text:
    ANTOINE v. CONSOLIDATED-VULTEE AIRCRAFT CORPORATION.
    No. 18391.
    Court of Appeal of Louisiana. Orleans.
    Jan. 21, 1948.
    Motion for Application for Rehearing Denied March 4, 1948.
    See 34 So.2d 3Q1.
    F. Irvin Dymond, M. E. Culligan, Jr. and D. Douglas Howard, all of New Orleans, for plaintiff and appellee.
    St. Clair Adams and Son, of New Orleans, for defendant and appellant
   JANVIER, Judge.

This is an appeal from a judgment in favor of Henry E. Antoine against Consolidated-Vultee Aircraft Corporation for damages for physical injuries.

The plaintiff was employed by the United States Navy as a civilian aircraft inspector and was assigned to the plant of the defendant corporation to inspect aircraft for defects before delivery to and final acceptance by the Navy. His duties required that he ascend a scaffold-like structure, called an “engine-stand”, to reach the higher parts of airplanes. Defendant furnished such structures to be used in making inspections. It was placed in position under the aircraft by defendant’s employees. The structure which plaintiff used is a movable, wooden flat-top stand about ten feet square supported by four steel legs about 12 feet in height. An iron ladder is attached to the side of the platform for the purpose of permitting one to easily ascend and descend.

On December 1, 1944, at 1 o’clock, as plaintiff undertook to come down from the top of the platform to the ladder, after making an inspection of certain parts of an airplane, he was injured when the stand swayed, his weight suddenly shifted, and he fell violently to the floor below, sustaining severe physical injuries.

Plaintiff charges defendant with negligence in failing to provide for his use an instrumentality free from vices of construction which could not be ascertained by plaintiff while exercising reasonable care. He alleges negligence in defendant in providing a structure, the legs of which were of different lengths, thereby causing it to sway when he commenced to descend from the top of the platform to the ladder, and in failing to provide the stand with hand holes located in the ladder sides.

Defendant denied any negligence on its part, and, in the alternative, averred that if there was any such negligence, plaintiff’s contributory negligence was the proximate cause of the accident. Defendant charges that plaintiff had used the platform or stand or others similar to it over a long period of time and was thoroughly familiar with the construction of the platform and should have taken care commensurate with his knowledge of such defects and experience in such matters; that plaintiff exercised no care at all and fell because he attempted to come down the ladder in an improper manner considering all then existing conditions; that plaintiff’s reckless conduct, with full knowledge of any defects in the platform or stand, constitutes negligence barring recovery; and that plaintiff had used the platform or stand in question, and ones similar to it, on many occasions and had never complained of it being defective, and, therefore, assumed the risk from any defects existing in the construction of the platform.

The record shows that plaintiff was 49 years of age and had worked for the United States Navy since 1942. From October 10, 1944, to the time of his injuries, he worked every day in the plant of defendant corporation as general supervisor of flight inspection with eight or nine men under his supervision. He was a licensed aircraft mechanic, having obtained his license on March 16, 1930, and he had worked on stands of the general type of the one from which he fell for at least eight or nine years. He was therefore an expert.

There were no eyewitnesses to the accident. Plaintiff testified that when he ascended the ladder and pulled himself to the ,top of the platform by means of the propeller blade, and while he was on the platform for fifteen minutes making the inspection of the airplane, the stand did not rock. He said, however, that, when he attempted to descend, “ * * * I got my feet set to come down the run and just as I was about to come down, the stand shifted this way, and my weight went the other way — went back — -and when it did I tried to grab something but there wasn’t anything there to grab, and I fell down on the ground, from the top of the stand down on the ground.”

He admitted that, as he ascended, he did not notice if there were any hand holes, stating that there was no reason in the world to look for them in ascending. He said that most of the stands he had used at defendant’s plant were equipped with hand holes and that the only one without hand holes was the one from which he fell. He also admitted that when climbing the ladder his hands would have come into contact first with the top of the ladder at the exact location where the slots or hand holes would have been, had there been any, but he said that he had taken hold of the propeller blade when reaching a certain height, leaning forward, and stepped to the top of the stand. He stated that at the time he started to fall half of his body was above the platform, but that nevertheless he would have been able to grab hand holes in the side of the ladder had they been there, but that he could not grab the side of the ladder nor use the propeller blade, which was three or four feet in the middle of the stand, and cannot be reached when “you get a certain distance down.”

Dominick Grisafi, one of plaintiff’s witnesses, was also employed by the Navy and assigned to defendant’s plant. He testified that twenty minutes after the accident he observed one leg of the stand was a “couple of inches” shorter than the others, but the floor was regular in that particular spot. There was no hand hole in the platform, and this fact was known to him because “you could see when you got on top of the platform that it did not have them.” Before the accident and during his employment, he had used the platform several times and it wobbled when he went upon it. Sometimes the ladder would wobble when he was climbing up, and also when he got on top and walked around, it would wobble when he reached a certain point. Sometimes graduated pieces of wood are put under the legs of platforms to even them up when the floors are irregular. Plaintiff, himself, testified that he saw no such blocks around. Grisafi stated that, because the platform wobbled, he took extraordinary care in coming down the platform, when he put his feet on the ladder, to keep from falling.

Moishe Shiff, also an aircraft inspector, saw a lot of people around about fifteen minutes after the accident, and every time they pulled it, the stand went down on one side, so he concluded “one of the legs must have been shorter.” He stated hand grips were cut in the platform a couple of hours afterwards, and the defendant put a red tag on the stand, meaning it was not in a safe condition.

Michael Strassel, an employee of defendant, appeared on the scene fifteen or twenty minutes after the accident, and saw that the legs of the stand were uneven and that the stand would wiggle from side to side. He could not tell what caused it to wobble. When he went up the ladder a little himself, it wobbled. The stand had no hand hole, and in coming down “you” had to put your hand down to the lower rung. The uneven-ne§s of the floor and the difference in the length of the legs of the-stand would make the platform shake or be unsteady. He stated that he wouldn’t go up a platform that shook as he started to go up it, that it wouldn’t be safe. Sometimes he noticed that platforms were unsteady and reported it to the foreman who ordered him to “fix it”.

Henry A. Marchand, an employee of defendant, was familiar with the platform and judged one leg to be two or three inches shorter, but did not make a test.

Defendant’s witness, Leo A. Folse, was ■employed by the company as safety supervisor. He was not present when plaintiff was injured but arrived at the scene five minutes later. He examined the platform .and one of the legs was short from four to -six inches due, he stated, to “a declivity in -the floor.” He stated that the platform was standard equipment and wedged blocks to balance them were used, although that particular scaffold did not have one on it at the time. If Antoine had reported the platform, a tag would have been placed on the •equipment condemning it until repaired. After the accident, the scaffold was tagged .and turn screws placed on the bottom of all legs so that the unevenness of the floor • could be made up with the adjusting screw. The platform did not have hand holes and there were perhaps three others that did not have them. The hand holes on those particular platforms were put on the floor of •the platform ladder — to afford persons a place to hold on to until they got down -on the rung of the ladder — otherwise they could use the uprights of the ladder as hand grips. There were forty-five people in the plant on the Safety Committee during each shift. Folse testified that the notebook which was found where plaintiff fell was .three or four inches by five to six inches, and that it was on the floor and not in his pocket when found. Defendant points to this fact as indicating that plaintiff was either writing in or consulting the notebook as he was descending, instead of taking the care necessary to make certain that he would not fall. It appears that Navy employees moved ladders and scaffolds around to suit their own needs at a particular time.

From the record we have no doubt at all that, as that particular platform was placed at that time, it wobbled whenever any one ascended or descended, and we feel certain, therefore, that it wobbled as plaintiff ascended it and that he must have noticed it.

J. J. Rinaldi, defendant’s other witness, was a fellow civilian Navy employee of plaintiff. He was working on the side of the plane underneath the stand. He saw the ladder wobble when plaintiff started to climb up, and he also heard it wobble because the stand was made of metal and when it would hit the hangar floor, it would make a noise.

It also appears certain that plaintiff knew that particular ladder was not equipped with hand holes as probably most but not all others were. Plaintiff was a very experienced man in that type of work. On innumerable occasions he had ascended and descended such structures. As we have said, we feel certain that he must have noticed the wobbling as he ascended, and he must also have noticed the absence of hand holes. He might have refused to use such a ladder, or he might have insisted that it be made safe. He did neither, but used it as it was.

If it be assumed that defendant was at fault in furnishing such a defective structure, and defendant seems to concede that it was, nevertheless in using it with knowledge of such obvious defects, plaintiff assumed the risk incident thereto, and he should have taken such additional precautions as were made necessary by those defects.

While it is true that hand holes would have made the use of the ladder easier and safer, -it is obvious that had he exercised the proper care, plaintiff could have held on to the uprights of the ladder and prevented himself from falling.

Counsel for plaintiff insists that the rule which we followed in Gremillion v. American Creosote Works, La.App., 14 So.2d 72, is applicable here, and that he should hold that plaintiff was not guilty of negligence in not taking the necessary precautions tc guard against the dangers resulting from the negligence of the defendant. However, in the facts of that case we find a plain distinction from those now under consideration. In the Gremillion case the inspector had been on that particular job for only about a week, and in that week none of the dangers which finally caused the accident had made themselves apparent. We held that during that time nothing had occurred which could indicate to plaintiff that there was any danger, and that he could not be charged with negligence in not guarding against such unknown dangers. Here plaintiff, as we have said, was an experienced man who had many times ascended and descended such ladders and many other similar structures, and he is bound to have known the danger of climbing up and down upon such a structure when it wobbled as this one did.

