author: HARDY, Judge.

text:
    DEPARTMENT OF HIGHWAYS v. JONES et al.
    No. 7140.
    Court of Appeal of Louisiana. Second Circuit.
    April 30, 1948.
    Rehearing Denied May 31, 1948.

      H. A. Taliaferro, of Harrisonburg, and Wedon T. Smith, of Jonesville, for appellants.
    D. Ross Bannister, of Monroe, and Joseph A. Loret and Arthur B. Hammond, both of Baton Rouge, for appellee.
   HARDY, Judge.

The facts developed on trial of this case and the issues of law presented are ably set forth in the reasons for judgment assigned by our distinguished brother of the District Court, which we quote in full as follows:

“Plaintiff, the Department of Highways of the State of Louisiana, sues to recover damages in the sum of $582.84, alleged to have been caused by the negligent use of a bridge located on State Route No. 1061 in Catahoula Parish, by the defendants. The defendant, J. M. Jones, is a non-resident and the owner and operator of a fleet of logging trucks and for the last two years have been operating in the vicinity of said bridge in Catahoula Parish. The defendant, Benny Washington, is an employee of J. M. Jones and was the driver of the logging truck at the time of the accident and collapse of the bridge aforesaid. On September 17, 1945, defendant’s logging trucks while transporting and hauling timber logs from the woods to the loading camp or station, allegedly caused the collapse and damage to the bridge aforesaid by crossing thereon with a heavy load of logs. Plaintiff contends that the damage was due solely to defendant’s negligence in that it was or should have been apparent to anyone, particularly to J. M. Jones and his employees and among them, Benny Washington, that the bridge was entirely too frail for such heavy traffic; that the bridge here was old and the road was a settlement or dead end road, never designed or intended for such heavy traffic as is now transported in modern log trucks; that the defendant did not use the bridge with the degree of care, required, and is therefore liable for damages caused.
“Defendant’s answer is a general denial of any liability and their defense on trial of the issue is based upon the contention that plaintiffs contributed to the cause of the accident by failure to keep the bridge in the proper state of repair and failure to give proper notice or post proper signs designating the load limit of the bridge.
“On trial of the issue, the evidence revealed that the bridge in question was constructed more than twenty-five years ago in a thinly settled farming locality and on a road designed to furnish an outlet for such inhabitants. The bridge was primarily designed to support such traffics and weights customary for that time and for the locality it served. This road is classed as an inferior third class dead-end road. For these purposes the evidence is conclusive that the bridge was evidently well constructed. The defendant testified that the bridge had been used for more than two years by them, and during this time heavy traffic in enormous truckloads had passed thereon. From this evidence it must be conclusively presumed that the bridge was of most excellent construction for the purpose designed. There is evidence that at the time of the accident some of the fillers and flooring were decayed. However, it is the Court’s understanding that these defects could not have affected the strength of the bridge or contributed to the cause of the accident. The bridge was constructed of steel, the flooring and fillers were of wood, the fillers were bolted to the steel stringers and the flooring nailed to the fillers. These wood fixtures were not designed to and did not bear any weight or strain.
“It is the duty of the plaintiff to maintain the bridges of the highway of this State as to reasonably insure the safety of the traveling public, and any dereliction in this duty is a contributing negligence where such dereliction attributes to the cause of the accident. It so happens that not all the highways and highway bridges of our State are of the same standard; some are old, but were excellent for their time; they were not designed or contemplated for use by present-day enormous tonnage carrying vehicles. Some are new and modern and constructed to withstand and support enormous weights. It is further the duty of the plaintiff to properly and sufficiently warn the traveling public by proper signs and signals of any highway or bridge not suitable for modern heavy traffic.
“But at the same time it is equally the duty of the travelling public to use the highways and bridges of the State with reasonable care. Dept. of Highways v. Fogleman et al. 210 La. 375, 27 So.2d 155.
“In the present instance it is -conclusively established that the highway and bridge in question was never designed or intended for use by -a fleet of modern high speed, high tonnage log trucks as that used by these defendants, and that this fact was most apparent to the traveling public and particularly to these defendants. Under the facts and circumstances of this particular case the Court is forced to conclude that these defendants did not use this bridge with the reasonable care required of the traveling public. On the ■contrary, they were totally unmindful and indifferent to the interest of preserving public property; that a reasonable person would and should have foreseen.
“But Defendant urges that plaintiff was also derelict in its duty in that it is conclusively proven that no notice, sign or warning of the weight capacity of the bridge were even given or made by the plaintiff. That by reason of this omission, plaintiff contributed to the cause of the accident. For support of the argument, the Fogleman case above cited is urged as decisive of the issue. The facts of the Fogleman case are not analogous with those of the present case. In that case, defendant’s truck was required to detour from a first class highway to an inferior bridge. In creating this detour, the inferior bridge thereon was automatically made a connecting link and a part of a first class highway. It was most clearly the duty of the plaintiff to give warning of a load limit, and its failure therein was most correctly held to be the contributing cause. In the present case, instead of a detour link of a first class highway, we have a dead-end or settlement road, the bridge thereon constructed many years ago adapted and sufficient for the normal uses of such road, but most apparent and patent to everyone as not adequate and sufficient for abnormally heavy traffic such as that used by these defendants.
“Unlike that of the Fogleman case, the defendants here are not in the ordinary and full sense of the word a ‘traveller’ or the the ‘traveling public’. Defendants here owned and operated a logging camp in the vicinity of this road and bridge. They used it, not as an isolated single passage, but over a period of time as an integral part of their business of transporting unusually heavy logs, and this notwithstanding the apparent inferior design. The failure of the plaintiff to post signs of load limit on this bridge is unquestionably negligence on its part but under the facts and circumstances here it would be most difficult to find or conclude that this negligence was a contributing cause of the collapse of the bridge.
“For the reasons above assigned, plaintiff should have judgment as prayed for, and it is so ordered.”

While we are in complete accord with the statement of facts as set forth by the District Judge, we think it essential to call attention to certain other facts which we deem to be pertinent and material. First, we find that the load which was being hauled over the bridge in question at the time of the collapse was of considerable lesser weight than the average load which defendant’s trucks were accustomed to transport over this same road and across this same bridge. The explanation of this fact is logically set forth as being due to the condition of weather at the time, which made the hauling of heavier loads from the swamps where the timber was being cut impracticable. At the time of the accident the truck involved was bearing only three cypress logs, whereas the average, usual and customary load consisted of five or six logs. In our opinion serious consideration should also be given to the fact that the testimony of one of the witnesses showed that he had been accustomed to crossing the bridge nearly every day for four years and, in fact, had crossed the bridge with a loaded truck of some eight thousand pounds, the same day the accident occurred.

Summing up the facts bearing upon the use of the bridge, we are impressed that for a period of four or five years heavily loaded gravel, logging and oil trucks were accustomed to use the road and the bridge as a matter of course; that school buses loaded with children traveled this road; and that for at least two years defendant’s heavily loaded trucks had been using the road and the bridge in conjunction with logging operations in the course of which operations some fifty or sixty loads were hauled daily on an average of four days per week.

While we observe with interest and agree in general principle with our brother of the District Court, we take issue with him on certain specific points which persuade us to a conclusion which is directly at variance with his judgment.

While it is true that some of the highways, roads and 'bridges maintained by the Department of Highways are old and were not originally designed or contemplated for use by the enormous tonnage-carrying vehicles of the present day, we do not conclude that the Department ot Highways as an agency of our State is thereby relieved of all responsibility. Conceding the practical impossibility of the maintenance of all highways, roads and bridges under the control and supervision of the Department in such condition as to accommodate unlimited tonnage, there is certainly, in all reason, a duty and obligation devolving upon the Department to properly warn the traveling public as to the limitations of the less modern sections of its state-wide system.

It must be borne in mind that the case before us does not reflect an isolated instance which concerns the lack of care or negligence on the part of one who unwisely and recklessly attempts to negotiate the passage of a frail structure with a heavily loaded vehicle. Quite the contrary is true under the facts of this case. Tremendous loads had been safely transported over this same bridge for a period of years. Certainly the plaintiff had or should have had knowledge of this fact. It is also true in this connection that the plaintiff had the best opportunity and certainly was chargeable with the duty of determining the maximum stress, strain and load capacity of the 'bridge structure herein concerned. Then, to our minds, it became the clear duty of plaintiff to warn traffic of the limitations as to the margin of safety, and its failure so to do must be considered negligence which directly contributed to the accident and therefore bars recovery.

We think it proper to point out in this case that it is not our intent nor do we purport in any sense to find that defendants were completely free of negligence, but we specifically limit the application of our findings to the affirmation of the defense of contributory negligence.

In arriving at the conclusion expressed herein, we are deeply sensible of the expressions in the opinion of the Supreme Court in Department of Highways v. Fogleman et al., 210 La. 375, 27 So.2d 155, 157, particularly in view of the fact that one of the members of this Court, who participates in the consideration and determination of the case at hand, was the author of the opinion in the Fogleman case. We find nothing inconsistent in our reasoning with the principle expressed in the Fogleman case to the effect that: "One who proposes to transport an unusual or undue load over a public bridge, particularly on a secondary route, is under the duty to exercise care and caution. In the absence of such care, a person driving such vehicle assumes the risk of injury to himself and cargo in trying to pass over the bridge.”

In the present case we pretermit any consideration of the lack of such care and caution as might sustain a finding as to the assumption of risk of injury to' the driver and his cargo. It might well be that defendant was guilty of such negligence as would have precluded the recovery of damages which he might have sustained. But this is not such an action, and it appears exceedingly clear to us that, conversely, the plaintiff herein is chargeable with the result of its failure to take and maintain reasonable precautions which would have prevented damage to its own property, for which it now seeks recovery.

For the reasons assigned, the judgment appealed from is reversed and set aside, and there is now judgment in favor of defendants, J. M. Jones and Benny Washington, rejecting the demands of plaintiff.

There is further judgment dissolving the writ of attachment herein issued and releasing the property seized thereunder. Stenographer’s costs are to be paid by plaintiff.

