author: HAMITER, Justice.

text:
    212 La. 756
    JANNEY v. CALMES et al.
    No. 38632.
    Supreme Court of Louisiana.
    Dec. 15, 1947.
    Rehearing Denied Jan. 12, 1948.
    Sanders, Miller, Downing & Rubin, of Baton Rouge, for plaintiff-appellant.
    Kemble K. Kennedy, of Baton Rouge, for defendant-appellee.
   HAMITER, Justice.

Plaintiff, Leah Calmes Janney, is appealing from a judgment which decreed “that the plea of equitable and judicial estoppel filed on behalf of the defendant, Cecile Schultz Calmes, be sustained and accord-, ingly, that the demands of plaintiff be rejected and the suit dismissed at the cost of plaintiff.” Hence, the brief of counsel for the named defendant correctly states that, “The sole issue presented by this de-volutive appeal * * * is whether the lower court was justified lawfully in dismissing the suit on pleas of equitable and judicial estoppel * *

Although there are four defendants cited in the cause, the mentioned pleas of estoppel were offered and urged only by Cecile Schultz Calmes. Moreover, no evidence was introduced in support of those pleas, not even the records in the two other judicial proceedings on which they are predicated, viz., Succession of James F. Calmes, Probate No. 4670, and In re Judicial Liquidation of Calmes Construction Company, No. 22,758, both on the docket of the district court of East Baton Rouge Parish. In passing upon the pleas of es-toppel, therefore, we must accept as true the allegations of fact of plaintiff’s petition, and, further, ascertain the contents of the mentioned separate proceedings (copies thereof are not in the record before us) from the briefs of counsel and from the trial judge’s written opinion.

From those documents we find that James F. Calmes was married three times. His first marriage was to Edith Felder, but from her he was divorced in 1914. Of this union there was born Catherine Calmes who is presently the wife of Henry Doherty.

On February 22, 1917, he'married Rachel Hague, and to them was born one child, Leah Calmes (now Mrs. Clifford G. Jan-ney), who is the plaintiff and appellant herein. The date of her birth was March 14, 1922. This marriage, during which considerable community property was accumulated, terminated by the death of the wife, Rachel Hague, on March 3, 1936. Notwithstanding that Leah was then a minor, only 14 years of age, her father never obtained the appointment of a tutor for her or caused the making of an inventory and an appraisement of her mother’s estate.

The third marriage of James F. Calmes was to the defendant herein, Cecile Schultz, it occurring on October 16, 1937, and there were no children of this union. Neither before nor after the marriage did he make an accounting to plaintiff of her mother’s estate; to the contrary he proceeded to use and dispose of the property thereof just as if it were his own.

While married to Cecile Schultz, James F. Calmes departed this life. Whereupon the named widow, joined by plaintiff and Catherine Calmes Doherty (child of the first marriage), caused the opening of his succession and an administration of the property of which he died possessed. As to the judicial proceedings undertaken by those persons, which form the basis for the pleas of estoppel, we must quote from the written opinion of the trial judge to whom they were accessible; for, as before stated, they are not a part of the record before us. Therein it is said:

“Equitable and Judicial Estoppel
“This exception presents a question seriously touching plaintiff’s right to prosecute this action.
“Reference to the proceedings had in the matter of the Succession of James F. Calmes, deceased, No. 4670 of the Probate Docket of this Court shows that the succession was administered by Jesse E. Le-,Blanc. The administrator was expressly relieved by the widow and heirs from the filing of a final account, and on joint petition with the administrator were placed in possession of the assets of the deceased. In this joint petition, after reciting just what the surviving widow and heirs were entitled to out of the assets of the succession after the payment of debts, they represented that the property left by the decedent belonged to the community existing between him and his third wife, Cecile Schultz Calmes, and prayed that his said surviving widow in community be placed in possession of an undivided one-half thereof, and that Mrs. Doherty and this plaintiff be recognized as the sole heirs at law and as such placed in possession of the other undivided one-half of said community property.
“In that petition it was represented: ‘ * * * that all the property left by decedent .was acquired during the existence of the community of acquets and gains existing between him and your petitioner, Mrs. Cecile Schultz Calmes, * * * ’.
“And in paragraph 3, we find the following allegation: ‘That on May 1, 1945, and within the time allowed by law for deliberating, your petitioners, Mrs. Cecile Schultz Calmes, Mrs. Catherine Calmes Doherty and Mrs. Leah Calmes Janney, filed a pleading herein formerly announcing their acceptance of this succession with the benefit of inventory which inventories had been previously approved and homologated by this Court.’ .
“Paragraphs 5, 10 and 12 of said petition read as follows:
“ ‘V. That your petitioners, Mrs. Catherine Calmes Doherty and Mrs. Leah Cal-mes Janney, the surviving heirs, respectively, of the decedent, James F. Calmes, now show that they hereby accept purely, simply, and unconditionally the succession and estate of the said decedent, James F. Cal-mes, and assume the payment of all debts of the succession.’
“ ‘X. That as will appear by the inventories filed and homologated herein, the total gross value of all property left by decedent amounts to $90,980.17; the said total amount in valuation is composed of an undivided interest in Calmes Construction Company, a commercial partnership now in the process of judicial liquidation, capital stock in Home Realty Investment Company, Inc., and other assets inventoried by parishes in the following sums, to-wit:
East Baton Rouge Parish.$16,606.42
Jefferson Parish . 49,050.00
St. Bernard Parish. 25,293.75
Tangipahoa Parish. 30.00
Total . 90,980.17’
“ ‘XII. That as alleged above, and as will more' fully show by the inventories filed herein, the total property belonging to this estate and succession has a gross valuation of $90,980.17; that since this succession is being accepted purely, simply and unconditionally and the unconditional acceptance of the succession by the heirs has the effect of making them liable for all debts of the decedent, consideration must be given to the amount of the debts owed by the decedent in order to determine the net amount of inheritance of said heirs for the purpose of computing the amount of inheritance tax due by each, if any is due; that decedent’s total indebtedness amounts to $80,210.42 which sum when deducted from the gross value of the estate leaves a net valuation of the total property belonging to the succession of only $10,769.75; and that as your petitioners, Mrs. Catherine Calmes Doherty and Mrs. Leah Calmes Janney, who are the sole and only surviving children and heirs of decedent, are each entitled to an exemption of $5,000.00 under the inheritance tax statute of this State, and said heirs owe inheritance tax ■to the State of Louisiana on the sum of $769.75 computed at the rate of two percent, amounting to $15.40.’
“Judgment was rendered in accordance with the prayer of the petition. No suit has been brought by this plaintiff or by any other interested party to have that judgment set aside. Exceptor contends that as long as that judgment remains outstanding the plaintiff is judicially estopped to bring this action.
“Before going into this question, it is appropriate here to recall that as will appear from proceedings had in No. 22,758 of the docket of this Court in which plaintiff was a petitioner, it was alleged that all of the interest left by the deceased, James F. Calmes, in the Calmes Construction Company was acquired during the existence of the community of acquets and gains between him and his surviving widow, Mrs. Cecile Schultz. Calmes. This allegation is coupled with a prayer to sell the physical-assets of the said partnership for a cash consideration of $215,000.00. A judgment was rendered wherein the said sale was authorized and the plaintiff appeared as one of the vendors in an authentic act of sale passed on September 28, 1945, whereby the physical assets of said construction company were sold for the consideration of $215,000.00. The cash consideration was paid and the debts of the partnership were liquidated and the plaintiff received and accepted her proportionate share of the proceeds thereof.
“The purchasers in that transaction acted upon the judgment of the .Court authorizing the same.
“After the judgment in that proceeding and in the succession proceedings were rendered, this plaintiff received 25% of all the cash in the hands of the administrator and was placed in possession of all other property to the extent of her proportionate interest, including 110 shares of the capital stock of Home Realty and Investment Co., Inc., of her interest in a certain promissory note executed by Edmond' F. Adams, and various other properties listed in the judgment.
“More than this, under the terms of the mortgage participating agreement with the City National Bank and the Reconstruction Finance Corporation, this plaintiff’s proportionate share of the proceeds of said note was fixed at $4,687.50. Presumably she has been receiving her pro-rata share of the installments that have been paid since the date of the agreement, September 28, 1945.
“In addition to this, this plaintiff, together with her sister, Mrs. Doherty, and the widow, Mrs. Calmes, entered into an agreement designating the proportionate interest of each in certain certificates of stock of the Home Realty and Investment Company.
'“Without reciting them in detail, it is undenied that there were several other transactions in which this plaintiff participated, based upon the regularity and validity of the judgment placing the heirs in possession in the matter of the succession of her deceased father.”