The facts of the case bring it within the doctrine which we followed in Munson v. Mistretta, La.App., 29 So.2d 402, 403, in which we held that a plasterer experienced “in work requiring the construction and use of scaffolds, knew, or ought to have known, whether the scaffold was safe, regardless of who might have erected it, * *

There are many other cases in which it has been held that persons experienced in a particular line of work should be held to be familiar with the dangers which are apparent from obvious defects. We feel that it is unnecessary to cite these cases. The question is whether, under the facts of the case, it should be put into that group in which it has been held that the experience of the particular person is such that he should have realized the dangers of obvious defects and should have guarded against them, or into that other group of cases in which it was held that under the facts, the dangers were not sufficiently obvious to put the person on guard. We think that this case falls into the former category, and we conclude that had plaintiff, with his experience, used the care and taken the precautions which were obviously necessary, the accident would not have occurred, regardless of the defects in the structure.

Accordingly, it is ordered, adjudged and decreed that the judgment appealed from be and it is annulled, avoided and reversed, and plaintiff’s suit is dismissed at his cost.

Reversed.


source: Caselaw Access Project

author: McBRIDE, Judge.

license: Public Domain

text:
    McCLUNG v. DELTA SHIPBUILDING, CO., Inc., et al.
    No. 18763.
    Court of Appeal of Louisiana. Orleans.
    Jan. 21, 1948.
    Reheai'ing Denied March 1,1948.
    See 34 So.2d 70.

      Dart, Guidry & Price, of New Orleans (Edward F. Wegmann and Henry J. Read, both of New Orleans, of counsel), for plaintiff-appellant-app ellee.
    Christovich & Kearney, of New Orleans (Mark W. Malloy, of New Orleans, of counsel), for defendants and appellees Delta Shipbuilding Co., Inc., and Fidelity & Casualty Co. of New York.
    H. L. Hammett, of New Orleans, for defendants and appellants Delta Shipbuilding Co., Inc., and American Motorists Ins. Co.
   McBRIDE, Judge.

This is a workman’s compensation suit, wherein plaintiff, Louis A. McClung, claims from his former employer, Delta Shipbuilding Company, Inc., and its alleged liability insurers, Fidelity & Casualty Insurance Company of New York aftd American Motorists Insurance Company, compensation at the maximum rate for 400 weeks, plus $500 medical expenses.

The original petition alleges that from November 1941 to February 27, 1945, plaintiff had been in the employ of Delta Shipbuilding Company, Inc., as a “rigger” and in other capacities, and that his occupation was hazardous and came within the purview of the workmen’s compensation statute.

It is further alleged that plaintiff was rendered totally and permanently disabled by injuries sustained in two accidents which occurred during his employment, the dates of which are September 11, 1942, and February 27, 1945. The petition alleges that Fidelity & Casualty Insurance Company of New York was the workmen’s compensation insurance carrier of Delta Shipbuilding Company, Inc., until some time in Oc-tobér 1944, and that the other insurer carried the workmen’s compensation insurance after that time.

In a supplemental petition filed on May 9, 1947, plaintiff further alleged that he was also injured in an accident which occurred on May 10, 1944, at which time the Fidelity & Casualty Insurance Company of New York was the insurer.

All defendants excepted to plaintiff's demands on two grounds, (1) that no cause or right of action was set forth, and (2) that the demand is prescribed, as the suit was not filed until February 18, 1946, more than one year after the accidents of September 11, 1942, and May 10, 1944. The judge below referred these exceptions to the merits.

Defendants admit that plaintiff was involved in an accident on September 11, 1942, but they allege that his injuries were slight and non-disabling, and that he returned to his employment without the loss of time and pursued the duties of his occupation until February 27, 1945. They further admit the accident of May 10, 1944, but claim that plaintiff received no disabling injuries as a result. They deny that they received any notice whatever of the accident of February 27, 1945, or that they had any knowledge thereof, until the present suit was filed; they further allege that if this accident did occur, plaintiff suffered no disabling effects.

After a trial upon the merits in the court below, there was judgment in favor of plaintiff and against the defendants, Delta Shipbuilding Company, Inc., and American Motorists Insurance Company, in solido, condemning them to pay plaintiff workman’s compensation at the rate of $20 per week from February 27, 1945, during his disability, not to exceed 400 weeks, plus the sum of $500 for medical expenses incurred and to be incurred. The expert fees of Dr. Edward H. Maurer and Dr. Irvin G. Cahen, who testified as witnesses for the plaintiff, were fixed at $50 each and taxed as costs against said two defendants. The judgment further maintained the plea of prescription filed by Delta Shipbuilding Company, Inc., and Fidelity & Casualty Insurance Company of New York as to any claims of plaintiff arising from the accidents of September 11, 1942, and May 10, 1944.

Two appeals have been taken from the judgment. Plaintiff appealed from that part thereof which maintained the exception of prescription, and Delta Shipbuilding Company, Inc., and American Motorists Insurance Company have appealed in so far as the judgment awards compensation to plaintiff.

The evidence convinces us, as it did the lower court, that until February 27, 1945, the date of the last accident, plaintiff continued to serve in his customary capacity at the Delta Shipbuilding Company, Inc., and collected the usual rate of pay. Time sheets which were offered in evidence reflect that plaintiff’s only loss of time was two weeks in May 1942, one week in September 1942, and one week in December 1943, which loss was in no wise attributable to any injuries received in the first two accidents. The lower court believed that the disability resulted from injuries which plaintiff received on February 27, 1945. The present suit was filed more than one year after May 10, 1944, and there is nothing in the record indicating that plaintiff was paid compensation for the two earlier occurrences, or that the parties agreed up-on such payments. There is not shown any • circumstance which would interrupt or suspend the application of prescription thereto, and plaintiff’s claim arising from the earlier accidents is clearly perempted. The court below was correct in maintaining the plea of prescription. Sec. 31, Act No. 20 of 1914, as amended, Act No. 29 of 1934.

When this case was called for trial before us, counsel for Delta Shipbuilding Company, Inc., and American Motorists Insurance Company, the appellants from that part of the judgment condemning them to pay plaintiff compensation, moved to remand the case to the lower. The motion reads as follows:

“On motion of Delta Shipbuilding Company Inc., and American Motorists Insurance Company, defendants and appellants herein, through H. L. Hammett their attorney, and on suggesting to the Court that this case should be remanded to the Civil District Court for the Parish of Orleans, Division ‘D’ for the following reasons:
“That newly discovered evidence has. been found which was not available on the-trial of this case which shows conclusively that plaintiff is not disabled and was not disabled at the time of the trial below.
“That the judgment below was obtained, by fraud and perjury on the part of plaintiff, the appellee herein.
“That on further suggesting to the Court that the newly discovered evidence above-referred to and the proof of plaintiff’s fraud and perjury is as follows, to-wit:
“That this case was tried in the lower Court on May 21st, and 22nd, 1947; that at the time of the trial plaintiff testified that he was wholly disabled by reason of back injuries; that he was obliged to wear a back support; and that ‘he could hardly walk’, that plaintiff appeared in Court leaning heavily upon a cane, that he testified that he was unable to perform any kind of work or to exert himself in any manner whatsoever except while sitting down and that he suffered from continual pain in his back; all as will appear from the transcript herein. That between. August 12, 1947 and August 28, less than ninety days after the trial plaintiff was observed by two witnesses nowing (mowing) his lawn and scraping ■and painting his house which work covered not only hours but days and required great •physical exertion as well as perfect and complete physical well being inasmuch as most of the work was performed on top of a ladder; that the performance of said work was entirely inconsistent with plaintiff’s alleged disability and proved conclusively that plaintiff’s claims of disability at the time of the trial were false, fraudulent and perjured; that fourteen rolls of moving pictures were made of plaintiff’s activities on these occasions; that still photographs were made from the .moving picture films which stills are attached to this motion; that the moving picture films are available and should be viewed in whole or in part by this Court so that the character •of the evidence and its conclusiveness as to plaintiff’s disability at the time of the trial may be demonstrated.

“And on further suggesting to the Court that this Court has the power to remand this case for the reception of newly discovered evidence or in case of fraud or perjury or in any case where the interests of justice may require (See Code of Practice, art. 906; Morales v. Burns, La.App., 21 So.2d 893; Orleans, Vilce v. Travelers Ins. Co., La.App., 18 So.2d 243, First Circuit, a compensation case and 19 Tulane Law Review Page 305), it is ordered by the Court that this case be reversed and remanded to the Civil District Court for the Parish of Orleans, Division ‘D’ so that the newly discovered evidence above referred to may be admitted in evidence and for further proceedings had in accordance with law.”

