendment of the zoning law.

The appellants contend that the requirements set forth in the comprehensive zoning law for its amendment are not binding on any subsequent commission council and that the city has authority to zone the property under the provisions of Act 27 of 1918 and Act 240 of 1926. It is argued that the City of New Orleans has the right under its police power to classify any property in the city as the discretion of the commission council may deem proper. On the other hand, the appellee contends that the adoption of the repealing ordinance without complying with the procedure required by the comprehensive zoning law is arbitrary, discriminatory and unreasonable and denies him due process and equal protection in violation of the Federal and State Constitutions. U.S.Const.Amend. 14; Const. 1921, art. 1, § 2. He takes the position that any change in the zoning status of his property without giving him the notice and hearing granted other property owners is violative of his constitutional rights.

Conceding that the city had authority under the acts of Legislature relied on and by the exercise of its police power to adopt the repealing ordinance, an unreasonable and arbitrary action on the part of the commission council in adopting the repealing ordinance without granting the appellee the notice and hearing granted others in like situations Would be violative of ap-pellee’s constitutional rights. The appellee cannot be singled out and dealt with in a manner different from that afforded others in like situations. Moreover, there is nothing in the ordinance to indicate any intention on the part of the commission council to repeal the provisions of the zoning law relative to the procedure required for the adoption of an amendment. The commission council were evidently under the impression that they had the right to change their action within the ninety day period and their counsel has so argued. Other grounds urged to support the ordinance appear to be afterthoughts.

For the reasons assigned, the judgment of the lower court is affirmed at appellants’ cost.

O’NIELL, C. J., absent.


author: FOURNET, Justice.

text:
    213 La. 299
    STATE v. BESSAR et al.
    No. 38256.
    Supreme Court of Louisiana.
    Feb. 16, 1948.

      Chandler C. Luzenberg, Jr., and Bentley G. Byrnes, both of New Orleans, for def endant-appellant.
    Fred S. LeBlanc, Atty. Gen., M. E. Cul-ligan, Sr., Asst. Atty. Gen., and Herve Racivitch, Dist. Atty., and Guy Johnson, Asst. Dist. Atty., both of New Orleans, for appellee.
   FOURNET, Justice.

Wilbert Powell and Joseph Bessar, Jr., having been jointly indicted and tried for the murder of Bernice Marie Roy, are appealing from their conviction and death sentence.

Powell and Bessar, who lived in the same house in the city of New Orleans but occupied different rooms, agreed after playing pool on the night of November 30, 1945, to rob someone (to “make some money” as they express it in their confessions), they being at the time armed with a gun belonging to Bessar. Leaving the poolroom they proceeded out Tulane avenue toward the lake. They walked several blocks before seeing anyone, it then being around midnight. At the corner of Derbigny and Tulane they saw a soldier, Sgt. W. F. Mears, and his companion, Miss Bernice Marie R’oy, and followed them down the.street. Realizing they were being followed, Mears and Miss Roy crossed Tulane to the uptown side of the avenue, the defendants doing likewise. Continuing to follow their victims, Powell pulled the gun and ordered Mears to give them everything he had. Mears passed his wallet to Powell and he, in turn, handed it to Bessar, together with a ring he also took from Mears. Bessar then seeing the wrist watch Mears was wearing demanded it. By this time the four had reached the intersection of Tulane and Bolivar. Bes-sar at this point ordered the soldier and the young lady to turn and proceed up Bolivar to a parking lot in the rear of a drug store at the corner. It appears that in this parking lot Powell kept the soldier at the point of the gun with his back to the wall while Bessar, according to the testimony of Mears, attempted to rape the young lady. This is corroborated by Miss Roy’s physical condition, as testified to by the coroner. Miss Roy began screaming during her scuffle with Bessar %nd the struggle was only interrupted by the presence of an elderly woman who passed the lot, paused, and was told to keep going but, instead, turned back, causing Powell to decide to leave and to call for Bes-sar to follow him. They had gone only a few steps, according to Powell’s confession, when he turned and fired at Miss Roy, who had begun to scream again. The bullet struck her between the eyes. Mears ran to Tulane avenue and secured the help of some people on a passing street car. Miss Roy was carried by one of these passengers to a hospital in the immediate vicinity. She died there of the bullet wound the next day. In the meanwhile, the defendants ran away from the scene up Bolivar street, Powell emptying the gun of all of the cartridges, including the empty one, and throwing them into the street while they were still running. Arriving at their home, a few blocks up Bolivar, Bessar gave the wrist watch and ring to Powell who put them, together with the gun, in a hole in the floor near the fireplace, covering the hole with a piece of tin and a basket of coal. (According to Bessar’s confession he lost the wallet.) Later in the morning and only a couple of hours after the crime, Powell was arrested, and taken to the First Precinct Police Station. Bessar’s arrest occurred a few minutes later and he was also taken to this station. There both of the defendants confessed. Several days later, Powell took the officers to his home and showed them where he had hidden the gun and the articles taken from the victim Mears. On December 6,-1945, Powell and Bessar were arraigned on an indictment returned the same day jointly charging them with the murder of Miss Roy and their trial was fixed for January 16 following, individual attorneys being appointed by the court to represent the two defendants.