Judge Taliaferro recused.


source: Caselaw Access Project

author: TALIAFERRO, Judge.

license: Public Domain

text:
    FROST LUMBER INDUSTRIES, Inc. v. HARRISON et al (HARRISON, Intervenor).
    No. 7124.
    Court of Appeal of Louisiana. Second Circuit.
    April 30, 1948.
    Rehearing Denied May 31, 1948.

      J. R. Dawkins and G. H. Holloway, both of Farmerville, for appellant.
    Harvey G. Fields, of Farmerville, for appellee.
   TALIAFERRO, Judge.

Plaintiff, alleging itself to be the owner of an undivided one-half interest in the East one-half (E %) of the Northwest Quarter (NW j4); Section Sixteen (16), Township Twenty-Three North (23), Range One East (1), located in Union Parish, Louisiana, instituted this suit against the heirs and legal representatives of Andy Harrison, deceased, of whom there are many, to effect a partition by lici-tation. Plaintiff admits that said heirs own the other one-half interest. It was also alleged that its interest in the land was acquired by Frost-Johnson Lumber Company, a corporation, from Wallace Clark Mercantile Company, a co-partnership, and its component members in November, 1920; that the corporate name of the vendee in said deed was subsequently changed by corporate action to Frost Lumber Industries, Inc.; that said Wallace Clark Mercantile Company acquired said one-half interest from Mariah Harrison, mother and grandmother of the defendants, by warranty deed dated November 21, 1913; that Andy Harrison, deceased, husband of Mariah Harrison, acquired the entirety of the land during the existence of their marriage.

The defendants, represented by counsel, deny that their mother executed a deed of her interest in the land to Wallace Clark Mercantile Company, and deny that plaintiff owns any interest whatever therein. They aver that the land is wholly owned by them and their said mother, and pray that the suit be dismissed at plaintiff’s cost. The Curator ad PIoc appointed to represent several absent major heirs and who was also, appointed Tutor ad Hoc for one minor heir, in said capacities, answered the petition and in addition to the defenses set up by the heirs represented by counsel, also, in the alternative, pled other defenses which the present status of the case renders unnecessary to here summarize.

Some time subsequent to the case being put at issue by answers, Mariah Harrison intervened in the suit and opposed the demands of the plaintiff. She denied executing the alleged deed to Wallace Clark Mercantile Company. She alleged that the land was acquired by her deceased husband, Andy Harrison, during their marriage, and that on his death in the year 1905, one-half interest therein devolved upon her as widow in community and that she now owns such interest.

In the alternative, the deed allegedly signed by her to Wallace Clark Mercantile Company is attacked on several grounds but,for reasons hereinafter set forth, the nature of these grounds is not here given. Further, in the alternative, she alleged that since November 21, 1913, (date of said alleged deed) she has been in the physical possession of said eighty acre tract of land as owner; that practically all of it has been in a state of cultivation for said time; that the land has continuously been assessed to her and taxes thereon paid by her; that she has claimed exemption from payment of taxes thereon since the adoption of the lav/ providing therefor; that she has cut wood and timber therefrom and in other ways exercised and maintained corporeal possession thereof for more than thirty years. She pleads prescription of thirty years in bar of plaintiff’s claim of ownership, and prays that plaintiff’s suit be dismissed at its cost and that she be recognized as owner of one-half interest in the tract.

Plaintiff, answering the intervention, affirms the genuineness and the validity of the alleged deed from Mariah to the Wallace Clark Mercantile Company. It denies that intervenor has possessed the land in the manner and for the time asserted by her. Plaintiff further pleads that having sold her interest in the land by warranty deed, Mariah Harrison, because of the covenant of warranty on her part, is precluded from re-acquiring same through possession and prescription.

There was judgment for plaintiff as prayed for by it. The intervention and third opposition were dismissed and the demands therein made were rejected. Only the intervenor appealed. The defendants not having appealed, have passed from the case.

In brief in this court, intervenor’s counsel concede that plaintiff successfully refuted the charge that intervenor did not sign and execute the deed to Wallace Clark Mercantile Company. We have studied the testimony adduced on this issue and are convinced that the deed is genuine and fully binding upon the intervenor. There remains but one other question for decision and that is the plea of prescription of thirty years interposed by the intervenor.

Mariah Harrison, the record reveals, was eighty-six years old and bedridden when the case was tried. She is a member of the colored race and illiterate. No effort was made to have her give testimony in the case. Two of her sons, Joe Harrison, age forty-seven, and Fonnie Harrison, age fifty-five, did testify as witnesses.

It is not certain that prior to 1941 either of the named sons knew that their mother had parted with her interest in the land. They had heard so but she denied it when asked by them. It is entirely probable she had forgotten doing so.

It is certain that the possession and control of the eighty acre tract underwent no change from November 21, -1913 to the time this suit was filed. About sixty-five acres of the tract are now enclosed by some sort of fence and in a state of cultivation, and have been so for over forty years, continuously. Fifteen acres of the tract, being its south end, carries timber. This part of the tract is not now enclosed, but was enclosed to about the year 1930.

Neither the plaintiff nor its vendor evinced any interest whatever in the land prior to 1926. For that year and continuously since, the one-half interest claimed by it was returned for assessment purposes and taxes thereunder paid by plaintiff.

In 1941, a representative of plaintiff discovered that some of the trees on the fifteen acre tract had been cut and mentioned the fact to Joe Harrison, who was informed by this representative that as the land was owned in indivisión neither owner had the right to cut and remove the timber. Beyond this no effort was made by plaintiff's representatives to question the possession of Mariah or the ownership of "the defendants. Such acts did not have the effect of interrupting or disturbing, in legal contemplation, the possession held adversely to plaintiff.

When Andy Harrison acquired the eighty acres involved herein, in the same deed he also acquired the E % of the SW of Section 9, adjoining. He established his home on the south forty of that tract, and he and his children, after years of toil, cleared, enclosed and put in cultivation the entire one hundred sixty acres. The widow and some of his children have continuously since that accomplishment tilled and otherwise exercised acts of physical possession on and over the one hundred sixty acres, excepting the fifteen acres, above mentioned, on which timber has grown during the past forty years.

When this suit was tried and for several years prior, only Joe and Fonnie Harrison lived on the land with their mother. Both testified that they had their mother’s consent to till the land and from the crops produced therefrom, provided her with subsistence, etc. She continued to be usu-fructuary of the heirs’ one-half interest after having disposed of her own interest. These sons did not say, in so many words, that they leased the land from Mariah. We judge from what they did say that they recognized their mother’s superior right to and over the land, procured her consent to live on and cultivate such portions of it as they desired, and, in return for its use, paid her rent by providing for her the necessities of life.

With respect to the timbered fifteen acres, the enclosure around it was removed about the year 1930. It was cultivated by Fonnie Harrison in 1906. Since the fence was removed, Mariah and her two named sons, as their needs required, cut firewood, posts, ties, etc. therefrom and in other ways manifested an intention to continue possession of it. This sort of possession, following corporeal possession, was sufficient to serve as a link in the possession necessary to the prescription of thirty years. R.C.C.Article 3501.

Concerning prescription of thirty years, Article 3499, R.C.C., reads: “The ownership of immovables is prescribed for by thirty years without any need of title or possession in good faith.”

To acquire real estate through this prescription possession must be continuous and uninterrupted during the time. It also must be public and unequivocal, and as owner. R.C.C.Article 3500. The prescription “extends only to that which has been actually possessed by the person pleading it”. R.C.C.Article 3503. But possession when once acquired and not interrupted may “be preserved by external and public signs, * * * as the keeping up of roads and levees, the payment of taxes, and other similar acts.” R.C.C.Article 3501.

It is not true, as contended by ap-pellee, that a vendor is precluded on account of his warranty from re-acquiring realty sold by him by the prescription of thirty years. That he may do so has been expressly held by this and the Supreme Court. See: Succession of Zebriska, 119 La. 1076, 44 So. 893; Roe v. Bundy’s Heirs, 45 La.Ann. 398, 12 So. 759; Louisiana Highway Commission v. Raxsdale et al., La. App., 12 So.2d 631.

In the Zebriska case, on page 1079 of 119 La., page 894 of 44 So., the court said: “In the case of Roe v. Bundy’s Heirs, 45 La.Ann. 398, 12 So. 759, this court said that the vendor is not precluded from reacquiring by prescription the property he has sold.”

Plaintiff relies upon the case of Roberts v. Phillips, 6 La.App., 394, to support its position that Mariah was precluded from re-acquiring by prescription the interest in the land. Some statements in the opinion in this case do give material comfort to plaintiff, but these are opposed to the holdings in the above cited cases which undoubtedly sustain the contrary doctrine.

We are informed in brief of intervenor that the lower court’s decision turned upon the question of whether possession of the eighty acre tract was by Mariah Harrison as owner. It did not think so. This character of possession is indispensable to the efficacy of such a plea.

Mariah’s possession of the heirs’ interest in the land was in the capacity of usufructuary. So long as this status existed she could not acquire their interest by prescription. She was obligated to pay all taxes assessed against that interest so long as she exercised the rights of usufruc-tuary. As to the other one-half interest, the record, in our opinion, fairly well establishes that her possession was that of owner. Uncontradicted facts warrant the presumption on that she did so possess. In the absence of clear and convincing proof to the contrary, one is presumed tc possess as master and owner. R.C.C.Article 3488.

These conclusions are clearly reflected from established facts. The land was assessed to her annually and she paid taxes thereunder until the law was adopted that relieved her of this obligation, the property being assessed at not over $2,000.00. Thereafter, she annually applied for and was granted the exemption mentioned. It is reasonable to conclude, all things considered, that Joe and Fonnie Harrison, in legal effect and contemplation, possessed for their mother.