Four medical experts appeared as witnesses. Two of them appeared in plaintiff’s behalf, and the other two, one of whom was Dr. J. T. O’Ferrall, plaintiff’s private physician and a friend of plaintiff and his family, testified as witnesses for the defense. In addition to the medical testimony, there was offered in evidence by agreement of counsel a copy of a written statement submitted by Dr. George C. Bat-talora, who had made an examination of plaintiff at the request of the defendant Fidelity & Casualty Insurance Company of New York, which statement is dated during September 1945. A reading of the testimony of the physicians, and of Dr. Batta-lora’s statement, discloses a sharp conflict as to whether plaintiff has a ruptured in-tervertebral disc, and as to his exact condition. There was a sharp disagreement amongst the physicians as to whether plaintiff was totally and permanently disabled. We are unable to estimate the weight and veracity which should attach to the medical testimony, and ordinarily in a case of this sort would be inclined to approve the factual findings of the trial court, under the well-known rule that such findings will not be disturbed unless there appears manifest error. But there seem to be unusual circumstances in this particular case.

Attached to the motion to remand are sixteen still photographs, of a size of approximately eight inches by ten inches, which are enlargements made from segments of the moving picture films mentioned in the motion. They show plaintiff performing certain tasks at his home. Fourteen of the pictures show McClung painting his house while standing upon a stepladder, and several depict him standing upon the platform on the topmost part of the ladder, in various postures which are incompatible with the theory that he is totally and permanently disabled. It appears from the pictures that plaintiff, at the time they were made, was well able to reach, stretch, climb and do delicate and dexterous feats of balancing, and a view of the pictures instantly forms the impression in our minds that, at that time, plaintiff could be considered nothing but a robust man possessing absolutely no indication of total and permanent disability.

The trial below was held on May 21 and 22,1947 (about two and one-half months before the date on which the pictures were allegedly made), and the reading of Mc-Clung’s testimony shows that he claimed himself to be capable only of performing a woman’s work, such as washing dishes, etc., and mending pots and knitting nets while sitting down. He claimed that his disability was such that if it became necessary to stoop over he found himself in a forty-five degree position from which he could emerge only with the greatest pain. This testimony is not at all consonant with the image of him as reflected by the photographs, and it is difficult to believe that plaintiff, after recovering the judgmenl in the lower court, could physically mend so rapidly as to permit the activities shown in the pictures, or to contort his body into the positions shown therein.

Plaintiff’s counsel object strenuously to a remand of this case, and contend that the defendants’ remedy, if plaintiff has recovered from his disability, is to seek a modification of the compensation judgment after six months, counting from the date of its rendition. In support of that contention, our attention is directed to Sec. 20 of Act No. 20 of 1914, as amended by Sec. 1 of Act No. 85 of 1926, which reads in part: “A judgment of compensation may be modified by subsequent agreement between the parties, with the approval of a Judge of a Court which rendered the judgment sought to be modified, at any time after six months after said judgment of compensation shall have been rendered by the Judge of the trial Court it shall be reviewed by a judge of the Court that rendered the judgment sought to be modified upon the application of either party, on the ground that the incapacity of the employee has been subsequently diminished or increased, or upon the ground that the judgment was obtained through error, fraud or misrepresentation. * ⅜ ⅜»

We find ourselves unable to agree with counsel’s contention. The prescribed procedure for the modification of a compensation judgment was clearly not intended to have any applicability in a matter where the judgment is the subject of a pending suspensive appeal. A party is relegated to such procedure only in those instances where the judgment of compensation is effective and executory. If this were not so, a debtor in a compensation judgment would be in a very unfortunate position— his hands would be tied, and he could do nothing but allow the judgment to become executory, then await the passage of the six months’ period, meanwhile paying the workman compensation, even though the lower court might have erroneously refused to receive competent evidence, etc., or the judgment might have been obtained through perjured testimony or other ill practices. The prescribed method for obtaining the modification of a compensation judgment does not in any way diminish the power of a court to remand in a proper case. This power to remand rests within the discretion of the appellate court, and it should be exercised whenever the ends of justice require such action.

Plaintiff’s counsel further contend that appellate courts have in the past remanded cases for the reception of new evidence only in those instances where it appeared that the party desiring the introduction of the new evidence could not, with due diligence, have procured or tendered the evidence before.

Article 906, C. P., reads as follows: “But if the court shall think it not possible to pronounce definitively on the cause, in the state in which it is, either because the parties have failed to adduce the necessary testimony, or because the inferior court refuse to receive it, or otherwise, it may, according to circumstances, remand the cause to the lower court, with instructions as to the testimony which it shall receive, to the end that it may decide according to law.” (Italics ours.)

While it is quite true that the Code of Practice contains no article which specifically endows an appellate court with authority to remand a case for the reception of new evidence, courts hav« continuously exercised such power when a litigant has procured evidence which is material to his interest, and which he could not, with due diligence, have obtained before. Robison v. Howell, 22 La.Ann. 524; Union National Bank v. Evans, 43 La.Ann. 372, 9 So. 44; Succession of Oliver, 1 La.App. 526. Moreover, an appellate court should remand a cause whenever the nature and extent of the proceedings require it, and such action is largely within the court’s discretion, and should be exercised according to the peculiar exigencies of the particular case. This is especially true when such action is consonant with the ends of justice. Buffalo Specialty Co. v. G. Pitard’s Sons, 14 Or. App. 395; Brasher v. Grant, 1 La.App. 457; Schneider v. Etna Life Insurance Co., 30 La.Ann. 1198; Keller v. Keller, 4 Or.App. 309; Mayer v. Barrow, 182 La. 983, 162 So. 748.

In Vilce v. Travelers Insurance Co., La. App., 18 So.2d 243, 244, decided by our brothers of the First Circuit, an injured workman in an action for compensation applied for a rehearing from an adverse decree, and attached to his application a subsequently obtained certificate of discharge from the Army, which it was alleged was material proof necessary in determining the true extent of his disability. The court remanded the case, on rehearing, for the introduction of this material new evidence, and said: “It cannot be questioned that as an appellate court, we have the right to remand the case for any purpose we should see fit if it has been submitted to us on the merits. Article 906 of the Code of Practice gives us that right. It is therein provided that if the court shall think it not possible to pronounce definitely on the cause, in the state in which it is, ‘either because the parties have failed to adduce the necessary testimony, or because the inferior court refused to receive it, or otherwise, it may, according to circumstances, remand the case to the lower court, with instructions as to the testimony which it shall receive, to the end that it may decide according to law.’ (Italics ours.) It has frequently been held that this article leaves the matter largely within the discretion of the appellate court.” (See also cases cited.)

Furthermore, Sec. 18, par. 4 of the Workmen’s Compensation Act, as amended, Act No. 85 of 1926, § 1, provides in part: “The Judge shall not be bound by technical rules of evidence or by technical rules or (of) procedure other than as herein provided. * * * »

It was the intention of the lawmakers to relax the strict rules of pleading and procedure in compensation cases, and such statutes have in many jurisdictions been held to be paternal in character, and parties have not been required to conform to the strict rules of pleading, evidence or procedure, which are necessary in the ordinary type of case. See Dawson et ux. v. Jahncke Dry Docks, Inc., 18 La.App. 368, 131 So. 743, and Daigle v. Higgins Industries, Inc., La.App., 29 So.2d 374.

We know of no reason why the above rule should not be just as effective in an appellate court as it is in courts of original jurisdiction. We believe that the redactors of the workmen’s compensation statute fully intended to eliminate technicalities so far as possible in actions involving claims by injured employees for compensation, both in the trial courts and upon appeal. The photographs attached to the motion to remand indicate that this cause is a proper one for remanding, in order that further evidence might be adduced respecting the nature, extent and duration of plaintiff’s disability sustained in the accident of February 27, 1945, to afford a proper basis for an adjudication of the matter.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from, in so far as it maintains the plea of prescription filed by Delta Shipbuilding Company, Inc., and Fidelity & Casualty Insurance Company of New York, be and the same is hereby affirmed, at plaintiff’s cost.

It is further ordered, adjudged and decreed that that part of the judgment appealed from which awards plaintiff compensation be reversed, and it is now ordered that this cause be remanded to the lower court for the reception of additional evidence respecting plaintiff’s disability, in order that the trial court might adjudicate the matter on the basis of the evidence heretofore taken and also upon whatever new evidence might be introduced. Costs of the lower court, as well as costs of the appeal taken by Delta Shipbuilding Company, Inc., and American Motorists Insurance Company, are to await the final determination of the matter.

Affirmed in part; reversed and remanded in part.


text:
    PAYNE v. LOUISIANA INDUSTRIAL LIFE INS. CO.
    No. 18750.
    Court of Appeal of Louisiana. Orleans.
    Jan. 21, 1948.
    Hugh M. Wilkinson, A. Miles Coe and James Wilkinson, III, all of New Orleans, for plaintiff and appellee.
    E. B. Charbonnet, Jr., of New Orleans, for defendant and appellant.
   McBRIDE, Judge.

Plaintiff, Ernest Payne, the designated beneficiary in three policies of insurance on the life of Josephine Payne, brought this suit against the insurer, Louisiana Industrial Life Insurance Company, for the sum of $565, with interest, the aggregate amount of the three policies.

Each policy provides in effect that no •benefits shall be payable or recoverable should the insured die as the result of a violation of the law, and that in such case the company is liable only for the amount of the premiums paid. The insurer interposed two defenses, (1) that Josephine Payne died as a result of an illegal operation, an abortion, which is a crime under the laws of this state, and that insured herself was an accessory before the fact to the crime, and (2) that insured’s act causing death was of a heinous and reprehensible character, and public policy precluded defendant from insuring- her against its consequences. From a judgment in plaintiff’s favor, this appeal has been taken by defendant.

