author: • PONDER, Justice.

text:
    213 La. 332
    GALIANO et al. v. GALIANO.
    No. 35550.
    Supreme Court of Louisiana.
    Feb. 16, 1948.
    Rehearing Denied March 22, 1948.
    E. B. Charbonnet, Jr., of New Orleans, for appellants.
    John D. Nix, Jr. and William J.- Daly, both of New Orleans, for appellee.
   • PONDER, Justice.

This is an appeal from a judgment ordering the specific performance of a contract.

An instrument was prepared by a notary public on June 3, 1937, designed to settle all the disputes in the successions of Joseph Galiano and Paula Giametta Galiano, his wife, and to have the heirs placed in possession of the effects of the successions. In this instrument or ágreement certain real estate in the City of New Orleans was to be transferred to one of the heirs, Joseph Ga-liano, Jr., for a consideration of $5,875.00, cashj the transfer to be made within' thirty days after the heirs were placed in possession. All of the heirs signed the agreement, except Basile Galiano, the plaintiff herein, who declined to sign the instrument because he wanted this property. A contract was entered into between the plaintiff and Joseph Galiano, Jr., the defendant, whereby the plaintiff agreed to sign the instrument, with the understanding and agreement that the defendant would sell the plaintiff the property after he- received it for a Consideration'of $6,600.00 After the plaintiff and the defendant had entered into this agreement, the plaintiff signed the instrument of June 3rd, wherein the heirs agreed, among other things, to transfer the property involved in this suit to the defendant. The heirs were placed in possession of the property of the successions by judgment of the district court on "July 30, 1937. The plaintiff, was notified on October 9th thereafter to appear at the office of a notary public on October 14t,h to sign the necessary acts of sale to'carry into effect the agreement between the heirs as set out in the instrument of June 3rd. The defendant addressed a letter to the plaintiff on October 12, 1937, notifying him that the defendant would execute an act of sale on October 14th, upon payment by the plaintiff of the purchase price of $6,600.00, cash, in accordance with his agreement, and the failure of the plaintiff to' comply would result in a'nullification of their agreement. The plaintiff appeared at the notary’s office on October 14th, but-refused to sign the act transferring the property to the defendant in conformity with the agreement of June 3rd'. The- defendant and the other co-heirs brought suit against the plaintiff on October 20, 1937 to enforce-specific performance of the agreement entered into between the heirs on June 3rd to transfer the property to the defendant. Upon trial of that suit the district court gave judgment ordering the plaintiff to specifically perform his agreement by signing the deed with the other heirs and, upon his failure to do s.o within ten days, that the defendant thereby, became vested with title to the property. This judgment was signed on December 14, 1937. On August 23, 1938 the plaintiff notified the defendant that he was ready to take title to the property in accordance with their agreement. The defendant refused- to appear at the designated place and transfer the property to the plaintiff. On September 5, 1938 the plaintiff instituted the present suit seeking to compel the defendant to transfer the property to him upon the payment of the purchase price in- compliance with their contract. Upon trial of the case the lower court gave judgment ordering the defendant to transfer' the property to the plaintiff within ten days by a formal act of sale and in event of his failure to do so within that time that the plaintiff is recognized as the owner of the property. The defendant has appealed.

The appellant contends that the plaintiff was placed in default by the letter of October 12, 1937 and thereby lost whatever right he had to demand specific performance of the contract. He also contends fhat the plaintiff repudiated his contract by refusing to comply with the contract of June'3rd; 'by resisting the enforcement of that contract; and by asking for the property to be sold at public sale in his answer to the suit.

The appellant endeavors fo treat the contracts separately. Insofar as the plaintiff and defendant are concerned, the two agreements cannot be treated separately for the reason that the agreement between the plaintiff and the defendant was the consideration for the plaintiff’s signing the contract with the heirs.

The heirs were placed in possession of the property on July 30 of 1937. On October 14th the plaintiff refused to comply with the agreement of June 3rd. The heirs brought suit against the plaintiff on October 20th thereafter to. compel the plaintiff to perform his agreement with them. , The suit was finally disposed of on December 14, 1937 by judgtnent for specific performance. The successions were settled on August 23, 1938 and the plaintiff on that day notified the' defendant that he was ready to take title to the property.

It is admitted in the stipulation of facts that the plaintiff would testify that his reasons for refusing to take title to the property on October 14th were because the defendant did not have title to the property; that he was not afforded an opportunity to examine whatever title the defendant might acquire; that he was not to take title to the property until the successions were settled; and that the successions were not settled until August 23, 1938. This testimony is not contradicted.

We do not have -the benefit of the evidence adduced in the heirs’ suit against the plaintiff and there is nothing in this record to show upon what grounds the lower court 'based its judgment in that case. In that case the heirs, except the defendant, were unquestionably entitled to specific performance of the agreement of June 3rd. The plaintiff, insofar as the other heirs are concerned, signed the agreement of June 3rd without any consideration except that called for in that agreement. The defendant is in no such- position because he induced the plaintiff to sign the agreement of June 3rd by an agreement with the plaintiff to sell the property, when he acquired it, to the plaintiff at a stipulated price. There was no date fixed for the transfer of the property to the plaintiff.

We are not impressed with the appellant’s contentions for the reason that he joined with the other heirs to enforce by specific performance an agreement that he had induced the plaintiff to sign under a contract to sell the property to the plaintiff.

The defendant cannot retain all the benefits flowing from his contract with the plaintiff and repudiate the disadvantages. He must either ratify or reject the matter in toto. There is no plea of estoppel .in the record and none is required. It is well settled that the allegations of an answer are open to any obj ection of law or fact without special plea. Replications are not admissible. Roy O. Martin Lumber Co., Inc., v. Hodge-Hunt Lumber Co., Inc., 190 La. 84, 181 So. 865.

There are many cases in the jurisprudence of this State to. the effect that one who has received benefits from a transaction is estopped from repudiating the disadvantages flowing therefrom. One cannot be enriched at another’s expense.- He cannot divide his agreement, but must either accept it as a whole or reject it in toto. Allardyce v. Abrahams, 190 La, 686, 182 So. 717; Smith v. Town of Vinton, 209 La. 587, 25 So.2d 237.

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

O’NIELL, C. J., absent.


source: Caselaw Access Project

author: HAMITER, Justice.

license: Public Domain

text:
    213 La. 338
    STATE v. BROUSSARD.
    No. 38705.
    Supreme Court of Louisiana.
    March 22, 1948.
    Richard C. Keenan and Henry J. Read, both of New Orleans, for defendant-appellant.
    Fred S. LeBlanc, Atty. Gen., M. E. Cul-ligan, Asst. Atty Gen., Herve Racivitch, Dist. Atty.,,and Girard J. Fernandez, Asst. Dist. Atty. both of' New Orleans, for ap-pellee.
   HAMITER, Justice.

In case No. 124-030, on the docket of the Criminal District Court for the Parish df Orleans, the defendant, Edgar Broussard, was charged with having committed the crime of simple burglary on February 9, 1947, a felony under Article 62 of the Louisiana Criminal Codé; and when arraigned on March 10, 1947, he pleaded guilty to the charge. Thereafter he was tried. as a fourth offender under the provisions of Act No. 45 of 1942, the state alleging in the bill of information that he had been convicted and sentenced-in the same court for the commission.of three other felonies as follows: .• ■'

Case No. - Crime Date Length of sentenced sentence ‘ '
, . 97-296 Petty Larceny : 8 Months in Parish on 8/5/39 . 10/20/39 Prison
105-228 Embezzlement on 8/21/41 ; 9, Months in Parish 11/10/41 Prison.
108-835 ■ Theft on 10/9/42 4 Years in La; State-3/5/43 ' Penitentiary as • ' : ■ third offender un-' der Act 45 of 1942

Thé court found defendant guilty as a fourth offender and.sentenced him to serve 20 years in the Louisiana, .State Penitentiary. ■■ He is appealing from that conviction #nd sentence.

Section 1 of Act No. 45 of 1942 denounces the commission of multiple felonies and •sets out, in three subsections, the penalties to. . be imposed ' respectively on second, third' and fourth offenders. ' Section 2 of the statute provides: “This statute shall not be applicable in cases where more than five years have elapsed since the expiration of the maximum sentence, or sentences, of the previous conviction, or convictions, and the time of the commission of the last felony for. which, he has been convicted.”

Réíying on the provisions of Section 2 defendant contends in a demurrer ■ and in a motion in arrest of judgment, filed in the district court and to the overruling of which bills of exceptions were ' reserved, thaf'there must be omitted from consideration in this prosecution the first felony •committed on August 5, 1939, for which he was sentenced on October 20, 1939, to serve eight months in the Parish Prison; and •that, with the omission accomplished, he is ■not punishable as a fourth offender. His •position is that since the provisions of Section 2 refer to but one five year period and mention “convictions” and :“sen£enees”, no conviction can be used to-form the basis for punishment. as an habitual offender where the -sentence therefor expired more than five, years prior’ to :the ■ commission, of the current felony. • And, in this connection, -lie •.shows that there was a lapse óf more than five years between the expiration (June 20, 1940) of his. sentence for the first felony (case No. 97-296) and the date (February 9, 1947) of his committing the more recent or fourth felony.

