text:
    OZONE IMPORT COMPANY, INC., et al. v. Lester J. MILLET, Jr., Sheriff of St. John the Baptist Parish, et al.
    No. 7331.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 16, 1976.

      Daniel S. Becnel, Jr., Reserve, for plaintiff s-appellants.
    Paul E. Ramoni, Jr., Laplace, for defendants-appellees.
    Before REDMANN, BOUTALL and SCHOTT, JJ.
   REDMANN, Judge.

Plaintiffs appeal from refusal of injunction against enforcement of a St. John the Baptist Parish Ordinance (of March 7, 1968) prohibiting the sale of all fireworks, under which defendant sheriff had ordered their fireworks stores closed June 25, 1975.

The trial judge mistook La.R.S. 51:659’s authority to parishes to require $25 licenses as authority to refuse to allow sales.

State law, R.S. 51:652 B, positively authorizes sale of specified fireworks “from June 25 through July 5 and December 15 through January 1 of each year . . . .” The parish ordinance cannot contravene state law; La.Const. art. 6 § 7 (A) ; State v. Sissons, La. 1974, 292 So.2d 523.

At oral argument, defense counsel noted the postincident authorization to the Parish by Acts 1975, No. 31, of complete prohibition of fireworks, and the subsequent passage of parish ordinances relating to fireworks. These changes may render moot the question whether, on the basis of prior law, the prior ordinance should have been enjoined. But the question of costs of court remain, as does the question (not governed by the summary proceedings thus far had) of damages demanded by both sides to this litigation.

Under C.C.P. 2164’s authority to render the appropriate judgment on the record, the judgment appealed from is set aside and there is judgment declaring the ordinance of March 7, 1968 invalid insofar as it prohibited all firework sales between June 25 and July 5 and December 15 and January 1 of each year. All costs are to be paid by defendant Sheriff insofar as chargeable under law to him.


source: Caselaw Access Project

author: HOOD, Judge. WATSON, Judge

license: Public Domain

text:
    LOUISIANA RESOURCES COMPANY, Plaintiff-Appellee, v. Roger C. EDWARDS et al., Defendants-Appellants.
    No. 5455.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 17, 1976.
    Writ Refused Feb. 19, 1976.

      Roger C. Edwards, Abbeville, and Thompson & Sellers, by Roger C. Sellers, Abbeville, for defendants-relators.
    Jumonville, Hartley, Plauche & Broad-hurst, by William C. Broadhurst and Oscar E. Reed, Jr., Lafayette, and Charles R. Son-nier, Abbeville, for plaintiff-respondent.
    Before HOOD, MILLER and WATSON, JJ.
   HOOD, Judge.

This case has been consolidated for trial and appeal with the cases of Louisiana Resources Company v. Greene, La.App., 329 So.2d 479; and Louisiana Resources Company v. Pere, La.App., 329 So.2d 480.

We granted certiorari and a stay order in these consolidated cases to review the trial court’s refusal to grant defendants’ motion for a continuance. After denying that motion, the trial court proceeded with the trial of the exceptions of no right of action, no cause of action, vagueness, and prematurity, which had been filed by defendants in this suit. Writs were granted and the proceedings were stayed before that trial was completed.

After reviewing the record and the arguments of counsel, we have decided that defendants are entitled to a continuance of not less than ten and not more than twenty days from and after the date of this judgment before being compelled to resume the trial of the above exceptions.

For these reasons, the writ issued herein is maintained, and judgment is rendered remanding the case to the trial court, and directing the trial judge to proceed with or to resume the trial of this case in not less than ten or more than twenty days from and after the date of this judgment.

The costs of this proceeding are to be assessed at the time a final judgment is rendered in this case.

Writ maintained and case remanded.

WATSON, J., dissents and assigns reasons.

WATSON, Judge

(dissenting):

With due respect to my colleagues of the majority, I am now of the opinion that the writ was issued improvidently and that it should be recalled. While I believe that a sufficient showing was made to justify our bringing the matter up, I am satisfied that there has been no abuse of discretion by the trial judge, who appears to have carefully considered the motion for continuance and to have rejected it.

One of my chief concerns was the possible failure to accord statutory delays in the Pere suit. I am now convinced that the delays were observed.

It must be remembered that the legislature and not the courts fix the mode and the pace of procedure in expropriation suits. In my opinion, the trial court has followed the law.

Therefore, I dissent.


text:
    LOUISIANA RESOURCES COMPANY, Plaintiff-Appellee, v. Warren J. GREENE, Defendant-Appellant.
    No. 5456.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 17, 1976.
    Roger C. Edwards, and Thompson and Sellers by Roger C. Sellers, Abbeville, for defendant-relator.
    Jumonville, Hartley, Plauche and Broad-hurst by William C. Broadhurst and Oscar E. Reed, Jr., Lafayette, and Charles R. Sonnier, Abbeville, for plaintiff-respondent.
    Before HOOD, MILLER and WATSON, JJ.
   HOOD, Judge.

This case has been consolidated for trial and appeal with the cases of Louisiana Resources Company v. Edwards, et al., La.App., 329 So.2d 477 (No. 5455 on our docket) ; and Louisiana Resources Company v. Pere, La.App., 329 So.2d 480.

We granted certiorari and a stay order in these consolidated cases to review the trial court’s refusal to grant defendants’ motion for a continuance.

For the reasons assigned in Louisiana Resources Company v. Edwards, et al., supra, the writ issued herein is maintained, and judgment is rendered remanding the case to the trial court, and directing the trial judge to proceed with or to resume the trial of this case in not less than ten or more than twenty days from and after the date of this judgment.

The costs of this proceeding are to be assessed at the time a final judgment is rendered in this case.

Writ maintained and case remanded.

WATSON, J., dissents and assigns reasons.

WATSON, Judge

(dissenting):

For the reasons assigned in the consolidated case of Louisiana Resources Company v. Edwards, et al., 329 So.2d 477, No. 5455 of the Docket of the Court of Appeal, Third Circuit, I respectfully dissent.


text:
    LOUISIANA RESOURCES COMPANY, Plaintiff-Appellee, v. Lucille Greene PERE, Defendant-Appellant.
    No. 5457.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 17, 1976.
    Roger C. Edwards, and Thompson and Sellers by Roger C. Sellers, Abbeville, for defendant-relator.
    Jumonville, Hartley, Plauche and Broad-hurst by William C. Broadhurst and Oscar E. Reed, Jr., Lafayette, and Charles R. Sonnier, Abbeville, for plaintiff-respondent.
    Before HOOD, MILLER and WATSON, JJ.
   HOOD, Judge.

This case has been consolidated for trial and appeal with the cases of Louisiana Resources Company v. Edwards, et al., La. App., 329 So.2d 477 (No. 5455 on our docket); and Louisiana Resources Company v. Greene, La.App., 329 So.2d 479.

We granted certiorari and a stay order in these consolidated cases to review the trial court’s refusal to grant defendants’ motion for a continuance.

For the reasons assigned in Louisiana Resources Company v. Edwards, et al., supra, the writ issued herein is maintained, and judgment is rendered remanding the case to the trial court, and directing the trial judge to proceed with or to resume the trial of this case in not less than ten or more than twenty days from and after the date of this judgment.

The costs of this proceeding are to be assessed at the time a final judgment is rendered in this case.

Writ maintained and case remanded.

WATSON, J., dissents and assigns reasons.

WATSON, Judge

(dissenting):

For the reasons assigned in the consolidated case of Louisiana Resources Company v. Edwards, et al., 329 So.2d 477, No. 5455 of the Docket of the Court of Appeal, Third Circuit, I respectfully dissent.


author: MILLER, Judge

text:
    John C. ROURKE et al. v. Victor E. COURSEY, Jr.
    No. 5389.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 2, 1976.
    Dissenting Opinion Jan. 5, 1976.
    Writ Refused Jan. 6,1976.
    Sanders, Miller, Downing & Kean by Robert A. Hawthorne, Jr., Baton Rouge, for defendant-relator.
    Scofield, Bergstedt & Gerard, Robert L. Hackett, Joseph Greenwald, Asst. Dist. Atty., Lake Charles, for plaintiff-respondent.
    Before MILLER, DOMENGEAUX and GUIDRY, JJ.
   In re: Victor E. Coursey, Jr. applying for Remedial and Supervisory Writs.

Writs denied. This Court will not interfere with orderly proceedings in the trial court, in the absence of a showing of irreparable injury. Relator has a remedy by appeal in the event of an adverse judgment on the merits.

MILLER, J., would not favor granting a writ but would vote to grant a stay order while Relator’s, as yet, unlodged appeals to this court, are pending, and will assign written reasons.

MILLER, Judge

(dissenting).

The majority has denied this application so as not to interfere with orderly proceedings in the trial court in the absence of irreparable injury. While I agree the writ should be denied, I would stay the pending January 7, 1976 sheriff’s sale until the two appeals pending to this court are decided. We are authorized to stay the proceedings under LSA-C.C.P. art. 2164.

One appeal in this matter is returnable to this court on January 23; 1976 — relating to the propriety of the trial court allowing Rourke;et al. to set aside the July 30, 1975 sheriff’s sale by consent judgment obtained without, notice to Coursey and to dismiss their suit for deficiency judgment without prejudice. The trial judge refused to stay proceedings pending a decision on that appeal. The second appeal in this matter is returnable March 10, 1976 — the issue there relates to the trial court’s refusal to grant Coursey’s application for a preliminary injunction preventing the pending January 7, 1976 sheriff’s sale. Under LSA-C.C.P. art. 3612 an appeal may be taken as a matter of right from a judgment relating to a preliminary injunction, but such judgment shall not be suspended pending the appeal unless the court in its discretion so orders. I respectfully submit that because of the peculiar facts of this case, the trial court abused its discretion in refusing to stay the sheriff’s sale pending the appeal.