The matter proceeded to trial in the court below upon an agreed statement of facts, which is to the effect that the policies were issued by defendant and plaintiff is therein designated as beneficiary; that Josephine Payne died on December 31, 1945, at which time all premiums had been paid on the policies; that her death resulted from acute tetanus following a criminal abortion, to which she had submitted voluntarily.

Defendant’s counsel first contends that deceased was an accessory to the abortion, which is a crime, and that the provisions of the policies absolve defendant from liability.

Abortion is defined and made punishable by art. 87 of Act 43 of 1942 (La.Cr. Code), which reads:

“Abortion is the performance of any of the following acts, for the purpose of procuring premature delivery of the embryo or fetus:
“(1) Administration of any drug, potion, or any other substance to a pregnant female; or
“(2) Use of any instrument or any other means whatsoever on a pregnant female.
“Whoever commits the crime of abortion shall be imprisoned at hard labor for not less than one nor more than ten years.”

It is clear that it was the Legislature’s intention to make the person who feloniously administers a drug or potion, or any other substance to a pregnant female, or who uses any instrument, or any other means whatsoever on a pregnant female, for the purpose of procuring a premature delivery of the embryo or foetus, guilty of the crime of abortion, but it should be noted that the language used is not broad enough to include within its scope a female who consents or submits herself to an abortion. It is true that a female who voluntarily becomes the subject of an abortion, without justifiable medical reason, is guilty of a detestible and revolting offense against the laws of nature, which is universally condemned, but notwithstanding this, such woman is not guilty of any criminal offense known to the laws of this state.

It has been said that one may be guilty of a great moral wrong, while not guilty of a crime. See Landry v. Independent Nat. Life Ins. Co., 17 La.App. 10, 135 So. 110, and Simmons v. Victory Industrial Life Ins. Co. of Louisiana, 18 La.App.. 660, 139 So. 68.

This court, in the case of Simmons v. Victory Industrial Life Ins. Co. of Louisiana, supra, in which Judge Higgins was the organ, passed upon the claim of a beneficiary to recover on an insurance policy, where death resulted fram an abortion superinduced by drugs self-administered by the insured. The policy in that case exempted the insurer from liability if the insured shall “die by his or her own criminal act.” We held that a female who inflicted abortion upon herself was not guilty of a crime under the law, as it then existed, and that the exclusion in the policy did not relieve the defendant of liability. We said:

“Having come to the conclusion that, even if the deceased had purposely brought on, by the use of drugs, the abortion which resulted in her death, she was not guilty of violating any criminal law of this state, the provision of the policy in question is inapplicable.”

Counsel insists that Simmons v. Victory Industrial Life Ins. Co. of Louisiana, supra, is readily distinguishable from the instant case in three particulars: (1) In the Simmons case there was no crime whatever, while in the case we are now considering there was a criminal abortion (a crime) performed with the knowledge and consent of the insured; (2) in the Simmons case the policy clause excepted death resulting from the insured’s criminal act, while the policies under consideration now are not enforceable when death results from anyone’s criminal act, whether it be that of the insured or of another; and (3) in the Simmons case the question of denying recovery for reasons of public policy was not raised or considered.

Counsel has not favored us with any authorities supporting his first two contentions, and our research fails to reveal any. The provision that no benefits shall be payable if the insured should die as a result of a violation of the law clearly contemplated, in our opinion, that the insurer would be absolved from liability only where an unlawful act perpetrated by the insured caused her death. This is the only reasonable construction that can be placed upon the language, for if we should attribute to it the construction contended for, absurd situations would ensue. For instance, if it was the intendment that the insurer would not be liable if the criminal act causing death was that of a third person, a case might arise where an innocent policy holder, without provocation, was feloni-ously killed by another, in which event the insurance company would be relieved of paying the policy, as it could be said the death arose from a criminal act, even though the insured played no part therein, except being the victim. A provision of a life insurance policy relieving the insurer from liability, where death results from a violation of the law, is to be given a reasonable and common sense construction, and we believe the exclusion of liability clause in question was intended to apply only in cases where death resulted from a violation of the law committed by the insured. Moreover, if there is ambiguity it should be resolved against the insurer.

Counsel argues strenuously that defendant should be exonerated because the act causing insured’s death was of a heinous and abhorrent character, and that public policy precluded the defendant from insuring her against its consequences, and defendant cannot be held liable on the policies. There is no ruling of any appellate court in. Louisiana touching this exact point. However, in 1908 this court decided the case of Rhodes, Adm’r, v. Metropolitan Ins. Co., 6 Orleans App. 47, which is somewhat analogous. The facts were that defendant issued a policy of insurance covering the life of Charles Foley, and payable to his estate; several years afterward the insured was convicted of murder and executed. The insurance company resisted payment upon the ground that death by legal execution is not such a death as was contemplated by the parties to the contract, and that public policy forbids recovery when death ensues by reason of legal execution. The policy made no mention of death by capital punishment as being either included or excepted from the risk. In holding for defendant, the court said:

“In 1830 Lord Linderhurst, as organ of the House of ■ Lords in the so-called Fauntleroy case, reported at 4 Bligh (N. S.) 194, says:
“ ‘It appears to me that this resolves itself into a very plain and simple consideration. Suppose that, in the policy itself, the risk had been insured against— that is, that the party insuring had agreed to pay the sum of money, year by year, upon consideration that, in the event of his committing a capital felony, and being tried, convicted and executed for that felony, his assignees shall receive a certain sum of money — is it possible that such a contract could be sustained? Is it not void upon the plainest principles of public policy?
“ ‘Would not such a contract (if available) take away one of those restraints operating on the minds of men against the commission of crime — namely, the interest we have in the welfare and prosperity of our connections? Now if a policy of that description with such a form of condition inserted in it, in express terms, cannot, on the ground of public policy be sustained, how is it to be contended that, in a policy expressed in such terms as the present, and after the events which have happened, we can sustain such a claim?
“ ‘Can we, in considering this policy, give to it the effect of that insertion which, if expressed in terms, would have rendered the policy as far as that condition went, at least, altogether void?’
“The Supreme Court of the United States, in Burt v. Ins. Co., 187 U.S. 362, 365, 23 S.Ct. 139, 47 L.Ed. 216, approves the English case, and goes on to say:
“ ‘It cannot be that one of the risks covered by a contract of insurance is the crime of the insured; there is an implied obligation on his part to do nothing to wrongfully accelerate the maturity of the policy.
“ ‘Public policy forbids the insertion in a contract of a condition which would tend to induce crime, and as it forbids the introduction of such a stipulation it also forbids the enforcement of a contract under circumstances which cannot legally be stipulated for.’
“We deem it advisable to place our jurisprudence in accord with the views announced in the cases above cited.”

Defendant cites three cases from other jurisdictions, in each of which an illegal operation was the cause of death, and contends that they are authority for the proposition which he advances.

In Hatch, Adm’r, v. Mutual Life Ins. Co., 120 Mass. 550, 21 Am.Rep. 541, the court declined to enforce payment of the avails of a policy issued on the life of plaintiff’s wife, who died as the result of an illegal operation to which she submitted without any justifiable medical reason with intent to cause an abortion. One of the defenses was that the plaintiff (the husband of the insured) was so far connected with the cause of the death that he was not entitled to recover. The evidence showed that the operation was dangerous to a woman’s life, which fact was well known by the deceased and her husband. The court denied recovery on the ground that public policy would preclude the issuance of the contract of insurance, saying:

“It is therefore established that this voluntary act on her part, condemmed alike by the laws of nature and by the laws of all civilized states, and known by her to be dangerous to life, did actually result in death. And the question is raised, whether, for a death so caused, the defendant is liable.
“We are of opinion that no recovery can be had in this case, because the act on the part of the assured causing death was of such a character that public policy would preclude the defendant from insuring her against its consequences; for we can have no question that a contract to insure a woman against the risk of her dying under or in consequence of an illegal operation for abortion would be contrary to public policy, and could not be enforced in the courts of this Commonwealth.”

Another of the cited cases is Wells v. New England Mut. Life Ins. Co. of Boston, Mass., 191 Pa. 207, 43 A. 126, 127, 53 L.R.A. 327, 71 Am.St.Rep. 763, wherein plaintiff was the administrator of the insured, and was denied a recovery. The insured’s act in submitting to the abortion came within the exclusion clauses of the policy, but the court based its opinion solely on the ground that to permit a recovery would be contrary to public policy, holding:

“ * * * We do not think it can be questioned that the woman who solicits the commission of the offense, and submits her body for its perpetration, can be regarded as other than a participant in its commission, and is therefore criminally responsible. Viewed in that light, in the present instance, the deceased comes directly within the operation of the prohibitory clause of the policy; for she was actually engaged in the violation of the criminal law of Massachusetts, where the contract was made, and of Pennsylvania, where she was at the time the offense was committed. The act was also highly immoral and illegal, as well on her part as on the part of the person who performed the operation; and therefore it would be contrary to public policy to permit a recovery. Upon the whole case, it was the plain duty of the court below to direct a verdict for the defendant.”