We are of the opinion that the plea of prescription should have been sustained. For the reasons herein assigned, the judgment appealed from is reversed, annulled and set aside, and said plea is hereby sustained. The intervenor, Mariah Harrison, is now recognized as the owner of an undivided one-half interest in the land in controversy, to-wit:

East One-Half (E %) of the Northwest Quarter (NW14), Section Sixteen (16) Township Twenty-Three (23) North, Range One (1) East, located in Union Parish, Louisiana. It is further adjudged and decreed that plaintiff’s demands be rejected and its suit dismissed at its cost.


author: REGAN, Judge.

text:
    WISEMAN et ux. v. BEGNAUD.
    No. 18967.
    Court of Appeal of Louisiana. Orleans.
    June 7, 1948.
    Rehearing Denied June 18, 1948.
    Thomas Barr, III, of New Orleans, for appellant.
    Mark W. Malloy, of New Orleans, for appellees.
   REGAN, Judge.

Mr. and Mrs. Billy Wiseman, the plaintiffs herein, filed suit against C. J. Begnaud, defendant, in the sum of $152.00, alleging that this amount was due them for rent of the premises designated by the municipal number 3006 Palmyra Street, New Orleans, at the rate of $38.00 per month, for a period of four months beginning September 1st, 1947.

Defendant filed an exception of no right or cause of action and an answer denying that he was indebted to plaintiffs in any sum whatsoever, and averring that plaintiffs were not the owners of the property in question. He reconvened claiming $990.00, alleging that this amount was expended by him through the act of plaintiffs in compelling him to move from 3006 Palmyra Street, and that in seeking new housing accommodations it was necessary for him to purchase the entire furnished contents of a residence which he finally acquired in No. 1612 N. Claiborne Avenue, New Orleans, Louisiana.

The exception of no right or cause of action was overruled and, after a trial on the merits, there was judgment in plaintiffs’ favor as prayed for and dismissing defendant’s reconventional demand. From this judgment defendant has appealed.

The record shows that on August 19th, 1947, Mrs. Rose Nesser, wife of Billy Wiseman, acquired the property in question by act of sale before Mark W. Malloy, Notary Public, from Mrs. Rosa Z. Hoffman, her grandmother. On the same day, the defendant was notified by the plaintiffs to vacate the premises.

The defendant admits that he was the tenant of Mrs. Hoffman, the owner of the property previous to August 19th, 1947. But that at no time did the relationship of landlord and tenant exist between the plaintiffs and himself. He further contends that on or about July 10th, 1947, he had entered into a lease for the period from July 1st, 1947, through December 31st, 1948, with Mrs. Hoffman’s agent for a monthly rental of $43.50. However, we fail to find any evidence in the record to indicate the existence of such a lease. Therefore we must conclude that no such lease existed.

Counsel for defendant avers .that the lower court erred in the following particulars :

“1. Refusing to permit evidence attacking plaintiffs’ title to the property in question :
“2. Failure to require plaintiffs to prove a contract of lease”.

The question of whether or not one in possession of real estate may attack the title thereof is well settled under the jurisprudence of Louisiana and is to the effect that a tenant cannot dispute his lessor’s title while in possession of leased premises. Lacaze v. Beeman, La.App., 178 So. 660; Weil v. Segura, 178 La. 421, 151 So. 639; Federal Land Bank v. Spencer, La. 160 So. 175.

As to defendant’s second contention that it was the duty of the lower court to require the plaintiffs to prove a contract of lease, it is also well settled under our jurisprudence that it is both a moral and a legal right of one acquiring the title to real estate to exercise all the rights and to assume the obligations of the previous owner as against the occupant of those premises and, by the same token, it is the moral and legal duty of the tenant to assume his obligations and rights as lessee with respect to the owner thereof. Certainly the tenant by merely remaining as an occupant of this property after its acquisition by the plaintiffs, tacitly consented to the plaintiffs giving to the defendant the use and enjoyment of this property at a fixed price. Therefore, the relationship of landlord and tenant did exist. See Revised Civil Code, Articles 2669, 2670 and 2674. This is especially true with respect to the “fixed price” since the advent of the Office of Price Administration, Rent Control Division, because as of March, 1942, the rental value of residential real estate was frozen by the administrators of this Office and, therefore, the price of this type of real estate remains fixed and regulated, with certain exceptions, irrespective of its acquisition by one, or a succession of new owners.

It has been urged by the defendant that inasmuch as he vacated the premises on December 20th, 1947, that he should, even if the contract of lease be proved, not be cast for more than the rent for the months of September, October, November, and the pro rata share of the rent for the month of December, 1947.

We are in accord with this view. The lease for the month of December, 1947, does not fall within our doctrine of “tacit reconduction” for the reason that the defendant was notified to vacate these premises on August 19th, 1947, and was subsequently ordered evicted by judgment of this Court on November 28th, 1947. Therefore, the defendant should only be required to pay the pro rata share of the rent for the month of December, 1947.

It is our opinion that the judgment of the trial court was correct as to the principal demand with the exception of pro rating the rent for the month of December, 1947.

With respect to the reconventional demand, defendant contends that the trial court erred in refusing to permit evidence to be introduced in support thereof.

Counsel for plaintiff objected to the introduction of evidence in connection with this reconventional demand, stating “we had no notice of that and I don’t think that is responsive to this case and the court has no jurisdiction on that. Further, it is an unliquidated claim”. The trial court maintained this objection “for the reason the reconventional demand is an unliquidated claim”.

We are of the opinion that the trial court was correct in refusing to permit the introduction of evidence in support of this demand, not that it is an unliquidated claim, we do not consider it necessary to pass on that phase of the matter, but rather because defendant’s petition failed to disclose a cause of action. While it is true, that the defendants in reconvention did not file an exception of no right or cause of action either below or in this court, their failure to do so will not militate against this Court taking judicial notice of the fact that this reconventional demand fails to disclose a cause of action.

In Brown & Son v. Saul et al., 4 Mart. (N.S.) 434, 16 Am.Dec. 175, decided in 1826, the court said:

“It is perhaps a rule, almost without exception, that all objections to the personal capacity of a suitor to appear in justice, should be made in limine litis. All dilatory and declinatory pleas ought to precede the contestatio litis; and even peremptory exceptions should be regularly pleaded; but a total want of legal right in a suitor, in relation to the matters in litigation, ought to be taken into consideration and acted on by courts of justice, at any stage of a cause. They should not remain silent spectators of infringements of the true principles of laws, which they are appointed to administer.”

See also II Tulane Law Review 527, in an article entitled “Parties Litigant in Louisiana”, where we find the following (535):

“No case was found which held expressly that the exception of want of interest was a peremptory one founded on law. Such a classification clearly is to be inferred, however, from the holding that it may be pleaded at any stage of the proceedings. Hence it follows that it may be filed for the first time on appeal, and at any time prior to the submission of the case to the appellate court. Indeed, our Supreme Court has gone very much further than this in holding that even though such an exception was not pleaded, the court had no alternative except to notice the plaintiff’s lack of interest ex proprio motu, and to reject his demand. In this respect it seems to enjoy the anomalous status of the exception of no cause of action which, though deemed a peremptory exception founded on law required to be pleaded specially, must be noticed by the court of its own motion even where not pleaded specially.”

For the reasons assigned the judgment appealed from is amended by reducing the amount awarded to plaintiffs to $138.58, and as thus amended it is affirmed.

Amended and affirmed.


author: McBRIDE, Judge.

text:
    STRUDWICK FUNERAL HOME, Inc. v. CRAWFORD.
    No. 18945.
    Court of Appeal of Louisiana. Orleans.
    June 7, 1948.
    Rehearing Denied June 18, 1948.

      Cabral & Courtin, of New Orleans (William M. Campbell, Jr., of New Orleans, of counsel), for plaintiff and appellant.
    Claude L. Johnson, of New Orleans, for defendant and appellee.
   McBRIDE, Judge.

Plaintiff-appellant has appealed from a judgment of the First City Court of New Orleans maintaining an exception leveled by defendant against its suit.

On July 29, 1947, plaintiff, Strudwick Funeral Home, Inc., filed suit No. 327-057 of the docket of the lower court against defendant, Edward Crawford, for the amount allegedly due under a contract entered into between the parties. Subsequently plaintiff filed a supplemental and amended petition. The defendant answered and the case was regularly fixed for trial. During the course of the trial, on motion of plaintiff’s counsel, the suit was dismissed as in the case of nonsuit.

Plaintiff, on October 7, 1947, under docket No. 328-727 of the lower court, filed a second suit based on the same cause of action. Defendant answered on November 7th.

On December 4th, the day the matter was fixed for trial, defendant filed what he denominated a “peremptory” exception of res judicata, grounded upon the fact that plaintiff had failed to comply with the provisions of Code Prac. art. 536 regarding the payment of defendant’s costs in the first proceeding. The exception was argued and submitted, and there was judgment maintaining it and dismissing the second suit as of nonsuit. From this judgment the present appeal has been taken by plaintiff.

Article 536 of the Code of Practice has no application as the voluntary non-suit entered against the plaintiff had the same effect as if plaintiff’s counsel had discontinued the suit (Laenger v. Laenger, 138 La. 532, 70 So. 501; State ex rel. Hammon v. Heflin, 4 La.App. 322; Davis v. Young, 35 La. Ann. 739), and the matter must be decided upon the pertinent articles of the Code of Practice, which will be hereafter quoted.

The sole question to be decided is whether the exception, which article 492 terms a dilatory exception, was timely filed and what effect, if any, is to be given to it.

It is provided in article 491 that:

“The plaintiff may, in every stage of the suit previous to judgment being rendered, discontinue the suit on paying the costs.”

The next article, 492, as amended by Act No. 28 of 1922, reads in part as follows:

“After discontinuing the suit, the plaintiff may bring the action anew but no further proceedings shall be had therein until the costs in the first suit shall have been paid; and the nonpayment of such costs shall be ground for a dilatory exception only. (Italics ours.)
“Provided further that after the filing of the aforesaid exception if the costs expended by the defendant in the first suit are not paid within five days, then the plaintiff’s suit shall he dismissed, reserving the right to’ bring the action anew upon payment of all costs incurred by the defendant.”

According to C. P. art. 332, “dilatory-exceptions are such as do not tend to defeat the action, but only to retard its progress.”