All this litigation relates to Rourke et al.’s claim against relator Coursey for a deficiency judgment. Under the July 30, 1975 sheriff’s sale, the deficiency judgment would amount to some $900,000. Coursey owed Rourke et al. $1,800,000 which was secured by a mortgage on Calcasieu Parish property. The mortgage was foreclosed by executory process and the property was seized and on July 30, 1975 the sheriff sold the property to Rourke et al. for $900,000. Coursey was late in naming his appraiser and the July 30, 1975 sheriff’s sale proceeded without allowing Coursey’s appraiser to submit his appraisal. Unfortunately for Rourke’s position, it was not pointed out that his rights to a deficiency judgment were lost unless 1) Coursey’s appraiser made an appraisal, or 2) under LSA-R.S. 13:4364 the Sheriff appointed an appraiser for him.

The Sheriff did not appoint an appraiser and when the July 30, 1975 sale was consummated, Rourke et al. lost their right to a deficiency judgment. This was the issue raised by Coursey’s motion for summary judgment filed to dismiss Rourke et al.’s suit for a deficiency judgment. When Coursey’s motion for summary judgment (seeking to dismiss Rourke et al.’s suit for the deficiency judgment) was to be heard on October 26, 1975, Rourke et al. obtained a continuance. Rourke et al. apparently conceded Coursey’s position was correct when on October 29, 1975 they dismissed their suit for deficiency judgment without prejudice. That dismissal, obtained over Coursey’s objection, is the subject of the appeal which has the January 23rd return date.

In a separate proceeding conducted without notice to Coursey, Rourke et al. had set aside the July 30, 1975 sheriff’s sale, and then filed another executory process proceeding against Coursey to seize and sell the same property previously seized and sold. On the basis of this second judgment obtained under executory process the January 7, 1976 sheriff’s sale was scheduled and this is the one Coursey attempted to prevent by his suit for preliminary injunction. The trial court’s refusal to grant the preliminary injunction is subject to appeal under LSA-C.C. art. 3612 and the courts have discretion to suspend proceedings pending the decision on appeal.

This litigation insofar as Coursey is concerned will be terminated if it is determined on appeal that Rourke et al. lost their right to a deficiency judgment by virtue of the July 30, 1975 sheriff’s sale con-fected without benefit of an appraisal made on behalf of the judgment debtor. That sale was expedited by Rourke et al. Now they are expediting a second sale, which might be irrelevant insofar as their right to obtain a deficiency judgment is concerned. The two appeals pending to this court could be expedited and determined within a relatively short time.

On these facts I hold the opinion that considering the actions and rights of the two parties, Rourke et al. on the one hand and Coursey on the other, the January 7, 1976 sheriff’s sale should have been stayed.

I respectfully dissent.


author: BEER, Judge.

text:
    Succession of Mrs. Alma L. Franz, wife of Wilfred A. GRUSICH, Sr.
    No. 7444.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 16, 1976.
    Cabibi & Cabibi, Charles E. Cabibi, Peter Gentile, Girard J. Fernandez, New Orleans, for plaintiff-appellee.
    Wolfson & Wolfson, Beryl E. Wolfson, New Orleans, for defendant-appellant, Volunteers of America.
    Chaffe, McCall, Philips, Toler & Sarpy, Leon Sarpy, New Orleans, for defendant-appellant, House of Good Shepard.
    Charles B. Johnson, New Orleans, for defendant-appellant, Crippled Childrens Plospital.
    Stone, Pigman, Walther, Wittmann & Hutchinson, David L. Stone, New Orleans, for defendant-appellant, Protestant Home for Babies.
    Before LEMMON, STOULIG and BEER, JJ.
   BEER, Judge.

This is an appeal from a judgment holding that testatrix, Mrs. Alma L. Franz, wife of Wilfred A. Grusich, Sr., failed to dispose of one quarter of the residuum of her estate. The sole question at issue is the interpretation of paragraphs 11, 12 and 13 of her olographic will which, after providing for numerous special bequests which are not here at issue, contained the following provisions with respect to the residuum :

“11. After all indebtedness has been paid and all bequests made, I will and bequeath to my living sisters, an equal share in one half (i/¡) of the net balance of my estate.
“12. I will and bequeath equal share in the one quarter (J4) of the remaining one half (J4) of the net balance of my estate, to my living nephews who are the sons of my sisters Clare Bertucci and Olga Schwartz.
“13. I will and bequeath equal share in the final one quarter (J4) of the remaining one half (i/á) of the net balance of my estate to the following institutions: Maud Ballington Booth Home for Unwed Mothers, House of Good Shepard, Crippled Childrens Hospital, Protestant Home for Babies (1233 Eights St.). However, no institution names herein shall have the right to force action of any kind until the members of my family named herein are completely satisfied, ready and willing. The clause also applies to the Saulet bequests.” (Emphasis ours.)

The trial judge interpreted paragraphs 12 and 13 as each disposing of only one-eighth of the residuum of the estate and thus concluded that one-fourth of the residuum had been undisposed of. He then distributed this remaining one-fourth pursuant to the laws of intestate succession.

The legatees named in paragraph 13 bring this appeal contending that it was the intention of the testatrix to allocate all of the residuum by testamentary disposition.

The able trial judge correctly stated the law that should have been applied for he

“ . . . recognize[d] that the weight of the authority does favor, in the interpretation, that a testament intends to dispose of an entire estate, and where the testamentary intent to do such can be gleaned from a reading of the will the Court should so construe the will.”

See Succession of Fertel, 208 La. 614, 23 So.2d 234 (1945).

We deem significant the words “remaining one-half” in paragraphs 12 and 13, particularly when considered with the word “final” in paragraph 13. Accordingly, we conclude that the testatrix did, indeed, intend to dispose of all of the “remaining one half”—one-quarter (of the whole or one-half of that half) to certain relatives (paragraph 12) and the “final one quarter” (of the whole) to certain designated charitable, educational and eleemosynary institutions (paragraph 13).

Were we to accept appellees’ interpretation of paragraph 12—that one-quarter of the remaining one-half means one-eighth of the entire estate—then paragraph 13 would make no sense. After one-half has been disposed of in paragraph 11 and one-eighth in paragraph 12, there would be no “remaining one-half” referred to in paragraph 13—only three-eighths would remain.

Finally, it is well settled that the proponents of partial intestacy of an estate must bear the evidentiary burden of establishing that intention on the part of the testatrix. Since no evidence was submitted, it would be difficult to conclude that this burden has been successfully carried.

Very much aware of the diligence and painstaking care which the trial judge has obviously brought to his deliberations and ultimate conclusion we must, nevertheless, disagree. We believe that the testatrix made use of the word “final” as a clear signal to herself and her heirs that she was, by testamentary disposition, allocating all of her estate. We think that she finished writing this rather detailed will confident that she had, indeed, made good her intention to dispose of everything by specific testamentary disposition.

While it is quite true that the literal following of the fractional allocations would bring us to the result reached by the trial court, we opt to go in the direction that is, we believe, more supported by the wording of the testament itself (“final”) and the great weight of the authorities favoring the interpretation that a testament is presumed to intend disposition of the entire estate.

Accordingly, the judgment of the Civil District Court, Parish of Orleans is amended and recast and it is now

ORDERED, ADJUDGED AND DECREED that there be declaratory judgment herein interpreting the will of the decedent Mrs. Alma L. Franz, wife of Wilfred A. Grusich, Sr., as follows to wit:

I.

The three living sisters of decedent, Mrs. Clare F. Bertucci, Mrs. Olga F. Schwartz, and Mrs. Irma F. Gentile are declared to be legatees, in equal shares, of one-half of the net balance of the estate.

II.

Dr. Emile A. Bertucci, Jr., Dr. Alvin C. Bertucci, Gerald Bertucci, (sons of Clare F. Bertucci), and Leonard Schwartz and Edmond Schwartz, (sons of Mrs. Olga F. Schwartz), are declared to be legatees, in equal shares, of one-fourth of the net balance of the estate.

III.

Maud Ballington Booth Home for Unwed Mothers, (now known as Volunteers of America), House of Good Shepard, Crippled Childrens Hospital, (now known as Childrens Hospital), and Protestant Home for Babies are declared to be legatees, in equal shares, of one-fourth of the net balance of the estate, subject to the additional conditions set forth in textatrix’ will.

Thus amended and recast, the judgment is affirmed. All parties to this litigation to bear their own costs.

AMENDED, RECAST AND AFFIRMED.

       See also Succession of LaBarre, 179 La. 45, 153 So. 15 (1934) ; Succession of Kamlade, 232 La. 275, 94 So.2d 257 (1957) ; Carr v. Bart, 220 La. 833, 57 So.2d 739 (1952) ; Succession of Jan, 78 So.2d 241 (La.App. 4th Cir. 1955) ; Succession of Dinwiddie, 263 So.2d 739 (La.App.4th Cir. 1972).

       The truncated record before us in connection with this appeal provokes some concern on our part as to the status on appeal of Dr. Emile A. Bertucci, Jr., Dr. Alvin O. Bertucci, Gerald E. Bertucci, Leonard Schwartz and Edmond Schwartz. Apparently their interests were not directly before the court in connection with the controversy which arose between the various eleemosynary institutions and the succession representatives for the record shows no service upon them of any of the various pleadings.
      Thus, there is some question about the effect that this litigation can have on their rights of inheritance under the will.
      We are convinced that the proper resolution of the declaratory judgment proceeding requires us to deal with the distribution to these particular heirs in the manner set forth herein.


author: PER CURIAM.

text:
    Lloyd LEWIS, Sr. v. Lionel COLLINS.
    No. 6347.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 13, 1976.