With reference to the two judicial proceedings described in the written opinion of the trial judge, plaintiff alleges in her petition of this cause that she joined therein under a mistake of law and fact, and further the “ * ⅜ * all matters and methods by which there was avoided a proper settlement with your petitioner were assisted and abetted by said Cecile Schultz Calmes, actually and knowingly” additionally she alleges that in truth and in fact most of the property scheduled and administered in those proceedings had been acquired with funds belonging to the community that existed between James F. Calmes and plaintiff’s mother. And, under these allegations and the prayer of her petition, plaintiff, in effect, is demanding herein an accounting from defendant Cecile Schultz Calmes of the property inherited by her as heir of her mother and father, especially that which belonged to the community of the second marriage.

In considering this appeal we observe first that it does not concern innocent third parties. On this point plaintiff’s counsel, in their brief, state: “This is not a proceeding against third persons. * * * As to innocent third parties, the plaintiff stands willing to surrender expressly any rights against them. Indeed it would be appropriate for this court to qualify any judgment rendered so as to protect innocent third parties.” The only person urging the pleas of estoppel herein, which were sustained by the trial court and resulted in the dismissal of this suit, is the widow of the third marriage, she claiming that plaintiff is now estopped from denying the allegations of the mentioned judicial proceedings to which plaintiff was a party. Clearly she is not an innocent third person.

Regarding the equitable estop-pel pleaded, the jurisprudence of this court is that an estoppel is not favored and that it will not be maintained unless the person urging it has been misled, to his prejudice, by acts of omission or commission of him who is sought to be estopped. Selber Bros., Inc. v. Newstadt’s Shoe Stores et al., 203 La. 316, 14 So.2d 10; State ex rel. Bass v. Mayor and Board of Aldermen of City of Oakdale, 204 La. 940, 16 So.2d 527. In the instant case defendant made no showing whatever that she was misled, to her detriment, by reason of plaintiff’s having joined with her in the institution of the mentioned judicial proceedings.

As to the plea of judicial estoppel we must take notice of our comparatively recent decision in Sanderson et al. v. Frost, 198 La. 295, 3 So.2d 626, 629, which involved a legal situation identical with the one here. Therein, three of the children of decedent, Robert L. Sanderson, brought suit against his surviving widow (plaintiffs’ mother, who had since remarried) to be declared the sole owners of certain land, they alleging that it had been the separate property of their father. The widow contended that the land was purchased by her husband (luring the existence of the community and, hence, she owned an undivided one-half interest therein as the surviving spouse. To the widow’s contention the plaintiffs pleaded estoppel, with reference to which we remarked and ruled:

“On the day the case was called to trial in the District Court, the plaintiffs filed a plea of estoppel in which they set forth that the defendant was precluded from contending in her answer that the land was community property because she had, after her husband’s death, judicially confessed, in the proceedings entitled 'The Tutorship of the Minor Heirs of Robert L. Sander-son, Deceased,’ No. 720 of the Docket of the court, that it was the separate and par-aphernal property of her husband and that the plaintiffs had inherited it in full ownership from their father. And they further maintained that their mother was estopped for the reason that she had told them that they were the owners of the property and that she at all times, up to a short time before suit was filed, recognized that she had no interest whatever in the real estate.

"In overruling the plea of estoppel, the District Judge said:
“ ‘There is nothing in the record to show that the judicial declarations of Mrs. Frost, referred to in the plea of estoppel, in any wise deceived or misled, or damaged the plaintiffs, and without such showing, it is my opinion that the plea of estoppel is not good.’
“And he further stated (and correctly so) that the law of this State, as laid down in the case of Tyler v. Walt et al., 184 La. 659, 167 So. 182, was to the effect that a person is not estopped by his judicial allegations which have neither deceived nor damaged anyone.
“A review of the record has satisfied us that the plaintiffs have not been prejudiced or damaged by the allegations of Mrs. Frost in the tutorship proceedings, which were unquestionably founded upon an erroneous conception of her legal rights. Under the circujnstances, the judge’s ruling was eminently sound.”

Further, in the opinion of that case we made reference to the confusion' that had existed in the early jurisprudence of this court as a result of Civil Code, Article 2291, which provides that a judicial confession or a declaration in a judicial proceeding is full proof thereof against him-who has made it, and we pointed out that our decision in Farley et al. v. Frost-Johnson Lumber Co., 133 La. 497, 63 So. 122, L.R.A.1915A, 200, Ann.Cas.1915C, 717, completely eliminated that confusion by an unequivocal holding that estoppel, judicial or otherwise, cannot be successfully invoked unless the person pleading it shows that he has been damaged by the inconsistent statement, and also by the holding that Civil Code, Article 2291 had reference to judicial confessions made in the same suit, not to those in other suits. Then we concluded in the Sanderson case, on the question of judicial estoppel, thus:

“We therefore hold that, since the allegations contained in the tutorship proceedings, which are relied upon by the plaintiffs as constituting judicial confessions, were made in another proceeding and not in the case at bar, Article 2291 of the Revised Civil Code is without application.”

In the more recent case of Robinson v Hunt et al. (on rehearing), 211 La. 1019, 31 So.2d 197, 208, we had under consideration a plea of judicial estoppel grounded on declarations made by the plaintiffs in affidavits attached to their motion to dismiss filed in another proceeding. Concerning it we commented: “In this court counsel for Cap-low, in support of their argument that the lower court’s ruling sustaining the plea of estoppel by record was correct, cite and reply on the cases of Gaudet v. Gauthreaux et al., 40 La.Ann. 186, 3 So. 645, and Bender v. Belknap, 23 La.Ann. 764. These two cases appear to be full authority for counsel’s contention and would be full authority if the later jurisprudence of this state had followed the rule as to judicial estoppel laid down therein. That this rule has not been followed is shown in the case of Farley et al. v. Frost-Johnson Lbr. Co., 133 La. 497, 63 So. 122, 124, L.R.A.1915A, 200, Ann. Cas.1915C, 717, an outstanding case in our jurisprudence on the question of judicial es-toppel. In that case the two cases cited by counsel for Caplow are discussed and analyzed, and the better rule as to judicial es-toppel is set forth therein.”