In urging his contention, defendant argues that all statutes that are penal in nature, such as is Act No. 45 of 1942, must be given a strict construction. Of course, that is the general rule, and it has been consistently recognized by this court. But the rule “* * * is not to be applied with such unreasonable technicality as to defeat the purpose of all rules of statutory construction, which' purpose is to ascertain and' enforce the true meaning and intent of the statute.” Marr’s Criminal Jurisprudence, Volume 1, page 61; State v. Bonner, 193 La. 400, 190 So. 625. A criminal statute, like- all other statutes, should be so interpreted as to be in harmony with, preserve, and effectuate the manifest intent of .the Legislature, and an interpretation ..shpuld be avoided which would operate to defeat the purpose and,object-of the statute. 50 American Jurisprudence, verbo Statutes, Sections 412 and 415; State v. Davis, 208 La. 954, 23 So.2d 801.

To interpret Section 2'of Act No. 45 of 1942 as 'defendant would have us do, and thus to hold that h'is first felony must be excluded from consideration in this prosecution because the sentence therefor expired more than five years prior to the commission of the current, felony, is to render the statute practically meaningless ' and worthless. Under that interpretation he not only could not he punished as a fourth offender, -but also he co.uld not- be punished either as a third or a second offender, even though .less-than-five-years' elapsed between the expiration of his sentence for the- second conviction and the date of the commission of his fourth felony. This is so for the reason that Section 2, immediately preceding the provisions tmder consideration, provides that, “This statute shall not be applicable in cases where * * which means, of course, that the entire statute is inapplicable; it does not state merely that a felony the sentence for which expired more than five years prior to the commission of the current offense shall be excluded from the operation of the statute. Surely, this situation was not intended by the Legislature.

Again, the interpretation suggested by -defendant is productive of unreasonable, perhaps absurd, consequences. For example, suppose a person received a sentence expiring in 1914 for his first felony; shortly after his being released he commits another felony, is convicted, and is' sentenced to IS ^ears, or until 1930; in 1931 he is convicted of a third felony and given a like sentence of IS years to run until 1946; and immediately after the expiration of that sentence he commits and is convicted of a fourth felony, the penalty for which is imprisonment for not more than one year. Continuing, suppose another person after having served three successive sentences for convictions of three separate and independent felonies is convicted of. a fourth felony (carrying no undue severe penalty), it occurring within six years-after the commission of his first felony and within five years after the expiration of the sentence for the first felony. Under defendant’s interpretation, the first criminal mentioned in the hypothetical case could be .punished only as a second offender (the first and second convictions being excluded from consideration) since more than five years elapsed between the expiration of the sentence for his second felony and the date of commission of the fourth offense; and his punishment as a second offender, according to sub-section 1 of Section 1 of the statute, could be “not more than twice the longest term prescribed for a first conviction,” or not more than two years in as much as his last offense carried a penalty of not more than pne year. On the other hand, under defendant’s interpretation, the second criminal is a fourth offender, and he must be,sentenced, according to sub-section 3 of Section 1 of the statute, to imprisonment of not less than 20 years, notwithstanding that his four offenses were ob-vitiusly less grave than the four committed by the first criminal who receives imprisonment, as a second 'offender, of not. more than two years.

We construe Section 2-of Act No. 45 of 1942- tó ;mean that the statute shall not be applicable where a period of five years has intervened between the date of the commission of the current or latest felony and the expiration of the sentence imposed for the next previous felony conviction. Under this construction, in the instant case) had the fourth felony of this defendant been committed more' than five years after the expiration of the sentence for his third felony, no provision of the statute would be applicable and he could be punished only as a first offender. But there occurred no such 'intervention' of five years with respect to his third and fourth felonies or'to any of the'other felonies for which this defendant was convicted and sentenced; hence, the district court properly adjudged'him 'to be a fourth offender.

Our announced construction is in no manner militated against by the use of the plural words “sentences” and “convictions” in Section 2 when it, refers to the “* * expiration of the maximum sentence, or sentences, of the previous conviction, or convictions * .* By such use the Legislature undoubtedly had in mind a case relating to the commission of the next preceding felony where the accused liad been convicted and sentenced therefor (as a first offender), and commenced serving the. sentence, and later had been tried and convicted as a multiple offender (for the same felony and the previous felonies), the court on the latter conviction sentencing him according to Act No. 45 of 1942 then vacating such previous sentence and deducting from the new sentence the time actually served, pnder the sentence so. vacated — all as provided: by. Section 3 of the statute. tAs- to a pase of that kind it seems correct to say that the five years runs from the “* ■* * expiration of the maximum * * ■ * sentences, of the previous * * * convictions.”

Furthermore, when consideration is given to the history of habitual criminal statutes of this state, there can be no question that the construction that we place on the discussed Section 2 is consonant with the legislative intent and purpose in adopting Act No. 45 of 1942. Our former statutes on the subject (Section 974 of the Revised Statutes of 1870 and Act No. 15 of 1928) made mandatory the imposition of sentences that were comparatively very severe, and this irrespective of when the multiple offender’s several felonies were committed and his sentences therefor expired. But our present statute is not nearly so harsh. Under it the minimum sentences are -less severe, as a result of which the judge is in a position to impose a sentence on the offender commensurate with the facts of his case. And of much importance and in keeping therewith it contains the provisions of the discussed Section 2, which were not found in the former laws, rendering the new statute inapplicable when a period of five years has elapsed between the expiration of the sentence imposed for the last previous felony conviction and the date of the commission of the latest felony. By the adoption of all of these less drastic provisions it appears to us that the Legislature had in mind the affording to the criminal a better opportunity for rehabilitation, and felt that if he did not contravene the felony statutes for a period of five years after serving his sentence he should not be classed as an habitual offender..

In connection with and under another bill of exceptions defendant contends that he cannot be adjudged herein a fourth offender for the reason that his second offense of embezzlement, committed on August 21, 1941, is now regarded only as a misdemeanor under Article 67 of the Louisiana Criminal Code, although at the time of its commission it was a felony under Act No. 165'of 1918. The bill of exceptions is without merit. The identical issue was raised in the case of State v. Ambrose, 212 La. 1062; 34 So.2d 261, and we decided it adversely to the defendant.

For the reasons assigned the conviction and sentence are affirmed.


author: FOURNET, Justice. HAMITER, Justice PER CURIAhí.

text:
    213 La. 347
    KENNEDY v. ITEM CO., Inc.
    No. 37437.
    Supreme Court of Louisiana.
    Feb. 16, 1948.
    Rehearing Denied March 22, 1948.

      Charles J. Rivet, of New Orleans, for plaintiff and appellant.
    R. Emmett Kerrigan, of Deutsch, Kerri-gan & Stiles, all of New Orleans, for defendant and appellee.
   FOURNET, Justice.

This appeal presents for our review a judgment of the civil district court for the Parish of Orleans dismissing an action for libel instituted by Kemble K. Kennedy, a member of the bar of this state, against the Item Company, Inc., owner and publisher of the New Orleans Item, a daily newspaper published in the city of New Orleans, and based on the following editorial that appeared in the paper’s edition of April 1, 1942:

“Very Useful Decision
“Somebody has observed that Justice Ponder indulged himself in a lot of wordage when he wrote the Supreme Court’s opinion in support of its unanimous decree upholding the . State Civil Service Act. [Ricks v. Department of State Civil Service, 200 La. 341, 8-So.2d 49.] But after reading it we don’t hesitate to say that it is worth all the space it will occupy in the record.
“For it completely, luminously and patiently kills two dozen or more frivolous, improvident, and baseless contentions raised against this great piece of legislation. It marshals the ruling jurisprudence that destroys these devices of ¡political bushwhack-ery, and does not hesitate to say at several points that ‘precedents’ cited against the act in no wise apply to it. . .
“The opinion cannot be read, in our judgment, without giving a discriminating reader one or another of three impressions:
“Either the lawyer who brought such a case into court on-such grounds is professional incompetent in general and surprisingly ignorant of the law and jurisprudence governing this particular subject matter, or else:
“He is a pettifogger who was mischievously bent on impeding a great reform demanded by the people, without regard to his chances of success in achieving his ostensible purpose, or else:
“He hoped to ‘get a verdict’ motivated by political bias on the part of the judiciary, father than indicated by sound legal considerations.
“One or another of these theories must be correct because the same jurisprudence that the courts have followed was all open to this distinguished barrister before he came to court. And the Ponder 'opinion makes it' abundantly -dear that he did not have ‘a leg to stand on’ in the beginning.
“If he were even an average poor lawyer he would have known this himself.- If one or both of the other theories- explains his action, that carries its own implications.
“In any case the outcome disposes of -any myth that may have arisen from the persistence and prominence with which Mr. Kemble K. Kennedy has associated himself with litigations to break down the reforms decreed of late by the people o-f Louisiana. He is not a great lawyer, shining in the armor of legal- lore, and burning with pious zeal in a holy cause — even were it only to restore the despotism that our people have destroyed. He is only the sort of lawyer who fits into one or more of the dubious grooves that we have pointed out.
“The same- thing can be--said of one or two other legal lights of the old despotism who have been with or behind Kennedy in other láwsuits to abort the measures the people have demanded. One of them seems to be a smarter fellow than Mr.- Kennedy. But when the score is cast up it will be found that few of their attacks prospered, and that they have achieved little or no irreparable destruction.”