      Lloyd Lewis, Sr., in pro per.
    Robert I. Broussard, Gretna, for defendant-appellee.
    Before SAMUEL, REDMANN and LEMMON, J.
   PER CURIAM.

Defendant moves dismissal of this appeal on the sole ground that the appellant has refused to post an advance deposit required by the court reporter before transcribing the testimony, as a result of which the transcript has not been made and the record has not been lodged with this court by the return date.

We hold that the court reporter has no authority to require a deposit before transcribing the testimony for appeal. The legislature has protected the court reporter against an appellant’s abandoning the appeal without paying for the transcript by requiring an appeal bond for “all costs due by the appellant,” C.C.P. 2124. (Here, $250 cash was posted.) Perhaps the reporter may await filing of the bond before transcribing the testimony (or request the judge to increase the bond in an appropriate situation), but the reporter may not refuse to transcribe the testimony once bond has been posted.

The court reporter’s failure to transcribe the testimony is therefore not attributable to any fault of appellant, nor is the clerk’s consequential inability to prepare and file the record.

“Failure of the clerk to prepare and lodge the record on appeal either timely or correctly shall not prejudice the appeal.” C.C.P. 2127.

The motion is therefore denied.


author: HOOD, Judge.

text:
    Amy Roy ISTRE et al., Plaintiffs-Appellees, v. SOUTH CENTRAL BELL TELEPHONE COMPANY, Defendant-Appellant.
    No. 5355.
    Court of Appeal of Louisiana, Third Circuit.
    March 10, 1976.
    Rehearing Denied April 20, 1976.
    Writ Refused June 11, 1976.

      Pugh, Buatt, Landry & Pugh by Lawrence G. Pugh, Jr., Crowley, for defendant-appellant.
    Edwards, Stefanski & Barousse by Homer Ed Barousse, Jr., Crowley, for plaintiffs-appellees.
    Before HOOD, GUIDRY and PETERS, JJ-
   HOOD, Judge.

This suit was instituted by seven persons, all of whom are brothers and sisters, who claim that they are the owners of a tract of land in Acadia Parish on which defendant, South Central Bell Telephone Company, installed an underground telephone cable. Plaintiffs allege that the cable was installed without their permission. They seek a judgment ordering defendant to remove the cable and condemning it to pay damages and attorney’s fees primarily for wrongful trespass.

The defendant answered, alleging that the cable lies wholly within the right-of-way of a highway abutting plaintiffs’ property, that a permit to locate the line there was obtained from the Louisiana Department of Highways, and that plaintiffs’ demands thus should be rejected. Defendant also reconvened, alleging that the cable was laid with plaintiffs’ full knowledge and consent, and that if the court finds that it did not have the right to construct the cable where it is presently located, defendant nevertheless is entitled to judgment permitting the cable to remain where it is now situated upon paying plaintiffs reasonable compensation. It prays that defendant be recognized as the owner of a servitude for the maintenance of the cable upon payment to plaintiffs of the sum of $111.38, which amount was deposited in the registry of the court by defendant.

The trial court rendered judgment in favor of plaintiffs, condemning defendant to pay to each plaintiff damages in the sum of $250.00, making a total award of $1,750.00. The judgment did not order the removal of the underground cable. Defendant appealed.

The principal issue presented, and we think the determining one, is whether plaintiffs acquiesced in the construction of the underground telephone cable. We have concluded that they did, that they thus are barred from recovering trespass damages, and that they are relegated solely to a claim for compensation for the value of the rights taken and for severance damages.

Prior to 1954, plaintiffs, together with two other persons who are not parties to this suit, owned in indivisión a 2.641 acre tract of land in Acadia Parish. That tract was bounded on the south by U.S. Highway 90, with a frontage of 179.3 feet on that highway.

In September, 1954, the above 2.641 acre tract of land was subdivided into nine separate lots, each of which has a frontage of about 20 feet on Highway 90. The nine owners of the original tract entered into a partition agreement on October 25, 1954, under the terms of which each acquired full ownership of one of those lots, and he released his or her interest in and to all of the other lots. Each lot was described in that partition agreement, and in the plat of the subdivision of the original 2.641 acre tract, as being bounded on the south by the north line of the right-of-way of U.S. Highway 90. Each of the seven plaintiffs in this suit acquired one of those narrow lots.

During the latter part of the year 1973, defendant began constructing an underground telephone cable along the north side of Highway 90 in that area. Prior to beginning that construction work it obtained a permit from the Louisiana Department of Highways, issued on October 12, 1973, authorizing it to use and to occupy the right-of-way of U.S. Highway 90 in that part of Acadia Parish for the installation, operation and maintenance of that particular underground cable.

Although the telephone company had a permit to install the cable on the highway right-of-way, officials of the company explained that they preferred, when possible, to install it on private property near and parallel to the highway, rather than on the highway right-of-way itself, because when located in the highway right-of-way the cable was sometimes damaged when highways were repaired or altered.

In an effort to lay as much of the cable as possible on private property, the telephone company obtained permission from a number of property owners along that route to install the cable within their fence lines, on their private property and off the highway right-of-way. Some landowners refused to grant the requested right-of-way, however, and when that occurred the telephone company simply changed the route of the cable slightly and constructed it outside the fence line of the property owner, laying it wholly within the highway right-of-way.

In 1973 Nugie Roy, the owner of one of the above lots fronting on Highway 90, executed a right-of-way deed granting permission to defendant to construct the buried cable across his property. Nugie Roy is not a party to this suit.

During the latter part of 1973, and before any construction work began in that immediate area, Charles W. Duhon, a right-of-way agent for defendant, contacted Mrs. Ida Roy Hoffpauir, the owner of another lot in that subdivision and one of the plaintiffs in this suit, requesting that she also execute a right-of-way deed. Mrs. Hoffpauir refused to execute such a deed or to grant permission for defendant to lay the cable on her property. The right-of-way agent reported that fact to the telephone company, and the latter thereupon decided that it would be useless to contact any of the other owners of lots in that subdivision, because it was more practical for the cable to be installed wholly within the boundaries of the highway right-of-way along the entire 179.3 foot frontage of the above subdivision, rather than to construct it partly on private property and partly on the right-of-way over that relatively short distance. The telephone company thereafter made no effort to obtain right-of-way deeds from the other plaintiffs before construction was begun.

On December 12, 1973, the cable was constructed a distance of 179.3 feet across the entire front of the original 2.641 acre tract of land. It was installed wholly within the highway right-of-way, no part of the cable having been laid north of the south fence line of plaintiffs’ property. A trench about one foot wide and two or three feet deep was dug parallel to, and from three to five feet south of, the north boundary of that right-of-way. A trenching machine was used for that purpose, the cable was laid right behind that machine, and the trench was then refilled. Only one day was required to install the cable along that 179.3 foot stretch. No above ground structures were installed by the telephone company in that area, and at the time of the trial it was impossible to determine from a visual inspection that a cable had been installed there. The company permits driveways or buildings to be constructed over the cable.

No one protested or questioned the right of defendant to install the cable at that location before or at the time it was constructed. Two or three months later, however, Sidney Istre, the husband of one of the plaintiffs, concluded from an examination of the Conveyance Records of Acadia Parish that the Highway Department owned only a servitude for highway purposes affecting the land on which the cable was laid, and that plaintiffs were undivided owners of the fee title to that property, subject to the highway right-of-way. Mr. Istre was serving as Chief Deputy Clerk of Court in Acadia Parish at that time, and he made the above discovery in February or March, 1974, while assisting defendant’s right-of-way agent in checking the title to some other property in that area. He informed plaintiffs of his conclusion, and after discussing the matter with them, plaintiffs authorized Mr. Istre to make a demand in their behalf on defendant for damages because of what they believed to be a wrongful trespass. An oral demand was made on defendant for damages one or two weeks after the above discovery was made. That demand was made in March or early April, 1974. Defendant refused to comply with that demand, and this suit was filed about six months later, on October 18, 1974.

As already noted, plaintiffs demand in this suit that defendant be ordered to remove the cable and that it be condemned to pay damages and attorney’s fees primarily for the alleged trespass. Plaintiffs contend that they did not expressly consent to or silently acquiesce in the construction of the above cable. They argue that defendant was in bad faith, and thus is liable for trespass damages, since it constructed the cable on the highway right-of-way without checking the records to determine the ownership of the property on which the cable was installed, and without contacting any of the plaintiffs other than Mrs. Hoffpauir prior to the time construction work was begun.

Defendant contends that plaintiffs acquiesced in the construction of the cable, and that accordingly under the “St. Julien Rule” they are barred from recovering trespass damages, and are restricted to a claim for compensation for the value of the land taken and for severance damages.

The “St. Julien Rule” is a doctrine which derives its name from the leading case of St. Julien v. Morgan Louisiana & Texas Railroad Co., 35 La.Ann. 924 (1883), where it was held that the unopposed appropriation of land for public use is regarded as creating a servitude, limited to the nature and extent of use conferred by such occupancy, with the result that the landowner is not entitled to trespass damages, but is restricted to the same measure of recovery as if the servitude had been lawfully expropriated, that is, the landowner is limited to a claim for compensation for the value of the land taken and for severance damages. See also Veillon v. Columbia Gulf Transmission Company, 192 So.2d 646 (La.App. 3 Cir. 1966); Gumbel v. Neva Orleans Terminal Co., 186 La. 882, 173 So. 518 (1937); A. K. Roy, Inc. v. Board of Commissioners for Pontchartrain Levee District, 238 La. 926, 117 So.2d 60 (1960); Gray v. State of Louisiana, Through the Department of Highways et al., 250 La. 1045, 202 So.2d 24 (1967).