Continuing in the Robinson case, we reviewed at length our decisions in the Farley, Tyler and Sanderson cases, mentioned supra, and then reaffirmed the doctrine thereof (which is that judicial estoppel will not lie unless the party pleading it has been misled prejudicially) by holding: “In view of the fact that the plea of estoppel by record filed in the instant case and sustained by the trial judge was based principally on the proposition that a party.litigant will not be permitted to deny in this suit what he has solemnly acknowledged in another judicial proceeding, and in view of the fact that there was no allegation in this plea that Caplow was deceived, misled, or damaged, the judgment sustaining the plea of. estoppel by record, in our opinion, constituted error and must be reversed.”

Again, recognition of that doctrine was given in the more recent case of succession of Land, 212 La. 103, 31 So.2d 609, 620, wherein we said and held:

“John R. Land, Jr., further contended that Mrs. Triplett was estopped from denying that certain bonds listed on the inventories belonged to the succession of her father by reason of certain letters written to him by his mother, and Mrs. Triplett contended that Land was estopped from claiming the property listed on the inventories as community property by reason of certain judicial admissions made by him in the succession of his father.
“Since neither of these litigants relied or acted, to his prejudice, on the declarations which were urged by them as the bases of their pleas of estoppel, the lower court properly overruled these pleas.”

Not only has the defendant herein, Cecile Schultz Calmes, failed to prove a reliance to her injury or prejudice on plaintiff's declarations in the two judicial proceedings respecting the estate of James F. Calmes, but also she did not even allege it when pleading estoppel. From which it follows that under our recent jurisprudence the plea cannot be maintained.

In the brief of défense counsel are cited numerous cases which we have considered but which need not be discussed in detail. They are inappropriate here. It is sufficient to say that some were decided prior to the decision in the Sanderson case, while the others concerned rights of persons who had relied to their detriment on the declarations invplved.

After the perfecting of this appeal, ap-pellee filed in this court exceptions of no right and no cause of action in which she alleges:

“(a) That the issues framed by the petition of plaintiff and appellant involve directly the validity .and binding effect of the final and definitive judgments rendered and signed more than a year prior to the institution of this suit by the 19th Judicial District Court, Parish of East Baton Rouge, State of Louisiana, in the Succession of James F. Calmes, No. 4670, and in the In re Judicial Liquidation of Calmes Construction Company, No. 22,758;
“(b) That the judgment of probate and the judgment rendered in the liquidation proceedings aforementioned are prima facie valid, final and definitive and thereby insusceptible of annulment, amendment or revision by collateral attack, no direct action for annulment having been instituted.”

If the judgments referred to were definitive in character, as defendant suggests, there might be merit in the exceptions. One of the methods for setting aside a definitive judgment is by an action of nullity, Code of Practice, Article 556. This action must be brought by means of a* petition, with the adverse party being cited to appear as in ordinary suits, Code of Practice, Article 610. Furthermore, when a definitive judgment has been obtained through fraud, the action to annul must be brought within the year after the fraud has been discovered, Code of Practice, Article 613. But the judgments here, according to the briefs of counsel (copies of the judgments are not in the record), were rendered only in the ex parte proceedings, to which defendant and plaintiff were parties,' that recognized the property left by decedent James F. Calmes as belonging to the community of the third marriage. This being true they, although being prima facie valid, were not definitive judgments; hence, Code of Practice, Articles 556, 610 and 613, above referred to, are inapplicable. Definitive judgments are such as have the force of res judicata, Code of Practice, Article 539. Ex parte judgments recognizing heirs as being entitled to an estate and sending them into possession thereof, such as are involved here, cannot serve as the basis for a plea of res judicata. Succession of Lampton, 35 La.Ann. 418; Taylor v. Williams, 162 La. 92, 110 So. 100.

For the reasons assigned the exceptions of no cause and no right of action filed in this court are overruled, the judgment of the district court is reversed and set aside, the pleas of equitable and judicial estoppel are denied, and the case is remanded for further proceedings according to law and not inconsistent with the views herein expressed. The costs of this appeal shall be paid by appellee, and all other costs shall await the final determination of the suit.

O’NIELL, C. J., absent.


source: Caselaw Access Project

license: Public Domain

text:
    212 La. 774
    ORTEGO v. MOREIN.
    No. 38412.
    Supreme Court of Louisiana.
    Dec. 15, 1947.
    Rehearing Denied Jan. 12, 1948.
   HAMITER, Justice.

Plaintiff, Robert Lee Ortego, is appealing from a judgment sustaining an exception of no cause of action (directed at the allegations of his petition) and rejecting his demands. In the suit he, as the sole heir of his deceased father, Eloi Ortego, seeks to recover an undivided interest in a tract of land of about 42 acres located in Evangeline Parish which was sold by his mother in 1920 and is now possessed by the defendant, Linzy Morein. The plaintiff alleges and contends that such land was the property of the community of acquets and gains that existed between his father and mother.

In considering the appeal, particularly defendant’s exception of no cause of action, the well pleaded allegations of fact of the petition, as controlled by the documents annexed to and made a part thereof, are to be accepted as true. They disclose that the land in dispute, together with numerous other tracts, was owned by Joseph Tate and his wife Alma Morein at the time of their deaths many years ago, and that those persons were survived by eleven children, one of whom was Odette Tate, the mother of plaintiff and the wife of Eloi Ox-tego. In 1919 the successions of Joseph Tate and Alma Morein were opened in cause numbered 357 on the probate docket of the District Court of Evangeline Parish, and for some unexplained reason the properties thereof were purportedly sold by an auctioneer on November 1, 1919, the ven-dee named in his deed being Eloi Ortego. This attempted sale was without effect, however, for there was no authority, either from the court or from the Tate heirs, for its holding. Furthermore, the auction deed was never recorded; in fact, it bears a marginal notation “Notarial acts executed in carrying out these adjudications. So this is not to be recorded.”

On the same date (November 1', 1919), as shown by a document attached to plaintiff’s petition, Odette Tate whs joined by all of her co-heirs in the execution of a conventional deed by which there was conveyed to her the property in dispute, together with a smaller tract. The total consideration recited for the transfer was $3200, of which $1436.40 was described as a cash payment. For the balance of $1763.-60 the vendee gave two notes of $881.80 each, payable one and two years respectively after date and secured by a vendor’s lien and special mortgage. The deed, which was signed also by the vendee’s husband (plaintiff’s father) and was duly recorded on November 20, 1919, stipulated that Odette Tate was purchasing with her own separate and paraphernal funds, and further, as to the property in dispute herein, it contained a statement reading, “ * * * being part of the same property acquired by the vendors herein, together with purchaser herein from the Estate of Joseph' Tate and wife, Alma Morein, as per judgment rendered in Estate No. 357, on Oct. 6, 1919, and duly recorded in Conveyance Book ‘A’ #9, page 505 .et seq., Recorder’s Office, of this Parish.” (Italics ours.)

Approximately a year later (by a deed dated November 19, 1920, and duly recorded November 24, 1920), Odette Tate, for a recited cash consideration of $3000, conveyed the disputed property to J. E. Tate. And the latter, on September 28, 1929, sold it to Linzy Morein, the defendant herein.

In support of the contention that the property in question belonged to the community of acquets and gains that existed between his mother and father, plaintiff invokes the doctrine announced in Houghton v. Hall, 177 La. 237, 148 So. 37, and other cited cases, that property purchased by the wife during the marriage is deemed to belong to the community, notwithstanding stipulations to the contrary in the deed, unless she, or those claiming through or from her, establish (1) the paraphernality of the funds used, (2) the administration thereof separately and apart from her husband, and (3) investment by her. But this doctrine is not applicable here. According to the record before us Odette Tate, plaintiff’s mother, did not purchase the property; she acquired it by inheritance from Joseph Tate and Alma Morein, her mother and father. It was, therefore, paraphernal in character, not an asset of the community.