In Jacob v. Prudential Ins. Co. of America, 256 App.Div. 884, 9 N.Y.S.2d 27, affirmed, 281 N.Y. 623, 22 N.E.2d 177, a husband sought recovery of accidental death benefits on a contract insuring the life of his wife, who submitted herself to an abortion and died as a result of the wall of the uterus having been punctured during the course of the operation. A recovery was denied, the court, in a per curiam, observing:

“Judgment and order reversed on the law with costs, and complaint dismissed, with costs, on the ground that the accident, which was the puncture of the wall of the uterus during the performance of an abortion, occurred while the assured was submitting to an unlawful abortion, a heinous crime, and that a recovery on the policy is therefore against public policy. Hatch v. Mutual Life Ins. Co., 120 Mass. 550, 21 Am. Rep. 541; Wells v. New England Mutual Life Ins. Co., 191 Pa. 207, 43 A. 126, 53 L.R.A. 327, 71 Am.St.Rep. 763; Collins v. Metropolitan Life Ins. Co., 27 Pa.Super. 353.”

In addition .to the authorities relied upon by defendant, there are many others from sister jurisdictions, which are pertinent to the proposition now being considered. We also find the case of Mutual Life Ins. Co. of New York v. Culler, 68 Ind.App. 544, 119 N.E. 173, which involved a death caused by an abortion.

An examination of the authorities relied upon by defendant reveals that in each of the Hatch and Wells cases the policies were undoubtedly payable to decedent’s estate, for each plaintiff sued in the capacity of the deceased’s administrator. In the other case, Jacob v. Prudential Ins. Co. of America, the husband of the assured appears to have sued in his individual capacity, and sought recovery on that portion of the policy granting double indemnity for death occurring through accidental means. The claim was founded on the premise that the accident occurred to the insured during her submission to the illegal abortion. Apparently no question was raised with re- • spect to the payment of single benefits.

The instant case can be distinguished from the cited cases. Here the plaintiff is suing for single benefits on a life insurance policy. The record before us does not show what relationship, if any, existed between him and Josephine Payne, nor is it shown that he had any knowledge of the insured’s intention to submit to the operation, or played any part in it. Plaintiff is the designated beneficiary, and seeks the recovery individually and for his own account.

The question presented for our consideration is this: Should the plaintiff here, who is the named beneficiary of life insurance policies, be allowed to enforce collection of the policies where the death of the insured resulted from a criminal operation, the policies not expressly providing against the insurer’s liability for death from such a cause?

It seems to be the general rule in other jurisdictions, in similar situations, for the courts to take into account two different classes of life insurance policies, one class being those policies made payable to the assured’s estate, or to his personal representative by some appropriate designation, and the other class being of those policies in which some third person is nominated and designated as beneficiary. The theory for placing policies of insurance in these two categories is based on the premise that the proceeds of policies in the former class become a part of the insured’s estate on his demise, while the proceeds of policies in the latter class do not constitute an asset of the insured’s estate on his death, and are not subject to administration by his estate representative, but are payable directly, and as a matter of right, to the designated beneficiaries, who receive the avails as the result of a vested interest acquired at the very moment of the issuance of the policy.

The weight of authority appears to be to the effect that a person or his estate should not profit as a result of his own wrongdoing, and that when the maturity of an insurance contract made payable to the estate, or to the personal representative of the insured, is hastened or accelerated by his wrongdoing (such as suicide, or the commission of a crime resulting in the infliction of capital punishment, etc.), even in the absence of any prohibitory clause in the contract, no recovery can be had on the policy. This, it has been reasoned, is because the parties to the contract could not have contemplated such contingency, and the insured cannot, by his own act, be permitted to enlarge and increase the obligations undertaken by the insurer.

It is otherwise in cases involving policies in the latter class, i. e., those running in favor of third persons as beneficiaries, on the theory that the beneficiaries, having acquired a vested interest in the policies, cannot be either divested thereof or jeopardized therein, after issuance of the policies, by any wrongful act of the insured not excluded from coverage, for which they are not responsible.

In the well considered opinion in Mutual Life Ins. Co. of New York v. Guller, supra, the insured died as the result of an abortion (on which cause of death the policy was silent), and the guardian of the beneficiaries brought suit to enforce payment of the insurance. The rights of a designated beneficiary to collect insurance, where the insured’s death resulted from an illegal act, was lengthily discussed by the court, as follows [68 Ind.App. 544, 119 N.E. 175]:

“As a general rule, the courts hold that under the former class of policies there can be no recovery, if the insured has intentionally caused his own death, although such policies may be silent in that regard. Some of such decisions are based on the doctrine that life insurance policies are contracts, which involve the highest good faith of the contracting parties, and hence an insured may not hasten the event which matures the policy and profit thereby. Others are based on an implication that death from such causes are excepted from the conditions which create a liability. While still others are based solely on the grounds of public policy. Among the cases so holding for the reasons stated are the following: Ritter v. Mutual Life Ins. Co., 169 U.S. 139, 18 S.Ct. 300, 42 L.Ed. 693; Davis v. Royal Arcanum, 195 Mass. 402, 81 N.E. 294, 10 L.R.A.,N.S., 722, 11 Ann.Cas. 777; Shipman v. Protected Home Circle, 174 N.Y. 398, 67 N.E. 83, 63 L.R.A. 347; Mutual Life Ins. Co. v. Kelly, 114 F. 268, 52 C.C.A. 154. The same principle has been applied to cases where the death of the insured was the result of his unlawful act, or was due to the commission of a crime resulting in the infliction of capital punishment. Amicable Soc. v. Bollard, 4 Bligh N.S. 194; Hatch, Adm’r v. Mutual Life Ins. Co., 120 Mass. 550, 21 Am.Rep. 541; Wells, Adm’r, v. New England Life Ins. Co., 191 Pa. 207, 43 A. 126, 53 L.R.A. 327, 71 Am.St.Rep. 763; Burt v. Union Central Life Ins. Co., 187 U.S. 362, 23 S.Ct. 139, 47 L.Ed. 216; Northwestern Mutual Life Ins. Co. v. McCue, 223 U.S. 234 [32 S.Ct. 220], 56 L.Ed. 419, 38 L.R.A.,N.S., 57.
“In regard to the latter class of policies, viz. those payable to designated third persons as beneficiaries, the courts hold, as a rule, that a recovery may be had, notwithstanding the insured has intentionally caused his own death, where the policies are silent in that respect. Such determination is usually based on the theory that such beneficiaries acquired a vested interest in such policies at the time of their issuance, and thereafter their rights cannot be affected, by the wrong of the insured, for whose acts they are in no way responsible. Among the cases so holding are the following: Supreme Council, etc., v. Pels, 110 Ill. App. 409; Supreme Lodge, etc., v. Kutscher, 72 Ill.App. 462; Parker v. Des Moines Life Ass’n, 108 Iowa, 117, 78 N.W. 826; Supreme Conclave, etc., v. Miles, Adm’r, 92 Md. 613, 48 A. 845, 84 Am.St.Rep. 528; Kerr v. Minnesota, etc., Ass’n, 39 Minn. 174, 39 N.W. 312, 12 Am.St.Rep. 631; Fitch v. American, etc., Co., 59 N.Y. 557, 17 Am.Rep. 372; Grand Legion, etc., v. Beaty,. 224 Ill. 346, 79 N.E. 565, 8 L.R.A. N.S., 1124, 8 Ann.Cas. 160; Seiler v. Life Ass’n, 105 Iowa, 67, 74 N.W. 941, 43 L.R.A. 537; Morris v. Life Assur. Co., 183 Pa. 563, 39 A. 52; Patterson v. Natural Premium, etc., Co., 100 Wis. 118, 75 N.W. 980, 42 L.R.A. 253, 69 Am.St.Rep. 899; Shipman v. Protected Home Circle, 174 N.Y. 398, 67 N.E. 83, 63 L.R.A. 347.
“The decided cases are not uniform in giving effect to the distinction between the two classes of policies as indicated. Thus decisions may be found which hold that a recovery ought to be permitted on policies of the former class, viz. those payable to the insured or his legal representatives, where there is no provision against liability for death resulting from the causes stated. The line of reasoning usually relied on in such decisions is to the effect that the insurer has expressly agreed to pay on the death of the insured, without excepting death from such causes; that there is no adequate reason for disregarding the terms of the contract on the ground of public policy, and.no more cause for inferring forfeiture or (of) insurance, where death results from such causes, than for requiring attainder, or forfeiture of other property belonging to the assured. Among the cases to this effect are the following: Collins v. Metropolitan Life Ins. Co., 232 Ill. 37, 83 N.E. 542, 14 L.R.A.,N.S., 356, 122 Am.St. Rep. 54, 13 Ann.Cas. 129; Mills v. Rebstock, 29 Minn. 380, 13 N.W. 162; Campbell v. Supreme, Etc., 66 N.J.L., 274, 49 A. 550, 54 L.R.A. 576. On the other hand, there are cases which would indicate that third party beneficiaries ought not recover, where death results from the causes under consideration, although the policy be silent in that regard. The line of reasoning usually relied on in such cases is to the effect that death from such causes is not a risk intended to be covered, or which could legally have been covered by the policy; and, if such be the case, it cannot be construed to cover where death results from such causes in favor of any beneficiary whatsoever. Among the cases so indicating are the following: Mutual Life Ins. Co. v. Kelly, supra; Burt v. Union Central Life Ins., supra; Ritter v. Mutual Life Ins. Co., supra; Northwestern v. McCue, supra; Davis v. Royal Arcanum, supra.
“A careful consideration of the principles involved and authorities cited leads us to conclude that whether the insured die from suicide while sane, or as the result of some unlawful act, or by legal execution or conviction of crime, the effect on an ordinary life insurance policy must be the same, where it is silent as to death from such causes. It is apparent that the authorities are not in harmony, as to what the effect of death from such causes should be, but we are led to believe that the greater weight and better reason is in favor of permitting a recovery by third party beneficiaries, who have acquired a vested interest in such a policy, which is silent as to the effect of death from the causes indicated. * * * ”