The plaintiff claims that the aspersions contained in this editorial constitute an unwarranted, scurrilous, false, malicious, and libelous attack on his professional skill and on his personal and professional character and reputation, exposing him to disrepute and ridicule and bringing him in contempt before his colleagues, the courts, and the general public. For this defamation he seeks to recover $5,000 for his humiliation and mental suffering: $10,000 for injury to his personal and professional reputation; •and $15,000 as additional compensatory damages for injury done him in the acquisition of clients and the loss of public confidence.

The right of freedom of speech and of the press as understood and enjoyed in this ■country today is one of the foundation stones upon which American liberty -was built. It is the pillar without the support of which free governments fall and tyrannical dictatorships rise. Prior tó the establishment of our democracy, no people on •earth had ever been accorded the privilege of “speakingTheir mind” -with that lack of restraint modern civilization’s concept of freedom-'of expression connotes. To those valiant- men who guided the thirteen colonies. through their revolutionary struggle that freed them from the. oppressive yoke of the parent country and wrote the ¡laws of the. young nation is d.ue the credit of early realizing that th.e right to. freely , express.one’s sentiments through the medium of public communication is absolutely essential to the-perpetuity of free government; t-hat only in. this way could they live in freedom an-d happiness and be secure in their independence. The original states were so-imbued with the necessity of securing to themselves, this innate right -and of maintaining it, inviolate for posterity that they were cautiously, slow in uniting under a constitutional form of government until they were'-assured that -this right, among others, would be preserved to them by the adoption of the Bill of Rights amending the constitution, in the first of which we find the prohibition restraining Congress from making-any' law abridging the freedom of speech.

But in securing to themselves this unqualified right, they never intended to place those exercising it wholly beyond the reach of the law and unaccountable for the abuse of the privilege. As was so aptly pointed out by Justice Kent of New York in the, celebrated case of People v. Croswell, 3 Johns.Cas. 337, at page 393, .decided in 1804, “The founders of our governments were too. wise and too just, ever to have intended, by the freedom of the press, a right to circulate falsehood as well as truth; or that the press should be the lawful vehicle of malicious defamation, or an engine for evil and designing men, to cherish, for mischievous purposes, sedition, irreligión, and impurity. Such an abuse of the press would be incompatible with the existence and good order of civil society.” In this same opinion the organ of the court accepted as correct and accurate General Alexander Hamilton’s definition -“that liberty of the press consists in the right to publish, with impunity, truth, with good motives, and for justifiable ends, whether it respects government, magistracy, or individuals In other words, as expressed by Chief Justice Parker of Massachusetts in another famous case (Commonwealth v. Blanding, 3 Pick. 304, 15 Am.Dec. 214 — 1825), liberty of the press was secured by the constitutional provisions, "not its licentiousness.1'1 Or, as more- comprehensively stated by Cooley-in his treatise on the Constitutional Limitations, “The constitutional liberty of speech and of the press, as we understand it, implies a right to freely utter and publish whatever the citizen may please, and to be protected against any responsibility for so doing, except so far as such publications, for their blasphemy, obscenity, or scandalous character, may be a public offense, or as by their falsehood' and malice they may injuriously affect the standing, reputation, or pecuniary interests of individuals.” Vol. 2, p. 886. (Italics ours.)

The very foundation upon which the law of libel is laid is the protection of reputation. The right to a good name and fame is as absolute and as essential to the “pursuit of happiness” as is the' right to life and liberty, characterized in our Declaration of Independence a's among those “inalienable rights with which all men, being created equal, are endowed by their Creator.” A man’s reputation is recognized to be as invaluable, and is given the same dignity in the Bill of Rights that comprises Article I of our constitution, as his right to due process of law in the protection of his life, liberty, and property (Section 2) ; freedom of religion (Section 4), freedom of speech and of the press (Section 3) ; peaceable assemblage (Section 5) ; and freedom from unreasonable searches and seizures (Section 7); for in Section 6 of this article we find the guaranty that "All courts shall be open, and every person for injury done him in his rights, lands, goods, person or reputation shall have adequate remedy by due process of law and justice administered without denial, partiality or unreasonable delay.” Thus the general declaration in Section 3 of the Bill of Rights that “No law shall ever be passed to curtail or restrain the liberty of speech or of the press,” is not only qualified by the clause immediately following that “any person may speak, write and publish his sentiments on all subjects, being responsible for the abuse of that liberty,” but also by the specific guaranty in Section 6 that the courts are open for the redress of injury to reputation by the irresponsible use of the right to freely express one’s sentiments. See, Fitzpatrick v. Daily States Pub. Co., 48 La,Ann. 1116, 20 So. 173, 180, Simpson v. Robinson, 104 La. 180, 28 So. 908 and Edwards v. Derrick, 193 La. 331, 190 So. 571. (Italics ours.)

In the Fitzpatrick case this court very succinctly stated these views thusly: “The freedom of speech and liberty of the press, were designed to secure constitutional immunity for the expression of opinion; but that does not mean unrestrained license,, nor does it confer the right upon the editor of a newspaper to print whatever he may choose, no matter how false, malicious, or injurious it may be,' without full responsibility for the damage it may cause. * * * The law is studious to protect the character, as it is to protect the property,, of a man.” Commenting further the court continues: “This rule is not only just and' wise, but, if strictly adhered to and inflexibly maintained and applied by the courts, it will greatly tend to the promotion of truth, good morals, and good citizenship,, by encouraging caution and inquiry into the truthfulness of charges before the damaging publication is made and circulated! throughout the community.”

The defendant is not now contending (nor did it plead or offer any evidence to' prove) that there is any truth in its editorial assertion that the plaintiff is “the sort of lawyer who fits into one or more of” the following “dubious groovesThat he is (1) “professionally incompetent in general and surprisingly ignorant of the law and jurisprudence governing” the Civil Service Law; (2) “a pettifogger;” (3) one who “hoped to ‘get a verdict’ motivated by political bias on the part of the judiciary, rather than indicated by sound legal con-siderationsor (4) one who raises frivolous, improvident, and baseless contentions, as “devices of political bushwhackery." To escape liability the defendant relies, rather, on the contention, that the editorial-is not libelous, invoking, in a special plea, the privilege of fair comment and criticism because, as stated in its brief,, “there can be no question that plaintiff was a public character; that his participation in the litigation in question was a public and political matter; and that the litigation itself and his participation therein were matters of public concern and interest,” and particularly so since he did not participate therein solely in his professional capacity.

The language used in' this editorial, in our opinion, carries within itself and without resort to innuendo such a defamatory meaning that no one of average intelligence could read it without forming the opinion that the plaintiff is a man totally lacking in professional ability or so completely devoid of integrity or character as to be utterly corrupt. That part of the editorial accusing the plaintiff of being “professionally incompetent in general and surprisingly ignorant of the law and jurisprudence governing this particular subject matter” unmistakably traduces his professional ability, and we think that characterizing him as a “pettifogger” adds immeasurably to this injury for it labels him, according to the definition Webster gives us, as “A lawyer who deals in petty cases; an attorney whose methods are mean and tricky; an inferior lawyer * * * A tyro; an incompetent or quack practitioner.” But even accepting the definition of this word as given us by the editor who composed the calumny, the injury to the plaintiff is not lessened for it places him in the category of “a legal practitioner who sets up frivolous and unfounded contentions or who handles the business end of legal business of a small character or in the way not open to the best traditions of the légal profession.” And we can think of a no more defamatory castigation of the plaintiff in his professional capacity [and, we might add, by inference the court] than the remark that “He hoped to ‘get a verdict’ [decision] motivated by political bias on the part of the judiciary, rather than indicated by sound legal considerations.” .(Brackets ours.)

In support of the allegations ■forming the basis of its special plea, the •defendant offered evidence, over the plaintiff’s objection, to establish an incident in -which the plaintiff was involved many years ago while a student at Louisiana State University by reason of certain articles appearing in an anonymous publication known as “The Whangdoodle” wherein he libeled various professors of the university, and also the plaintiff’s announcement, more than a year after -the editorial in question was printed, that he would be a candidate for the office of Attorney General in the following election, as well as a letter addressed by him to another prospective candidate for this same office, the sum and substance of the announcement and the letter being that the plaintiff’s qualification for this office was based on his success in representing aggrieved citizens and taxpayers in their attacks on so-called “reform legislation” which entailed the unconstitutional expenditure of large sums of the taxpayers’ money.

We fail to see what relevancy the -plaintiff’s libel of third persons years prior to the appearance of this editorial and his statements in connection with his announcement that he would seek election to the office of Attorney General, made more than a year after the editorial was printed, could possibly have to the matter that is now before us, particularly in view of the fact that there is not a single word in this editorial referring to the past incident or to the plaintiff’s intention to run for public office, and there is nothing in the pleadings from which the inference can be drawn that the defense was predicated upon the plaintiff’s involvement in the “Whangdoo-dle” incident or upon his statements at the time of his announcement. And the mere fact that the proof of these matters may have established that the plaintiff was a public figure or character is likewise immaterial and irrelevant to the issues before us, for we know of no law that permits a libelous attack, under the guise of fair comment and criticism, on a person’s private character and the destruction of his professional integrity merely because he is a prospective candidate for public office or is interested in matters politic. See, Schwing v. Dunlap, 130 La. 498, 58 So. 162.