True, her title was evidenced by a regular credit' deed executed by her, her co-heirs and her husband. 'But as hereinafter shown that transfer must be regarded as an essential step in the confection of a partition among all of the co-heirs, not as a purchase and sale transaction. As to a somewhat similar situation, this court said in Tyson v. Spearman, 190 La. 871, 183 So. 201, 205, that:

“The next question for our consideration is whether or not the transaction of August 12th, 1919, between the defendants and Chesley Gibson is in fact a partition and not such a title as would support a plea of prescription of ten years acqu'irendi causa as was held by our learned brother below.
“As stated in the case of Tippett v. Jett, 3 Rob. 313, ‘ * * * whatever may be the form of the act, it is well settled,, that every first settlement between heirs or partners by which a state of indivisión is terminated, is, in substance, a partition;’ and, as expressed in the syllabus of the case of Westover v. Aime, 11 Mart., O. S. 443, ‘if heirs in dividing the property of their ancestor, held in common, pass an act of sale to each other, it will be regarded not as a sale but as a partition.’ See, also, Corpus Juris, Volume 47, p. 267.”

Attached to plaintiff’s petition herein is a certified copy of an instrument, styled a “Partition,” which constitutes a part of the proceedings in the successions of Joseph Tate and Alma Morein. It is notarial in form and was executed on November 19, 1919, (19 days after the deed in favor of Odette Tate), by all of the eleven co-heirs, including Odette Tate who was joined by her husband. In that partition instrument there is listed the valu'e of each heir’s interest in the estates of Joseph Tate and Alma Morein, it being $1970.60; and in connection with the listing the manner of payment or settlement of the interest is described. Thus, each brother and sister, according to the document, purchased a portion of the estates. With respect to some of them the values of the properties purchased exceeded their respective hereditary interests, while as to others the values were less. However, to care for the resulting differences, those in the former group gave notes, and those in the latter accepted cash or notes, or both. Illustrative of this, and disclosing the settlements made with Odette Tate and Joseph Tate, are the following computations found in the partition act:

“Odette Tate, wife of Eloi Or-
tego, 1/11 . $1970.60
Her purchase at sale $3234.20
Amount due by her... $1263.60 Amount due her.... 500.00
Gives 2 notes.$1763.60
******
“Joseph E. Tate, 1/11. $1970.60
Less his purchase at sale. 87.65
Balance coming to him. 1882.95
Take 2 notes of Odette Tate $880.80 . 1763.70
Cash. 119.35”

And concluding the settlement agreement are the following pertinent paragraphs:

“The partition, being completed as above set forth, and in accordance with the Act of Agreement hereinabove referred to was then closed.

“In testimony of all which the parties to this partition have signed these presents, together with me, Notary, after reading the whole and all parties declaring that they are fully satisfied with said partition, on this 19th day of November, A. D., 1919.”

Of course, as to Odette Tate’s interest there appears an unexplained discrepancy of $34.20 between the consideration of $3200 recited in the credit deed to her dated November 1, 1919, and the purchase price of $3234.20 stipulated in the discussed partition act. It may be that she acquired succession personal effects of the value of that difference. But unquestionably both documents affected the same real property, for the notes mentioned in each as having been given by Odette Tate were for- the identical total amount.

The judgment is affirmed.

O’NIELL, C J., absent


text:
    212 La. 783
    STATE v. ALMOKARY et al.
    No. 38627.
    Supreme Court of Louisiana.
    Nov. 10, 1947.
    Rehearing Denied Jan. 12, 1948.
    C. B. Prothro, of Shreveport, for defendant-relator.
    Jackson & Mayer, of Shreveport, for W. M. Comegys, George Despot and Mike Despot, amicus curiae.
    Fred S. LeBlanc, Atty. Gen., and M. E. Culligan, Asst. Atty. Gen. (Arthur M. Wallace, Dist. Atty., of Benton, and Samuel L. Herold, of Shreveport, of counsel), for the State,
   HAMITER, Justice.

Defendant was convicted under a bill of information charging criminal trespass in that on May 1, 1947, in the Parish of Bossier, he “did intentionally and without authority enter upon the property of H. M. Cogswell and H. L. Skannal described as all of Section 2 and a part of Section 1, Township 16 North, Range 13 West, lying north and east of Red River the said grounds being posted and enclosed, said entry being without the consent of the owners and lessees * * * ”. After the conviction, on his application, we issued the writs of certiorari and prohibition, thereby bringing the case before us for consideration and staying further proceedings in the District Court.

Article 63 of the Louisiana Criminal Code, Act No. 43 of 1942, defines criminal trespass, and the particular provision thereof on which the bill of information and prosecution herein are based recites: “Criminal trespass is * * * the unauthorized and intentional entry upon any * * * enclosed and posted plot of ground

The facts of the case are undisputed and appear to be as hereinafter detailed. The complainants- herein, Cogswell and Skannal, and a Mrs. Hudson, are the owners respectively of contiguous tracts of land in Bossier Parish, both of which border on what is commonly called Old River Lake. This lake, which at all times contains water 10 to 15 feet deep and is shaped very much like a half moon, constituted in the distant past the main channel of Red River. It attained its present status (that of a small lake, completely surrounded by dry land) when, many years ago, Red River cut through the base of the half moon-shaped bend and made its new channel over property belonging to a Mrs. Ellerbe.

From Mrs. Ellerbe, Cogswell and Skan-nal obtained and have a farming lease on all of the property lying between the new channel of Red River and their boundary line (a sizable parcel), including the adjoining part of Old River Lake; and for several years they have kept it, as well as the land owned by them, enclosed by a fence along which, at various points, “No Trespassing” signs have been displayed.

The defendant, on the day in question, entered a small boat from the land of Mrs. Hudson, paddled it on the waters of Old River Lake and through the fence maintained by Cogswell and Skannal (along which were “No Trespassing” signs that he saw), and proceeded to fish in that part of the lake leased from Mrs. Ellerbe. At no time did he wtalk on or pass over any dry land possessed by the complainants as owners or lessees.

In this court defendant, to obtain a reversal of his conviction, urges (1) that our criminal trespass statute relates only to enclosed and posted dry land, not to water-covered areas; and (2) that the waters in which he was fishing was public, being owned by the State of Louisiana.

Criminal trespass, as before stated, is declared to be the unauthorized and intentional entry upon any enclosed and posted plot of ground. By using this general word “ground”, and failing to employ any restrictive language in connection with it, the lawmakers^ obviously, had in mind the entering upon not only dry land but also non-navigable water-covered areas. Ground can be covered with water and nonetheless be ground or land. For us to hold that .the statute is restricted to an entry upon dry land, we would have to conclude that its provisions were not intended to apply to the thousands of acres of swampy, inundated land that exist in certain parts of our state or to the numerous artificial lakes created and maintained by many of our citizens. This we cannot do.

In Wynn v. Margate City, 9 N.J.Misc. 1324, 157 A. 565, it was held that the word “land” as used in an ordinance regulating the construction of buildings applied to land covered with water. And in State v. Shannon, 36 Ohio St. 423, 38 Am.Rep. 599, the Supreme Court of Ohio, in construing a statute that prohibited hunting and fishing on any posted land, was of the opinion that the word “land” included both inundated and dry land.

Under his second contention, defendant insists that the lake in which he was fishing belongs to the State of Louisiana and, hence, is public land, not subject to posting or to private possession by complainants. Countering this contention the State argues (quoting from the brief of its counsel) that: “ * * * It is universally held that in an action of trespass, whether criminal or civil, the issue of title may not be raised. The law of trespass, both civil and criminal, is universally recognized to be law relating to the protection of peaceable possession, and it is particularly true that a defendant may not successfully resist prosecution for trespass on the ground that title to the area trespassed upon resides in some person other than the party actually in possession.”