In Gray v. State, Department of Highways, supra, our Supreme Court said:

“Their failure to act brings the case within the orbit of the equitable principle, long established in matters involving private corporations invested with powers of condemnation, that an owner of land who is aware that his property is being appropriated for a public use and stands aside taking no action to prevent the appropriation, cannot thereafter treat the appropriation as tortious. For in such cases he must be held to have impliedly consented to the appropriation and therefore recovery is restricted to just compensation for the property taken.”

In Veillon v. Columbia Gulf Transmission Company, supra, the landowner did not oppose the appropriation until a few weeks after the gas line was laid on his property, because of his mistaken belief, until he consulted a lawyer after the taking, that the defendant had the legal right to lay that pipeline. We held that even though the landowner’s lack of opposition may have been due to an error of law or to an error of fact, the St. Julien doctrine nevertheless applied, and that the landowner was not entitled to trespass damages but was limited to an award only of the value of the servitude appropriated and severance damages. In that case we said:

“. . .a landowner waives his right to attack as legally unauthorized the use of his land appropriated for a public purpose by a party with power of eminent domain, when the landowner with full knowledge of the unauthorized taking expressly consents to it or silently acquiesces therein.
******
“Under this uniform jurisprudence, the unopposed appropriation for a public purpose is regarded as creating a servitude (limited to the nature and extent of use conferred by such mere occupancy, Consolidated Companies, Inc. v. Haas Land Co., 179 La. 19, 153 So. 6, Louisiana Power & Light Co. v. Dileo, La. App. 1 Cir., 79 So.2d 150, 159), with the landowner being relegated to the same measure of recovery as if the servitude had been lawfully appropriated. No trespass damages are recoverable, since for reasons of public policy the appropriation is regarded as not accomplished unlawfully but rather with the acquiescence of the landowner. . . .”

The St. Julien doctrine is founded on public policy and natural equity, to prevent one who by silence acquiesces in a taking for a public purpose from thereafter disrupting or making unduly burdensome the use for such a purpose.

There can be no acquiescence by the landowner, of course, unless he had knowledge of the taking. After reviewing the evidence in the instant suit, we have concluded that plaintiffs had knowledge of the appropriation involved here, and that they silently acquiesced in it.

LeRoy Joseph Roy, one of the plaintiffs in this suit, testified that he saw the trenching machine installing the underground cable on the highway right-of-way in front of his property, and that he did not protest or object in any way until three or four months subsequent to the time that construction was completed, after he and the other plaintiffs had “talked it over” with Sidney Istre. It is apparent that when he saw the cable being installed he believed that defendant had the legal right to install it on the highway right-of-way, and that he did not entertain any other belief until his brother-in-law, Sidney Istre, informed him of the conclusions he had reached. In view of the decision rendered in Veillon v. Columbia Gulf Transmission Company, supra, LeRoy Joseph Roy must be held to have acquiesced in the appropriation, even though his failure to protest may have been due to his erroneous assumption that defendant had the legal right to install the line on the highway right-of-way.

None of the other plaintiffs testified, either at the trial or by deposition. They thus have not denied that they had knowledge of the taking or that they acquiesced in it, except for a general denial contained in their answer to defendant’s reconven-tional demand. The record shows that all of the plaintiffs reside in Acadia Parish where the suit was filed and tried, and no explanation has been offered as to why they did not testify.

Mrs. Amelia Roy Fruge, one of the plaintiffs in this suit, lives with her brother, LeRoy Joseph Roy, in a home which is located near the place where the cable was installed in front of her lot. She drives along U. S. Highway 90 in that immediate area often. It is logical to assume that she saw the cable being installed on the highway right-of-way in front of her lot of land, or that she at least saw the line being constructed along the highway as the construction crew approached her property from the east. It also is reasonable that she was informed of the project by her brother who lived in the same residence building with her and who testified that he saw the cable being laid.

Mrs. Ida Roy Hoffpauir, another plaintiff, obviously knew that defendant intended to install a cable at that location, because shortly prior to that construction defendant attempted to obtain her permission for it to be laid across her 20-foot-wide lot instead of on the highway right-of-way. We cannot reasonably conclude that she had no knowledge of the fact that the cable was being installed along the highway, partly on the right-of-way and partly on private property, for several miles leading up to the lot which she owned.

Sidney Istre, whose wife is a plaintiff, apparently knew that defendant planned to construct a cable along that route before it was installed, although he stated that he was not present when the cable actually was laid in front of plaintiffs’ property. He testified that he told Mr. Duhon, defendant’s right-of-way agent, that his family owned property along the route proposed for the cable “while he (Duhon) was checking the records in the office, before they laid the line,” and that that information was given to Duhon “before the cable was laid in December, 1973.” He also stated that in December, 1973, he and his wife “went out there, her mother’s house, and we saw where they had gone through.” We gather from his testimony that he knew ahead of time that the line was to be constructed along that route, that he went out to the property in December, 1973, to see what had been done on that project, and found at that time that the cable had already been installed on the highway right-of-way in front of his wife’s lot. We believe he kept his wife informed of the facts which were known to him relating to her property.

There is no direct evidence tending to show that the remaining three plaintiffs were aware of this construction project on the day the cable was installed in front of their property. All three of them lived in Acadia Parish, however, and four of their brothers and sisters knew that the cable was being installed at that location. All of the plaintiffs, including those not specifically named above, talked about the installation of this cable shortly after Sidney Istre concluded that they owned an interest in the highway right-of-way. These brothers and sisters thus communicated with each other, and we think it is more probable than not that they talked about the construction of this cable at the time Mrs. Hoffpauir was asked to sign a right-of-way deed and at the time the cable was actually installed in front of their property.

Defendant, in our view, has made at least a prima facie showing.that all of the plaintiffs had full knowledge of the fact that this telephone cable was being installed on the highway right-of-way in front of their property. The evidence is uncontra-dicted to the effect that they did not protest or object to the appropriation until several months later, after defendant had completed the installation of the cable a distance of several miles west of plaintiffs’ property. Plaintiffs thus acquiesced in that appropriation.

We think the burden of proof rested on the telephone company to show initially that plaintiffs had knowledge of and acquiesced in the appropriation. Defendant made a prima facie showing of knowledge and acquiescence on the part of plaintiffs, however, and the burden thus shifted to plaintiffs to offset that proof. Only one plaintiff testified and he admitted that he had knowledge of the installation and did not protest. The failure of the other plaintiffs to testify justifies a presumption that their testimony would be unfavorable to their cause. Plaintiffs thus have failed to offset the prima facie proof that they had knowledge of the appropriation and that they acquiesced in it.

Our conclusion is that plaintiffs had full knowledge of the taking, and that they silently acquiesced in it. We hold that the St. Julien rule applies, that plaintiffs thus are barred from recovering trespass damages, and that they are limited solely to recovering the value of the rights taken and severance damages.

Although plaintiffs seek primarily to recover damages for an alleged wrongful trespass, we think the pleadings filed by them are broad enough to include a demand for the value of rights taken and severance damages.

The evidence establishes, without contradiction, that plaintiffs sustained no severance damages as a result of this taking. Defendant has judicially admitted that the servitude or rights appropriated by it had a value of $111.38 at the time of the taking. The judgment of the trial court must be amended, therefore, by reducing the award made to plaintiffs from $1,750.-00 to the sum of $111.38. We think defendant also is entitled to judgment on its reconventional demand, recognizing that it is the owner of a servitude for the installation and maintenance of a telephone cable at its present location on the highway right-of-way, running a distance of 179.3 feet in front of the above mentioned 2.641 acre subdivision. \

For the reasons assigned, the judgment appealed from is amended in the following respects: (1) The amount of the award made to plaintiffs is reduced from $1,750.-00 to the sum of $111.38; (2) judgment is hereby rendered in favor of South Central Bell Telephone Company and against plaintiffs, recognizing the telephone company as the owner of a servitude for the installation and maintenance of a telephone cable on the highway right-of-way where it is presently situated south of the above 2.641 acre subdivision; and (3) the Clerk of Court is ordered to pay to plaintiffs the sum of $111.38 which was deposited in the registry of the court by defendar:-'‘ In all other respects, and except as herein amended, the judgment appealed from is affirmed. The costs of this appeal are assessed to plaintiffs-appellees.

■ AMENDED AND AFFIRMED.


author: REDMANN, Judge.

text:
    Succession of Benwall J. HARRIS.
    No. 7368.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 16, 1976.
    Rehearing Denied April 13, 1976.
    Writ Refused June 2, 1976.

      Robert P. Charbonnet, Wayne E. Garrett (Charbonnet & Charbonnet), New Orleans, for plaintiff-appellant.
    James J. Grevemberg, Felix W. Gaudin, New Orleans, for defendant-appellee.
    Before REDMANN, MORIAL and BEER, JJ.
   REDMANN, Judge.

“[TJhose who know not how or are not able to read, cannot make dispositions in the form of the will provided for in R.S. 9:2442 . . . .” La.R.S. 9:2443.

We decide that a testator’s disability to read, with his ordinary eyeglasses, type sized smaller than 10 mm does not invalidate his will typed in type sized about 2 mm. The testator who can only read his will with his eyeglasses is “able to read” within the statute, and the testator who can only read his will with a five-power or stronger magnifying lens is also “able to read” (if he knows how, as our testator did). Appellant proved, by the testimony of the testator’s optician, that the testator could not read this will with his ordinary eyeglasses. But the optician also testified there was “a good chance” that the testator could have read larger type, of S, 6 or 10 mm size.