In the instant case the evidence shows that while the plaintiff did participate in litigations involving a number of the so-called “reform legislation” acts, in some of which he was successful and in some not, in the suit attacking the constitutionality of the Civil Service Law, which gave rise to the editorial in controversy here, he represented D. Dolan Ricks, a client of long standing and a man of some means, who owns several thousands of acres of land in the parishes of Tangipahoa and East Baton Rouge, as well as mineral royalties and leases.

Despite the statement of the defendant’s editor in his testimony as a witness that any fairminded person (“any fairminded man, a judge, or a bricklayer,” as he expresses it) reading Justice Ponder’s opinion in the matter of Ricks v. Department of State Civil Service, 200 La. 341, 8 So. 2d 49, would form the same opinion of the plaintiff as he did (and as he outlined in his editorial), it is not the defendant’s contention here that such an inference is to be drawn from a reading of Justice Pander’s opinion .(as it of necessity must not be), but, rather, that the editor was at liberty to form his own opinion of the plaintiff and'his ábility as an attorney from the admitted facts (i. e., the language used in the opinion) and to freely express this opinion since the plaintiff played a.leading part in'a matter that was of great public interest and concern, such opinion being privileged as fair comment and criticism.

The trial judge, in his written reasons for judgment, although declaring the generally recognized rule of law- is that “fair comment on matters of public interest must be restricted to criticism of the acts, conduct and works of a man, and may not include attacks on his character or the imputation. of unworthy , motives,” . felt-..constrained to and did follow the view of the defendant as substantially expressed above because of his appreciation of the holding of this court in the. case .of Flanagan v. Nicholson Publishing Company, 137 La. 588, 68 So.. 964, L.R.A.1917E, 510, Ann.Cas. 1917B, 402, and despite the fact that he had himself previously exposed.the infirmity of that opinion in an article written in 1,916 and reported in 1 Southern Law Quarterly 76 (therein he states the error in the case “is in its failure to recognize the distiricT tion between fair'comment and criticism, and privileged conjmunicatio'n,” the, author of the opinion failing to grasp the fundamental limitations on the right of free expression. It applies the broad rules of the law of privilege to a case in which no question of privilege is involved”), since he felt the doctrine of the Flanagan case is still the law, it having been cited with approval by this court in the recent cases of Kennedy v. Item Company, Ltd., 197 La. 1050, 3 So.2d 175, and Martin v. Markley, 202 La. 291, 11 So.2d 593.

With all due respect to the opinion of our learned brother below, we are unable to follow his view that the holding of the Flanagan case sanctions the utterance of false and defamatory accusations injurious to the professional skill or the personal and private character and reputation of an individual, regardless whether, it is done fairly and with an honest purpose, with the result that personal and professional integrity no longer enjoy protection from libelous attack ’when the person being libeled -is in public life or is engaged in a matter of public interest and thus, in fact, abolishing the generally accepted rule recognized by all of the leading American and English authorities (and cited by counsel for the defendant) to the effect that “Every person has a right to comment on matters of public interest and general concern, provided he does so fairly and with an honest purpose. Such comments are riot libelous, however severe in their -terms, unless they are written intemperatély and maliciously.” Newell on Slander & Libel, 4th Edition, 516, Section 477. See, for the English authority to this same effect, Odgers’ Libel and Slander, 5th Edition, page 193. (Italics purs.)

We think a study and analysis of the decision of this court in the case of Martin v. Markley, supra, clearly demonstrates the error into which the lower court fell for that case .is only authority for the generally accepted rule of law as above quoted. There, in disposing of the contention that the libelous letter forming .the basis qf the suit fell squarely within the privilege the defendant hpd under the law to freely discuss the manner ' in. which public officers, discharge their duties and máke fair criticism of and comment .on their official acts (in support of which the Flanagan case was-merely cited as authority along with a number of others), this court pointed out that in making this contention [202 La. 291, 11 So.2d 597] "counsel for defendant have overlooked the principle upon which the rule of fair comment is founded. The defendant undoubtedly enjoyed the right, as a citizen, to criticize the conduct of the plaintiffs respecting the manner in which they discharged their duties, providing the comments were based upon a true or an admitted state of facts. But the privilege does not extend to the publication of false statements of fact concerning public officers. * * * The right accorded extends only to fair comment, but not to falsity in the assertion of facts." (Italics ours.)

In the Kennedy case this court adopted the opinion of the trial judge who found, as a fact, that the truth of the alleged libel was substantially established. Consequently, whatever solace- the defendant may find in some of the expressions used throughout the opinion, they, being unnecessary for a decision in the case, were purely obiter.

Furthermore, we do not think the holding in the'Flanagan case justifies the view given it by the trial judge. In that case the alleged-libelous articles were not editórial denunciations of the plaintiff, as in the case here, but were merely repetitions in the newspaper columns about Washington news of 'the attitude of others toward the acts of Flanagan who as the public representative of some of the labor organizations of New Orleans, his native city, was supporting the efforts of San Francisco in securing the Panama Exposition and acting against New Orleans, which city was also trying-to secure the exposition.

In that case also the truth of the’state-! ments attributed to Flanagan were proved! beyond question. In this case there is neither a pleading nor any proof to support the contention that the plaintiff is either professionally incompetent, a 1 pettifogger, one who expected to get a verdict'b'ec.ause of personal influence with the court rather than by expounding sound legal considera- ¡ tions-, or one who brought such -suits, as devices, of political bushwhackéry. ■ N’oris it! true that any > one can draw the inference from any language, either in words, phras-. es, sentences or the entire opinion of,Jus-* tice Ponder in the Ricks case as a whole, that the attorney who handled the matter ¡ was so corrupt, incompetent, or lacking in! integrity -that he would, of necessity, fall | into one of these groups.

Finally, without going into the rule of privilege and of qualified privilege, the court decided the Flanagan case on its peculiar facts, concluding that while words used in connection with the plaintiff in these news items when standing alone had a very disparaging meaning [137 La. 588, 68 So. 966], “Their sum and substance in the present case amounts to nothing more than to the charge that the plaintiff, being in Washington and occupying there a position of influence which he might have used in the interest of New Orleans, his home town, chose to use ‘it on the contrary in the interest of her rival in the bitter contest going on between them. This conduct appeared to the newspaper to be deserving of the condemnation thus visited upon it, and to call for the expression in question; and, doubtless, a majority of the people of New Orleans felt in the same way.” The Court further pointed out that these words were printed at the heat of a very bitter -fight then raging before Congress, when exaggerated expressions were rather to be expected, and at a time when the molding of public opinion was of importance to the entire corQmunity. The court concluded that the news items , were printed “from no wrong motives, or ill will towards the plaintiff, .but simply in furtherance: of the campaign that.was then being carried on.’

In the instant case the editorial was .not published for the purpose of molding public opinion with respect to the merits’of thqy Civil Service Law.- Act No. 172 of 1940. This act was already a law, the legislature and the people having acted on it long before the editorial was written. And it was also a binding and constitutional piece of legislature, the courts having declared it to be so. There consequently remained no-possible duty on the part of the press to warn the public :o£ any impending : action that was thought-to be adverse to the general welfare of the people. As a'matter of fact, when the ,editor! was. asked on the trial of the casedf in. writing the-editorial he intended to discuss" the Civ-il Service'Law when-he composed the next to the last paragraph, he replied: “No where- from start to finish was my idea to discuss civil service but merely to discuss Mr. Kennedy’s ineptitude and with respect to hi's litigation against civil service. It zms very clear in my mind he was a political person and by common report a candidate for political office, namely, the highest law office in the State of Louisiana, ond^my purposeJ^..this zvas to make it appear tliaEJUfmouid not be a good man to fill such an^office, and that the civil ’service suit,Tf read by any fair-minded man, a judge, or a bricklayer, would lead them to the same conclusion that I had.” (Italics ours.)

Nor was the editorial written with the view of molding public opinion against the /• institution of similar suits attacking otherV ' so-called “reform legislation” for most, if not all, of such legislation had already been questioned and disposed of by the courts. That this could not possibly have been the motive for the writing of this editorial is made abundantly clear by the statement of the author that “The idea of deterring anybody from filing any more suit never occurred to me than kingdom come.”

Although the editor did state (as above shown) his motive for writing this editorial was to relay to the people that in his opinion the plaintiff, who was being rumored as a possible candidate for either Lieutenant Governor or Attorney General, was not a fit man for either of these offices, we fail to find a single utterance in the editorial that would even indicate the plaintiff was a prospective candidate for these offices or any word of warning therein to the public, and particularly to those many thousands who read defendant’s newspaper, that the , . .._ , .. , a-plaintiff was not a fit man for these offices ; , , , ,, . . to which he was presumedly aspiring.

Clearly under these facts the editorial was not privileged under the doctrine of fair comment and criticism and it was, therefore, actionable.