Further, in the alternative, the State argues (again quoting from counsel’s brief) that:

“ * * * but even if such question [of title] should be considered by the Court, it should bring no comfort to the defendant here inasmuch as the watercovered area trespassed upon clearly belongs to Mrs. Ellerbe, the lessor of the complainants.
“When Red River abandoned that portion of its former channel which constitutes the property upon which the trespass occurred, it cut a new channel through the lands of Mrs. Ellerbe. When the new channel or bed was opened up by the river, the former channel (the property in dispute) became the property of complainants’ lessors by way of indemnification under the plain provisions of Article 518 of the Civil Code: ‘If a river or stream, whether navigable or not, opens itself a new bed by leaving its former channel, the owners of the soil newly occupied shall take, by way of indemnification, the former bed of the river, every one in proportion to the quantity of land he has lost. They shall again take tiieir former property, if the river or stream returns to its former channel.’ ” (Brackets ours.)

Whether the issue of title may be raised in a proceeding of this character, and whether (under the State’s alternative argument) Mrs. Ellerbe, who is the lessor of complainants, is the owner of Old Rivei Lake (where defendant was fishing) by-reason of the .provisions of Civil Code, Article 518, are questions which need not be determined. For the record contains nothing to support defendant’s position, and from which we can conclude, that the lake is public property; on the contrary the per curiam of the district judge discloses a finding on. his part that it is not.

For the reasons assigned the writ of prohibition heretofore issued is set aside and the conviction is affirmed.

O’NIELL, C. J., dissents.

BOND, J., absent.


author: McCALEB, Justice. BOND, Justice

text:
    212 La. 789
    REAGOR v. FIRST NAT. LIFE INS. CO.
    No. 38425.
    Supreme Court of Louisiana.
    Jan. 12, 1948.
    Thomas M. Comegys, Jr., of Shreveport, for plaintiff-applicant.
    Frank S. Normann and James Everett Brown, both of New Orleans, for defendant-appellee.
   McCALEB, Justice.

This is a suit for workmen’s cojmpensation. Plaintiff alleges that, on April 10th 1944, while engaged in the performance of his duties as an insurance solicitor and collector for defendant, he fell and injured himself and that, as a result, he is totally and permanently disabled from performing-work of a reasonable character. He further alleges that defendant is engaged in the industrial life insurance business in which it employs a large number of persons as solicitors and collectors; that the business is hazardous within the meaning of Section 1 of the Employers’ Liability Act, Act 20 of 1914, as amended, because some of its solicitors and collectors use automobiles and street cars in performance of their work and that such employees are required, by the nature of their work, to go upon the streets, roads and highways of cities and towns for the purpose of soliciting insurance prospects or for collecting premiums on policies of insurance already in force, thereby being subjected to the hazards and risks of motor and vehicular traffic.

Defendant excepted to plaintiff’s petition on the ground that the injury complained of is not compensable inasmuch as the facts alleged do not authorize the conclusion that defendant is engaged in a hazardous business. The exception was sustained by the District Judge and the suit was dismissed. On application for a rehearing, plaintiff suggested, among other things, that he should be given an opportunity to supplement his petition by alleging additional facts but his request was refused. The Court of Appeal affirmed the judgment. On application for a rehearing, plaintiff directed the court’s attention to the fact that he had requested the lower court to permit' him to amend his petition so as to cure the insufficiencies in his allegations of fact. Despite this, the Court of Appeal refused reconsideration of the matter. Thereafter, plaintiff applied here for a writ of review. The writ was granted and the matter is now before us for determination.

The allegations of plaintiff’s peti-. tion are insufficient to exhibit that defendant is engaged in a hazardous business. However, we think that the District Judge and Court of Appeal erred in not permitting plaintiff to supplement his pleadings by stating (if he can) facts to show that defendant is engaged, in whole or in part, in a hazardous business and that, in his employment, he is sometimes subjected to the dangers thereof. L

The insurance business is not one of the occupations designated as hazardous under Section 1 of Act 20 of 1914. However, this does not mean that defendant is not amenable to the provisions of the Act if, as plaintiff claims, the business entails the operation .of automobiles as a necessary incident thereto. Haddad v. Commercial Motor Truck Co., 146 La. 897, 84 So. 197, 9 A.L.R. 1380; provided, of course, that plaintiff is sometimes brought into contact with the hazardous features. Byas v. Hotel Bentley, Inc., 157 La. 1030, 103 So. 303. Obviously, the mere allegation that some of the solicitors employed by defendant use automobiles in performing their work falls far short of a showing that the operation of automobiles is a necessary incident to defendant’s business and that plaintiff was required by his employment to ride in, or be otherwise brought in contact with, the machines.

On the other hand, the .mere failure of plaintiff to allege a cause of action does not authorize the absolute dismissal of his case. Under the well-established modern jurisprudence, he should have been given the opportunity to supply, if possible, the needed allegations by amendment. See Reeves v. Globe Indemnity Co., 185 La. 42, 168 So. 488; also Wheeler v. Rodriguez, 13 La.App. 97, 126 So. 715, where the case was remanded to allow amendment where defect was due to insufficiency of allegation. To the same effect are Beneficial Loan Soc. of New Orleans v. Strauss, La.App., Orleans, 148 So. 85; Messina v. Societe Francaise De Bienfaissance, La. App., Orleans, 170 So. 801; Arceneaux v. Louisiana Highway Commission, La.App., Orleans, 5 So.2d 20 and Simoneaux v. Gonzales, La.App., First Circuit, 4 So.2d 35.

Moreover, the Employers’ Liability Act enjoins the courts against the dismissal of claims for technicalities of procedure; it envisions that a liberal aspect be taken of pleadings and the allowance of any amendment which will aid in the ascertainment of the truth. See Section 18 of Act 20 of 1914, as amended.

For the reasons assigned, the judgment of the Court of Appeal, affirming the judgment of the District Court, which dismissed plaintiff’s suit on the exception, is amended by reserving to the plaintiff the right to supplement his pleadings and it is now ordered that the cause be remanded to the First Judicial District Court for the Parish of Caddo for further proceedings, in accordance with law and not inconsistent with the views herein expressed. The costs incurred in this court and in the Court of Appeal shall be paid by defendant-appellee. Other costs are to await final determination of the matter.

I-IAMITER, J., concurs in the decree.

BOND, J., dissents and assigns written reasons.

BOND, Justice

(dissenting).

It is my opinion that plaintiff’s petition would not state a cause of action even after the addition of the amendments which he seeks to make.

Therefore, I respectfully dissent

       For an able.and comprehensive review and discussion of the jurisprudence on this subject, see opinion by JANVIER, J., in Franz v. Sun Indemnity Co. of New York, La.App., 7 So.2d 636.


author: McCALEB, Justice.

text:
    212 La. 705
    STATE v. BAGGOTT.
    No. 38570.
    Supreme Court of Louisiana.
    Dec. 15, 1947.
    Rehearing Denied Jan. 12, 1048.

      A. G. Williams, of New Orleans, for defendant and appellant.
    Fred S. LeBlanc, Atty. Gen., and M. E. Culligan, Asst. Atty. Gen., and Herve Raci-vitch, Dist. Atty., and Beuker F. Amann, Asst. Dist. Atty., both of New Orleans, for appellee.
   McCALEB, Justice.