Prior to the date of the trial counsel for the defendants obtained permission from the court to file certain preliminary pleadings, counsel for Powell filing a motion for the appointment of a lunacy commission and counsel for Bessar filing a motion to quash the indictment and a motion for a bill of particulars. The trial judge’s action in overruling the motion for the lunacy commission, the motion to quash the indictment, and in overruling Bessar’s motion for a new trial, forms the basis of the appeals taken by the defendants.

Attached to Powell’s motion for the appointment of a lunacy commission to inquire into his mental condition are five affidavits, in all of which it is stated Powell’s mother and grandfather died insane and that a half-brother has, on several occasions, been confined to the state institution for the insane. In all of these is also contained the uncorroborated statement that the affiant is of the opinion Powell was then and had been for some time unable to distinguish between right and wrong.

In disposing of the bill of exceptions reserved when this motion was overruled, the trial court judge makes the following pertinent observations in his per curiam:

“The Court foxmd nothing in the record, as made up at that time, which would afford a reasonable ground to believe that Powell was then insane. The mere fact that other members of the family of accused might have been insane, did not justify the belief that accused was then insane, nor did the uncorroborated statement of affiants afford this belief. In this connection it will be noted, that none of the affidavits made part of the record, attempt in any manner to present any facts dc-. tailing the actions of the accused, which might justify their conclusion that the accused was insane at the present time. Nor did the court have the benefit of a cross-examination of these affiants as to the basis of their conclusions as to the present sanity of the accused.
“On the other hand, Dr. C. Grenes Cole, Coroner, and an admitted expert in mental ctiseascs, testified that he had examined the accused on the day before for an hour; that it was his opinion that Powell was sane; that he knew the difference between right and wrong and had the capacity to choose between the two; that he was sane and was able to understand the proceedings against him.
“Thereafter, on the trial of the defendant, Addie M. Kenner, George Brooks, Lula Mae Rose and Willie E. Weston were placed on the witness stand by the defense. None of these witnesses attempted to express an opinion as to the sanity of Wilbert Powell, nor did any of them testify to the slightest abnormal behavior of Powell. They contented themselves with the expression that the mother of the defendant was insane at her death.
“On behalf of the State, Dr. C. Grenes Cole and Dr. Edmund Connely, each testified in rebuttal, that Wilbert Powell was sane and responsible and fully understood the nature and quality of his acts. Dr. Cole testified that he had examined the defendant four times, while Dr. Connely said he had examined defendant on two occasions.
“Over and beyond the testimony herein detailed, the Court had the opportunity to observe Wilbert Powell on December 6, 1945, and again on January 3rd, 11th, 17th and 18th, 1946.
“In the opinion of the court there was no reasonable ground to believe the defendant Wilbert Powell was insane or mentally defective to the extent that he was unable to understand the proceedings against him or to assist in his defense, but on the contrary, the court was of the opinion that the defendant was then sane and was sane on his trial. For these reasons, 'tne court denied defendant’s application.”

In the Code of Criminal Procedure it is ,n-ovided that “If before or during the trial the court has reasonable ground to believe that defendant, against whom an indictment has been found or information filed, is insane, or mentally defective, to the extent that he or she is unable to understand the proceedings against him or her or to assist in his or her defense, the court shall immediately fix a time for a hearing to determine the defendant’s mental condition. The court may appoint two disinterested physicians to examine the defendant with regard to his present mental condition and to testify at the hearing.” Article 267, as amended by Act No. 261 of 1944. See, also, State v. Ridgway, 178 La. 606, 152 So. 306; State v. McManus, 187 La. 9, 174 So. 91; State v. Messer, 194 La. 238, 193 So. 633; State v. Allen, 204 La. 513, 15 So.2d 870; and State v. Washington, 207 La. 849, 22 So.2d 193.

In the Ridgway case the court said: “Under the express terms of the statute, the trial judge is not required to order an inquiry into the mental condition of the defendant unless he has reasonable ground to believe that defendant is insane. But defendant’s assertion that he is insane, or even the affidavits of witnesses that they do not consider defendant is mentally sound, are not of themselves sufficient to create such belief in the mind of the trial judge. The question is one that addresses itself to the sound discretion of the court. Reasonable ground to believe that the defendant is insane can only arise in the mind of the trial judge when information to that effect is furnished from a trustworthy source or by credible parties, or when from the inspection or observation of the court, itself, defendant appears to be mentally unbalanced.” (Italics ours.)