The defendant, however, in brief, claiming that no malice was shown on the part of the defendant and no actual damages were proved by the plaintiff, contends that if it is, liable at all, the plaintiff is -only entitled to recover nominal damages, citing in support of this contention the modern rule with regard to the conditional privilege which newspaper publications enjoy as laid down in the Fitzpatrick case, that is, “that when the publication .is made in good faith, in the ordinary course of the publisher’s business, with good motives, and for justifiable ends and without any intention to work injury to the reputation or character of the subject of it, the party injured will be restricted in Ms recovery to actual damages.” (See citation supra.) (Italics ours.)

/• ' Although the editor asserted on the-witness stand that -he entertained no ill will or malice toward the plaintiff, we think the evidence in this case clearly áncTunmistak-ably shows that the editorial in question was not printed in tbe ordinary course of the publisher’s business in good faith, with good motives, or for justifiable ends. It is our opinion that this libel was calculated to injure the plaintiff in hm reputation and professional standing. Moreover, we regard as no longer’ controverted the doctrine that “The law looks to the animus of the publisher in permitting his columns to be used as a vehicle for the dissemination of calumny, whereby the fair character of an individual may be blasted and his business pursuits ruined. In such a casé it is not incumbent upon the party assailed, by falsehood ’and defamation to show malice against himself on the part of the publisher, nor to prove that he has received injury by the publication. The laza) implies mald-ice in the publisher from the acf'df publishing the libel; not malice in the sense of spite, antipathy or hatred towards the party assailed, but the evil disposition, the malus animus which induced him wantonly, recklessly or negligently, m disi'eqcurd of the I. , , , , , . ,. /rights of others, to aid the slanderer m his , t , , ' . , work of defamation by the potent enginery of the public press, written or printed slander being justly considered more pernicious than that uttered by words only.” Perret v. New Orleans Times Newspaper, 25 La. Ann. 170. (Italics ours.)

In such a case the “publisher is * * * liable, not only for the estimated damages to credit and reputation, and such special damages as may appear, but also such damages, on account of injured feeling, as must unavoidably be inferred from such libel, published in a newspaper of large circulation and position of influence.” Fitzpatrick v. Daily States Pub. Co., supra.

We think this is not only logical and reasonable but is a necessary corollary to the inalienable right of every man to be protected “from defamation, as much as from assault and bodily harm” since “His reputation is his property, and more valuable than property,” and “To maintain one’s good name unimpaired is the anxious concern of all who possess good names.” Simpson v. Robinson, 104 La. 180, 28 So. 908, 909.

This court recognized more than a hundred years ago that it is almost impossible to evaluate in dollars and cents the extent of damage done a professional man who is maliciously, and without cause, charged with being absolutely ignorant of the first principles of the science he professes, since “he cannot administer positive or direct evidence of the injury he may have sustained,” and thus leaving him “in many cases without any adequate remedy at all—if the jury or a Court may not find a guide in the dictates of their own consciences.” Carlin v. Stewart, 2 La. 73, decided in 1830. Since that time this matter has been left largely to the discretion of the courts and in fixing an amount we must, under the jurisprudence, take into consideration the severity of the charges, the motives of 'the publisher, as well as the position of influence enjoyed by the newspaper and the extent of its circulation. We must also take into consideration the fact that the plaintiff, in seeking vindication by peaceful and orderly means, has had to bear with his injured feelings during this long and protracted litigation (extending over almost six years), as well as the time, efforts, and expense expended by him in connection therewith. Besides, although it is as a practical matter almost an impossibility to envision the actual, both present and future, effect this editorial will have on the plaintiff’s business and profession, -we must consider this in our arrival at the proper amount of damages to award him, for it is well known that such matters have an uncanny way of coming to light through one medium or another and confronting the-victim in the future whenever he is being considered, whether in a business venture or in a matter of public or private importance.

The amount to be awarded the plaintiff in this case has given us much concern. Some members of the court believe a substantial allowance would not only be fair and just compensation for the extreme injury done the plaintiff in his feelings, reputation, and profession, as well as the loss and potential loss of business, but that it would also deter the abuse of this right of freedom to express one’s, self and would promote the dissemination of truth, carefully weighed, and make more secure our right of freedom of speech and of the press, thus insuring the continuance of our way of life as contemplated under our democratic form of government. Others believe a lesser, amount would be adequate and would serve the same purpose.

•While it is true, as pointed out by the defendant, that nominal damages only are given in many cases, in these cases the court found that the publication was made in good faith, with good motives, for justifiable ends, and with no malice or ill will toward the victim. Where these things have not been found to be true, the awards have been much more than mere nominal damages. For example, we find that in 1866, where the plaintiff sued the defendant for the statement contained in the pleadings in another suit that the plaintiff had defrauded him, the court awarded the plaintiff damages of $7,500. Rayne v. Taylor, 14 La.Ann. 406; Id., 18 La.Ann. 26. In 1906, the court awarded Mr. Luzenberg, then district, attorney of Orleans Parish and a candidate for re-election to that office, $5,000 damages for insinuations against his private and official character in articles written by D. C. O’Malley and published in the paper of the Item Company, Ltd., predecessor of the defendant in -this case. Luzenberg v. O’Malley, 116 La. 699, 41 So. 41. In Bernstein v. Commercial Nat. Bank, 161 La. 38, 108 So. 117, decided in 1926, the plaintiff, a vice-president of a national bank, was awarded $5,000 for damage done him by the statement in 'only one letter, addressed to the Comptroller of the Currency by certain bank. directors that he had profited by certain lqans. In 1912, in the pase .qf. Schwing v. Dunlap, 130 La., 498, 58 So. 162, 175, this court allowed $5,-000 to the plaintiff, who was the object of a campaign of villification in a country newspaper with comparatively small circulation, although Justice Provosty (who later became Chief Justice) and Justice Monroe,' the author of the opinion who also later became -Chief - Justice,' thought $12)500' would have been more in keeping with the injury done the plaintiff. In’a very power-: ful dissent Justice Provosty' said that the “court has reduced- the judgment to an amount so small that the defendant, if he is as rich as he may he inferred to be from his position in the business world, might feel that he has not paid too dear for the satisfaction he had in- injuring the plaintiff's character, and that, after all, plaintiff has had the worst of it, and be ready to begin again upon occasion.” ' '

We think most appropriate here the'logic of the statement in the case of Simpson v.' Robinson, supra,.that the “Plaintiff, when denounced and villified, did not take into his own hands the redress of his grievance. He appealed to the courts.' This is what the law counsels. The courts shall be open, and every person, for injury done him, shall have adequate remedy. Such is the mandate of the organic law. ' It means stib-stantial redressnot the mere form of it.” To award an inadequate amount, according to this opinion, constitutes “trifling with justice.” (Italics ours.)

As a consequence of the various views entertained by the different members of the court with respect to the amount that should be awarded the plaintiff in this case, and in the light of the awards that have heretofore been given, we have -concluded that the plaintiff in this case’, for the injury done him by this 'unwarranted and libelous attack on his professional skill and on his personal and professional character and reputation, that has exposed him to public and private contempt and ridicule; should be awarded the sum of $7,500.

For the reasons assigned, the judgment appealed from is annulled and set aside and it is now ordered,' -adjudged,, and decreed that the plaintiff, Kemple K. Kennedy, do have, and . recover judgment against the Item Company, Inc., in the. sum of $7,500,. with legal interest thereon from judicial demand until paid.1 All costs are to be paid by the defendant. ‘ '

BOND, ■ J., concurs, but believes the award should be in the amount of $25,000.

■ O’NIELL, C.-JÍ, absent.

HAMITER, Justice

(dissenting).

In my opinion the doctrine of privileged comment respecting the efforts of public or' quasi-public persons,, as enunciated in Flanagan v. Nicholson Publishing Company, 137 La, 588, 68 So. 964, L.R.A.1917E, 510, Ann.Cas.l917B, 402 (not since overruled), is appropriate to this case, and the trial judge, I think, properly and correctly, applied it-in dismissing this suit.

I respectfully dissent.

On Application for Rehearing.

PER CURIAhí.

In its application for rehearing the defendant contends, among Other things, that the court erred in treating the editorial in quéstion as a statement of' fact rather than as an expression Of opinion based on admitted facts (the opinion of Justice Ponder), an issue that had been strongly stressed in its .original argument, both orally and in brief, and .that was predicated üpon the holding of-this' court in-the.case of Dimitry v. Levy, 161 La 11, 108 So. 107, this case- neither being discussed nor distinguished' in the opinion.

This contention is without merit. As our opinion-will reflect, this issue was considered and disposed-of and.in reaching our conclusion with' respect thereto we considered the Dimitry case but did not deem it necessary to discuss or distinguish, it as it so clearly had no application to the case before us since it involved a libel in judicial pleadings that are governed'-by an entirely’ different principle of law-. • ,

' The other points-raised in the application were fully answered in our opinion.'

The application for rehearing is refused.


author: PONDER, Justice.

text:
    213 La. 378
    Succession of MOLAISON.
    No. 38573.
    Supreme Court of Louisiana.
    Jan. 12, 1948.
    Rehearing Denied March 22, 1948.
    Edward F. LeBlanc and John N.ugier, both of Abbeville, for plaintiff and appellant. -
    Davidson & Davidson, of Lafayette, for defendants-appellees.
   PONDER, Justice.