Appellant was convicted of violating Section 89 of Act 46 of 1940 for giving false answers to an election commissioner in order to cast a fraudulent vote in the Democratic Primary election held in the City of New Orleans on January 22, 1946. He was sentenced to pay a fine of $301, to serve a term of eight months in the parish prison and to serve an additional two months in default of payment of the' fine and further declared to be “ineligible for four years thereafter to be employed by the State or any of its political subdivisions, or any board, department or commission thereof, either as officer or employee.”

During the course of the proceedings below, appellant reserved three bills of exception upon which he now depends for a reversal of his conviction and sentence. Two of these bills are founded upon the alleged unconstitutionality of the penal provisions of Section 89 of Act 46 of 1940 and were reserved to the overruling of a motion to quash the information and to the overruling of a plea to the jurisdiction. Being based upon the same ground, the bills may be treated as one and considered together.

The pertinent provisions of Section 89 of Act 46 of 1940 are as follows:

“Any person, Clerk of Court or any State, parish or municipal officer refusing or neglecting to. discharge any duty imposed upon him, by any provision of this Act, and any person making any false answer under oath or otherwise, to any person who has authority to require an answer, and any person who shall vote more than once at any single primary election, * * * shall be guilty of a misdemeanor and upon conviction thereof shall be fined not less than Fifty Dollars nor more than Five Hundred Dollars and imprisoned for not less than six months nor more than two years in the parish jail and shall further he ineligible for four years thereafter to be employed by the State or any of its political subdivisions or any board, department or commission thereof either as officer or employee thereof." (Italics ours).

Appellant attacks the validity of the italicized portion of the above quoted section. His counsel proclaims that the legislature is without power to provide that State or district officers convicted of violating the primary election law shall be ineligible to hold office forasmuch as such officers are subject to impeachment and removal only for the causes and by the methods prescribed in the Constitution. From this premise, it is argued that the entire section of the Act must be declared unconstitutional for the reason that the cumulative penalties contained therein are inseparable — thus precluding the saving of a part by elimination of the objectionable features. The decision in State v. Gravolet, 168 La. 648, 123 So. 111, 112, is relied on as complete authority for the proposition.

In the Gravolet case, the defendant was convicted under Section 33 of Act 97 of 1922 (the former primary election law) for buying the vote of another. He challenged the constitutionality of Section 33, which provided a cumulative sentence of fine, imprisonment and ineligibility to hold office for four years after conviction, on the identical ground advanced by appellant herein. The court sustained the attack, holding that the Legislature was powerless to provide the penalty of ineligibility to hold office as the Constitution prescribed the exclusive causes for impeachment and method for the removal of state and district officers. And it was further declared that, since the punishment for violation of the section was clearly cumulative “being composed of three inseparable parts, viz., a fine, an imprisonment, and an exclusion from public office for a period of four years,” the whole section “so far as it purports to denounce and punish the offense with which the defendant is charged, is unconstitutional.”

Section 89 of Act 46 of 1940 is practically a counterpart of its predecessor, Section 33 of Act 97 of 1922. Hence, it 'follows that the ineligibility clause in Section 89 is unconstitutional on authority of the decision in State v. Gravolet, supra. And this, notwithstanding the plea of the district attorney that the Gravolet case can be differentiated and that appellant is not entitled to urge unconstitutionality since he is neither an officer nor employee of the State or any of its political subdivisions.

On the other hand, when we come to consider whether Section 89 should meet the same fate as Section 33 and be declared wholly unconstitutional, we find that the Gravolet case does not control the result to be reached here for the reason that Act 97 of 1922 did not contain a separability clause, whereas, Section 104 of Act 46 of 1940 declares:

“If any clause, sentence, paragraph, or part of this Act shall, for any reason, be adjudged by any Coúrt of competent jurisdiction to be invalid, such judgment shall not affect, impair or invalidate the remainder of this Act, but shall be confined in its operation to the clause, sentence, paragraph or any part thereof, directly involved in the controversy in which such judgment has been rendered.”

Due to the absence in Act 97 of 1922 of a clause similar to that quoted, the court correctly resolved in the Gravolet case that it was impossible to delete any part of the cumulative penalty provided in Section 33 of the statute without destroying the legislative intent. Accordingly, on authority of State v. Dunson, 138 La. 131, 70 So. 61, and the general rule that, in the absence of a saving clause, courts will not attempt to separate unconstitutional provisions of a statute from those considered valid (Carter v. Carter Coal Co., 298 U.S. 238, 56 S.Ct. 855, 80 L.Ed. 1160), the court annulled the entire section.

But, as we have stated, this rule is inapplicable in the instant matter as wé are bound to give effect to the separability' clause contained in Act 46 of 1940. The clause is an admonition to the courts by the legislature that it does not wish to have the whole or any section of the statute rendered invalid merely because a provision, clause or sentence contained therein is deemed to be unconstitutional. Of course, the insertion by the Legislature of a separability clause does not always protect the statute from utter unconstitutionality — that is, in cases where the valid provisions are so interwoven with and dependent upon the objectionable matter that application of the separability clause would defeat, rather than partially fulfill, the purpose of the enactment. However, the presence of a separability clause in a statute creates a presumption that the legislature intends that all unobjectionable matter shall be retained and remain in operation.

In the case at bar, we cannot discern any good reason why two of the penalties, i. e., fine and imprisonment, cannot be retained without the other penalty. On the contrary, by striking down the objectionable provision relative to ineligibility to hold office and enforcing the other valid provisions, we adopt a course in strict accord with the intention exhibited by the legislature in its enactment of the separability clause. This legislative intention is made more apparent in the instant case when consideration is given to the amendment and reenactment of Section 89 of Act 46 of 1940 by Act 221 of 1946. This statute is a reenactment of Section 89 in the identical language contained in Act 46 of 1940, with the exception of the ineligibility clause which has been eliminated. Obviously, then, since the legislature has declared its approval of the deletion of the ineligibility clause, it could not be plausibly argued that it would not have enacted Section 89 if it had known that this clause was invalid.

Therefore, we hold that the concluding clause of Section 89 of Act 46 of 1910, reading “and shall further be ineligible for four years thereafter to be employed by the State or any of its political subdivisions or any board, department or commission thereof either as officer or employee thereof,” to be invalid, being vio-lative of the provisions of Article 9 of the Constitution of 1921 and that the part of appellant’s sentence, declaring him to be ineligible for public office or employment is void.

The only other bill of exception was taken to the overruling of appellant’s motion for a new trial which was based specifically on the ground that no legal evidence was introduced to show that a primary election was held on the date of the alleged offense. Counsel for appellant argues that, since the only evidence introduced by the State to prove that a primary election was held on January 22nd 1946 is a resolution of the Orleans Parish Democratic Executive Committee calling a democratic primary to select democratic nominees for municipal and parish offices and the testimony of various individuals that such an election was held (all of which evidence was admitted over timely objection), the State has failed to offer the best evidence; that the best evidence would have been the certificate of the Secretary of State that the^ election was held and that, in view of the failure of the State to offer such best evidence, it cannot be said that the corpus delicti has been proved.

We fail to see any merit whatever in this contention. The testimony of the Commissioners of election and others, who stated that they were present at the polling- booth where voting was conducted, is direct evidence of the fact that there was an election and not violative of the best evidence rule. Moreover, even if -it was, the error in not requiring the introduction of the alleged best evidence (the kind which counsel contends for) was inconsequential and would not authorize a reversal of the conviction. Article 557 of the Code of Criminal Procedure.

In view of our conclusion that the portion of the sentence respecting ineligibility for employment in a public office for a period of four years is null, the case will be remanded for the purpose of resentenc-ing appellant.