The statute does not require recital or proof that the will was actually read by the testator. Therefore, that the testator did not read the will does not invalidate it; Estate of Moreau v. Moreau, La.App. 3rd Cir., 1972, 261 So.2d 293, writ refused 262 La. 193, 262 So.2d 789. It is thus immaterial that our will’s witnesses testified that the testator did not use any magnifying device in order to read the will at the time of its signing.

Affirmed.


author: DOMENGEAUX, Judge.

text:
    FONTENOT’S RICE DRIER, INC., Plaintiff and Appellant, v. FARMERS RICE MILLING COMPANY, INC., Defendant and Appellee.
    No. 5367.
    Court of Appeal of Louisiana, Third Circuit.
    March 10, 1976.
    Rehearing Denied April 7, 1976.
    Writ Refused June 2, 1976.

      Guillory, McGee & Mayeux, by Robert K. Guillory, Eunice, for plaintiff-appellant.
    King & Ricketts, by Randall E. Ricketts, Lake Charles, for defendant-appellee.
    Before CULPEPPER, DOMEN-GEAUX, and PAVY, JJ.
   DOMENGEAUX, Judge.

Plaintiff-appellant, Fontenot’s Rice Drier, Inc., instituted this action to recover a portion of the price due for the sale of a shipment of rice to the defendant-appellee, Farmers Rice Milling Company, Inc. Defendant raised the defense of compensation and filed a reconventional demand for damages resulting from a prior shipment of plaintiff’s rice which was allegedly inferior. The trial judge found that defendant’s plea of compensation was justified, and dismissed plaintiff’s suit at his costs. From this judgment plaintiff has appealed.

On October 10, 1973, plaintiff entered into a contract with one Don Harrington, an agent of the defendant, whereby he sold a quantity of rice (6,500 barrels) to the latter for the sum of $131,000.00. The written contract executed by the parties is reproduced as follows:

This document reveals that the parties agreed to the amount of 6,500 barrels with an estimated milling yield of “92-112”, for a price of $20.20 per barrel. Furthermore the rice was to be stored free by the plaintiff and transported by the defendant no later than December 31, 1973. The rice was paid for on October 10, 1973, although defendant had not yet taken possession of the shipment and transported it to its mill. The defendant mill began loading and shipping the rice on December 21, 1973, and completed this task on January 4, 1974. However, plaintiff did not object to this delay in removing the rice from his premises.

After the last of the rice involved in this sale was removed by the defendant, plaintiff contacted Harrington and informed him that he had a remaining quantity of 615.91 barrels at an estimated milling yield of 92-112 which he was willing to sell for the currently prevailing price of $24.40 per barrel. Harrington communicated this offer to the defendant who accepted and transported the rice to its milling facility. The record does not reveal the exact day on which the parties agreed upon the second sale, but the weight sheet attached to plaintiff's petition indicates a date of January 3, 1974.

After the passage of several days plaintiff contacted Harrington with an inquiry as to why he had not received payment for the second shipment of rice. Harrington told plaintiff that he would investigate the matter and that payment should be made within three or four days. Plaintiff waited several more days, did not receive payment, and contacted Harrington again. On this occasion Harrington informed the plaintiff that his payment would have to be decreased somewhat because the rice was of an inferior quality, however he failed to indicate the extent of the proposed reduction. The record indicates that, at this time, plaintiff was under the impression that this reference was to the second shipment of rice. After several days and no receipt of payment, plaintiff again called Harrington and this time spoke with his associate, a Mr. Guidry, who informed plaintiff that the mill was dissatisfied with the quality of the first shipment of rice and was therefore deducting an amount to compensate for its inferior quality from the payment for the second shipment of rice. This first notice to plaintiff concerning a complaint about the quality of his rice (first shipment) was made approximately three to four weeks after the shipment was completed. Thereafter the “reduced” payment for the second shipment was not forthcoming, and plaintiff consulted his attorney who contacted the defendant concerning the transaction. On February 4, 1974, plaintiff received a check for $3,629.34 with a notation at the bottom of the check “In full payment of all amount due”. The check was signed by Harrington.

Since plaintiff’s bill for the second shipment of rice was in the amount of $15,459.34, he refused to accept this check with the above described notation and tendered it back to defendant who issued a second check for the same amount, but without the notation relative to accord and satisfaction.

Much evidence was adduced concerning the customary manner in which rice sales are transacted in this portion of south Louisiana. The testimony established the procedure to be as follows :

The sale of rice between a farmer (drier) and a mill is negotiated between a broker or intermediary, who usually acts as an agent of the buyer (mill). The parties agree upon a price based upon quantity and quality (estimated milling yield). Once the agreement is made the rice is transported by the mill within ten to fourteen days. Before each truckload of rice is unloaded, a sample is taken at the mill which is compared to an original sample which determined the sale quality. If the quality of the shipment is substantially equivalent to that of the agreed milling yield, the truck is unloaded, and the grain is milled. However, if the sample reveals a milling yield below that contemplated by the agreement, the mill contacts the seller who may then have his own sample made. If the parties agree that the shipment is yielding rice of a lower grade than that of the original sample and agreement, they attempt to renegotiate the price. If an impasse is reached either party then has the option to withdraw from the sale. However, if a new price can be agreed upon the remainder of the rice is unloaded, and the seller is paid. Customarily, the buyer does not receive payment until after the rice has been sampled and the estimated milling yield verified.

The trial judge found that the contract of sale between the parties to this litigation was unaffected by the prevailing custom in the area and industry for two reasons :

First, the price was paid before the buyer took actual delivery of the rice; and second, delivery was not taken for a period of approximately two and one-half months.
The applicable provisions of the Civil Code pertaining to custom and usage are as follows:
“Art. 1903. Extent of implied incidental obligations
The obligation of contracts extends not only to what is expressly stipulated, but also to everything that, by law, equity or custom, is considered as incidental to the particular contract, or necessary to carry it into effect.”
“Art. 1953. Usage controlling in case of ambiguity
Whatever is ambiguous is determined according to the usage of the country where the contract is made.”
“Art. 1964. Incidents supplied by law, equity or usage
Equity, usage and law supply such incidents only as the parties may reasonably be supposed to have been silent upon from a knowledge that they would be supplied from one of these sources.”
“Art. 1966. Usage as part of contract By the word usage mentioned in the preceding articles, is meant that which is generally practiced in affairs of the same nature with that which forms the subject of the contract.

When parties are insufficiently explicit in their contractual relations, the contract is binding, not only as to what is expressed therein, but also as to all consequences which equity, custom, or the law impose on an obligation according to its nature. Plainol, Traité Élémentaire De Droit Civil, Volume 2, No. 1171.

From the same commentator comes the statement that :

“The clauses which are usual in a contract should be supplied although they are not expressed.a contract is binding in all its clauses according to equity or usage.” Volume 2, No. 1181.

In their work On Obligations in the Droit Civil Francais, Aubry and Rau tell us, at Section 346, that:

“Agreements bind not only with regard to matters formally expressed but also with regard to all consequences which according to equity, usage, or the law, must be considered as impliedly included.”

The case of Velasques v. Custom Built Homes, Inc., 246 So.2d 699 (La.App. 4th Cir. 1971) states that:

“In the absence of a specific contractual provision, custom will prevail.”

See also Southern Bitulithic Company v. Algiers Ry. & Lighting Co., 130 La. 830, 58 So. 588 (1912), in which it was said that:

“Usage enters into every contract, and is properly admissible in evidence for the purpose not only of elucidating the contract, but also of completing it.” (Emphasis added)

Custom may also be employed not only to modify or restrict a contract into which it enters, but also to enlarge that contract. Wray-Dickinson Company v. Commercial Credit Company, Inc., 192 So. 769 (La.App. 2nd Cir. 1939).

We also find the case of Terrell v. Alexandria Auto Company, Inc., 12 La.App. 625, 125 So. 757 (2nd Cir. 1930) applicable:

“In interpreting a contract not specific in its wording, it is necessary to take into consideration the custom of the place and the usual and customary manner of fulfilling like contracts in arriving at what was the reasonable expectation of the parties to the contract at the time it was made.” (emphasis added).

If the parties make no specific agreement on a particular subject, custom will prevail in the case of controversy. Craton v. Miller, 47 So.2d 342 (La.App. 2nd Cir. 1950).

It is important to note that the customary deviations made in this case were initiated at the request of the defendant. The mill apparently purchased rice in excess of its own storage capacity, and therefore requested that plaintiff hold the rice, on their behalf, for an extraordinarily lengthy period (two and one-half months). Plaintiff agreed as a consideration to defendant, but obviously could not wait until delivery was taken to obtain his money. For that reason, payment was made in á manner which differed somewhat from the customary procedure.

We do not feel that the time of payment and length of storage in this case are aspects of the contract which necessarily negate the existence and application of custom and usage in the industry as to those portions of the agreement to which the parties were silent. Simply stated, there was a slight deviation made at the request of the buyer because it had obviously bought more rice than it could handle at any one time. The seller was merely trying to accommodate the mill by allowing it additional storage time. Early payment was made as a consideration for the seller’s willingness to extend the storage time. The parties to this contract were silent concerning the right of the seller to inspect the grain should alleged deficiencies occur, and we must look to the custom and usage in the rice industry to determine the tacit terms of the agreement as to that issue. Since the parties failed to expressly reject the application of the solidly entrenched and established custom of allowing the vendor an opportunity to inspect and negotiate relative to the matter of unattained estimated milling yields, we find that custom must enter into the contract and prevail in this controversy. Relying upon the abovementioned customary practices prevalent in the industry, we conclude that the defendant violated the tacit customary provisions of the contract in its failure to notify plaintiff of the alleged deficiencies. For that reason, we find that the defendant mill waived its right to complain about the quality of plaintiff’s rice and thereby accepted it under the terms of the contract by unloading and milling the entire shipment without notifying plaintiff as to any alleged qualitative shortcomings.