The Supreme Court of Illinois, in the case of Grand Legion of Illinois Select Knights of America v. Beaty, 224 Ill. 346, 79 N.E. 565, 566, 8 L.R.A.,N.S., 1124, 8 Ann.Cas. 160, said:

“It has been frequently held that where an ordinary policy of life insurance is payable to the estate of the insured and nothing is said in the contract in reference to death by suicide while the insured is sane, if he commits suicide while sane there can be no recovery on the policy, for the reason, as it is said, that the parties to the contract could not have contemplated a risk which would result from the act of the insured in taking his own life, and that the insured, by hi s own act, could not be permitted to enlarge and increase the risk assumed by the insurer, and having done so, to permit his representatives to recover would be to permit them to take advantage, of his wrong. Ritter v. Mutual Life Ins. Co., 169 U.S. 139, 18 S.Ct. 300, 42 L.Ed. 693. Where, however, a policy of that character is made payable to a third party, and contains no stipulation in reference to the insured intentionally destroying his own life, it is held that in the event of self-destruction of the insured while sane the beneficiary may recover, for the reason that his or her interest became a vested one upon the issuance of the policy and no act of the insured can take away that right, except it be an act which the contract expressly provides shall have that effect Patterson v Natural Premium Mutual Life Ins. Co., 100 Wis. 118, 75 N.W. 980, 42 L.R.A. 253, 69 Am.St.Rep. 899; Fitch v. American P. L. Ins. Co., 59 N.Y. 557,17 Am.Rep. 372; Darrow v. Family Fund Society, 116 N.Y. 537, 22 N.E. 1093, 6 L.R.A. 495, 15 Am.St.Rep. 430; Kerr. v. Minnesota Mutual Benefit Ass’n, 39 Minn. 174, 39 N.W. 312, 12 Am.St. Rep. 631; Seiler v. Economic Life Ass’n, 105 Iowa, 87, 74 N.W. 941, 43 L.R.A. 537.”

Even though Josephine Payne came to her death as a result of the illegal operation for abortion to which she had voluntarily subjected herself, such submission on her part, which was reprehensible and de-testible, cannot be used by the insurer as a valid defense to absolve itself from the payment of the proceeds of the policies to plaintiff, as plaintiff appears individually and as the designated beneficiary,' having a vested interest in the policies. His rights as beneficiary could not be affected, and were not affected in any way by the act of the insured, for which he was in no way-responsible, and there is no reason for disregarding the terms of the contract of insurance and exonerating the insurer on the grounds of public policy.

As to what the defendant’s liability would have been had the policies been made payable to the estate of Josephine Payne, or to her personal representative, we express no opinion and by no means decide.

For the reasons assigned, the judgment appealed from is affirmed.

Affirmed.


author: McCALEB, Justice.

text:
    212 La. 726
    COX v. COX.
    No. 38768.
    Supreme Court of Louisiana.
    Dec. 15, 1947.
    Rehearing Denied Jan. 12, 1948.
    Reid & Reid, of Hammond, for defendant-appellant.
    Ponder & Ponder, of Amite, for plaintiff-appellee.
   McCALEB, Justice.

Plaintiff obtained judgment of separation from bed and board against her husband and was awarded the permanent care, custody and control of their two minor children, Rober-t Joseph and Melva Sandra Cox. The defendant petitioned for and was granted a suspensive appeal from the adverse decision.

In this court, Mrs. Cox has moved to dismiss the appeal, in so far as it suspends execution of that part of the judgment awarding her the permanent custody of the children, on the ground that, whereas such an appeal is authorized under Section 10 of Article VII of the Constitution, the aggrieved party is not entitled to have execution of the judgment stayed during the pendency of the appeal. In support of the motion, she cites Loeb v. Shanton, 168 La. 874, 123 So., 604 and Guidry v. Guidry, 206 La. 1049, 20 So.2d 309, 310, where we said: “There is no right .to a suspensive appeal from a judgment determining who shall have the care and custody of a child. State ex rel. Hahn v. King, 109 La. 161, 33 So. 121; State ex rel. Glaser v. Vickner, 157 La. 521, 102 So. 593; Pullen v. Pullen, 161 La. 721, 109 So. 400; Tate v. Tate, 163 La. 1047, 113 So. 370; Downey v. Downey, 183 La. 424, 164 So. 160; State ex rel. Martinez v. Hattier, 192 La. 209, 187 So. 551; Hattier v. Martinez, 197 La. 121, 1 So.2d 51; Wilson v. Wilson, 202 La. 520, 12 So.2d 258.”

Counsel for appellant recognize, as they must, the force of the foregoing pronouncements. But they contend that this line of jurisprudence does not govern the case because the judge has, in the exercise of his discretion, granted a suspensive appeal and that furthermore, such appeal was proper in view of the fact that the parties, by agreement made during the pendency of the suit below, stipulated that the husband was to have the custody of'the boy and the wife cu'stody of the girl until the case is finally decided.

We find ourselves unable to discern the distinction between this case and the authorities holding that a suspensive appeal does not lie in matters of this kind. In the latest case (Guidry v. Guidry, supra) the father of the little girl had obtained a divorce from the mother and was awarded the permanent custody of the child. Later, the mother instituted a rule in the divorce proceeding for custody of the child on the ground that the father was unfit and, in the alternative, prayed that she be placed in care of the maternal grandparents. After a hearing, the judge consigned the child to the custody of the maternal grandparents and the father obtained a su'spensive appeal from the judgment. We held that the judge should not have granted a suspensive appeal for the reason that, since the child in matters concerning its custody, is a ward of the court and is always subject to the authority of the judge having original jurisdiction, the allowance of an appeal staying execution of the judgment would necessarily deprive him of his control over the custody of the child during the pendency of the appeal.

Counsel for appellant cite the case of Downey v. Downey, 183 La. 424, 164 So. 160, in support of their contention that the judge of the lower court had authority to grant a suspensive appeal. A reading of the Downey case will reveal that it holds directly to the contrary for, there, we sustained a motion to dismiss the, suspensive appeal. However, we refused to dismiss it absolutely and maintained it as a devolu-tive appeal. See also Loeb v. Shanton, supra, where a suspensive appeal from a judgment awarding temporary custody of a ■child was dismissed.

We likewise find no merit whatever in counsel’s other proposition that the agreement between the husband and wife relative to the custody of the children is binding until the case is finally decided on appeal. In the first place, there is some doubt as to whether this agreement was intended to have effect after the matter was decided below. Moreover, even if it was so intended, it could not be recognized because the children became wards of the court having original jurisdiction (see Tate v. Tate, 163 La. 1047, 113 So. 370) and, therefore, could not validly be made the subject of a private contract between the litigants.

The motion filed herein is sustained and the appeal, in so far as it suspends the execution of the order awarding to appellee the permanent custody of the minor children, Robert Joseph and Melva Sandra Cox, is dismissed. The appeal, in respect to the order concerning the custody of the aforesaid children, is maintained as a devol-utive appeal.

PONDER, J., recused.


text:
    212 La. 731
    STATE v. RACHAL.
    No. 38655.
    Supreme Court of Louisiana.
    Dec. 15, 1947.
    Rehearing Denied Jan. 12, 1948.

      James W. Jones, Jr., of Natchitoches, for defendant-appellant.
    Fred S. LeBlanc, Atty. Gen., M. E. Cul-ligan, Asst. Atty. Gen., and H. Lester Hughes, Dist. Atty., of Natchitoches, for appellee.
   McCALEB, Justice.

Bud Rachal and three others were charged in a bill of information with having robbed one William L. Davis. The three other defendants pleaded guilty and were sentenced to serve three years in the state penitentiary. Rachal was tried, convicted and sentenced to a term of four years at hard labor. He has appealed from his conviction and sentence.

There are ten bills of exception in the record but it is not necessary to consider all of them for the reason that some have been abandoned and others have been duplicated. Bill No. 5 was abandoned below and bill No. 1 has been abandoned in this court; bill No. 6 is,a duplicate of No. 4 and bills Nos. 8, 9 and 10, taken to the judge’s action, in overruling motions for a continuance, new trial and in arrest of judgment, are mere reiterations of the points raised in bills Nos. 2, 3, 4 and 7. Hence, we address our attention to the latter.

Bill No. 2 was taken to the refusal of a continuance of the trial because appellant was allegedly not arraigned in person, it being charged that he pleaded not guilty through his counsel.

There is no merit in the bill. The judge denies the allegation concerning appellant’s absence stating, in his per curiam, that he was in court on the day of his arraignment and pleaded not guilty through his attorney. The minutes of the court are in accord with this statement.