*For the reasons hereinabove given, the conviction is affirmed and the case is remanded to the Criminal District Court for the Parish of Orleans for the Judge of Section “C” to impose a sentence in accordance with the views herein expressed.

O’NIELL, C. J., absent

       Article 9, Sections 1 through 9, of the Constitution provide the grounds for impeachment and procedure for removal of all state and district officers. The constitutional method is exclusive. See State v. Thompson, 28 La.Ann. 187; State v. Bain, 137 La. 308, 68 So. 621; State v. Dunson, 138 La. 131, 70 So. 61; State v. Maestri, 199 La. 49, 5 So. 2d 499; Kemp v. Stanley, 204 La. 110, 15 So.2d 1; In re Meraux, 202 La. 736, 12 So.2d 798.

       Section S3 of Act 97 of 1922 provides: “Any person refusing or neglecting to discharge any duty imposed upon him, by any provision of this act, and any person making any false answer under oath or otherwise, to any person who has authority to require an answer, and any person who shall vote more than once at any single primary election, * * * and any person who buys any vote, * * * shall be guilty of a misdemeanor and upon conviction thereof shall be fined not less than Fifty Dollars nor more than Five Hundred Dollars and imprisonment for not less than two months nor more than one year in the parish jail and shall further be ineligible for four years ' thereafter to hold any office of trust or profit in this State.”

       The only difference is that, in Section 89 of Act 46 of 1940, the penalty is of broader scope in that it provides ineligibility for employment by the State, etc. in any capacity whereas Section 33 of Act 97. of 1922 limits ineligibility to holding office.

       The effect to bo given a separability-clause has been ably expressed by Mr. Justice Sutherland in Carter v. Carter Coal Co., 298 U.S. 238, 56 S.Ct. 855, 873, 80 L.Ed. 1100, thus:
      “In the absence of such a provision, the presumption is that the Legislature intends an act to be effective as an entirety — that is to say, the rule is against the mutilation of a statute; and if any provision be unconstitutional, the presumption is that the remaining provisions fall with it. The effect of the statute is to reverso this presumption in favor of inseparability, and create the opposite one of separability. Under the non-statutory rule, the burden is upon the supporter of the legislation to show the separability of the provisions involved. Under the statutory rule, the burden is shifted to the assailant to show their inseparability. But under either rule, the determination, in the end, is reached by applying the same test — namely, what was the intent of the lawmakers?”


text:
    212 La. 807
    MATHESON et al. v. PLACID OIL CO. et al.
    No. 38153.
    Supreme Court of Louisiana.
    Dec. 15, 1947.

      J. R. Goff and Blanchard, Goldstein, Walker & O’Quin, all of Shreveport, for defendant-appellant Placid Oil Co.
    J. B. Nachman, of Alexandria, for plaintiffs-appellees Jesse M. Matheson and others and plaintiff-appellant Joseph P. Mathe-son.
   McCALEB, Justice.

This is a suit for damages resulting from a trespass upon plaintiffs’ land by the defendants for the purpose of exploring for oil. The facts and circumstances upon which the action is founded are as follows:

Plaintiffs, Jesse M. Matheson, his four sisters and three brothers, are co-owners of a 160 acre tract situated in Grant Parish, having inherited the property from their mother and father. On August 1, 1940, they granted to one Mark W. Mitchell an oil, gas and mineral lease which was filed for record in the conveyance office of Grant Parish. The lease provided a primary term of two years from its date and contained, among other things, a rider clause reading as follows: “The true consideration for the giving of this lease is the obligation of the Lessee, his heirs or assigns to commence the operations for the drilling of a well on the property herein leased within 90 days from the date hereof, and to prosecute the drilling with due diligence to a depth of 1600 feet, unless oil or gas, or other minerals are found in paying quantities at a lesser depth. Failure on the part of the Lessee, his heirs or assigns, to comply with these obligations, shall automatically terminate this lease without the necessity of putting Lessee in default and without imposing on Lessee, his heirs or assigns, any damages for failure to so perform.”

No drilling operations were commenced by Mitchell within the 90 day period contained in the lease and plaintiffs, considering the contract at an end, granted another lease on February IS; 1941 to one Robert C. Bowers, which was likewise recorded in the public records of Grant Parish.

Despite his failure to drill a well within the 90 day period provided for in the lease granted him by plaintiffs, Mitchell undertook to assign the lease on June 13, 1942 to D. E. Grandstaff, one of the defendants herein, which assignment was recorded in the conveyance records of Grant Parish on August 28, 1942. Soon after Grandstaff obtained the assignment, he appointed J. E. Grandstaff, another defendant, as his agent and the latter, on July 21, 1942, secured a permit from the Department of Conservation to drill a well on plaintiffs’ property. He thereupon moved machinery on the land, dug pits and conducted other work preparatory to actual drilling. Moreover, he unsuccessfully endeavored to obtain the consent of some of the plaintiffs to the proposed operations. Later, on August 7, 1942, he instructed his attorney to write to each of the plaintiffs for their consent. The letters, which are all of the same tenor, are as follows: “Mr. D. E. Grandstaff has requested me to advise you that under your lease in favor of Mark W. Mitchell, which lease has a primary term of 2 years, that he has received an assignment from Mr. Mitchell covering this acreage as outlined in said original lease and that he has already moved considerable equipment on the lease preparatory to drilling a test well in the Wilcox sand. Several of the signers of the lease have previously been notified of such operations, all of which meet with their approval. This letter is to notify you of his operations. Trusting that this test will result in mutual benefit and with best wishes, I am * * ⅜.”

Six of the eight plaintiffs answered the letters from the attorney of Grandstaff shortly after receipt. In their response, they protested the drilling of a well on their property, setting forth that the lease assigned by Mitchell to Grandstaff had expired, and ordered the cessation of operations and the removal of all equipment from the land. One of the plaintiffs did not reply to the letter. However, plaintiff, Joseph P. Matheson, a resident of Hot Springs, Arkansas, advised the attorney of his consent to the proposed drilling of the well.

Notwithstanding the written protests by six of the eight co-owners, Grandstaff continued his operations. On August 29, 1942, he assigned the lease to Placid Oil Company for a consideration of $25 per acre, or a total sum of $4,000. Thereafter, Placid Oil Company went upon the land and completed the well, which proved to be a dry hole.

Charging in their petition that the Grand-staffs and Placid Oil Company entered into a conspiracy to commit trespass; that their acts were wanton and in utter disregard of the fact that they were without legal right to go upon the land, plaintiffs seek recovery of $12,500 damages composed of the following specifications — $4,-000 for the value of the lease; $8,000 for the value of ⅜⅛ royalty and $500 representing physical injury to the land caused by drilling operations.

Placid Oil Company admitted in its answer most of the salient facts of the case but denied generally any liability to plaintiffs. It pleaded that plaintiffs had knowledge of the drilling of the well and made no complaint, thereby estopping themselves to contest the validity of the lease. It further averred that it accepted the assignment of the lease from Grandstaff in good faith, upon a complete warranty of title, and therefore that, should it be held liable to plaintiffs, it be given a like judgment against its warrantors.

The main defense of the Grandstaffs is that plaintiffs had full knowledge of the operations conducted upon the property which estops them from obtaining redress.

After a trial below, there was judgment in favor of all of the plaintiffs, except Joseph P. Matheson, for $3,500 damages against the defendants, in solido, and Placid Oil Company was given a like judgment against the Grandstaffs on its call in warranty.