Article.333, as amended by Act No. 124 of 1936, relating to the time dilatory exceptions must be tendered, contains the following provisions:

“Hereafter no dilatory exceptions shall be allowed in any case after a judgment by default has been taken; -and in every case they must be pleaded in limine litis and at one and the same time, otherwise they shall not be admitted; nor shall such exceptions hereafter be allowed in any answer in any cause.”

The codal article lastly quoted definitely and unmistakably provides that dilatory exceptions must be pleaded in limine litis, that is to say at the threshold of the litigation or at the very beginning. They may not even be pleaded in the answer. The failure to assert a dilatory plea before joinder of issue constitutes a waiver of the defendant’s rights to maintain ■the plea.

We are informed that after the exception was filed plaintiff’s counsel sent a check to the attorney for defendant for the amount of defendant’s costs in the first suit. There is some dispute as to when such payment was made, defendant’s attorney contending that the payment was made after the five-day period provided for in C. P. art. 492 and was, therefore, ineffectual, but we deem it unnecessary to pass on this question, for as we have already said, defendant must be held to have waived his rights to the dilatory plea by asserting it only after answering the suit, and whether the costs were paid within the five-day period or were ever paid is inconsequential.

For the reasons assigned the judgment appealed from is reversed, the costs of this appeal to be borne by defendant-appel-lee, and the matter is remanded to the First City Court of New Orleans for further proceedings in accordance with law; all other costs are to await the final determination of the case.

Reversed and remanded.


author: HAWTHORNE, Justice.

text:
    213 La. 903
    KOOB v. COOPERATIVE CAB CO. et al.
    No. 38515.
    Supreme Court of Louisiana.
    April 26, 1948.
    Rehearing Denied June 1, 1948.
    Harry P. Gamble, Jr., of New Orleans (Lautenschlaeger & Gamble and Gamble & Gamble, all of New Orleans, of counsel), for plaintiff-appellee.
    Clay & Kohlman, James J. Kohlman and Louis J. Dutrey, all of New Orleans (Kull-man & Lang, of New Orleans, of counsel), for defendants-appellants-respondents.
   HAWTHORNE, Justice.

Plaintiff, John J. Koob, Jr., instituted this suit individually and for the use and benefit of his minor son, John A. Koob, seeking to recover damages resulting from a collision between a motorbike and a taxicab, in which his minor son was injured.

The district court rendered judgment in favor of plaintiff for the use and benefit of his minor son, and against the defendants, Ody C. Nicks and Cooperative Cab Company, in solido in the full sum' of $1,121.29, with legal interest from judicial demand until paid, and in favor of the plaintiff individually, and against the above named defendants in solido, in the full sum of $212.-75, with legal interest from date of judicial demand.

The Court of Appeal for the Parish of Orleans reversed the district court and rendered judgment dismissing plaintiff’s suit at his costs. On application of plaintiff, this court granted a writ of certiorari to review this judgment of the Court of Appeal.

Plaintiff contends that the accident was caused solely by the negligence of the cab driver; that the driver was grossly negligent in failing to stop before entering an intersection in observance of a stop sign and an ordinance of the City of New Orleans, in failing to afford to plaintiff’s son the right of way, and in operating the cab without exercising due caution and without maintaining a proper lookout, in willful disregard of the safety of plaintiffs son.

It is defendants’ contention that the operator of the taxicab was free from any negligence whatsoever, and that the collision occurred due to the fault of plaintiff’s son in not keeping a proper lookout prior to, and at the time of, the accident; in not having the motorbike on which he was riding under proper control prior to, and at the time of, the accident; in his operation of it at a dangerous and excessive rate of speed, and in his failure to give any warning of his approach to the intersection. Defendants further contend that, if the cab driver was not free from negligence, the plaintiff is barred from recovery for the reason that his minor son was guilty of contributory negligence.

The Court of Appeal in reversing the judgment of the district court came to the conclusion that plaintiff’s son was guilty of contributory negligence and for this reason dismissed the suit.

From our analysis of all the testimony and the evidence adduced during the trial of the case in the district court, we find the following facts:

The collision occurred at the intersection of Orleans Avenue and North Alexander Street in the City of New Orleans in the late afternoon of May 14, 1945. Plaintiff's minor son was proceeding on a motorbike at a reasonable rate of speed, some 15 or 18 miles per hour, along North Alexander Street in the direction of City Park. The street on which he was riding had the right of way over Orleans Avenue at the intersection of these two streets, and stop signs were erected on Orleans Avenue at its intersection with North Alexander Street, requiring motorists traveling on Orleans Avenue to come to a complete stop and grant the right of way to motorists on North Alexander Street. Young Koob resided with his parents about six or seven blocks from this intersection. During vacations he was employed full time at the bicycle concession at City Park, and during the school year he worked there on weekends. Undoubtedly he was familiar with the intersection where the collision occurred and knew that North Alexander was the right-of-way street at this intersection. He lived in the immediate- vicinity of the intersection, and one of the most direct and shortest routes from his home at 200 David Street to City Parle, where he was employed, was by way of this intersection.

The defendant cab driver, Ody C. Nicks, was driving his cab along Orleans Avenue toward the Lake, and upon reaching the intersection of North Alexander Street he failed to bring the cab to a stop in compliance with the stop sign and as required by the ordinance of the City of New Orleans. The cab driver stated that he was aware of the fact that there were stop signs on Orleans Avenue at its intersection with North Alexander Street, and that he considered this a dangerous corner because the City Park busses were routed into Orleans Avenue from North Alexander Street. According to his own testimony, he failed to see or observe the boy approaching on the motorbike until the moment of the collision, which occurred just beyond the center of the intersection of the two streets, nearer the downtown side of Orleans Av-nue. John A. Koob, plaintiff’s son, as a result of the injuries received had no recollection of the collision or of the events immediately preceding it.

As a result of the collision, plaintiff’s son was thrown from the motorbike, not exactly in the direction in which he had been traveling, but in a direction bisecting the direction of travel of the cab and the direction of travel of the motorbike. This is shown by the fact the boy landed at a point on the Lake side of the intersection near the downtown curb of Orleans Avenue on the side of the avenue opposite to that at which he had entered the intersection.

After the collision the cab continued its forward motion to a point some distance beyond the intersection. The motorbike was caught and held on the cab’s front bumper, from which place it was dislodged by the cab driver himself.

The damage to the cab was negligible. There was no damage to the front wheel of the motorbike, but the bike was crushed in at the height of the bumper of an automobile from the crash guard in the center back across the rear of the motorbike.

In our opinion, these physical facts show conclusively that the motorbike preempted tile intersection and had almost crossed it when it was struck by the oncoming cab, which had failed to stop for the right-of-way street. Moreover, these physical facts completely refute defendants’ contention that the motorbike crashed into the left front fender of the cab. The trial judge, who examined the motorbike, as we have, stated during the progress of the trial in the district court that “It doesn’t take an expert to see that the full force of the blow struck the side of that bike”.

The law in this state is well settled that a motorist who is proceeding on a right-of-way street, upon approaching an intersection where traffic is required under a city ordinance, and is warned by stop signs, to come to a complete stop before entering the intersection, should not be held to the same degree of care and vigilance as if no ordinance existed or stop signs were erected. The danger at such an intersection is less than that at a corner where no stop signs have been erected, and therefore less care is required of the driver on a favored street. • The motorist on the right-of-way street, with knowledge of the location of such a stop sign, has a right to assume that any driver approaching the intersection from the less favored street will observe the law and bring his car to a complete stop before entering the intersection, and such motorist can indulge in this assumption until he sees, or should see, that the other car has not observed, or is not going to observe, the law. See Termini v. Aetna Life Ins. Co. et al., La. App., 19 So.2d 286; Kientz v. Charles Dennery, Inc., 209 La. 144, 24 So.2d 292; Glen Falls Ins. Co. v. Copeland, La.App. 28 So. 2d 145. See also Mayfield v. Crowdus, 38 N.Mex. 471, 35 P.2d 291; 2 Blashfield, Cyclopedia of Automobile Law and Practice, Perm.Ed., sec. 1032, pp. 216, 217.

Under this law, the boy on the motorbike in the instant case had the right to rely on the assumption that the cab driver would observe the stop sign, come to a complete stop, and look in both directions to determine whether it was safe to enter the intersection. There was no duty on the boy to reduce his speed before reaching the intersection merely because he was approaching it. Since the boy preempted the intersection — this is shown by the fact that he was not going as fast as the cab, yet had gone more than half way across the intersection when the cab struck his bike on the right side — •, it was too late for him to do anything to avoid the accident after he realized, or should have realized, that the cab was not going to observe the stop sign. His failure to act to avoid the collision, therefore, could not in any way have contributed to the accident.

The Court of Appeal, in finding that the plaintiff’s son was contributorily negligent, placed great reliance on the testimony of one of plaintiff’s witnesses, to the effect that she saw the cab approaching the stop sign at an excessive rate of speed and realized that an accident was imminent. The court concluded that the boy should also have seen the cab and realized the danger.

From our appreciation of the entire record, we are convinced that the speed of the cab was somewhat in excess of that of the motorbike, but we do not believe that the cab approached the stop sign and the intersection at an excessive rate of speed, or at such a speed as to make the plaintiff’s son aware, if he had seen it approaching, that the driver of the cab was not going to observe the law and bring the vehicle to a full and complete stop before entering the intersection. The fact that the driver was not proceeding at an excessive rate of speed at the time of the collision — the testimony shows that his speed at that time was the same as it was as he approached th stop sign and the intersection — is clearly proved by the physical facts themselves, that is, that, when the automobile weighing in excess of one ton struck the motorbike, as described hereinabove, the damage to the automobile was negligible and the damage to the motorbike, weighing about 150 pounds, was relatively slight to have been inflicted by such a heavy vehicle. The plaintiff’s witness’s estimate of the speed of the oncoming taxi at 30 miles per hour is not in accord with the actual physical evidence in this case.