From the foregoing it does not appear that the trial judge abused the discretion vested in him. It is our opinion, therefore, that his ruling denying Powell’s motion for the appointment of a lunacy commission was correct; it could have served no other purpose than to delay the proceedings.

For the reversal of his conviction and sentence, Bessar relies on an error allegedly committed when the trial judge overruled his motion to quash the indictment after the state, in response to his motion for a bill of particulars set out “That as shown by a confession made by the Defendant, Joseph Bessar, Jr., a copy of which has been furnished and given to the Defendant through his Attorney, Bentley G. Byrnes, the said crime of Murder was committed behind the Chaille Building, between Bolivar and South Prieur Streets in the City of New Orleans, while the said Bernice Marie Roy was screaming, and while the said Defendants, Joseph Bessar, Jr., and Wilbert Powell were fleeing from the commission of the crime of Aggravated Robbery, committed upon one Sgt. William F. Mears, an escort of the deceased and while fleeing from the above scene for the commission of the crime of Attempted Aggravated Rape committed upon the person of the said deceased, Bernice Marie Roy.”

It is the ’ contention of the defendant Besser that he could not be guilty of murder since the indictment returned against him when taken together with the information furnished in the bill of particulars and the evidence introduced in support thereof fails to set out a crime within the meaning and contemplation of the crime of murder as defined in Article 30 of the Criminal Code for the reason that a killing, under this article, cannot constitute murder unless it is done while a crime is being perpetrated and at the time the killing occurred in this case, according to the bill of particulars, the crimes of attempted aggravated rape and of aggravated robbery had been completed.

The indictment returned by the jury in this case being- in the short form prescribed by the Code of Criminal Procedure, the defendant was entitled to a bill of particulars setting out more specifically and in detail the offense charged, i. e., the facts upon which the prosecution is based, Article 235, as amended, and this bill, when furnished, operated to limit the scope of proof on the trial by restricting the introduction of evidence to the proof of those facts set out in the bill of particulars. 31 Corpus Juris 752, § 310, 42 C.J.S., Indictments and Informations, § 156; 27 Am.Jur. 672, Section 112. See, also, the annotations at 8 A.L.R. 550 and 10 A.L.R. 982. Consequently, the court in considering the motion to quash the indictment must construe those facts as set out in the bill of particulars to be true and determine whether or not, if proved, they constitute the crime charged.

“The weight of authority is that if a number of persons enter upon the commission of a felony, all are criminally responsible for the death of a person that ensues as a natural consequence of the common felonious purpose, although the one accused may not have done the actual killing. This rule has been deemed broad enough to include homicides committed in attempts to escape from the scene of the crime, or ‘where the killing is done immediately after the conclusion of the project, for the purpose of preventing detection.’ See 13 R.C.L. p. 732. The only exception to this general rule seems to be' found in People v. Marwig, 1919, 227 N.Y. 382, 125 N.E. 535, 22 A.L.R. 845, infra, and is recognized by implication in People v. Walsh, 1933, 262 N.Y. 140, 186 N.E. 422, infra, both these cases seeming to have proceeded upon the theory of technical completion of the felony, influenced in part, if not wholly, by the fact that the homicide occurred after the perpetrators had left the scene of the crime.” 108 A.L.R. 847, under an annotation entitled “Homicide by companion of defendant while attempting to escape from scene of crime as murder in first degree.” See, also, 26 Am.Jur. 202, Sections 64-69; 29 C.J. 1110, § 87; 40 C.J.S. Homicide, § 21.

According to the Ruling Case Law (cited in support of the main part of the above quotation) “To bring a person within the principle under discussion, it must be made to appear that a conspiracy, combination or common design existed between him and the person who directly has taken the life of the deceased.” Volume 13, Section 30 on page 729. And “Ultimately it is always a question of fact, dependent on all of the surrounding circumstances, whether the homicidal act was within the scope of the original unlawful project * * *.” Section 32 on page 732.

Our law is in substantial accord with this weight of authority for under the Louisiana Criminal Code murder is defined as "the killing of a hirnian being, (1) When the offender has a specific intent to kill or to inflict great bodily harm; or (2) When the offender is engaged in the perpetration or attempted■ perpetration of aggravated arson, burglary in the nighttime, burglary in the daytime, aggravated kidnapping, aggravated rape, armed robbery, or simple robbery, even though he has no intent to kill”, Article 30,, and “All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals.” Article 24. (Italics ours.)

Clearly under the facts as set out hereinabove the deceased was killed by Powell in the furtherance of the object of the joint enterprise he and Bessar embarked upon, that is, aggravated robbery, within the meaning and contemplation of Section (2) of Article 30 of the Criminal Code. Powell himself admits in his confession that after they had robbed Mears and were interrupted in the attempted rape of the deceased by the appearance on the .scene of an elderly woman, who precipitated their decision to leave, he “pulled the trigger to try and scare her (Miss Roy) and make her shut up.” Obviously one of the aims of their common design or conspiracy was to retreat safely and undetected from the scene with the fruits of their joint enterprise. To hold as contended by the defendant in this case would have the effect of defeating the purpose of the statute and of destroying its efficacy. (Brackets ours.)