The plaintiff demands to be recognized as the adopted child and ' forcéd heir of Mathilde Molaison, deceased; the annulment of a certain instrument purporting to renounce her interest iii the succession; and to be declared the owner of- an undivided one-third interest in the estate' of the deceased. Her demands were rejectd by the lower court and she has appealed.

The instrument sought to be annulled reads as follows:

“State 'of Louisiana
“Parish of Vermilion
“On this !3th day of March, 1943’ before me the undersigned Notary Public and two competent witnesses, came . and appeared: Varina Ella Smith, a resident of the Parish of Acadia, Louisiana, who' declared that it was her wish and desire to renounce.the succession of Mathilde Moláis,on Greene, of Abbeville, Louisiana, who departed this life March 7th, 1943, to whose succession she is called by virtue of having been adopted by the said Mathilde Molaison Greene as ,a child or daughter many years ago, and .that she does hereby renounce the succession of said Mathilde Molaison Greene and abandon her rights as an heir at law.
“Appearer further declared that this re--' nunciation is made- as a-matter of* conscience on her part, she having long considered many things touching - her adoption and her rearing as a child by others than Mathilde Molaison Greene, and considering also the help and assistance given her in the past by J. N. Greene her husband, and considering what she knows to have been their wishes in.the matter of her succession; these wishes being that she, ap-pearer, would at. the death of Mathilde Molaison Greene, accept Five Thousand' Dollars, from the legatees under the last will of Mathilde Molaison Greene, and renounce her right to any more. •
. ■ “Having' received Five Thousand Dollars from Alzina LeBlanc Scheidt, named Executrix and Residuary Legatee in the last will of.Mathilde Molaison Greene and for the reasons stated above, she makes this renunciation, and sign the same with a clear conscience and free will.
“Signed on this the 9th day of March, 1943, at Abbeville, Louisiana, in the presence of Chas. C. LeBlanc and Wesley Steen, competent witnesses.
“(Sig.) Varina Ella Smith
“Witnesses:
“(Sig.) Chas. C. LeBlanc
“(Sig.) J. Wesley Steen “(Sig.) Paul Langlinais,
“Dy. Clerk of Court and Ex-Officio Notary Public, Vermilion Parish, La.”

The following is written on the back of the'above instrument:

“The renunciation on the reverse side of this sheet is hereby accepted by Alzina Le-Blanc Scheidt, on behalf of herself and the other 'legatees named in the last will of Ma-thilde Molaison Greene.
“(Sig.) Alzina LeBlanc Scheidt “Witnesses:
“(Sig.) ' Chas. C. LeBlanc
“(Sig.), J. Wesley Steen “(Sig.) Paul Langlinais,
“Dy. Clerk of Court and Notary Public, Vermilion Parish, La.”

Mathilde Molaison died, testate and without issue, on March 7, 1943. In her will she, bequeathed her home and its contents to her niece/ Mrs. Alzina LeBlanc Scheidt. She bequeathed legacies to certain parties and the residue or remainder of her estate, which .constituted .the bulk of her estate, to her aforementioned niece.

The ■ plaintiff, Varina Ella Smith, now the wife of Jules Greene, was fifty-two years of age at the. tim'e this case was tried ■ in the lower court'. Her mother died when the plaintiff- was an infant, four months of age, and her father,married,Mathilde Mol-aison some two years thereafter when the plaintiff was-some two or three years of age. After Mathilde Molaison had married Issac Smith, she adopted the plaintiff as her child on October 26, 1896, by an authentic act passed before a notary public and two witnesses, which was duly recorded in the conveyance records of Acadia Parish. Issac Smith died a short time thereafter when the plaintiff was only six years of age. The plaintiff has never resided with her stepmother, except on occasional visits. She resided with her paternal grandmother after the death of her mother until she reached the age of seven years, at which time she was placed in a convent or boarding school. She remained in this convent and another convent until she reached sixteen years of age. She received the equivalent of a high school education at the convent and thereafter attended Southwestern Institute at Lafayette for'a part of one semester. She had no permanent home thereafter until some ten or twelve years ago, at which time she established a home in Rayne, Louisiana. During the interim between the time she left Southwestern Institute and the time she established a home at Rayne, she lived with various relatives and boarded with others part of the time. She was living at the time that Mathilde Molaison died in a small house built out of rough lumber of the dimensions of twelve by twenty-four feet in a poor section in Rayne, inhabitated by people of the white and colored races. For the last twelve years her income at no time exceeded $6 or $7 per month, which was derived from her earnings, until she was placed on the relief rolls of the welfare department. She is presently suffering from an advanced stage of diabetis and a highly inflamed knee, the result of previous accidents, which makes it very difficult for her to walk or get about.

Mathilde Molaison was first married to Issac A. Smith, tire plaintiff’s father.- Issac A. Smith died when the plaintiff was about six years of age. Thereafter and prior to the year, 1912, the exact date is not shown by the record, Mathilde Molaison married J. N. Greene, a resident of Abbe-ville, Louisiana. It appears that J. N. Greene acquired quite a large estate, which was left to his wife, Mathilde Molaison, at his, death in the fall of 1937. J. N. Greene had for many years been a professional and business associate with Judge W. P. Edwards and they owned considerable property and stock in indivisión at the time of Greene’s death. They were engaged in various pursuits together. These pursuits were continued by Mathilde Molaison with Judge Edwards and at the time of her death she owned considerable property, both real and personal, in. indivisión with him. This same property is presently owned by the succession in indivisión with him. The evidence shows that intimate relationship existed between Judge Edwards, J. N. Greene, Mathilde Molaison and the residuary legatee, Alzina LeBlanc Scheidt. The relationship between the Edwards’ family and the members of the residuary legatee’s family with the plaintiff was casual. They have never associated with the plaintiff and had met her only on a few occasions in the early years of the plaintiff’s life.

Mathilde Molaison died in the early hours of the morning of March 7th, in the City of New Orleans, and her body was shipped to Abbeville for interment, arriving at the deceased’s home in Abbeville in the late afternoon of that day. Mrs. Scheidt, who had attended the deceased in her last illness, arrived at Abbeville earlier in the afternoon and went to Judge Edwards’ home where she and her husband read the will. Shortly thereafter, she phoned to Rayne and had a policeman to go to the home of the plaintiff. He carried the plaintiff to a phone in the neighborhood where the plaintiff was informed by Mrs. Scheidt that her stepmother had passed away and asked if she desired to attend the funeral. Upon being informed by the plaintiff that she would like to come but had no way, Mrs. Scheidt informed her that she would send for her. A daughter of Judge Edwards, her fiance, accompanied by Hector LeBlanc, a legatee named in the will and a brother of Mrs. Scheidt, went to the plaintiff’s home in an automobile and brought the plaintiff to Judge Edwards’ home, arriving sometime after dark. Mrs. Scheidt spent the night in the Edwards’ home in a room connecting with the one occupied by the plaintiff. Mrs. Scheidt’s husband, A. E. Scheidt, and her brother, Hector, spent the night at Mrs. Scheidt’s home. On the next morning, March 8th, between 8 and 9 o’clock, .the plaintiff was called into Mrs. Scheidt’s room and introduced to Mr. Scheidt, who had arrived a short time.before, and a conversation took place between the parties. The Scheidts give one version of what was said and the plaintiff gives an entirely different one. According to the Scheidts’ testimony, the plaintiff told them that she had made an agreement with Mr. and Mrs. Greene to accept $5,000 at her death and that was all she wanted because she was ill and would not need more. They testified that they informed her that the estate was worth $160,000 after the bills were paid and that the plaintiff, as an adopted daughter, was entitled to one-third of it, whereupon the plaintiff replied that she was governed by the rules of God and had made an agreement to accept $5,000. The plaintiff testified that, on that occasion, Mrs. Scheidt asked her if there was an agreement between her and her stepmother to accept $5,000 after her death. She stated that her stepmother had always told her she was going to leave the plaintiff $5,000 in her will. She stated that Mr. Scheidt spoke to her about it and told her that if she wanted to see a lawyer that Judge Edwards was a capable one. She testified that neither Mr. or Mrs. Scheidt told her that she was a legally adopted heir or anything about the value of the estate. The plaintiff also testified that her stepmother had always told her that she would leave the plaintiff $5,000 in the First National Bank with her will and that Mrs. Scheidt would be the business manager and see she got it. This conversation took place in the morning and the deceased was buried in the afternoon of that day.