As a result of the collision plaintiff’s son was seriously injured. He was taken to the hospital in an ambulance from the scen'e of the accident and confined in the hospital for a period of one week. During this time he was unconscious about three days and semi-conscious for about three' more. Plaintiff’s family physician stated that the boy suffered from a fracture of the skull, but defendants contended that his injury was only a cerebral contusion. Either injury, however, is a serious one. On his admission to the hospital the boy was bleeding profusely from the nose and right ear, and fluid withdrawn from his spine contained blood. On returning home from the hospital he remained in bed for a few days and was confined to the house until June 13, approximately a month after the accident. Before the accident the plaintiff’s son was a normal, healthy boy, interested in sports and athletic contests. Since the accident he has been very nervous, restless, and irritable. From the time he was injured until the latter part of January, 1946, he suffered from recurrent dizzy spells when he moved his head or stooped down. He continued to report at intervals to the hospital where he had been treated and was not discharged therefrom until August, three months after the accident. The plaintiff’s family physician, who kept the boy under observation, advised the parents to keep close watch on him for a period of two years from the date of the injuries, as the doctor feared that, in the event of strain or excitement, some ill might, even at a late date, occur to the boy as a result of the head injury he had sustained. Upon the advice of the doctor, young Koob was forbidden to engage in competitive sports during this period, his social activities were greatly curtailed for months after the accident, and he was not allowed to do full-time work. We think that all of these facts should be taken into consideration in arriving at the quantum of damages to be awarded.

Plaintiff answered the appeal taken by defendants to the Court of Appeal, praying that the amount awarded by the judgment of the district court be increased to the sum of $2,509.04. Under the facts and circumstances of this case, we think that the amount awarded by the district court should be increased to the total sum of $2,000 to the plaintiff individually and for the use and benefit of his minor son.

For the reasons assigned, the judgment of the Court of Appeal is reversed and set aside, and it is ordered that the judgment of the district court, insofar as as it awarded the sum of $212.75 to plaintiff individually, be reinstated and made the judgment of this court. It is further ordered that the judgment of the district court awarding to plaintiff for the use and benefit of his minor son the sum of $1,121.-29 be increased to make the total award to plaintiff individually and for the use and benefit of his minor son the sum of $2,-000, and, as thus amended, that judgment is made the judgment of this court. Defendants are to pay all costs.

McCALEB, J., recused.


author: O’NIELL, Chief Justice.

text:
    213 La. 914
    McINTYRE v. WINNSBORO STATE BANK & TRUST CO.
    No. 38845.
    Supreme Court of Louisiana.
    April 26, 1948.
    Rehearing Denied June 1, 1948.

      Theus, Grisham, Davis & Leigh and Hudson, Potts, Bernstein & Davenport, all of Monroe, for plaiptiff-appellant.
    Thompson, Thompson & Sparks, of Monroe, for defendant-appellee.
   O’NIELL, Chief Justice.

The plaintiff is appealing from a judgment dismissing his suit on an exception of no cause or right of action. He is suing in his capacity as curator of an interdict, Louise Lanning Baker, to revoke or rescind a donation inter vivos made by her to her husband, John H. Baker, on May 17, 1924. He died in January 1946, and the Winnsboro State Bank and Trust Company, now the defendant in this suit, was appointed testamentary executor of his estate.

The principal or primary demand of the plaintiff, as curator of the interdict, is that he shall be allowed to revoke the donation on the ground that it was made to the donor’s husband and was therefore revocable by the donor at any time under the provisions of article 1749 of the Civil Code, which, before it was amended 'by Act No. 187 of 1942, declared that all donations made between married persons, during marriage shall be revocable by the donor. That article was amended by Act 187 of 1942 so as to make interspousal donations, m'ade thereafter irrevocable unless such a donation should be made by a notarial act and unless the donor should reserve, by express stipulation in the act, the right to revoke the donation. The amendment however has no application to this case because it is expressly provided in the amending act that it shall apply only to donations made subsequent to the effective date of the amendment; and this is made certain by a provision in Section 4 of the amending act that article 1749 of the Civil Code is repealed only to the extent to which it is inconsistent with the amending act.

In the plaintiff’s petition he bases his cause or right of action to be allowed to revoke the donation upon the mere allegation that it is or was an interspousal donation and that he, the curator, “desires to revoke said donation”. The plaintiff's alternative demand, to have the donation declared null from the beginning-, on the ground that it was a donation omnium bonorum, is founded upon article 1497 of the Civil Code, which provides that a donation inter vivos shall not in any case divest the donor of all of his property, and that unless he reserves for himself enough for his subsistence the donation is entirely null.

In support of the exception of no cause or right of action the defendant argues that the donation under attack, a copy of which is attached to and made part of the plaintiff’s petition, was not a donation at all, but was merely a renunciation or disclaimer on the part of the alleged donor of her title to the property and an acknowledgment on her part that the property equitably belonged to the alleged donee.

According to the allegations of the plaintiff’s petition, together with the documents annexed thereto and made a part thereof, which allegations of course must be accepted as true for the purpose of deciding the exception of no cause or right of action, the property described in the alleged donation made by Mrs. Louise Lanning Baker to her husband belonged to her separately. A part of the property was bought by her in her name alone. The principal part of the property described in the alleged donation however was acquired by the alleged donor as the universal legatee of her husband’s mother, Mrs. Eliza Baker, under her last will and testament dated March 3, 1909. Mrs. Eliza Baker died on the 21st of October, 1911. The will was duly probated and Mrs. Louise Lanning Baker, the universal legatee, was sent into possession of the estate as such, unconditionally, as owner, under an ex parte judgment of the district court dated April 8, 1912. Thereafter, on November 6, 1912, Mrs. Louise Lanning Baker signed a notarial act appointing her husband, John H. Baker, as her agent and attorney in fact to manage her property, “for my [her] sole use and benefit of my [her] separate estate”. The property referred to in the power of attorney consisted mainly of plantations and was the same property which Louise Lanning Baker donated to her husband on May 17, 1924. He signed the power of attorney, declaring that he accepted it, and actually continued to manage the property.

Louise Lanning Baker was of sound mind when she made the alleged donation and remained so for about five years. She was interdicted in the latter part of 1946.

We do not agree with the defendant’s argument that the transaction in contest was not in reality a donation but was merely a disclaimer or renunciation of title on the part of Mrs. Louise Lanning Baker and an acknowledgment by her that the property really belonged to her husband. It is true that in the act Mrs. Louise Lan-ning Baker declared that at the time when the property was bequeathed to her by her mother-in-law, Mrs. Eliza Baker, she, the universal legatee, was aware of the fact that it was not the intention of the testatrix, Mrs. Eliza Baker, in making her will and in naming Mrs. Louise Lanning Baker as her universal legatee, to deprive John H. Baker of the property, but that, on the contrary, it was the intention of the testatrix, Mrs. Eliza Baker, “to preserve all of said property for the use and benefit of the donee, the said John H. Baker”.

But that paragraph in the act dated May 17, 1924, must not be read and considered as if it stood alone; it must be considered with reference to all of the other declarations made in the act; which declarations show that Mrs. Louise Lanning Baker intended that the transaction should be in fact a donation.

There is nothing in the last will and testament of Mrs. Eliza Baker to indicate that she intended to impose upon the universal legatee the obligation of preserving the property for the use and benefit of John H. Baker, the son of the testatrix. In the transaction under attack, Mrs. Louise Lanning Baker declared that she was the donor and that John H. Baker was the donee. She declared in the act that she was making a donation inter vivos. The-declaration that the act was in truth a donation, and that she was the donor and that her husband was -the donee, is made in 9 of the 10 paragraphs contained in the act, and is repeated in several of the paragraphs.

Under all of the circumstances of this case, so far as they are disclosed by the allegations of the plaintiff’s petition and the documents annexed thereto, the parties to the so-called donation cannot exempt it from the applicability of articles 1497 and 1749 of the Civil Code by merely declaring that the transaction was not in reality .a donation but was merely a disclaimer or renunciation of title on the part •of the so-called donor, — if either of these articles is otherwise applicable to the transaction.

We concur in the ruling of the district judge that the exception of no •cause or right of action is well founded so far as the primary or principal demand of the plaintiff is concerned; that is, his demand to be allowed to revoke the donation on the ground merely that it was an inter-spousal donation. The right to revoke an interspousal donation on the ground solely that it is such a donation is personal to the donor and is dependent solely upon his •or her will or whim. The donor need not have any other ground whatever for revoking an interspousal donation than the fact that it is or was an interspousal donation. The judgment appealed from, in that respect, is supported by the decision rendered by this court in Bernard v. Noel, 45 La.Ann. 1135, 13 So. 737. In that case the plaintiffs’ who were the collateral-heirs of the deceased donor, sued to annul a donation which she had made to her husband. The plaintiffs asked, primarily, to have the donation revoked on the ground that it was an interspousal donation, and in the alternative to have it declared null on • the ground that it was a donation omnium bonorum. The court held that the collateral heirs of the deceased donor had no right of action, either to have the donation •revoked because of its being an interspousal ■donation, or to have it declared null on the ground that it was a donation omnium honorum. It was held that both of these rights of action were personal to the donor and that neither of them was available to anyone else after the death of the donor. The decision is authority for the proposition that the plaintiff in the present case, as curator of the interdict, has no right of action to have the donation revoked because of its having been an interspousal donation. He cannot know what the wish of the interdict in that respect would be if she had remained of sound mind. But the decision cited is not authority for the proposition that the curator has no right of action to sue to have the donation declared null on the ground of its having been a donation omnium bonorum. The reason for that is that the prohibition against making a donation omnium bonorum, in article 1497, is a law of public policy, founded upon the idea that one who makes a donation om-nium bonorum, that is to say, without reserving enough for his or her subsistence, is liable to become a charge on the public. There is no danger of such a happening of course after the donor has died, as in the case of Bernard v. Noel; but that reason for the law is not appropriate in a case where the donor has not died but has become insane.

Our reason for maintaining that the plaintiff in this case has a cause or right of action to assert his alternative demand, to have the donation declared null on the ground of its having been a donation om-nium bonorum, is that it is the duty of the curator of an interdict to protect the property rights and interests of his ward, and to that end to bring any suit that may be necessary for that purpose.