We are also concerned about additional aspects of this case concerning the matter of set off and compensation.

One raising the plea of compensation is faced with the burden of proving the claim upon which his plea is based. Jackson v. Taylor Brothers Garage, 4 So.2d 41 (La.App. 1st Cir. 1941).

According to the case of Hughes Realty Company, Inc. v. Pfister, 245 So.2d 757 (La.App. 4th Cir. 1971), the party claiming compensation:

“. . . must prove by a preponderance of the evidence that the debt is for a certain amount or for an amount capable of ascertainment by mere calculation in accordance with accepted legal standards, and that it is the obligation of the party against whom the plea is urged.” (Emphasis added).

We are of the opinion that the evidence produced by the defendant in support of its claim of compensation failed to provide a basis for the application of compensation.

None of the supposedly inferior rice was presented at the trial. Over plaintiff’s objection, the manager of the defendant mill, Mr. Robertson, testified that one of his employees told him that some of the plaintiff’s rice was not milling to the contractual quality. This individual who performed the actual evaluation of the rice did not testify nor was he even identified by name. Mr. Robertson never ran any actual tests himself, and he had no first-had knowledge concerning the quality of the rice. Mr. Harrington, the defendant’s agent, testified that a bag of rice was sent to him by the defendant for additional testing. This rice was represented to be a sample of the shipment received from the plaintiff. However, Harrington, like Robertson, had no personal knowledge that this rice actually came from the shipment in question. He testified that he merely sampled some rice which supposedly represented said shipment and found that it milled below quality. It is significant that plaintiff was never afforded an opportunity to have his own certified inspector sample the rice, nor was he given the right to have an independent evaluation made by federal rice inspectors. This litigation classically illustrates the purpose and function of the customary practice of affording the seller an opportunity to question the alleged deficiency of his product before the milling is conducted. All of the physical evidence in this case was, in effect, “destroyed” in that it was completely and totally milled before any independent sampling of the raw product could be made. Therefore, plaintiff was never in a position to rebut defendant’s claim relative to the estimated milling yield. We find that defendant’s claim is based upon testimony which was predominantly hearsay and very weak in its nature. For that reason, even if we determined the usual customary practices to be inapplicable, we would be forced to conclude that defendant had failed to make its case relative to the plea of compensation.

Furthermore, we entertain some doubts concerning defendant’s purchase of the second batch of rice. The mill took delivery of the first shipment, which was allegedly defective, beginning on December 21, 1973. Shortly thereafter, defendant’s manager, Mr. Robertson, was informed of the fact that the rice was allegedly below the agreed quality. However, the defendant continued to accept the shipments and mill them without notifying plaintiff of its intentions to seek a reduction in price. The second shipment was purchased on or about January 3, 1974, at which time defendant obviously had knowledge of the fact that plaintiff’s rice was allegedly inferior. However, defendant purchased a second shipment of rice under the same terms (92-112) as those involved concerning the first batch. It is significant that no dispute was ever made concerning the quality of the second shipment of rice which was apparently from the same storage facility as that involved in the initial sale.

Civil Code Article 2210 provides in pertinent part:

“Art. 2210. Debts not compensable
Compensation takes place, whatever be the causes of either of the debts, except in case:
1. Of a demand of restitution of a thing of which the owner has been unjustly deprived.
.” (Emphasis added).

The doctrine of compensation reposes good faith. Bogert, Williams & Company v. John Egerton, 11 La.Ann. 73 (1856). A party cannot, by preconcerted artifice and with the view of paying himself, unjustly deprive a debtor of property of which he otherwise would not have gained possession. The Mutual National Bank v. Keenan and Slawson, 35 La.Ann. 1129 (1883). The case of Nolan v. Shaw & Company, 6 La.Ann. 40, 1851, concisely states the applicable principle as follows:

“Compensation must rest upon the basis of good faith. It is not permitted where its operation would involve a deception and a disappointment of the just expectation and confidence of the party against whom it is set up. Hence, if a creditor should buy goods at the shop of his debtor in such a manner as to hold out the idea that he would pay for them in cash; and after receiving the goods should propose a set off, his conduct would be considered as not in good faith and compensation would not be allowed.”

By its own admission the defendant mill had knowledge of the alleged defective quality involving plaintiff’s first shipment and the potential claim for reduction arising therefrom, prior to the second sale. The second purchase was made without any notice to plaintiff as to the pending claim relative to the first sale. Under the facts of this case, it is extremely difficult for us to find that the defendant did not purchase the second load of rice without the knowledge and possible intention of applying a setoff thereto. For this further reason we would disallow defendant’s claim of compensation even if the custom and usage in the industry were not applicable.

For the above and foregoing reasons the judgment of the District Court is reversed. Judgment is hereby rendered in favor of the plaintiff, Fontenot’s Rice Drier, Inc., and against the defendant, Farmers Rice Milling Company, Inc. in the amount of $11,830.00 representing the balance due to it by defendant on the second shipment of rice, with legal interest thereon from date of judicial demand. All costs at trial and on appeal are assessed against defendant.

REVERSED AND RENDERED.


author: BLANCHE, Judge.

text:
    AMCO UNDERWRITERS OF the AUDUBON INSURANCE COMPANY v. AMERICAN RADIATOR AND STANDARD CORPORATION et al.
    No. 10626.
    Court of Appeal of Louisiana, First Circuit.
    March 1, 1976.
    Iddo Pittman, Jr., Hammond, for appellant.
    Ernest L. O’Bannon, New Orleans, for appellees.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   BLANCHE, Judge.

Defendants-appellants, American Radiator and Standard Corporation, Aetna Casualty and Surety Company, and Tappan Company, appeal the granting of a subro-gation claim to plaintiff-appellee, Amco Underwriters of the Audubon Insurance Company, for a fire loss that plaintiff paid to their insured, Dorchester Webb.

Judgment was rendered against the defendants,. in solido, for $8,334.54, together with interest at the rate of 7 percent per annum from date of judicial demand until paid, and for all costs, including expert witness fees in the sum of $300. From this judgment, all defendants have appealed. We affirm.

The home of Dorchester Webb, located in Slidell, St. Tammany Parish, Louisiana, was damaged by fire on December 16, 1972. Webb was the first occupant of the subject house, having purchased it in 1965. At the time of the sale the house was not completely finished. Some work remained to be done in the kitchen, and the heating unit was not connected to its butane fuel source. The pipes with which to connect the unit to the fuel source were present but had never been connected.

Webb decided to use natural gas instead of butane, and since he was a construction worker and familiar with plumbing, he changed the gas orifices so that the unit would burn natural gas. He then connected the heater unit with the natural gas source himself, bypassing the pipes which were originally installed for butane.

The unit’s thermostat and a required “on-off” switch were located in the hallway of the house. The power switch, when in the “off” position, completely terminated all electricity flowing to the heating unit. However, the pilot light, which burned natural gas, would continue to burn even though the power switch was in the “off” position.

Webb and his family exclusively used the “on-off” switch rather than the thermostat to control the unit.

On the morning of the fire, Mrs. Webb routinely turned the power switch to the “off” position in preparation for a shopping trip in Slidell. However, her automobile would not start, and she and her daughter returned to the house to drink coffee and prepare to decorate the house for Christmas. A short while later her attention was drawn to loud noises in the attic which she investigated and discovered that the heating unit was on fire.

The plaintiff’s expert electrical and mechanical engineer, Joseph E. Leininger, testified that the solenoid gas valve regulating the entry of the gas into the combustion chamber of the heater did not fully close when Mrs. Webb de-energized the unit by turning the power switch off. The valve allowed gas to pass into the chamber where it was ignited by the pilot. As a result of the power being off, the blower fan did not activate to blow the heated air out of the chamber, through the heating duct-work and into the house. As a consequence of the fan’s failure to blow the hot air from the combustion chamber, the heat therein became so intense that it ignited the supporting rafters, resulting in the damage complained of.

The defendants’ heating technician, Kenneth E. Varndell, agreed with Leininger’s theory concerning the origin of the fire. Varndell was not an engineer and was not tendered as an expert to the court.

The valve in question was removed by the plaintiff subsequent to the fire and examined by Leininger, but he could not ascertain the exact reason the valve would not seat properly. Varndell never examined the valve because it was lost by Lein-inger subsequent to his examination thereof.

Defendants denied liability for the fire, and alternatively contended that the plaintiff was barred from recovery by the contributory negligence of their insured. In an attempt to prove that Webb was con-tributorily negligent in installing the subject unit, the defendants’ witness, Varndell, pointed out that this particular unit was not one which could readily be adapted to natural gas. In addition to the change of orifice performed by Webb, the unit required a pressure regulator to adjust for the difference in pressure between natural gas and butane, and also required a “drip leg” to remove moisture from the gas. Webb did not install either a regulator or drip leg.

Varndell contended that the malfunction of the valve could have been caused by the fact that the pressure was not regulated and/or by moisture contained in the natural gas since no drip leg was installed.

Varndell’s testimony for the defendants clearly established that the subject unit should be turned on and off only by the thermostat. The company recommends cutting the electricity off in the manner routinely done by the Webbs only to service the unit or in an emergency. The reason for this recommendation is that the fan, which blows the heated air from the combustion chamber and thereby prevents it from overheating, will not activate when the power is off. However, when the power is on, the rise of temperature from such an occurrence as herein will activate the fan and heated air is blown into the house. The heated air would continue to be blown into the house until such time as the occupants became overheated and checked the unit. This action of the fan is, therefore, a built-in safety feature of the unit.

Varndell acknowledged that a power cut-off switch such as that utilized by the Webbs is required by virtually all safety codes and that his company recommends it to be close to the unit itself.