Bill of exception No. 3 was taken to the overruling of the motion for a continuance on the ground that appellant was deprived of the right to deliberate as to whether he would be tried by the jury or the judge, inasmuch as the judge failed to advise him of his right of waiver at the time of arraignment, as prescribed by law. Article 259 of the Code of Criminal Procedure declares :

“In all felony cases, not capital, or necessarily punishable with imprisonment at hard labor, the defendant shall at the time of arraignment be informed by the court that he may waive trial by jury and elect to be tried by the judge alone * * *

The judge did not comply with the provisions of this Article because he did not inform appellant of his right to waive trial by jury at the time of arraignment. However, the per curiam shows that appellant suffered no injury forasmuch as the judge informed him of his right to waive the jury prior to calling the case for trial. In these circumstances, the error will be regarded as harmless. Article 557 of the Code of Criminal Procedure.

The trial of appellant was fixed for May 27, 1947. Prior thereto, the judge ordered the drawing of 30 additional jurors to serve for the week beginning May 26, 1947, and appellant was served with a copy of the list of persons drawn as such jurors. However, these additional jurors were discharged by the judge on May 26th and appellant was tried by a jury of five chosen from the regular jury panel. Appellant objected to this trial by a jury selected from the regular panel, insisting that he was entitled to the opportunity of having the jury composed of jurors on the additional as well as the regular panel. The refusal of the judge to grant a continuance on this ground was made the basis for bills of exception Nos. 4 and 6.

In his per curiam, the judge states that he ordered the drawing of 30 additional jurors to serve during the week of May 26, 1947, because a case involving four defendants charged with attempted murder was fixed for the beginning of that week; that, since each defendant had 12 peremptory challenges and the state a like number, it was plain that it would be necessary to have such jurors and that, after that case was concluded on May 26th, he discharged the additional jurors inasmuch as the regular panel was wholly sufficient for trial of the other cases on the docket which required only a jury of five.

The calling of additional jurors under Article 185 of the Code of Criminal Procedure was a matter within the sound «discretion of the judge. And he was invested with the same power to order the discharge of these additional jurors when he felt that the regular panel would be sufficient for the cases remaining on the criminal docket. See State v. West, 35 La. Ann. 28. Appellant does not show an abuse of discretion 'by the judge or that he was injured as the result of the action complained of.

Bill of exception No. 7 was taken to the court’s admission, allegedly over objection, of a statement by one of the co-defendants, who appeared for the State, that he and the .appellant planned the robbery. The judge, in his per curiam, states that, when the district attorney attempted to show by this witness that the robbery was executed in accordance with a previous plan, he sustained an objection of counsel for appellant on the ground that it had not been shown that appellant was present at the time the plan was confected. However, he further asserts that, later in the' examination, the witness stated several times, without objection, that Rachal had planned the robbery with the three others who had pleaded guilty.

In the absence of an objection by counsel for appellant, the judge was without right to rule out the testimony. The objection which was sustained at the beginning of the examination of the witness could not supply the necessity of a subsequent objection at the time the alleged prejudicial questions were propounded. It does not appear that counsel either moved to strike the questions and answers or that he requested the court to instruct the jury not to consider them.

The conviction and sentence are affirmed.


author: PONDER, Justice.

text:
    212 La. 737
    CITY OF SHREVEPORT v. CONRAD.
    No. 38567.
    Supreme Court of Louisiana.
    Dec. 15, 1947.

      William L. Murdock, Asst. City Atty., of Shreveport, for plaintiff-appellant.
    Herold, Cousin & Hérold and Jacques L. Wiener, all of Shreveport, for defendant-appellee.
   PONDER, Justice.

The defendant was charged in the City of Shreveport with flying an airplane less than 1,000 feet above the waters of Cross Lake and bringing his airplane to rest on the waters of Cross Lake, in violation of city ordinance No. 8 of 1947. The defendant filed a motion to quash the charge on the grounds that the ordinance is illegal, ultra vires and unconstitutional. Upon hearing of the motion, the trial court gave judgment decreeing the ordinance unconstitutional and ordered the defendant discharged. The city has appealed-

Ordinance No. 8 of 1947 of the City of Shreveport imposes a fine of not more than $100 or imprisonment'of not more than 30 days, or both, at the discretion of the court for any person to fly an airplane, seaplane or any other aircraft machine less than 1,000 feet above the waters of Cross Lake, or for the operator of such machine to bring the machine to rest or take off from the waters of the lake, except in cases of emergency.

Under the provisions of Acts Nos. 31 of 1910, 149 of 1920 and 39 o-f 1926, the city was granted the authority to adopt and enforce police and sanitary regulations and ordinances over the bed and waters of Cross Lake and an area surrounding the lake with its tributaries for a distance of 5,000 feet from the 172 foot mean gulf contour line of the lake for the protection of its citizens from pollution and contamination as a water supply for the City of Shreveport.

Cross Lake is a large body of water some 10,000 acres in area, lying near, but beyond, the corporate limits of the City of Shreveport. The general powers granted the city under its charter do not authorize the exercise of any authority over the lake. Its authority flows from special acts of the Legislature, aforementioned.

Counsel for the defendant contends that the ordinance was not primarily adopted for the prevention of pollution and contamination of the waters of the lake and that airplanes pose no real or substantial threat to the purity of these waters.

The position is taken that the cause which induced the passage of the ordinance was the dangerous aerobatics of a certain person who had been flying an airplane at such a low altitude, 'and in such a manner, as to frighten and endanger the occupants of boats on the lake. He contends that there was no emergency in relation to the contamination of the waters, but the ordinance was passed to protect the safety of fishermen.

We are not concerned with the motives which induced the council to adopt the ordinance, but only with the power of the city to adopt it. The motives of a municipal council cannot be inquired into for impugning the validity of a public ordinance. City of New Orleans v. Griffin, 147 La. 1089, 86 So. 554. It is sufficient if the ordinance as a whole bears a rational relation to the protection of these waters from pollution and contamination. We cannot interfere with the city in the exercise of its powers to protect the health of its citizens from pollution of these waters in the absence of a clear abuse of its discretion, unless the ordinance is manifestly unreasonable and oppressive. While the city has not been granted full police power, it has been granted sufficient police power to prevent the pollution and contamination ■of these waters, in order to protect the health of its citizens. Its authority to pass necessary ordinances for this purpose is governed by the rules applicable to the exercise of police power. It is not within the province of the courts, except in clear cases to interfere with the exercise of a power, imposed by law in a municipal corporation, to pass ordinances relating to objects within the proper domain of the police power. This is especially true when the object is the protection of public health. Among the police powers none are more important than that for the protection of public health. It is the function of the legislative branch of the government to exert what are known as the police powers of the state and to determine primarily what measures are appropriate or needful for the protection of public health. City of New Orleans v. Schick, 167 La. 674, 120 So. 47. The Schick case is also authority that courts will not interfere with the action of local legislative authority in the exercise of a police power, unless it is plain and palpable that such action has no real or substantial relation to public health or safety or general welfare. The city has been granted sufficient police power to protect the health of its citizens from the pollution or contamination of its water supply and we are not prepared to say that the city abused its discretion in adopting the ordinance, or that it has no substantial relation to the pollution or contamination of the waters of the lake.

The defendant admitted that he intended to operate a seaplane base on the lake. If the ordinance were stricken down, there would be nothing to prevent the establishment of numerous seaplane bases on the waters of this lake. The operation of one seaplane base on these waters might not have a tendency to pollute them, but the operation of many such bases could have such tendency. “Laws, both state and municipal’, are passed with reference to the future, and those which may appear to be unreasonable at the time of the adoption may very soon be most reasonable in their application.” State v. St. Louis, I. M. & S. R. Co., 138 La. 714, 70 So. 621, 623.

It is contended that the ordinance violates the equal protection and due process clauses of the constitution, article 1, §§ 2, 6, in that, it is arbitrary and discriminatory. The position is taken that, because boats are given the free usage of the lake, the ordinance is arbitrary and discriminatory because boats would tend to pollute the waters in a like manner by the dripping of oil and gasoline. In support of this contention, counsel for the defendant cites the case of Shreveport v. Schultz, 154 La. 899, 98 So. 411. The authority cited is not pertinent for the reason that it involved a discrimination between persons similarly situated, i. e., merchants. ■

The ordinance involved herein affects alike all persons similarly situated. In other words, it applies to all operators of planes. It is not arbitrary or discriminatory within the purview of the constitution. Due process of law and equal protection are had because the ordinance affects alike all persons similarly situated. City of'New Orleans v. Schick, supra.

For the reasons assigned, the judgment of the lower court is reversed and set aside. The affidavit charging the defendant with the violation of the ordinance is reinstated and the case is remanded to be proceeded with according to law.

O’NIELL, C. J., absent.


text:
    212 La. 745
    O’MEARA et al. v. UNION OIL CO. OF CALIFORNIA.
    No. 38725.
    Supreme Court of Louisiana.
    Dec. 15, 1947.
    Rehearing Denied Jan. 12, 1948.

      Moss & Graham, of Lake Charles, for plaintiffs-appellants.
    Liskow, Lewis, Gerard*& Shepard, of Lake Charles, and Marion J. Epley, Jr., of New Orleans, for defendant-appellee.
   PONDER, Justice.