It is our opinion, therefore, that the trial judge properly overruled the motion to quash.

The motion for a new trial presents nothing for our consideration, being based solely on the allegation that the verdict is contrary to the law and the evidence (which proves the commission of the crime substantially as described in the bill of particulars), and the trial judge’s action-in overruling the motion to quash the indictment is, therefore, controlling.

For the reasons assigned, the conviction and sentence are affirmed.


text:
    213 La. 313
    INTERDICTION OF MAESTRI.
    No. 38721.
    Supreme Court of Louisiana.
    Feb. 16, 1948.
    John T. Charbonnet and Frederick J. Gisevius, Jr., both of New Orleans, for opponents and appellants.
    Felix W. Gaudin, of New Orleans, for Mr. and Mrs. Walter S. Maestri, claimants.
    Guy J. D’Antonio, of New Orleans, in pro. per. for defendants-appellees.
   PONDER, Justice.

This is an appeal from a judgment dismissing an opposition to a provisional account of a curator for an interdict.

The National Bank of Commerce in New Orleans, curator for the interdict Eva Maestri, filed a provisional account on May 14, 1946, which was approved by the under curator. Two nieces and a nephew of the interdict opposed two items on the account, an item for attorney’s fees and an item for board and lodging. On hearing of the opposition, it was rejected by the lower court and the opponents have appealed. After the appeal was lodged in this Court, the curator filed an exception of no cause or right of action directed at the opponents’ right to pursue the opposition on account of lack of real or actual interest.

It appears that the interdict has living brothers and sisters, as well as a number of other nieces and nephews, besides the three opponents. These other relatives have not indicated any opposition to the account. The sole allegation upon which the opponents rely for their right to pursue the opposition is to the effect that they are nieces and a nephew of the interdict. They do not claim to be creditors or show any other interest which would entitle them to pursue the opposition.

Article IS of the Code of Practice provides :

“An action can only be brought by one having a real and actual interest which he pursues, but as soon as that interest arises, he may bring his action.”

There are many cases cited under this article of the Code of Practice, holding to the effect that an action can only be brought by one having a real and actual interest which he pursues. There are also authorities cited thereunder to the effect that the allegations of the petition must set forth a cause of action by allegations showing some actual interest in prosecuting the suit.- The opponents have no real or actual interest in the property of the interdict and could not be benefited or injured by the allowance or disallowance of these claims.

Curators of interdicted persons are governed by the rules applicable to tutors of minors. Article 357, R.C.C. In effect he holds a civil office which endures during his curatorship. It is well settled that an interdict or minor is not bound by an annual account. The curator has to give a final accounting at the end of his administration and any injury that the interdict might suffer by an improper administration may be raised and the curator held liable therefor. If any and every relative of an interdict or a minor had the right to oppose accounts, it would result in some instances in the dissipation of the interdict’s property. Especially would this be true in cases where there were disputes and enmity between the relatives.

The only authority cited by the opponents to support their right to pursue the opposition is the case of Succession of Burbank, 132 La. 521, 61 So. 557, 558, wherein the executrix of a succession, being administered in another jurisdiction, in which a minor had an interest, and the guardian of that minor in another jurisdiction opposed an account of the tutrix of the minor in a court of this State. Even in that case there was some doubt whether they had the right to pursue the opposition, as will be seen by the following statement, made therein:

“Moreover, the cause is before the Supreme Court of the United States on a writ of error, without supersedeas. The questions, it follows, are not yet entirely settled, although finally settled by the state courts. Considering bare possibilities, we have deemed it proper to let appellants be heard.”

The opponents in that case were representatives of the minor. In the present case the opponents are not and do not contend that they are acting in any representative capacity.

For the reasons assigned, the exceptions are maintained and the judgment of the lower court is amended so as to dismiss the opposition. All costs to be paid by the opponents.

O’NIELL, C. J., absent


author: HAWTHORNE, Justice. BOND, Justice

text:
    213 La. 318
    STATE ex rel. GRAHAM v. GARRARD et ux.
    No. 37859.
    Supreme Court of Louisiana.
    Feb. 16, 1948.
    Rehearing Denied March 22, 1948.
    Love & Bailey, of Shreveport, for plaintiff and appellant.
    . Bullock & Bullock, of Shreveport, for defendants and appellees.
   HAWTHORNE, Justice.

Relatrix and appellant, Mrs. Elva Rambin Graham, instituted this suit seeking the custody of her minor son, Clarence Wayne Garrard, born of her prior marriage with Clarence S. Garrard, against the paternal grandparents of the child Mrs. Jessie M. and Clyde Garrard. After trial on the merits, relatrix’ demands were refused and her suit dismissed. From this judgment she has appealed to this court.