Judge Edwards testified that his wife told him the plaintiff wanted to go home and get through with the succession matt.er before she left. Mrs. Edwards testified that, the plaintiff told her that she wanted to get whatever she had to do done and go home. When Judge Edwards received this information from his wife he phoned Mr. Scheidt and asked him if he intended for him to attend to the renounciation and, upon being informed by Scheidt .that he did, he thereupon requested Mr. Scheidt to drive him to a law office in order to read the articles of the code dealing with renounciation of a succession. While in the car, Judge Edwards informed Mr. Scheidt that he would attend to the ■ probating of Mrs. Greene’s will and the settlement of the succession without cost. Shortly thereafter, Judge Edwards returned home and asked for the . plaintiff to be 'brought into his library. He asked her in effect if she desired to renounce her interest and receive $5,000 in compliance with the deceased’s desires. Upon being informed that the plaintiff did, he prepared notes. He testified that he told the plaintiff that they would have to give some reasons to support the renounciation. According to the plaintiff’s testimony, she was laboring under the impression at all times that the deceased was to leave her a gift of $5,000 and that the transaction was con-fected to carry out that purpose. She testified that she did not know that she was a legal heir or the value of the estate. From her testimony we gather that Judge Edwards did not explain to plaintiff her rights or the value of the estate. Judge Edwards admits that he did not explain to her 'what her interest in the estate was or that she was legally adopted and entitled to a one-third 'interest in the estate. He also admits that he did not show her the will or' tell her the value of the estate. ■ She testified in effect that she relied on Judge Edwards to look after her interest in the matter. As we view Judge Edwards’ testimony, he was evidently relying on the information he had received from the deceased and what the Scheidts had told him.- He did not discuss with the plaintiff her interests or inform her 'of the valué of the 'estate. He was evidently acting for the Scheidts, because he could not^ be the attorney for opposing parties'.

Sometime in thé early part of the night of that day, M'r. 'Scheidt, at the suggestion of Judge Edwards, brought a notary public and two' witnesses to Judge Edwards’ home. Upon their arrival, the notary was taken by'Judge Edwards in a separate room and the instrument involved in this suit was dictated to the notary by Judge Edwards. After the instrument was typed, it was carried by Judge Edwards into the adjoining room where the'plaintiff and the witnesses were sitting. Judge "Edwards read the instrument to the plaintiff iñ'thé presence of the notary and the witnesses and it was signed by the plaintiff, 'the notary and the two witnesses. At the time it was signed no inquiry was made of the plaintiff to ascertain whether she understood her rights or the effect of the instrument she was signing. The notary, Mr. Paul Langlinais, deputy clerk of court for Vermilion Parish, would not state in his testimony that the plaintiff understood the import of the instrument. He stated that he understood, but would not say that the plaintiff did so. One of the witnesses, Mr. Wesley Steen, co-manager of a sirup mill, stated that when the plaintiff was asked to sign the instrument she said, “Well, I suppose so.” After the instrument was'' signed, Judge Edwards invited the parties to have a drink, and all the parties left the room with the exception of Mr. Charles LeBlanc, one of the witnesses to the instrument, a deputy assessor and ex-sheriff of Vermilion Parish, and the plaintiff who remained in the room because they did not desire a drink. Mr. LeBlanc asked the plaintiff to let him see the certificate of deposit given the plaintiff by Judge Edwards, calling for $5,000 as the consideration, and he testifies that the plaintiff told him that Judge Edwards had told her that was all she could get. Ther consideration given to consummate this transaction was the property of Judge Edwards. He states in effect that Mr. Scheidt did not have sufficient funds with him to pay the consideration and that he, Judge Edwards, went into his own files, got the, certificate and gave it to the plaintiff. Shortly after the instrument was .signed by the plaintiff, Mr. Scheidt took it and proceeded to his home, -with the notary and the witnesses, and an acceptance was signed on the instrument by his wife in the presence of the notary and the witnesses. After it was completed, Mr. Scheidt retained possession of it.

The plaintiff remained in the Edwards’ home until March 11th, at which time she was carried back to her home in Rayne.

On March 30th, the plaintiff married Jules Greene, a nephew óf J. N. Greene. The plaintiff testified that shortly thereafter she heard rumors to the effect that she had been defrauded of her rights. Upon hearing these rumors, she went to one of the attorneys representing her in this case'and secured his services to investigate' the matter for her. The attorney went to Crowley, the county seat of the adjoining parish, and found from the records that the plaintiff had been legally adopted by the deceased. Upon securing this information, her attorney approached Mr. Scheidt and asked permission to see the instrument that the plaintiff had signed. The instrument had not been recorded or filed in the suc- ' cession proceedings which had been instituted on March 18th. It was May 4th or 5th that the attorney approached Mr. Scheidt and Mr. Scheidt referred him to Judge Edwards. Judge Edwards referred him back to Mr. Scheidt. It appears that the attorney made several attempts to see the instrument and after being referred back- and forth without avail, the attorney then brought proceedings in the court and secured an order and it was only after the instrument had been produced by order of court that he had an opportuninty to see its contents.

The defendants introduced letters written by the plaintiff to Mrs. Edwards and Mrs. Scheidt, dated March 17, 1943, for the purpose of showing that she.was satisfied with the transaction and had ratified it. When she left the Edwards’ home, Mrs. Scheidt gave the plaintiff some of the deceased’s clothes and other articles. These letters show that the plaintiff was deeply grateful 1 and magnified the value of these articles. It also shows that she felt highly pleased over being entertained, at the Edwards’ home. However, in the letter to Mrs. Scheidt there is this statement, viz: “I had lots of visitors and you can imagine all the questions they asked but I always had a lot of things to say about the funeral, lovely flowers and how well I was received so that throws them in the dark.” The plaintiff was not asked any questions about this statement in the letter. There is a strong probability that this statement indicates that the plaintiff was instructed not to reveal what had transpired. The defendants also introduced a letter written to Mr. J. N. Greene, April 25, 1923, containing the following statements:

“This is a written guarantee of my word of- honor in regard to my renouncing that unjust act of adoption of which you have been made an innocent victim.
“You have no idea how sorry I feel that such a thing was ever done, especially that it caused you so much unnecessary worry and unhappiness, to that extent that you even talk of selling your lovely home, etc. and going out west. Uncle, I know the west is a lovely country and I am sure very pleasant to live in; but when one has spent a life time, and such an honorable one as you have, in a certain part of the country and have all your bosom friends and comrades, not speaking of all your own relatives that must be dear to you, in the same place, it is not so easy to detach yourself from them, so as to speak, and make yourself acquaintances in a strange land.
“What I wish you to bear in mind is this, if for any reason whatever that act of adoption has any thing to do with your going away to another part of the country, I will ask yon to please try and drive those thoughts'out of your mind.
“I never had and never will, of ever being such an ingrate to you and Aunt Mattie’s memory as to make such an unjust act, valid.
“No matter what the law of man say, it is-the law of God that guides my conscience concerning this in a special manner. When I-die I do not want to say in dispair, “Re-metre, omon dieu.” I will be more than satisfied with the $5,000 that both you and Aunt Mattie want me to have at her .death. Not a cent more do I want. On the contrary, if both of you should decide my having less it is perfectly satisfactory to me. Whatever you both wish in the matter, it is also mine. I appreciate the fact that, that is money that would fall from the skies, as I did not earn a cent of it, and it being a voluntary gift from you and Aunt Mattie.
* * " * * * #
“I feel for both of you, that is why I beg of you to try and feel just as you did before you knew of that horrid and unjust act of adoption. I wish I could do something to erase it off of any record whatever and that it would 'be forgotten -forever.”

The plaintiff testified that hef stepmother had informed'her on that occasion that she and her husband were having trouble over the plaintiff and requested her to write the letter. She states that her stepmother dictated the letter to her. She states also that she did not know that she had been legally 'adopted or the import of a legal adoption. According to her testimony, she was under the impression that an adopted child was the child of a stepmother and she never knew, until her counsel had explained it to her, that she had been legally adopted or the import of it. She stated that her stepmother had informed her that she and her husband were going to leave the plaintiff $5,000, which she thought was purely a gift. She also stated that shortly after she had applied to the welfare department for assistance that her stepmother became indignant because she had told them that she was her stepchild and instructed the plaintiff not to tell people that she was her stepmother because she was the wife of another man. She further stated that on the few occasions that her stepmother visited her that her stepmother informed her that she would leave her out of the will if she displeased her and would not leave her the $5,000. The statements in the letter referred to calls for some explanation. If the plaintiff had voluntarily written this letter, she did so to prevent Mr. Greene from leaving his home. If such a condition existed at that time, it certainly passed out of the picture on Mr. Greene’s death. There is no evidence in this record to show that Mr. Greene ever had any intention of leaving and going west. If such had been the case, it would appear that some testimony would have been offered by those so intimately associated with Mr. Greene and his wife. If the plaintiff had voluntarily written this letter, she was undoubtedly led to believe that an adoption was a horrible thing, as evidenced by the statements.

The statements in the letter, to the effect: That is money falling from the sky; a voluntary gift; and not earning a cent of it; evidence the fact that it was considered purely a gift and not an agreement to abandon a legal right for a consideration.

The only explanation of what prompted the writing of this letter was given by the plaintiff. Such being the case, we have no occasion to disbelieve her.

We. have no doubt that it was the desire of the deceased that the plaintiff should not participate in her succession. However, the plaintiff’s testimony throughout shows that she did not know her rights and was laboring under the impression that whatever she received would be purely a gift and if the plaintiff displeased her stepmother that she would receive nothing.