The plaintiffs have appealed from a judgment of the lower court maintaining exceptions of no right and no cause of action and dismissing their suit

The record in this case, comprising the plaintiffs’ petition, exceptions and plea interposed by the defendants, and the evidence introduced thereunder discloses that the plaintiffs, in a letter dated April 11, 1947, requested the commissioner of conservation to call a public hearing under the provisions of Act 157 of 1940 to determine, if there had been an excess production of the legal allowable oil and gas from any of the wells of the Union Oil Company of California during the .period of three preceding years; if oil or gas had been produced from the wells in a manner that would reduce the quantity of oil recoverable from the area in which the wells were located; if oil'or gas had been produced from the wells in such a manner as to excessively and improperly dissipate the reservoir energy; if oil or gas had been produced from the wells in excess of the amount allowed by the rules, regulations or orders of the commissioner of conservation; and if there had been any waste of oil or gas in the production from the wells as defined by Act No. 157 of 1940. They requested that the Union Oil Company and other interested parties be given notice of the hearing and that the Union Oil Company be ordered to produce all its records disclosing the oil and gas that was produced from each of the wells operated by them over the period of three preceding years.

On June 5, 1947, the attorney for the commissioner of conservation addressed a letter to the plaintiffs informing them that an investigation by their field representative indicated that the Union Oil Company had committed technical violation of the orders of the department in that individual wells had not been produced in conformance with the allowables granted them; that the method of this company of compiling and maintaining records of individual well production was incorrect and insufficient and the department was putting them on notice to correct the inaccuracies in reporting and requiring them to make their reports more easily subject to analysis; that the investigation of the field representative indicated that the wells flowing into G. W.. battery have been consistently produced, as a whole, under . the entire lease, well within the amount allocated to it; that the operations of the plaintiffs’ company were not affected because the “B” zone has been considerably underpro-duced during the period of January, 1946 through March, 1947; that the total underproduction. of “B” zone, during the above mentioned time, was in excess of 89,000 barrels and the data obtained with reference to the “A” zone indicates it to be un-derproduced, during the year 1946, some 24,000 barrels; that, since ,the plaintiffs' wells are completed, one in the “A”, zone, two in the “B” zone and one in the “B” zone stringer, the section of the Union Oil Company is underproducing the “A” and “B” zones, which results in the plaintiffs’ favor inasmuch as there remains an excess of 100,000 barrels of oil in these two zones, a portion of which can still migrate to the plaintiffs’ wells, they being in an extreme up-dip position; that the commissioner is placing the Union Oil Company on notice that in the future their records must be kept in strict compliance with the regulations of the department, which the commissioner feels is the only action justified at the time and that a hearing is unnecessary; that the report of the field representative is on file in the department and may be reviewed by the plaintiffs, if they so desire; that the commissioner feels that the action taken by him is the only open course, since he cannot make restitution for the loss the plaintiffs feel they might have sustained in the past and their only recourse, in this respect, would-be in the court; and that, in view of the fact that the data obtained indicates the production from "B" zone to be less than originally thought by the department, the department feels that it will be necessary to reduce the withdrawals from this zone to be effective with the July allowables.

On June 14, 1947 the plaintiffs addressed another letter to the commissioner of conservation acknowledging the receipt of the letter of June Sth. The plaintiffs strongly-protested the proposed reduction of the withdrawals from “B” zone until action had been taken to prevent violations of allocated allowables and until correct and sufficient data had been presented at a public hearing showing the need for the reduction. The plaintiffs set out in the letter various reasons why a public hearing should be had before the reduction was made. Without reciting the lengthly arguments advanced by the plaintiffs in this letter, complaining of the action of the commissioner of conservation, it is sufficient, for the purpose of this decision, to reci-te that the plaintiffs insisted that the public hearing be held or to be informed whether or not they would be forced to the alternative of a mandamus suit under the provisions of Act No. 157 of 1940. The plaintiffs also, in this letter, requested the commissioner to bring suit against the Union Oil Company to prevent further violation of the orders, rules and regulations of the department and the provisions of Act No. 157 of 1940; and, in order to effectually prevent and enjoin such violation, to require the Union Oil Company to establish and maintain separate tanks and lines for each well operated by it in that particular area. On June 27, 1947 the commissioner of conservation issued an order calling a public hearing to be held on July 1, 1947, for the purpose of determining whether or not irregularities had occurred or were occurring in the production of oil in violation of the orders of his department. On June 30, 1947, the day before the hearing was to be held, the plaintiffs instituted the .present suit against the Union Oil Company under the provisions of Section 13, 14 and 15 of Act No. 157 of 1940. The defendant interposed exceptions of no right and no cause of action, and a plea to the jurisdiction of the court. The exceptions of no right and no cause of action was maintained by the lower court and the plaintiffs’ suit was dismissed.

Section 13 of Act No. 157 of 1940 provides : “Whenever it shall appear that any person is violating or threatening to violate, any statute of this State with respect to the conservation of oil or gas, or both, or any provision of this Act, or any rule, regulation or order made by the Commissioner thereunder, the Commissioner of Conservation shall bring suit against such person * *

Section 14 .of the act merely provides the manner in which appeals may be taken from the judgment in the suit.

Section 15 of the act provides: “In the event the Commissioner shall fail to bring suit within ten (10) days to enjoin any actual or threatened violation of any statute of this State with respect to the conservation of oil and gas, or of any provision of this Act, or of any rule, regulation or order made thereunder, then any person or party in interest adversely, affected by such violation, and who has notified the Commissioner in writing of such violation, or threat thereof, and has requested the Commissioner to sue, may, to prevent any or further violation, bring suit for that purpose in the district court of any parish in which the Commissioner could have brought suit. If, in such suit, the court holds that injunctive relief should be granted, then the Commissioner shall be made a party and shall be substituted for the person who brought the suit, and the-injunction shall be issued as if the Commissioner had at all times been the complaining party.”

We carefuly examined the entire act and find that in Section 3 the commissioner is given jurisdiction and authority over all persons and property to enforce this act and all other acts relating to the conservation of oil and gas. H'e is given authority to make inquiries, collect data, to-make investigations and inspections, to examine properties, leases, papers, books and records, to examine survey, check, test and engage oil and gas wells, tanks, refineries and modes of transportation. He is given authority to hold hearings and to provide for the keeping of records and the making of reports and to take such action necessary to enforce the act. He has authority after hearing to make rules, regulations and issue orders necessary for the proper administration and enforcement of the act. In Section 5(a) the commissioner is required to prescribe the rules of order or procedure in hearing or other proceeding before him under the act. He is empowered to give notice by personal service through any officer authorized to serve process or any agent of the commissioner in the same manner as provided by law for the service of citation in civil actions in the district courts of the State. Under Section 7(a) he is empowered to subpoena persons and records, as may be material on the question before him. In case of failure or refusal of any person to comply with any subpoena issued by the commissioner, any district court, on the application of the commissioner, may issue an attachment to compel a compliance with the subpoena. He has authority under the act to force the pooling of separate tracts of land into a drilling unit. He has authority to limit the production in any area or field and to prorate the allowable production.

Section 11. of the act provides: “Any interested person adversely affected by any statute of this State with respect to conservation of oil or gas, or both, or by any provision of this Act, or by any rule, regulation or order made by the Commissioner hereunder, or by any act done or threatened thereunder, and who has exhausted his administrative remedy, may obtain court review and seek relief by a suit for an injunction against the Commissioner as defendant, which suit shall be instituted in the district court of the parish in which the principal office of the Commissioner is located. * * * ”

It is apparent that the Legislature has delegated to the commissioner of conservation, the authority to find the facts upon which the law is to be applied. The various powers conferred upon the commissioner in this act support this conclusion and the provision in Section 11, requiring the exhaustion of administrative remedy before relief can be sought from the courts, renders the question beyond dispute.

In the case of Hunter Co. Inc., et al. v. McHugh, 202 La. 97, 11 So.2d 495, we went at length into the question of the fact finding powers delegated to the conservation commissioner and pointed out that it was not a delegation of either judicial or legislative power. We also called attention to the fact that administrative officers with fact finding powers relieved the Legislature and the judiciary from a great deal of detail work and imposed these duties on an officer as agent of the State, for determination because of his peculiar knowledge, of such matters. We pointed out also that courts will not place their judgment above such administrative officers because of this fact. • On account of the development and growing progress of our country, it would be practically, if not impossible, for the Legislature and courts to expeditiously dispose of these matters, if it were not for the fact that these administrative officers relieve the Legislature of all this detail work and the courts from being congested with many matters that can be thrashed out by those familiar with -them. Without going into the various allegations of the plaintiffs’ petition, we might say, however, that they allege no specific violation of any order, rule or law. Their allegations are general. We quoted at some length the communications passing between the plaintiffs and the commissioner and referred to the general allegations contained in the petition in order to show the wisdom of the Legislature in placing the preliminary sifting process of matters peculiarly within the competence of the administrative authority in the conservation commissioner which will prevent attempts to swamp the court by resorting to them in the first instance. We also recited these facts in order to show the uncertainty existing. In other words, it has not been determined what wells are overproducing and what wells are underproducing. These, as well as all the other indefinite matters, should be thrashed out and relief denied before resort is made to the courts.

The doctrine of exhausting the administrative remedy before relief can be sought from the courts is well recognized in this State. We referred to this matter in the case of Hunter v. McHugh, supra and many other cases. One of the latest cases recognizing this doctrine is the case of Porter v. O’Neal, 205 La. 445, 17 So.2d 622. See also Shreveport Laundries Inc. v. Southern Cities Distributing Co., 176 La. 994, 147 So. 56.

The jurisdiction of the courts should not be invoked except in extreme cases or where irreparable injury would result.

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

HAWTHORNE and BOND, JJ., concur in the decree.

O’NIELL, C. J., absent.