Relatrix (now the wife of J. D. Graham) married Clarence S. Garrard in Bossier Parish, Louisiana, on January 5, 1936. Of this union one child was born on May 19, 1937, Clarence Wayne Garrard, who was approximately eight years of age at the time this case was tried in the lower court on February 5, 1945. Relatrix and her first husband, Clarence S. Garrard, were divorced in September, 1938, in Shreveport, Louisiana. The mother was given the custody of the child in the divorce proceedings, but within a month or two thereafter the child whose custody relatrix now seeks was taken by his" father to the home of Mr. and Mrs. Garrard, the child’s paternal grandparents, respondents in this suit, where the child has remained ever since, or for a period of almost 10 years. The Garrards also lived in Shreveport and were still residing there at the time of the trial.

The testimony is conflicting as to why the child was placed in the custody of his paternal grandparents, there being evidence in the record that it was due to his mistreatment by the mother, but this is denied by her. In view of subsequent events, however, in our opinion the reason is immaterial, for the evidence clearly shows that she acquiesced in, and made no objection to, the father’s taking the child and placing him in the home of Mr. and Mrs. Garrard.

After the divorce relatrix worked at various drug stores in the City of Shreveport for a nominal weekly wage until a year or so after her second marriage. On December 5, 1939, relatrix married J. D. Graham. She continued to make her home in Shreveport until some time in 1941, when she and her husband moved to Fort Worth, Texas. After leaving Shreveport, her husband worked in various cities, including Fort Worth, Dallas, Oklahoma City, and Cleveland, Ohio, until about August, 1944, at which time he and the relatrix moved to Tyler, Texas, where he had employment as manager of a shoe store. They were still residing in Tyler when this suit was instituted. Of relatrix’ marriage to Mr. Graham a daughter was born who was approximately two and one-half years old at the time of the trial.

Relatrix’ second husband, was earning $25.00 per week at the time of their marriage. Subsequently he was employed by several different companies, and his salary increased steadily. At the time the suit was instituted, he was earning over $300.00 a month.

Clarence .S. Garrard, divorced husband of relatrix and father of the child, entered the Armed Forces of this country on March 10, 1942, and was killed in Belgium on December 25, 1944. On Sunday, January 21, 1945, his parents, respondents herein, shortly after being notified of his death, went to Tyler to request of relatrix a waiver of her right to be appointed tutrix of her minor son, so that Clyde Garrard, the grandfather, could be appointed tutor to collect for the minor government insurance carried.by the deceased father in favor of the minor. Re-latrix agreed to sign a certain document which they presented to- her in connection with this matter, but, upon being informed that her signature to the document would not be legal if placed thereon on Sunday, she agreed to sign the document the next day and mail or take it to respondents in Shreveport. , Respondents heard nothing further from relatrix until this suit for the custody of the child was filed some nine days later, on January 30, 1945.

Relatrix in her petition averred that she was not interested in obtaining the insurance or other money to be paid by the United States government to the minor child; that she did not need the money for the support and maintenance of the child during his minority; that she was willing for the court to order the money placed in a trust fund for the benefit of the child and to be paid him at such time as he should enter college or reach the age of majority. There is no evidence in the record showing anything to the contrary.

The little boy whose custody is the subject of this controversy has been in the care and under the custody and control of his paternal grandparents since he was about 16 months old, or for a period of approximately eight years at the time the present suit was instituted (now about 10 years), and he has all this time depended upon his grandparents for parental love and care. At the time this suit was instituted, each of the grandparents was 48 years of age, and Mr. Garrard had been established in the retail ice business for 26 years; The trial judge, who saw the child and heard the testimony of all witnesses, pointed out in his reasons for judgment that the child was well cared for, loved, properly treated, well mannered, happy, contented, and well dressed. From our reading of the record we are convinced that these grandparents loved this child as if he were their own.

During the many years while these respondents have had the care and custody of the child, relatrix has contributed vei'y little for his care and maintenance. However, she did on special occasions, such as Christmas- and birthdays, send him gifts. It is true that for a few years after her divorce from the father of the child she was financially unable to contribute anything to his support or maintenance, and, if this fact alone prevented her from claiming his custody, the courts would not now construe it against her and would not deprive her of the child’s custody. She stated that in recent years she did not contribute anything to the child’s care and maintenance because she was of the opinion that he was being well treated and properly provided for and was not in want.