However, Varndell also acknowledged that there are no instructions in the manual for this particular unit which would put the user on notice that the described “on-off” switch should not be used to operate the unit. It is uncontradicted that the homeowner in the instant case was not aware that by turning the power to the unit off he was destroying one of the safety features of the unit, that is, the fan’s automatic response to elevated temperature in the combustion chamber.

Without passing on the question of the homeowner’s contributory negligence, the trial judge found that the malfunction of the valve was not the cause of the fire. He concluded that the “cause” of this fire was Mrs. Webb’s use of the electrical power switch to turn off the heating unit, which, in turn, deactivated the fan motor, thereby eliminating one of the unit’s safety features.

After reaching his conclusion concerning the cause of the fire, the trial judge found that the defendants had a duty to warn users of the unit concerning the danger of using the power switch to control the unit and, therefore, held defendants liable for the damage resulting from their failure to so warn.

There is little doubt but that the leaking valve was a substantial factor without which the fire would not have occurred. Therefore, it was one cause-in-fact of the plaintiff’s loss. Dixie Drive It Yourself System v. American Beverage Company, 242 La. 471, 137 So.2d 298 (1962).

There also can be little doubt but that the failure of the described safety feature, that is, the fan’s automatic response to elevated temperature in the combustion chamber, was likewise a substantial factor and an additional cause-in-fact of the plaintiff’s loss. Dixie, supra.

Therefore, the first issue on this appeal is:

Should only one of the causes-in-fact of the fire bear the legal responsibility for the accident, and if so, which one; or did both causes-in-fact concur in producing the accident and, therefore, should both share the legal responsibility therefor ?

In this regard we note the following language from Pierre v. Allstate Insurance Company, 257 La. 471, 242 So.2d 821 (1971):

“* * * The keys for the solution of the issue of responsibility when there is more than one cause-in-fact of damages are (1) a determination of the exact risk or risks anticipated by imposition of the legal duty which has been breached and (2) the legal or policy considerations which grant excuses from certain consequences which follow an act of negligence. This requires, under the facts and the law of each case and the attendant exigencies, a jurisprudential determination which will implement and make effective our broad codal provisions concerning those who should respond in damages for their faults.” (242 So.2d at 831)

The exact risk anticipated when the subject valve leaked was that the leaking gas would be ignited in the combustion chamber and perhaps cause an increase in the temperature inside the house as a result of the fan’s response to the flames. The exact risk would not include the burning of the home as occurred herein, even though that would always be a risk generally associated with the use of a potentially dangerous instrumentality such as this heating unit. The exact risk anticipated would not have been the occurrence of the instant fire since the unit had a built-in safety feature described above which was designed to activate in the event the valve leaked.

It follows, therefore, that the exact risk anticipated by the safety device actually did occur. The temperature in the combustion chamber rose and ordinarily the fan would have been activated. However, due to the fact that the user had turned the fan’s power off, the fan did not respond and the fire occurred.

The safety feature’s failure to respond and protect the home against the exact risk anticipated makes that failure the legally responsible cause of the fire.

As we have determined that the fan’s failure was the legally responsible cause of the fire, the second issue on this appeal is a determination of who should bear the financial burden for the resulting damage.

The defendants contend that they are not liable for the damage since their product was not defective. Alternatively, they argue that the fire occurred because the homeowner negligently utilized the “on-off” switch rather than the thermostat to control the unit. Accordingly, they assert that the contributory negligence of the plaintiff’s insured bars plaintiff’s recovery.

Concerning the negligence of the homeowner, the record is devoid of any evidence whatsoever which would have served to warn or put the homeowner on notice that turning the power to the unit off also deactivated the described safety feature. There was likewise no showing that this particular homeowner knew or should have known through any independent knowledge of his own of the danger involved in turning the unit’s power completely off.

For those reasons, the user cannot be held to have been negligent.

On the other hand, the manufacturer of a potentially dangerous instrumentality such as the instant heating unit has a duty to instruct reasonably foreseeable users of their product with regard to its safe use. Williams v. Allied Chemical Corporation, 270 So.2d 157 (La.App. 1st Cir. 1972), writs refused, 271 So.2d 875 (La.1973).

This duty exists even though the product is not defective. Rather, it is the potential harm which can result through improper use of the product that gives rise to the duty to instruct or warn. We therefore, find that the defendant manufacturers breached their duty to the instant user by not instructing or warning that user of the danger of routinely using the “on-off” power switch to control this particular heating unit.

There are no legal or policy considerations which would grant these manufacturers an excuse from the consequences flowing from their breach of duty. Pierre, supra. The manufacturer of a potentially dangerous instrumentality is always held to a high degree of care. These defendant manufacturers knew or should have known that the instant heating unit would be installed with an “on-off” switch in addition to the thermostat. They correspondingly owed a duty to reasonably foreseeable users of that unit to instruct or warn them with regard to the proper use thereof. In this regard they breached their duty to the plaintiff’s insured and that breach subjects them to liability for the loss suffered by the plaintiff.

The defendants have not contended that the amount awarded to plaintiff was excessive, and, therefore, for the reasons assigned herein, the judgment of the trial court is affirmed, at appellants’ cost.

AFFIRMED.


author: BROOM, Justice, for the Court:

text:
    Johnny TAYLOR, Sheriff v. Dr. Norman Asa GARRISON, Jr.
    No. 49090.
    Supreme Court of Mississippi.
    March 23, 1976.
    Rehearing Denied April 20, 1976.

      A. F. Summer, Atty. Gen. by Edwin A. Snyder, Sp. Asst. Atty. Gen., Jackson, for appellant.
    Farese, Farese & Farese, Ashland, Kay Farese Luckett, Clarksdale, for appellee.
    Before PATTERSON, ROBERTSON and BROOM, JJ.
   BROOM, Justice, for the Court:

Extradition of appellee, Dr. Garrison, to Missouri on a murder charge was ordered by the Governor of Mississippi. The governor’s action in issuing a rendition warrant was challenged by appellee in a ha-beas corpus court of Marshall County. After indulging various theories as to what may have actually occurred, the habeas corpus court found that insufficient probable cause existed when the accusatory affidavit was filed against appellee in Missouri, and that he had not been in Missouri on the date of the murder. Accordingly, the habeas corpus court suppressed the extradition warrant, sustained the writ of habeas corpus, and discharged appellee. Sheriff Taylor appeals the matter here. Though we must reverse the judgment appealed from, Dr. Garrison’s guilt or innocence is not before us and we make no judgment whatever on that issue.

Briefly stated, the facts are as follows. The body of Lee Ann Garrison, ex-wife of appellee, was discovered at approximately 11:20 A.M. on Sunday, September 8, 1974. Several hours later, by affidavit of a Missouri prosecutor, appellee was charged with murder. On December 4, 1974, Mississippi Governor Waller, upon requisition of Missouri, issued his rendition warrant which the habeas corpus court nullified. In the habeas corpus court appellee called the Missouri prosecutor (as an adverse witness) who described events and evidence which caused him to file the charge.

As counsel for appellee (in the habeas corpus court) was questioning the prosecuting attorney from Missouri about another suspect (a Mrs. Hatley), appellant’s counsel objected to any further such questioning on the ground that probable cause for issuance of the affidavit was not a proper inquiry. Ruling on the objection was reserved by the court, and appellee’s counsel was allowed to show that others may have had motive and opportunity to kill Mrs. Garrison. Then on appellant’s behalf, a Mississippi Deputy Sheriff (Bright) testified that he took appellee into custody pursuant to the governor’s warrant on December 4, 1974. Appellant then placed in evidence the governor’s extradition warrant bearing the sheriff’s return and rested.

Testifying in his own behalf, appellee presented an alibi (corroborated by several prominent Mississippi citizens) that he was not in Missouri, but in Mississippi at Pickwick Lake from the afternoon of September 7, 1974, until the afternoon of September 8, 1974. He denied being in the demanding state of Missouri since June 1, 1974. Some of his testimony as to certain details and statements made by him as to his plans for September 8 was contradicted by rebuttal witnesses of appellant.

Physical facts, found to exist at or near the Garrison residence in Missouri, introduced by appellant consisted of: (1) a fingerprint identified as appellee’s lifted from a metal fence; (2) a torn surgical glove found near the victim; (3) three types of blood were discovered: Type A — Mrs. Garrison’s ; Type O — appellee’s; and Type B— unidentified; (4) a bloody footprint having similarities to appellee’s; and (5) someone with obvious knowledge of the intricate telephone system had rendered it inoperable.

In the arguments presented here, it is not questioned that there are three traditional requisites for extradition, to-wit: There must be a showing that the person sought is (1) the person named in the extradition writ, (2) charged pursuant to 18 U.S.C.A. section 3182 (1969) with a crime in the demanding state, and (3) a fugitive from the justice of the demanding state. At the hearing granted by the governor it was found that those requisites had been met. Based on this finding, the governor issued his rendition warrant and his act as a public official carries with it a presumption of validity.

I.

The first issue is whether the habeas corpus court erred in suppressing the warrant of extradition issued by the Mississippi Governor on the ground that the accusatory affidavit filed against the appellee in Missouri was not presented to the Governor in Mississippi or to the habeas corpus court.

The record is devoid of proof that such an affidavit was not presented to the governor. However, an authenticated copy of Governor Waller’s rendition warrant directing appellee’s arrest was put in evidence at the habeas corpus hearing, and its form and contents were not shown to be deficient. Grace v. Dogan, 151 Miss. 267, 117 So. 596, 597 (1928). Such a warrant was prima facie evidence of the existence of every jurisdictional fact necessary to the governor’s determination before he issued such process. Illinois ex rel. Mc-Nichols v. Pease, 207 U.S. 100, 28 S.Ct. 58, 52 L.Ed. 121 (1907); Roberson v. Quave, 211 Miss. 398, 51 So.2d 777 (1951); Loper v. Dees, 210 Miss. 402, 49 So.2d 718 (1951); Grace v. Dogan, supra; Ex Parte Walters, 106 Miss. 439, 64 So. 2 (1913); Ex Parte Edwards, 91 Miss. 621, 44 So. 827 (1907); Ex Parte Devine, 74 Miss. 715, 22 So. 3 (1897).