The plaintiff was on the witness stand in the trial of this case for several days and was rigorously cross examined. We have read her testimony and find no discrepancies of any consequence. From the evidence in this case, she is undoubtedly a woman of limited mental capacity. She could not go through this strenuous cross examination without serious discrepancies in her testimony, if she were not telling the truth. While she was at the Edwards’ home, she was taken by Mrs. Edwards to Dr. A. A. Comeaux, the Edwards’ physician, for treatment of her swollen knee. Dr. Comeaux examined her again sometime prior to the trial of this case. He testified that the plaintiff was abnormal and suffering from a decided case of diabetes. He stated that he attributed her dullness to this disease, which had not been treated, to a large exent. He refers to her mental capacity as obtuse. On two occasions during the trial, the plaintiff became exhausted while she was on the witness stand and had to be withdrawn in order to rest. On one of these occasions she was examined by Dr. Comeaux and he informed the court that she should be given a rest because of her condition.

From a careful analysis of all the testimony in this case, it is apparant that the plaintiff was ignorant of her rights and the value of the estate at the time she signed the instrument. Her testimony evidences this fact. It is supported by the testimony of the notary and the two witnesses, before whom the act was passed. It must be borne in mind that the plaintiff did not voluntarily go to the notary and the witnesses to pass the act and that, at the time it was passed, there was no inquiry made of the plaintiff to ascertain whether or not she understood her rights in the premises, or the import of the instrument she signed. The testimony of the notary and the two witnesses undoubtedly corroborates the plaintiff’s testimony and they are disinterested witnesses. The notary would not state that the plaintiff understood the act. One of the witnesses states that the plaintiff, when requested to sign the instrument, said, “I suppose so.” The other witness states that the plaintiff told him immediately after she had signed the instrument that Judge Edwards told her that the consideration called for in the instrument was all she could get. Dr. Comeaux, a disinterested witness, who it appears had only seen the plaintiff on three occasions, indicates the fact that the plaintiff was not overly bright. Judge Edwards, who drew up the instrument did not explain to the plaintiff her rights or the value of the estate. While the plaintiff was under the impression that Judge Edwards was representing her interests, it was error on her part because Judge Edwards could not represent her and those opposed to her interests at that time. In view of all the facts and the hasty manner and the circumstances prevailing at the time that the instrument was executed without the plaintiff having the advice of an attorney, this instrument should be annulled and set aside and the parties placed back in the position they occupied before it was executed. All the parties involved in this suit, except the plaintiff, have had extensive business experience and the plaintiff has had practically none. It may be that much was taken for granted when it was executed, but this does not relieve the situation because the plaintiff had a decided inferior mental capacity to the other parties. We are not prepared to say that an intentional fraud was perpretrated on the plaintiff, but the evidence does show that the opposing parties were cognizant of all the facts and the plaintiff was ignorant of them and laboring under an entirely different impression.

Where parties of somewhat equal experience and mental capacity enter into an engagement, the courts are reluctant to disturb it unless there is fraud. However, it is the duty of the courts to carefully and painstakingly investigate the circumstances surrounding transactions between a person of limited mental capacity and one experienced ih business affairs, in order that- substantial justice might be meted' out.

The defendants introduced a letter from Jules Greene tb the plaintiff, dated October 16, 1912. This letter was written to the plaintiff when she was approximately eighteen years of age. In it the writer informed the' plaintiff that he would not marry her because he had fallen, in love with another. It is stated therein that he' told the other person that he was going to marry a girl who was worth $25,000,' referring to the plaintiff. It is also stated therein that the plaintiff would some day inherit from her stepmother and that her stepmother would be heartbroken when she heard of the writer’s action. The plaintiff testified that she did not pay any attention to this statement at that time. This letter might show that that writer knew or had information, but does not necessarily show that the plaintiff knew she was the legally adopted daughter of her stepmother.

Another letter was introduced to show that the plaintiff was educated because of the phraseology used therein. We have no doubt that persons educated at a convent receive a good literary training but this does not mean that they are familiar with business and legal affairs.

The defendants suggest that the present suit was instituted at the instance of Jules Greene, but there is nothing in the record to show this fact, because the plaintiff testified that Mr. Whitney Mouton was the first person who told her she had been defrauded of her rights. However, if the suggestion were true, it would show that the plaintiff was very credulous and easily influenced.

The effects inventoried in the succession of the deceased is appraised at $225,-421.54, one-third of this amount is more than $75,000. The plaintiff is entitled to the third interest.

Counsel for the plaintiff offered to return the $5,000 to Mrs. Scheidt and her husband before this suit was instituted, which was refused.

For the reasons assigned, • the judgment of the lower court is reversed and set aside. The instrument purporting to be a renoun-ciation, passed before Paul Langlinais, deputy clerk of court and ex-officio notary public of Vermilion Parish, on the 9th day of March, 1943, and signed by the plaintiff, recorded in volume 164 of the conveyance records of Vermilion Parish on page 341 under entry number 78360 and recorded in volume 4 of the donation records at page 301 under entry number 78360, is annulled and ordered erased from the records of Vermilion Parish. The plaintiff is decreed the legally adopted child and forced heir of Mathilde Molaison, deceased, and declared to be the owner of an undivided one-third interest in the estate of the deceased. It is ordered that the legacies in the will of the deceased be reduced in accordance with the terms of the will so as to not encroach upon the plaintiff’s interest in the estate. All costs are to be paid by the succession.


author: PONDER, Justice. HAWTHORNE, J.,

text:
    213 La. 400
    FIELDS v. BROWN PAPER MILL CO., Inc.
    No. 38448.
    Supreme Court of Louisiana.
    Feb. 16, 1948.
    Rehearing Denied March 22, 1948.
    Dhu Thompson, of Monroe, for relator.
    Hudson, Potts, Bernstein & Davenport, of Monroe, for defendant-respondent.
   PONDER, Justice.

This case comes to us by way of review from the Second Circuit Court of Appeal. The sole question raised in the application for review is the amount of compensation that should be allowed. However, we examined the record and find that the judgment of the Court of Appeal is correct in all respects except as to the amount of compensation awarded.

The plaintiff is seeking to recover compensation for herself and her minor son from the defendant on the grounds that another son died as a result of injury re^ ceived while in the employ of the defendant and that she and her minor son were wholly dependent upon the deceased at the time he received the injuries which resulted in his death.

Upon trial of the case, the trial court awarded the plaintiff, individually and for the benefit of her minor son, $6.00 per week for a period of 300 weeks. On appeal, the Court of Appeal, 28 So.2d 755, 759, amended the judgment by awarding her, individually and for the benefit of her minor son $6.00 per week for a period not exceeding 300 weeks. The plaintiff applied for and has obtained a review.

We granted a review in this case because of the manner in which the award was arrived at, as stated in the opinion handed down by the Court of Appeal, which reads as follows: “The record in this case shows conclusively that the deceased made regular contributions to his mother’s support by buying groceries for her and giving her sums of money, but all of the testimony is indefinite as to the amount he contributed. We are not convinced that she and her minor son were wholly dependent on deceased, but we do believe that she made out a case of partial dependency and accordingly we approve the award of $6 per week, which would be $3 for each dependent.”

It would appear from a reading of the above reasons stated in the Court of Appeal’s opinion that because the plaintiff did not prove the exact amouht contributed for support that she was not entitled to recover as a total dependent. No other facts are set out in the opinion to indicate a partial dependency.

We have examined the testimony in the case and find that the plaintiff is an elderly Negro woman, who appears to be illiterate. Her testimony is to the effect that she and her minor son were wholly dependent for their sustenance upon the deceased. She stated that she lived in a house at an experimental station without having to pay any rent. She stated that her minor son attended school and worked part of the time. We gather from her testimony that the earnings of this minor son were not sufficient to support him or afford any support to the plaintiff. We see no reason to disturb the judgment as to the award made for the support of the minor because the evidence does not establish the degree of partial dependency. However, the. testimony shows that the plaintiff was wholly dependent upon the deceased for support and she is entitled to recover on that basis. Her testimony is corroborated by some of her relatives and there is no evidence in the record to contradict it. The fact that an illiterate or ignorant person is unable to testify as to the exact amount contributed to her support is not sufficient grounds for denying an award based on total dependency. All of the evidence and the surrounding circumstances must 'be taken into consideration. We have arrived at the conclusion that she was wholly dependent upon the deceased and the award should be increaséd to that extent.

The evidence shows that the deceased was earning approximately $40.00 per week. Under the compensation law of this State, Act No. 242 of 1928, § 8 subd. 2(E) 7, pp, 359, 360, the dependent mother is entitled to 32%% of the weekly wage of the deceased, which will amount to $13.00 per week. The $3.00 per week awarded for the: support of the minor would bring the amount, that should be awarded to the plaintiff for herself and the minor, to $16.00. n

For the reasons assigned, the judgment of the Court of Appeal is amended so as to award the plaintiff $16.00 per week, individually and for the use and benefit of the minor, for a period not exceeding 300 weeks. As thus amended, the judgment is affirmed. All costs to be paid by the defendant.

HAWTHORNE, J.,

dissents from the judgment increasing the award to the plaintiff, being of the opinion that the evidence does not show she was totally dependent on her son for support, and therefore is of the opinion that the judgment of the Court of Appeal affirming the ‘ judgment of the district court should be made the judgment •of' this court.

O’NEILL, C. J., absent.