Under the law of this state, the parent has a superior right to the custody of his or her minor children over third persons, and relatrix relies principally on this rule of law to obtain the care and custody of the child in the instant case. As pointed out in numerous decisions of this court, however, this right of the parent is not unquestionable or absolute, but must yield to the superior right of the State to deprive a parent of the Care and possession of the child in the event the physical, moral, or mental welfare of the child requires it. State ex rel. Stockstill v. Spiers et ux., 170 La. 454, 128 So. 275; State ex rel. Pitre v. Lefort, 179 La. 919, 155 So. 435; State ex rel. Castille v. Cooke, 183 La. 404, 164 So. 153; State ex rel. Guinn v. Watson, 210 La. 265, 26 So.2d 740; and. authorities therein cited.

The trial judge in his reasons for judgment pointed out: “One thing that impressed the court from the evidence in the case (as well as the attitude of relatrix on the stand) that there was a lack of motherly-affection by relatrix for the minor, as the court is able to appreciate or understand mother love. * * * ”

We, like the trial judge, are impressed by the mother’s apparent lack of interest in the welfare of the child and her indifference to him over a long period of time. Although relatrix remained in Shreveport for about two years after the child had been taken to live with his grandparents, she saw him infrequently and displayed little interest in his welfare. So far as the record shows, after she left Shreveport she never wrote to inquire as to the child’s happiness, well-being, financial situation, and health; certainly she was not in close correspondence with Mr. and Mrs. Garrard, and, if she heard frequently of the child through her mother, who lived in a small town near Shreveport, or her sister, who lived in Shreveport, the testimony does not bring out -this interest on her part. She saw the child during the years spent away from Shreveport on infrequent occasions only, when she returned to visit her mother. The fact that she has given no valid reason for this lack of interest, and the fact that she herself was on good terms with the Garrards and had free access to her child at all times clearly indicate to us that the trial judge was correct in his appreciation of the evidence in this case.

The child is well, happy, and contented with his grandparents, who have given him the love and affection of a real father and mother, and we believe that his happiness and welfare — the paramount considerations in this case — would be best served by leaving him in their care.

This court has said that reasonable latitude must be left to the trial judge in matters affecting the welfare of children, and that his judgment based upon the facts disclosed in any case is entitled to great weight. State ex rel. Johnson v. Ashmore, 197 La. 971, 2 So.2d 897; State ex rel. Guinn v. Watson, supra, and authorities therein cited.

For the reasons assigned, the judgment appealed from is affirmed at relatrix’ costs.

FOURNET, J., dissents.

McCALEB, J., concurs in the decree.

O’NIELL, C. J., absent.

BOND, J., dissents with written reasons.

BOND, Justice

(dissenting).

Under the express provisions of the Revised Civil Code and under the jurisprudence of this state, a parent has a superior right to the custody and control of his oilier child over third persons; and upon the death of the father the mother is rightfully entitled to the custody of a minor child, unless strong reasons are shown that she should be deprived of her natural and legal rights. R.C.C. Arts. 216 and 250; State ex rel. Martin v. Talbot, 161 La. 192, 108 So. 411, and Higginbotham v. Lofton, 183 La. 489, 164 So. 255. The jurisprudence is also clear that courts are not authorized to interfere with a parent’s right to his or her child except in cases where the physical or moral welfare of the child is endangered by neglect or abuse, or immoral habits on the part of the parent. State ex rel. Perdue v. Carkuff et al., 182 La. 920, 162 So. 729; State ex rel. Burleigh v. Savoie, 185 La. 985, 171 So. 98.

The respondents herein base their claim and a denial of the relatrix’ rights to the care and custody of her minor child on the ground that the relatrix has neglected and abandoned her child and that the welfare of the minor will be best served by allowing him to remain with them.

In the majority opinion it is said: “We, like the trial judge, are impressed by the mother’s apparent lack of interest in the welfare of the child and her indifference to him over a long period of time. * * * ” And the conclusion reached by the majority opinion is that the happiness and welfare of relatrix’ minor son would be best served by leaving him in the care of his grandparents.

Having carefully reviewed the evidence, I am constrained to differ with the above holding, finding nothing in the record or the law applicable to this case which convinces me that the relatrix is not a suitable person and should not he given the custody and care of her minor son.

It appears that after the relatrix obtained her divorce in 1938, her husband defaulted in the payment of $12.50 per week alimony, and being without any financial means whatsoever, she permitted him to take their son, then a year and a half old, to the home of his parents with whom he then lived and where the child still remains. Relatrix thereafter secured employment and, although testimony was introduced to show that she did not visit her child in the home of the paternal grandparents or have him at her home, it was shown that she did visit him at the home of her parents and at the home of her sister, and that she sent him gifts on holidays and birthdays. (Thus the child was not neglected nor isolated but was included in the mother’s affections and those of his mother’s family.) Relatrix remarried in December 1939. It is shown that her second husband was transferred from state to state in his employment, and, because of this, in addition to the fact that . for several years — 1939-1944—his salary was small, it would not have been conducive to the interest and welfare of the child to have been taken from the home of his father during that time. It was only after relatrix and her husband established their home in Tyler, Texas, in 1944, where he is manager of a shoe store and earns a salary and commission of about $320.00 per month, that relatrix for the first time since the father took the child, was in a position to care for the child. The father of the child then being in the Military Service, relatrix refrained from making demand on the grandparents for the custody of her minor son. However, in January, 1945, upon learning of her former husband’s death overseas, relatrix immediately instituted suit for the custody of her son.