The judgment appealed from is affirmed insofar as it maintains the exception of no cause or right of action of the plaintiff, as curator, to have the donation revoked for having been an interspousal donation; and the judgment is annulled and reversed insofar as it maintains the exception of no cause or right of action on the part of the plaintiff as curator to have the donation declared null on the ground of its having been a donation omnium bono-rum. The court costs heretofore incurred are to be borne 'by the defendant as executor of the estate of John H. Baker; the question of liability for all costs to be hereafter incurred shall abide the final disposition of the case. The case is ordered remanded to the district court for further proceedings.


text:
    213 La. 924
    STATE v. WILLIAMS.
    No. 38870.
    Supreme Court of Louisiana.
    April 26, 1948.
    Rehearing Denied June 1, 1948.

      Eugene Stanley, of New Orleans, for defendant and appellant.
    Fred S. LeBlanc, Atty. Gen., M. E. Cull-igan, Asst. Atty. Gen., and Herve Raci-vitch, Dist. Atty., and Robert E. LeCorgne, Jr., Asst. Dist. Atty., both of New Orleans, for appellee.
   HAWTHORNE, Justice.

Defendant, Joseph A. Williams, having been found guilty of violating Article 120 of the Louisiana Criminal Code, Act 43 of 1942, which denounces the offense of corrupt influencing, is appealing to this court from his conviction and sentence to serve one year in the parish prison.

It is to be observed that the indictment in this case is drawn in the identical language of the indictment in the case of State v. Williams, 211 La. 782, 30 So.2d 834, except for the name of the prosecuting witness and the date on which the offense was committed. The material portion of the indictment in this case reads as follows:

“ * * * That one Joseph A. Williams * * * did wilfully and unlawfully accept and offer to accept from one James Seaberry the sum of One Hundred Dollars and No Cents ($100.00) in United States Currency with the intention that the said Joseph A. Williams should corruptly influence the conduct of a public employee of the City of New Orleans to improperly approve the issuance of and cause to be issued Certificate of Public Necessity and Convenience, the aforesaid being in relation to such employee’s position, employment and duty * *

Defendant-appellant contends that the trial court erred in overruling his motion to quash the indictment. He alleges that the indictment is defective because it purports to charge him with two separate and distinct offenses in a single count and is therefore duplicitous, the two offenses being, first that the defendant did accept from James Seaberry the sum of $100.00, etc., and second, that the defendant did offer to accept, etc.

The indictment in the instant case charges these two offenses in the conjunctive. Article 222 of the Code of Criminal Procedure provides that, when several distinct offenses are disjunctively enumerated in the same law or the same section of a criminal statute, they may be cumulated in the same count when they are connected with the same transaction and constitute but one act, but in that event they must be charged conjunctively. The article of the Criminal Code under which defendant was convicted makes it an offense to accept or to offer to accept anything of apparent present or prospective value, etc., and, these offenses being charged conjunctively in the indictment in this case, defendant’s contention is without merit. See City of Shreveport v. Bryson, 212 La. 534, 33 So.2d 60.

The State admitted in its answer to a motion for a bill of particulars that it was unable to furnish the name of the public employee whom the defendant intended to influence corruptly or the public position held by him, as it did not have this information in its possession. Defendant contends that, since the State was not in a position to prove that a specific or named employee whose duty it was to issue such certificates was the person whom it was the intention of defendant to influence corruptly at the time he was alleged to have received the money, the indictment is fatally defective because it does not charge the essential elements of the offense denounced by Article 120.

The indictment in the instant case being identical, except as above noted, with that in the case of State v. Williams, supra [211 La. 782, 30 So.2d 836], what we said in that case is applicable and controlling here, that is: “ * * * The fact that the employee was never designated by name in the indictment or in the evidence is immaterial as it does not appear such designation was necessary for the proper defense of the defendant or that he was in any wise prejudiced thereby.”

The defendant has not advanced any valid reason why we should disturb our holding in the Williams case that it was not necessary for the indictment to name the person intended to be corruptly influenced, for, in this case as in that one, it does not appear that such designation was necessary for the proper defense of the defendant or that he was in any way prejudiced.

Certainly the failure of the indictment to name the public employee does not subject it to the objection that it fails to allege all the essential elements of the offense denounced by Article 120. A reading of the indictment together with the article clearly shows that it informs the defendant of the nature and cause of the accusation against him and sets forth all the essential elements constituting the crime charged.

Defendant’s next ground of complaint is to the refusal of the trial judge to give a special charge which he designates as Special Charge No. 3.

Under the provisions of Article 390 of the Code of Criminal Procedure, the trial judge must give a requested charge that is wholly correct and wholly pertinent, unless the matter contained in such charge has been already given or unless such charge requires qualification, limitation, or explanation.

In our opinion, the trial judge did not err in refusing to give this special charge, as it is not wholly correct. That portion of the charge which does not correctly state the law reads as follows:

“ * * * the State must * * * prove * * * beyond a reasonable doubt * * * that such public employee * * * had the legal right to issue or refuse from issuing such certificate of public necessity and convenience.”

Article 120 of the Criminal Code, insofar as it is pertinent here, defines the crime-of “Corrupt Influencing” thus:

“Art. 120. Corrupt influencing is the *■ * * accepting or offering to accept anything of apparent present or prospective value by any person, with the intention that the recipient shall corruptly influence the-conduct of any of the persons named in Article 118 '(public bribery) in relation to-such person’s position, employment or duty. * ijt *

Among the persons named in Article 118; is a public officer or public employee.

From the language of Article 120,. it is evident that the recipient has only to accept something of value with the intention that he, the recipient, shall corruptly influence the conduct of a public employee (in the instant case, an employee of the City of New Orleans) in relation to such public employee's position, employment, or duty.

In this case it is not essential to the guilt of the accused that the State prove that such employee had the legal right to issue or refuse to issue a certificate of public necessity and convenience, for it is sufficient that his position, employment, or duties are connected with the issuance of such certificates, and that his conduct in relation to his position, employment, or duties is intended to be influenced corruptly by the recipient of the money.

The indictment does not allege or charge that the defendant accepted the money with the intention of having the public employee himself issue the certificate, for it reads in part thus:

“ * * * with the intention that the said Joseph A. Williams should corruptly influence the conduct of a public employee of the City of New Orleans to improperly approve the issuance of and cause to he issued Certificate of Public Necessity and Convenience * *

We therefore conclude that it was not necessary for the State to prove beyond a reasonable doubt that the public employee in the instant case had the legal right to issue or to refuse to issue such a certificate, and thus the charge requested was an improper one.

Defendant further complains that, although the trial judge granted his request for several requested charges, all of which are in the record, the court failed to apply the law as set out therein to the evidence heard on the trial of the case. He argues that, had the court done so, it would have been bound to hold that the State had failed to prove its case against the defendant and would have been forced to find him not guilty, and, further, that there was no evidence whatsoever before the court to prove defendant guilty beyond a reasonable doubt of the crime charged in the indictment. Defendant particularly urges that nowhere in the evidence is the necessary criminal intent required by the article proved beyond a reasonable doubt.

All of the testimony adduced on the trial of this case in the district court is in the record, and we have read and analyzed it. From this examination we are convinced that some legal evidence was adduced of all essential facts necessary for a conviction, and we cannot, under our appellate jurisdiction, pass on the sufficiency of the evidence. Moreover, we do not find that the trial judge failed to apply the law as set out in the special charges, given at defendant’s request, to the evidence adduced during the trial.

The trial judge found that the defendant accepted the $100.00 from James Seaberry with the intention of corruptly influencing the conduct of an employee in the office of the Commissioner of Public Utilities in relation to such employee’s position, employment, or duty in connection with the issuance of certificates of public necessity and convenience, and from our appreciation of the evidence we cannot say that he was incorrect in so finding.

Defendant filed in this court a motion to strike the judge’s per curiams from the bills of exception on the ground that the per curiams had been prepared by the judge and had been dated several weeks after the bills of exception had been presented to, and signed by, the trial judge and after the order of appeal was granted. The State strenuously opposes this motion.

In this case it is not necessary to pass on the question of whether these per curiams can be considered by this court, for a consideration of the per curiams would not alter the decision in this case; that is, the same result would be reached without considering the per curiams. We think it would be proper to consider the merits of the defendant’s motion only if a consideration of the per curiams would affect the case adversely to the defendant; for in any case a judgment cannot be set aside or a new trial granted unless the error has caused a miscarriage of justice, is prejudicial to the substantial rights of the accused, or constitutes a substantial violation of a constitutional or statutory right. See Article 557, Louisiana Code of Criminal Procedure.

Counsel for defendant admitted in argument before this court that he was not contending that the defendant was prejudiced in any way by the per curiams, and, as set out before, this is true. It is not incumbent upon the court, therefore, to pass on the technical question raised by the motion to strike.

The conviction and sentence are affirmed.

O’NIELL, C. J., does not take part.


author: FOURNET, Justice.

text:
    213 La. 935
    CAZ-PERK REALTY, Inc., et al. v. POLICE JURY OF PARISH OF EAST BATON ROUGE et al.
    No. 38739.
    Supreme Court of Louisiana.
    March 22, 1948.
    Rehearing Denied June 1, 1948.
    Dewey J. Sanchez, Dist. Atty., H. Alva Brumfield, Jr., Taylor, Porter, Brooks & Fuller and W. G. Randolph, all of Baton Rouge (Ada Mott, of Baton Rouge, of counsel), for defendants and appellants.
    Borron & Borron and C. C. Bird, Jr., all of Baton Rouge, for plaintiffs and ap-pellees.
   FOURNET, Justice.