In the habeas corpus court it was appellee’s burden to overcome appellant’s prima facie case made out by the governor’s warrant. Though appellant could have properly placed in evidence all pertinent extradition documents, the warrant was sufficient to establish a prima facie case. As movant, appellee, failed in his attack on the form, content, or sufficiency of the extradition documents. His burden was to produce the documents, or at least demand that appellant produce them, but he made no attempt to get them before the habeas corpus court and into the record. In this regard his burden is clear because by motion to suppress the extradition warrant he contended that the charge against him was not brought “upon probable cause supported by necessary supporting affidavits.” In such a posture, his motion required proof. The governor’s extradition hearing officer was available to the appel-lee. He had been subpoenaed to appear and bring all the extradition documents. The officer testified but appellee made no attempt to offer the subject documents into evidence. Then the habeas corpus court, without viewing them, ruled that the governor wrongfully upheld sufficiency of such documents.

Although Mississippi Code Annotated section 11-43-9 (Supp.1975) requires that applications for habeas corpus state the ground for relief, the only ground stated in appellee’s petition was that he was not a fugitive. In the record is appellant’s return on the habeas corpus writ pursuant to Mississippi Code Annotated section 11-43-29 (1972) stating that appellee had been charged with murder in the State of Missouri from which state “Petitioner is a fugitive. . . .’’No evidence was offered to contradict that part of the return stating that appellee had been charged in Missouri.

Upon the record as made, it was error for the trial court to rule that the requirements of 18 U.S.C.A. section 3182 (1969) were not complied with.

II.

Appellant contends that it was error for the trial court to conduct an evidentiary hearing and receive oral testimony on the issue of whether there was probable cause for the arrest of appellee.

The extradition clause of the United States Constitution provides:

A person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime. (U.S.Const. Art. 4 § 2, Cl. 2.)

Implementing the constitutional provision is 18 U.S.C.A. section 3182 (1969), which requires the demanding state to show that the person demanded is (1) substantially charged with a crime under its jurisdiction, and (2) is a fugitive therefrom. The first requirement is a matter of law; the second is one of fact. Munsey v. Clough, 196 U. S. 364, 25 S.Ct. 282, 49 L.Ed. 515 (1905); Roberts v. Reilly, 116 U.S. 80, 6 S.Ct. 291, 29 L.Ed. 544 (1885). Whether the first requirement is complied with has been traditionally determined from the face of the documents submitted to the governor of the asylum state. Although no rule has been propounded with regard to the form or substance of these documents, the word “charged” as used in the Federal Constitution and statute, has been construed by the Supreme Court:

In the strictest sense of the term a party is charged with crime when an affidavit is filed, alleging the commission of the offense, and a warrant is issued for his arrest; and this is true whether a final trial may or may not be had upon such charge. In re Strauss, 197 U.S. 324, 331, 25 S.Ct. 535, 537, 49 L.Ed. 774, 778-79 (1905).

Normally, the submitted documents (authenticated) include: (1) an accusatory affidavit, information, indictment, or record of conviction of the person demanded, (2) arrest warrant; (3) appropriate certificates of the clerk and judge each attesting to the other’s authority, and (4) a formal requisition by the governor of the demanding state.

Some jurisdictions have expanded the scope of the substantiality issue to allow inquiry into probable cause. An indictment or conviction in the demanding state is generally accorded a conclusive presumption on the question. Woods v. Cronvich, 396 F.2d 142 (5th Cir. 1968): Walden v. Mosley, 312 F.Supp. 855 (N.D. Miss.1970); Loper v. Dees, supra. But, when the charge accompanying the requisition is in the form of an affidavit, a number of jurisdictions have required a showing that it be supported by Fourth Amendment standards of probable cause. United States ex rel. Grano v. Anderson, 446 F.2d 272 (3d Cir. 1971); Kirkland v. Preston, 128 U.S.App.D.C. 148, 385 F.2d 670 (1967) and authorities cited therein at 674, n. 7. Mississippi rejected the Kirkland rationale in McEwen v. State, 224 So.2d 206 (Miss. 1969). However, language in a subsequent decision indicates that probable cause may be within the scope of inquiry. Corkern v. State, 269 So.2d 630 (Miss. 1972). This language that the “habeas corpus court may, however, examine the evidence taken before the magistrate issuing the warrant to determine whether or not probable cause existed” was dicta and not controlling here. In Corkern the argument that the State of Mississippi failed to show probable cause for the prisoner’s arrest was (as appears from the briefs therein) founded upon the theory that the accusatory affidavit, bill of information and “accompanying papers” on the face of them were insufficient as a matter of law. Such argument related to the form and content of the documents rather than to the actual facts of the case. No issue of probable cause as to sufficiency of the “evidence before the magistrate” was decided by us in Corkern, and that case cannot be authority that we have adopted the Kirkland rule. Corkern dealt largely with the question of whether extradition may be based on a bill of information rather than an indictment.

Our rule, which seems to be the rule in a majority of the states, is as follows : When the governor from a demanding state requisitions extradition and certifies that the respondent committed the crime while in the demanding state, and that the duly authenticated accusatory document (along with the related extradition documents) is genuine and states a crime under the laws of that state, such facts authorize the arrest and extradition of the defendant. McEwen, supra. In the case sub judice, Governor Waller stated in his rendition warrant that the Governor of Missouri “has made known to me that Dr. Norman Asa Garrison, Jr., stands charged with having committed' the crime of first-degree murder.” McEwen in effect holds that the issue of probable cause should be litigated in the demanding state. Accord: In re Ierardi, 321 N.E.2d 921 (Mass.1975); Bailey v. Cox, 260 Ind. 448, 296 N.E.2d 422 (1973).

Accordingly, the ruling of the lower court “[t]hat the Fourth Amendment, which governs arrest, governs extradition arrests (U.S.C.A.Const. Amend. 4; D.C.C. E. § 23-401 (a); 18 U.S.C.A. § 3182, F.S. A. § 806.06 [806.02])” is erroneous. Its very language is an extract from Headnote S in the Kirkland case which we expressly rejected in McEwen, supra.

Though not necessary to our decision in this case, the record demonstrates that probable cause existed even under the rule of those jurisdictions which permit such an inquiry. Evidence tending to link appellee with the murder included: blood of the same type as that of the accused found at the scene of the crime, a bloody footprint similar to that of appellee, the inoperative telephone system, a torn surgical glove, and a fingerprint on the fence behind the residence impressed in the blood type of the victim.

While it is true that some of these items of evidence were not known when the accusatory affidavit was made against appel-lee, the fact of the murder was known along with certain incriminating facts, including a threat allegedly made by appel-lee, condition of the telephones, and the torn surgical glove found at the scene of the crime. Thus it cannot be logically argued that probable cause was not established upon this record, even if required.

III.

The final issue presented is: Did the ha-beas corpus court erroneously discharge appellee on the question of fugitivity ?

To be a fugitive from a demanding state, the subject person must have been within that state at the time the crime was committed. One is not such a fugitive if he establishes conclusively or beyond a reasonable doubt that he was without the borders of the demanding state at the time of the commission of the crime. South Carolina v. Bailey, 289 U.S. 412, 53 S.Ct. 667, 77 L.Ed. 1292 (1933).

Clearly the question of fugitivity is within the scope of inquiry of the habeas corpus court. Bishop v. Jones, 207 Miss. 423, 42 So.2d 421 (1949). The appellee here had reliable eye witnesses who placed him outside , the borders of the demanding state at the time of the murder. However, the appellant introduced a fingerprint made in the blood type of the victim and identified as that of appellee, which places him at the scene of the crime. The habeas corpus court found that the fingerprint evidence was irreconcilable with the testimony of the witnesses, and erroneously resolved the conflict in favor of appellee. The proper forum to make such resolution is a court in the demanding state rather than a court in the asylum state. South Carolina v. Bailey, supra; Munsey v. Clough, supra; United States ex rel. Grano v. Anderson, 318 F.Supp. 263 (D.Del.1970). The habeas corpus court below rationalized the presence of the relator’s fingerprint by finding, as a matter of fact, that it had been substituted. Such a conflict (alibi versus fingerprint) must be decided by the trial court of the demanding state — not the habeas corpus court as occurred here. United States ex rel. Grano v. Anderson, 318 F.Supp. 263 (D.Del. 1970). As stated in Biddinger v. Commissioner of Police, 245 U.S. 128, 38 S.Ct. 41, 62 L.Ed. 193 (1917), neither statutes nor constitutional provisions (on extradition) are to be “construed narrowly and technically . . . as if they were penal laws, but liberally” so that a demanding state may bring to trial charges against a defendant found in another state. There a jury may hear the evidence and determine the guilt or innocence of Dr. Garrison, which issue is not before this Court.

The judgment of the lower court is reversed, the writ of habeas corpus is quashed, and appellee will be remanded into the custody of the sheriff of Marshall County for delivery into the custody of the lawful agent of the State of Missouri.

REVERSED AND RENDERED.

GILLESPIE, C. J., PATTERSON and INZER, P. JJ. and SMITH, ROBERTSON, SUGG, WALKER and LEE, JJ., concur.

      . Mississippi Code Annotated sections 99-21-1 to -11 (1972) are the Mississippi statutes on extradition.