The principal question presented is whether the relatrix, who has' a superior right to the custody and possession of her child, is, for any of the reasons advanced by the defendants, unworthy of the tutorship and possession of her child, or is incapable of taking care of him.

The trial judge held that the mother had neglected and abandoned the child and that there was a lack of “mother affection in her attitude toward the minor as the court is able to understand mother love.” Unquestionably, courts have some discretion in dealing with the custody of minor children, but that discretion has to be based on solid and substantial grounds.

In State ex rel. Kearney v. Steel et al., 121 La. 215, 46 So. 215, 16 L.R.A.,N.S., 1004, it was held: “A widow, who by reason of her necessitous circumstances at the time places her little son in the care and custody of its paternal grandmother, and leaves him with her for several years, does not thereby forfeit her right to reclaim her child when she comes later to better fortune. Her act in so leaving the child did not imply a promise on her part never to retake him. * * * ”

The objections urged by the grandparents to the surrender’ of the child to his mother are such as would naturally arise from the situation of taking a child from them who has been greatly endeared to them. It has been established that the child is well cared for and secure in the home of his grandparents and is - contented there. On the other hand, the writer‘of this dissenting opinion is satisfied that there is nothing in the record to indicate that re-latrix’ minor son will not attain that position and soon be well satisfied and happy if placed in the care and custody of relatrix, his mother. As is shown by the record, relatrix and her present husband'are willing and able to support her minor son. They are respectable people and enjoy a good reputation in the community in which they live.

The main charge is of relatrix’ neglect, indifference and lack of interest in her child’s welfare over a period of several years. I am of the opinion that relatrix did not by leaving her child with its paternal grandparents, after its father had joined the Armed Forces, forfeit her right to his’ care and custody; nor did this imply a promise on her part never to retake him. I am of the opinion that she permitted the child to be taken from her by the father only after she realized that by being forced to earn her own living she would be unable to personally care for him. She might well have felt that she had to sacrifice her own feelings for the child’s good. While she was not in a position to support him, she was willing to leave him with others better able to supply his wants. This fact by no means would exhibit “lack of mother affection” for the child. It appears that relatrix was married at the age of 16 years and at the age of 19 years she was experiencing the disappointments and difficulties of a home wrecked by divorce, and was left entirely without financial means and with an infant a year and a half old to support. Considering all of these facts, I feel justified in stating that relatrix did not wilfully surrender or abandon her child but that she had the intention and hope of bettering her own condition so that she could later reclaim and support him. She is now ready and able to do so and should not be deprived of her son’s custody and control. No evidence was submitted to show that relatrix has led a frivolous and gay life nor has her moral fitness been questioned. In the absence of such showing, there is not sufficient reason why relatrix should not be awarded the custody and control of her minor son.

As for the grandparents, the record shows that relatrix has always been “on good terms” with them, and I believe she would not deprive them of seeing the child, once her authority and rights are recognized. The child’s feelings, if there should be any present disappointment to him, would naturally heal in time.

I cannot agree with the judge of the lower court that his holding docs not preclude the mother from claiming the tutorship of the minor or from future actions to regain the custody of her child. Once the care, custody and control of the minor has been placed in the grandparents it can not be taken away from them without just cause.

For these reasons, I respectfully dissent from the holding in the majority opinion.


author: McBRIDE, Judge.

text:
    PACIFIC FIRE INS. CO. v. EMPLOYERS’ LIABILITY ASSUR. CORPORATION, Limited, et al.
    No. 18857.
    Court of Appeal of Louisiana. Orleans.
    April 12, 1948.
    Rehearing Denied April 26, 1948.

      Indest & Becker and Herman & Herman, all of New Orleans, for plaintiff and appel-lee.
    Edward Richtor and W. H. Sellers, both of New Orleans, for Employers’ Liability Assurance Corporation, Limited, and Dr. Edward L. Levert, defendants and appellants.
   McBRIDE, Judge.

The plaintiff, Pacific Fire Insurance Company, as the subrogee of Dr. and Mrs. Herman deB. Seebold, the owners of the property constituting the uptown-river corner of Prytania and Second Streets in New Orleans, brought this suit against defendants for $255, the amount of damages inflicted upon the fence surrounding the See-bold property as the result of its being run into by one of the two automobiles involved in the accident hereinafter described. The defendants are Dr. Edward L. Levert and his insurance carrier, Employers’ Liability Assurance Corporation, Ltd., and Mr. and Mrs. John Kennedy. There is no dispute, as to the quantum of damages.