This case was previously before us on an appeal taken by the Police Jury of East Baton Rouge Parish from a judgment of the lower court granting the plaintiffs, pending a hearing on the merits, a preliminary injunction to prohibit the promulgation and enforcement of an ordinance adopted by the police jury on August 11, 1942, revoking the dedication of and ordering closed that portion of an unnamed street in the Zee Zee Gardens subdivision of Baton Rouge running north from Fiero street between a portion of lot No. 70 and lots Nos. 71, 72, and 73 on the west, and lots Nos. 53 and 54 on the east, and by Mr. and Mrs. Amos K. Gordon, who were prohibited in this same judgment from obstructing any portion of this street. See Caz-Perk Realty, Inc., et al. v. Police Jury of Parish of East Baton Rouge et al., 207 La. 796, 22 So.2d 121. The case is now before us on an appeal taken by these same parties following a trial of the case on the merits and a judgment making the injunction permanent.

The record shows the Caz-Perk corporation created a subdivision known as the Zee Zee Gardens on the outskirts of Baton Rouge many years ago, recording a survey thereof for the purpose of dedicating the streets and roads shown thereon, all of which were then unnamed, for public use. At the time the subdivision was created, the land was sold mostly to Negroes for truck garden purposes, particularly that land bordering on the swampy area to the west of the subdivision. The realty company later dedicated this swampy area to the city for the construction of an artificial lake (now known as City Park Lake), the city agreeing to pave a driveway along its shores. After these improvements were completed the property became so greatly enhanced in value that the colored owners were induced by the increased profits to sell the property acquired by them to white owners who desired to make use of the same for their private residences. The Gordons, who purchased the first of their nine lots in this section in 1927, gradually increased their holdings during the following ten years until they acquired all of the lots on both sides of the street sought to be closed with the exception of lot No. 70. This entire area has been beautifully landscaped by the Gordons and maintained by them as the grounds surrounding their residence, built on a portion of the ground.

While the roadway in controversy was originally laid out as a street on the plat of this subdivision and dedicated for public use by the recordation of the plat, it was never improved or incorporated into the parish system of roads and, consequently, has never been maintained by that body. The result is that because of its sloping grade and poor drainage it is full of washouts and gullies that render it of no practical value as an avenue for the travel of vehicles. Of necessity, because of lack of care and use, at the time this case was tried the street was overgrown with weeds and grass that covered almost the entire strip. It is situated approximately 300 feet to the east of the drive the city built along the shore of the artificial lake constructed by it out of the swampy area of the subdivision and it parallels this road, following the general contour of the lake. Its direction is north and south. Originally the roadway ran northward from what is now Fiero street (the outlet to lakeshore drive lying - on the southern side of the Gordon property) for about 900 feet, but its length was reduced to 600 feet in 1933 when its northern end above Kalurah street (also referred to as Baywood Avenue on some of the maps and particularly the ones more recently revised) was officially closed by the police jury upon the application of the realty company because at that time the company desired to make the property at the northern end of the unnamed street one continuous tract for sale to Catholic sisters for convent purposes. This property has since then been reacquired by the realty company and forms a part of a new subdivision being developed by it known as “Hillsdale.”

Kalurah street, running east and west, parallels Fiero street and connects with the street in controversy at the point where it was originally closed at the request of the realty company. Lot No. 70, the only lot on both sides of the unnamed street not owned by the Gordons, lies at the extreme west end of Kalurah street and runs from this street through to the lakeshore drive, with the result that Kalurah street at this point is a dead end since it has never been extended across Lot No. 70 to connect with the lake-shore drive. The only other improved property in the immediate vicinity faces on Kalurah street. There, in 1941, on lot No. 56, surrounded on three sides by the Gordon property, Mr. and Mrs. Joseph C. Baddock (plaintiffs) built a home.

Upon the formal request of the Gordons, filed on July 14, 1942, the Police Jury of East Baton Rouge officially revoked the dedication of and ordered closed the 600 feet remaining of the unnamed roadway under the authority granted it by Act No. 382 of 1938, Section 1 of which provides that “ * * * Police Juries and municipal corporations of this State (Parish of Orleans excepted) shall have full power and authority, in their discretion, to revoke and set aside the dedication of all roads, streets and alleyways laid out and dedicated to public use within their respective limits, when such roads, streets and alleyways have been abandoned or are no longer needed for public purposes.” (Italics ours.)

When the district court of East Baton Rouge Parish issued a preliminary injunction restraining the police jury from enforcing its ordinance closing this roadway upon the petition of The Caz-Perk Realty, Inc., and the Baddocks, these parties, in the appeal taken to this court by the police jury and the Gordons, contended the police jury had no discretion to determine whether a road had actually been abandoned, this being a matter for the courts to finally decide. But we upheld the contention of the appellants, pointing out that the legislature in delegating to the police juries the power to revoke the dedication of these streets and roadways necessarily delegated to them the power “to look into and determine whether the street is an abandoned street or is no longer needed for public purposes,” and, continuing, we pointed out that "it is the well-settled jurisprudence that courts will not interfere with the functions of police juries or other public bodies in the exercise of the discretion vested in them unless such bodies abuse this pozver by acting capriciously or arbitrarily.” (Italics ours.)

The case was then returned to the lower court and there tried on the merits. The trial judge, being of the opinion “that the road in question is still useful for public purposes,” concluded the police jury had acted arbitrarily and capriciously in ordering it closed and perpetuated the preliminary injunction theretofore issued. By this appeal we are now called upon to determine after a review of the entire matter whether the trial judge’s conclusion in this respect is well founded.

The record is somewhat voluminous. It consists of 5 volumes, 2 forming the record when the case was here previously and the other 3 the record on the trial on the merits. Also there are innumerable exhibits and documents. After reviewing this record, we feel constrained to say that the police jury did not abuse its discretion in ordering the closing of this street since the overwhelming preponderance of the evidence is that the street was, for all intents and purposes, an abandoned street at the time this action was taken and that it was serving no useful public purpose. Consequently, we do not think the trial judge was justified in interfering with the action taken by the police jury. In so doing he usurped the authority vested in that body by substituting his discretion for that given this political subdivision by the lawmakers. See, Murphy v. Police Jury of St. Mary Parish, 118 La. 401, 410, 42 So. 979, 982; Cruse v. Police Jury of La Salle Parish, 151 La. 1056, 92 So. 679; and Williams v. Police Jury of Concordia Parish, 160 La. 325, 107 So. 126.

As pointed out by this court, “Police juries have both legislative and executive functions to perform, and, being small bodies, close to the people, are vested with large discretion in their sphere of action.” Cruse v. Police Jury of La Salle Parish, supra [151 La. 1056, 92 So. 680], “And, for the judiciary to meddle in such matters, save for the purpose of preventing fraud, oppression, or gross abuse of power, would be for it to invade the domain of other departments of the government, in violation of the express prohibitions of the Constitution.” Murphy v. Police Jury of St. Mary Parish, supra [118 La. 401, 42 So. 982].

The appellees contend the closing of this street will greatly inconvenience the Baddocks and the prospective purchasers of property in the new subdivision by depriving them of a direct outlet to lakeshore drive over this unnamed street to Fiero, necessitating that they travel a circuitous route to reach the drive through Fiero or else go through a Negro section in going into Baton Rouge proper; and will depreciate the value of their property because of its “locked in” aspect since it is impractical to extend Kalurah street to the drive across lots 69 and 70 because of the cliff-like elevation of these lots at this point (the feasibility of such a project and the effect on the value of the property was testified to pro and con by a number of real estate experts) ; as well as block the ingress and egress of lot No. 70 from the western end of Kalurah street. In addition they contend the action of the police jury in closing this street was capricious and arbitrary for this body not only failed to thoroughly investigate the situation and give them a proper hearing, but adopted the ordinance upon the recommendation of the committee appointed to go into the case that amounted to nothing more than a statement that the ordinance should be adopted so that the courts might pass on the question. We. do not think these contentions are well founded.

At the time the Gordons filed their formal petition with the police jury for the closing of the street in question this body, because there was opposition, appointed a committee of five, headed by Mr. W. Preston Barnes, Jr., to make an investigation and report its findings at the jury’s next regular meeting. Each member of the committeee individually, and the committee as a whole, visited the locality and considered the problem from all angles. And although their conclusion was that the street should be closed, they set aside a specified time just preceding the meeting of the police jury for the opponents to place their objections before the committee. According to Mr. Barnes, these opponents appeared before the committee with counsel and an array of witnesses for the purpose of introducing evidence and conducting a very extended hearing on the matter, very much in the manner they would proceed in presenting a case in court. Being unfamiliar with legal procedure and the law on the subject, counsel for the ap-pellees having made it evident the matter would be taken to the courts if their recommendation that the street be closed was followed by the police jury, Mr. Barnes terminated the hearing and at the meeting immediately following he placed the committee’s recommendation before the entire membership, making at that time the statement attributed to him to the effect that it was apparent the matter would eventually be taken to the courts for decision.

We cannot say that in arriving at the conclusion that the street should be closed this committee did not thoroughly investigate the entire matter and give it mature deliberation. On the contrary, we think the evidence conclusively shows it did. All of the members of the committee testified they made their recommendation only after considering the topography of the property surrounding the street in the light of the ingress and egress to the lakeshore drive, the part played by the street in the road system throughout the subdivision, the problem posed by the dead end of Kalurah street (this gave them little concern since they considered the unnamed street was already closed and Kalurah street, therefore, then in fact a dead end street), width of Kalurah street, and the cost of rebuilding and maintaining the street as contrasted to its ultimate value to all of the property in the vicinity and the inconvenience of those visiting the subdivision. Moreover, as a mere reference to the maps on file in this record clearly show, they found that the closing of the street would not cut off lot 70 from Kalurah street, as claimed by the appellees.

In a supplemental brief counsel for the appellees contend the police jury could not close this roadway under the act of 1938 unless it found as a fact that it had not only been abandoned but was also not needed for public purposes — based on the premise that the word “or” as used in Section 1 of the act must be read in the conjunctive and given the same sense as though the word were actually “and”- — and that since they had proved the nonuse of the road was-due principally to -the obstructions placed at both entrances by the Gordons and not by its abandonment, and further, that the road is needed for public purposes, the jury exceeded its authority in ordering the thoroughfare closed.