The accident occurred at the intersection of the said two streets on July 22, 1946. Dr. Levert was driving his automobile up Prytania Street, and the Kennedy car, which was being driven by Mrs. Kennedy, was proceeding on Second Street in the direction of the river; the two cars collided in the intersection, and the Kennedy car ran onto the sidewalk and crashed into the Seebold fence.

The matter was heard on its merits in the court below, and plaintiff recovered judgment against Dr. Levert and his insurer. The demands against the Kennedys were dismissed. This appeal was taken by Dr. Levert and his insurer from the judgment insofar as it operates against them.

It is to be noted at the outset that no appeal has been taken from that portion of the judgment which dismissed plaintiff’s demands against Mr. and Mrs. Kennedy, and it is obvious that the suit as against the Kennedys is not before us and no consideration can be allotted to it. Thalheim v. Suhren, 18 La.App. 46, 137 So. 874; Vogt v. Jannarelli, La.App., 198 So. 421; Lanza v. Metcalf, La.App., 25 So.2d 453. Therefore, the only question tendered is whether Dr. Levert was in any wise negligent respecting the accident.

The negligence imputed to the drivers is that they operated their respective vehicles in an imprudent manner, and that the accident occurred because of their failure to have their cars under proper control, so as to be able to avoid striking each other. The further charge is made that each car failed to accord the other the right of way. Each defendant denied responsibility for the accident.

Plaintiff, in its petition, relied upon Ordinance No. 13,702, C.C.S., of the City of New Orleans, but the ordinance was not offered in evidence and is not before us, and we are not privileged to take judicial cognizance of its existence. Like any other fact, a city ordinance must be both alleged and proved, and where there is failure to meet these requirements the ordinance cannot be considered. Brandt v. New Orleans Public Service, Inc., 15 La.App. 391, 132 So. 244; Horn v. Draube, 16 La.App. 17, 132 So. 531; Di Leo v. Du Montier, La.App., 195 So. 74.

Although six persons testified regarding the accident, the only eyewitnesses were the drivers of the cars. The testimony of the other witnesses was confined to the location of broken glass, oil and skid marks in the intersection, and is of very little value to the court. There exists the usual divergence of opinion as to speed and distances, and also as to the exact location where the vehicles came together. The Kennedy car was struck by the front part of the Levert automobile at about its left front door, and it is inferable from the testimony as a whole that Mrs. Kennedy had crossed to a point a little beyond the middle of the intersection when the impact occurred.

Mrs. Kennedy stated that there is a “slow” sign at the intersection, and that she stopped completely upon reaching it and observed the Levert car approaching from her left on Prytania Street, she estimating it to be about “three-quarters down,” evidently meaning that it was three-quarters of a block away.

Dr. Levert’s testimony is that he first saw the Kennedy car when he reached about “10 feet, 12 feet” from the downtown curb of Second Street, and that it was in motion endeavoring- to cross the intersection, its front bumper being just about the level of the Prytania Street curb. Plowcver, during his cross-examination, the doctor made the statement that he observed the. Kennedy car when he was about thirty feet from the intersection, and that he saw it “go right across.” As to his reactions, he testified:

“The decision was split second and the only thing I remember was swerving slightly to the left and putting on my brakes. I don’t know if I had time to get the brakes on.”

Mrs. Kennedy insists that after stopping her car she started it in low gear and was proceeding slowly. In this she is borne out by the testimony of Brandstctter, who examined the automobile after the accident and found it still in low gear. On the other hand, Dr. Levert testified that Mrs. Kennedy made no stop, and that her car entered and attempted to cross the intersection at about “fifteen to twenty” miles an hour.

In view of Dr. Levert’s conflicting statements as to how far he was from the intersection when he discovered the presence of the Kennedy car, and taking into consideration the testimony of Mrs. Kennedy as to the location of his car when she reached the intersection, we think that the Levert automobile was farther away than the thirty feet estimated by the doctor.

We experience little difficulty in concluding that Dr. Levert was negligent. He testified that a light rain was falling at the time, that his windshield wipers were in operation, and the streets were damp. Under these circumstances we are inclined to the belief that, on an undoubtedly slippery street, the speed of the Levert car was excessive, and inhibited its driver from stopping or maneuvering it properly in the event of an emergency or danger. The degree of care which a driver must exercise is that which a reasonably prudent person would exercise under the same circumstances. Dr. Levert was bound to know that at street intersections other vehicles might cross his path of travel, and he should have operated his car with that degree of care which was consistent with the existing conditions, and his car should have been under control at all times.

We find no error in that part of the judgment appealed from, and it is, therefore, decreed that 'the judgment, insofar as it affects Dr. Edward L. Levert and his insurer, Employers’ Liability Assurance Corporation, Ltd., is affirmed.

Affirmed.