While the evidence in the record as to just when the Gordons obstructed these entrances b-y driving wooden stakes in the ground across them and planting shrubbery there, Mr. Gordon claiming he only drove these stakes there the day after the police jury closed it and others testifying these stakes were there previous to tha-t time, we think the record clearly shows (despite this controversy about the date of the obstruction) that the real cause-of the nonuse of the street was its impassable condition.

Conceding for the purposes of this case, without so deciding, that the word “or” as used in Section 1 of Act No. 382 of 1938 must be read in the conjunctive, we do not think this argument can avail the appellees anything here since in adopting its ordinance ordering the street closed the police jury revoked the dedication to public use of “the unnamed, unused and useless road,” and ordered such dedication set aside on the ground that the street was “being no longer used or needed for public purposes.” And viewed in the light of the facts in this case, we do not feel this court would be warranted in overriding this judgment of the police jury. (Italics ours.)

For the reasons assigned, the judgment appealed from is annulled and set aside and it is now ordered, adjudged, and decreed that the suit of the plaintiffs is dismissed at their cost.

O’NIELL, C. J., absent.


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

text:
    213 La. 947
    STATE v. RACHAL.
    No. 38898.
    Supreme Court of Louisiana.
    April 26, 1948.
    Rehearing Denied June 1, 1948.
    S. R. Thomas, of Natchitoches, for relator.
    Fred S. LeBlanc, Atty. Gen., M. E. Culli-gan, Asst. Atty. Gen. and H. L. Hughes, Dist. Atty., of Natchitoches, for respondent.
   FOURNET, Justice.

The relator, Leonard Rachal, having pleaded guilty on four charges (one with possession of and three with selling intoxicating liquors in a parish where possession and sale of such liquors is prohibited), in violation of Act No. 15 of 1934, as amended, was sentenced in each case to serve six months and to pay a fine of $500 (the sentences to run concurrently), in default of paying the fine, to serve an additional six months. He paid the fine and is now seeking to be relieved of the jail sentence, contending that the statute under which he was charged does not authorize the imposition of both a jail sentence and fine, citing as authority the case of State v. Monsour, 205 La. 272, 17 So.2d 307.

The trial judge in the return to the rule issued by this court informs us that in imposing these sentences he took into consideration the fact that the accused had been previously convicted on a similar charge, his conviction being later affirmed by this court in the case of State v. Rachal, 211 La. 227, 29 So.2d 774, and that the accused and his counsel were so advised in open court before the sentence was imposed.

It is obvious, therefore, that the holding in the Monsour case has no application here for the act under which the accused was prosecuted specifically provides that “For a second or subsequent offense, the said penalties may be doubled, the imposition of fine and imprisonment and the doubling of said penalties to be within the discretion of the Court.” Section 13. (Italics ours.)

For the reasons assigned the writ issued herein is recalled and the relief sought is denied.

O’NIELL, C. J.,

dissents on the ground

that there was no proof made in this case of the former conviction in the district court.


text:
    213 La. 950
    Succession of BABIN.
    No. 38413.
    Supreme Court of Louisiana.
    April 26, 1948.
    Rehearing Denied June 15, 1948.

      Landry & Landry, of Baton Rouge, for plaintiff in rule and appellant and applicant for rehearing.
    Taylor, Porter, Brooks & Fuller and W. G. Randolph, all of Baton Rouge, for respondents in rule and appellants and applicants for rehearing, for appellant.
    James J. Bailey, of Baton Rouge, for ap-pellees.
   O’NIELL, Chief Justice.

Mrs. Saluda Fuqua Calliham Babin died on February 2, 1946, leaving no forced heirs. She left a will in which after disposing of several special legacies she bequeathed the residue of her estate to her uncle, Robert A. Hart, with the following condition:

“Should Robert A. Hart die before I do then it is my will that so much of my estate as he would have otherwise taken under this will shall belpng to and I hereby give and bequeath the same to his heirs.’’

Robert A. Hart died on May 2S, 1939, leaving no forced heirs, but leaving sixteen nieces and nephews, being the children of his six deceased brothers and sisters, as follows:

(1) Mrs. Gertrude Hart Aldrich and Mrs. Belle Hart Bynum, the children of the predeceased brother of Robert A. Hart, namely, Joseph M. Hart;

(2) Miss Marie Blanche Duncan and Joseph H. Duncan, children of a predeceased sister, Mrs. Anna Belle Hart Duncan;

(3) Albert H. Hart, Jr., and Mrs. Marguerite Hart Land, children of a predeceased brother, Albert H. Hart;

(4) James P. Hart, Jr., Mrs. Viola Hart Dunbar, and Mrs. Anna Belle Hart Bowers, the three children of a predeceased brother, James P. Hart;

(5) Mrs. Alice Plart -Phillips, John F. Hart, Robert A. Hart II, Mrs. Margaret C. Hart Contine, Mrs. Mary C. Gabel, and Mrs. Eleanor Hart Higginbotham, the six children of a predeceased brother, Louis F. Hart; and

(6) Mrs. Saluda Fuqua Calliham Babin, the testatrix, being the only child of a predeceased sister of Robert A. Hart, namely, Margaret Chloe Hart.

Mrs. Eleanor Hart Higginbotham died on January 14, 1945, that is, more than five years after Robert A. Hart died, and more than a year before Mrs. Babin died. Mrs. Higginbotham left as her sole heir a son, Donald B. Stafford.

Inasmuch as Robert A. Hart, who was named as testamentary executor in the will of Mrs. Babin, died before she died, it became necessary to appoint a dative testamentary executor to carry out the provisions of her will. The court appointed Robert A. Hart II as dative testamentary executor of the estate of Mrs. Babin. He brought a rule on the tax collector to determine how the inheritance taxes should be apportioned among the residuary legatees of Mrs. Babin under the alternative clause bequeathing the residue of her estate to the heirs of Robert A. Hart. All of the heirs of Robert A. Hart, except, of course, Mrs. Babin and Mrs. Higginbotham, who had died, were cited as defendants in the rule to fix the inheritance taxes. Donald B. Stafford also was cited as a defendant in the rule to fix the inheritance tax. The executor took the position that each one of Robert A. Hart’s fourteen heirs inherited a fourteenth of the residuary legacy bequeathed by Mrs. Babin to the heirs of Robert A. Hart. Donald B. Stafford did not file an answer to the rule or make any appearance in the proceeding brought by the executor.

Only four of the parties cited as defendants in the rule opposed the fixing of the inheritance tax in the method proposed by the executor. The opponents contended that the residuary legacy bequeathed by Mrs. Babin to the heirs of Robert A. Hart should, according to the terms of the will, be divided among the heirs of Robert A. Hart, not indiscriminately or by heads, but according to roots; that is to say, that, inasmuch as the heirs of Robert A. Hart who were cited, represented, respectively, five of his deceased brothers and sisters, one-fifth of the legacy should be divided equally between or among the children of each one of the five deceased brothers and sisters. The district court decided in favor of the opponents, maintaining that the residuary legacy bequeathed by Mrs. Babin should be divided among the heirs of Robert A. Hart, not indiscriminately or according to heads, but by roots. The testamentary executor is appealing from' the decision.

Our opinion is that the intention of the testatrix, as expressed in the clause, "should Robert A. Hart die before I do then it is my will that so much of my estate as he would have otherwise taken under this will shall belong to and I hereby give and bequeath the same to his heirs,” was that, if Robert A. Hart should die before the death of the testatrix, his heirs should receive the residuary legacy in the same proportion in which they would have received it if Robert A. Hart had survived the testatrix, and then by his death had transmitted the legacy to his heirs. In other words, Mrs. Babin intended, by the expression “to his heirs” to give the residuary legacy to his heirs as his heirs, and in the same proportion in which they would inherit from him if he should survive her.

This convinces us that Mrs. Babin intended that the relative rights of Robert A. Hart's heirs, as residuary legatees under her will, should be determined at the date of her death, not at the date of his death. We must bear in mind that Mrs. Babin knew when she made her will that it could not go into effect until she died. To say that she intended that the relative rights of the heirs of Robert A. Hart, in the residuary legacy which she bequeathed to them, should be determined at the date of his death, would be to impute to her the absurd intention of including herself among her residuary legatees in the event of her surviving Robert A. Hart.

The district judge decided that Donald B. Stafford, who is the son and only surviving heir of Mrs. Higginbotham, is not entitled to share in the residuary legacy under the will of Mrs. Babin. The appellant and appellees before this court are not contesting that part of the judgment appealed from, and as far as any interest which Donald B. Stafford might have in the matter is concerned it is sufficient to say that he has not appealed nor answered the appeal. It is well settled that an appellate court cannot amend a judgment in favor of a party who has neither appealed nor complained by way of an answer to the appeal.

The judgment is affirmed at the cost of the appellant in his capacity of dative testamentary executor of the estate of Mrs. Saluda Fuqua Calliham Babin.


author: PER CURIAM.

text:
    FRANKLIN v. TEXAS & P. R. CO.
    No. 18972.
    Court of Appeal of Louisiana. Orleans.
    June 7, 1948.
    Certiorari Denied July 2, 1948.
    J. L. Warren Woodville, of New Orleans, for plaintiff and appellant.
    Phelps, Dunbar, Marks & Claverie and J. Burnwell Phelps, all of New Orleans, for defendant and appellee.
   PER CURIAM.

In application for rehearing, counsel for plaintiff-appellant strenuously contends that we stated that only an issue of fact is presented in this case and that we were in error in so stating. Counsel maintains that the question of law which was involved was this: Where there is only one witness, plaintiff himself, to an accident, and he gives testimony which would entitle him to recover if not contradicted, that testimony must be accepted and a court may not refuse to accept it as true even where circumstantial evidence and physical facts show it to be untrue.

We deckled that question of law against plaintiff, holding that under such circumstances a court is not bound to accept as true the testimony of plaintiff himself where circumstantial evidence and physical facts prove it to be untrue. We then held that, on the issue of fact which is presented, the circumstantial evidence and the physical facts preponderate, and we followed the District Judge in refusing to accept the unsupported testimony of plaintiff himself.

The rehearing requested is refused.

Refused.