Joseph P. Matheson has appealed from the judgment dismissing his demand. Placid Oil Company has appealed and the seven successful plaintiffs' have answered the appeal, praying that the amount awarded them below be increased to the sum of $3,937.50.

At the outset, it is apt to observe that the facts which we have outlined above make it evident that the defendants were without legal right to go upon plaintiffs’ land and conduct the drilling operations which gave rise to this action. To begin with, even if we assume that the obligation to drill a well within 90 days (stated to be the true consideration for the lease to Mitchell) is a sufficient consideration to support a binding contract, that consideration obviously failed because of Mitchell’s nonperformance of the obligation. Moreover, the rider specifically set forth that “Failure on the part of the Lessee * * * to comply * * * shall automatically terminate this lease * * * ”, This provision may be viewed as a resolutory condition which operated as a revocation of the lease upon failure of the event to happen. See Articles 2021, 2045 of the Civil Code.

Placid Oil Company recognizes its lack (and that of its assignor) of legal right of entry under the lease. However, it seeks to'obtain judicial condonation for its trespass on the theory that plaintiffs are es-topped from asserting that permission was not given to the Grandstaffs to conduct the operations. Alternatively, it contends that, if plaintiffs are not estopped, it should nonetheless be excused for its acts for the reason that the drilling, being conducted with the express consent of Joseph P. Matheson (the unsuccessful plaintiff below), would have redounded to the benefit of plaintiffs in the event oil had been discovered and that, since the land is allegedly valueless except for oil explorations, no actual damage to plaintiffs has ensued.

We see no merit in either proposition. In the first place, there is not a scintilla of substantial evidence to support a holding that any one of the seven prevailing plaintiffs have, by act or statement, express or implied, done anything which would give rise to the maintenance of the doctrine of estoppel. It was vaguely suggested during oral argument that one or two of these plaintiffs lived near the place where the explorations were conducted and made no complaint. However, there is no foundation in fact for such postulations for —while two of the plaintiffs live in Grant Parish, they did not have actual knowledge of the trespass until after the defendants had abandoned the well and moved off the land. Additionally, these plaintiffs, having registered their refusal to Grandstaff, would not be estopped even if they had been aware that defendants had failed to heed the protest.

The alternative contention of Placid Oil Company, which is founded on the premise that the Grandstaffs had an alleged lawful right of entry on the land by reason of Joseph P. Matheson’s consent to the drilling operations, cannot prevail because, aside from other reasons, we are convinced that Joseph P. Matheson’s consent was obtained by misrepresentation (as hereinafter set forth) and, hence, was not freely given at all. It follows, then, that, since the premise (lawful entry) for the proposition of Placid Oil Company cannot be sustained, the ultimate conclusion sought for falls with it.

Turning attention now to the claim of Joseph P. Matheson, we notice that the letter sent to him by the Grand-staff’s attorney contains the representation that “Several of the signers of the lease have previously been notified of such operations, all of which meet with their approval.” This was a false statement, obviously inserted for the purpose of coercing consent from the addressee. Estoppel is an equitable remedy which can be pleaded only by those with clean hands. An estoppel cannot be created in favor of one who has induced the other to act by his misrepresentation or concealment of the facts. The rule is stated in 31 C.J.S., Estoppel, § 75, thus: “A party .may not properly base a claim of estoppel in his favor on his own wrongful act or dereliction of duty, on fraud committed or participated in by him, or on acts or omissions induced by his own conduct, concealment or representations.”

We see no good reason to further pursue or discuss the matter. Suffice it to say that the defendants are not in a position to plead estoppel. Accordingly, the trial judge should not have sustained the plea.

The only other question involved in the case is whether the judge erred in not permitting plaintiffs to recover $500 for physical injury to their land as a result of defendants’ operations. Seven of the plaintiffs have answered the appeal of Placid Oil Company, praying that the judgment be amended to the extent of allowing them recovery for seven-eighths of the $500 claim. Joseph P. Matheson seeks the other one-eighth in his appeal from the judgment dismissing his demand.

The uncontroverted evidence discloses that the damage to the surface of plaintiffs’ land caused by the operations is well above the amount claimed in the petition. Placid Oil Company does not contest the amount of the damages but maintains that, since the land is valueless except for mineral purposes, no damages are allowable. Manifestly, this contention is untenable.

It was suggested during oral argument that, since plaintiffs had been awarded redress for the acreage value of the land for drilling purposes, it would probably be inconsistent to conclude that they are also entitled to judgment for surface injury inasmuch as such damage would not be recoverable if defendants had been operating under a lease. Careful consideration and study of this suggestion has satisfied us that it is not well founded because it necessarily assumes that the lease would not have provided for the restoration of the land in good condition by the lessee at the termination of the contract. Furthermore, in Layne Louisiana Co. v. Superior Oil Co., 209 La. 1014, 26 So.2d 20, it was held that plaintiff, in an action of trespass, was entitled to recover the acreage loss of value of the land for mineral leasing purposes and, in addition, damage for the physical injury to the land resulting from the unlawful act.

The judgment appealed from, in so far as it dismisses the demand of Joseph P. Math-eson, is reversed and it is now otherwise amended so as to read as follows:

“It is ordered that there be judgment in favor of plaintiffs, Jesse M. Matheson, Mrs. Ella Matheson Long, Mrs. Rosalie Mathe-son Maxwell, Mrs. Lillie T. Matheson La-Force, Don L. Matheson, Mrs. Annie Math-eson Stallings, Jackson Earl Matheson and Joseph P. Matheson, and against Placid Oil Company, D. E. Grandstaff and J. E. Grandstaff, individually and in solido, in the full sum of Four Thousand Five Hundred & 00/100 ($4500.00) Dollars, with legal interest thereon from judicial demand until paid.

“It is further ordered that there be judgment in favor of defendant, Placid Oil Company and against D. E. Grandstaff and J. E. Grandstaff, warrantors, individually and in solido, under the call in warranty, in the full sum of Four Thousand Five Hundred & 00/100 ($4500.00) Dollars, with legal interest from judicial demand until paid.

All costs of these proceedings are to be borne by the defendants.

O’NIELL, C. J., absent.

HAMITER, J., dissents from that part of the decree which awards $500 for physical injury to the land, otherwise he concurs.

       Compare Richer v. Ouachita Natural Gas & Oil Co., 153 La. 160, 95 So. 538 (cited by Placid Oil Co.) and McClendon v. Busch-Everett Co., 138 La. 722, 70 So. 781, where the leases contained similar provisions but failed to stipulate the time when drilling was to commence. As a consequence, the conditions in those leases were adjudged to be potestative. Compare also Caddo Oil & Mining Co. v. Producers’ Oil Co., 134 La. 701, 64 So. 084, where the condition in the lease found to be potestative was a stipulation reserving to the lessee the right to abandon the premises whenever it desired to cease operations and to remove all property placed thereon by it at discretion.

       The law requires that the leased property be returned to the owner in good condition. And, if no inventory has been made, “the lessee is presumed to have received the thing in good order.” Article 2720 of the Civil Code.


author: PONDER, Justice.

text:
    212 La. 820
    NOMEY v. PACIFIC MUT. LIFE INS. CO.
    No. 38410.
    Supreme Court of Louisiana.
    Dec. 15, 1947.
    Rehearing Denied Jan. 12, 1948.

      Wilkinson, Lewis & Wilkinson, . of Shreveport, and Chaffe, McCall, Bruns, Toler & Phillips, of New Orleans, for defendant-appellant.
    W. T. Holloway and Wayne Stovall, both of Jonesboro, for plaintiff-appellee.
   PONDER, Justice.

The defendant has appealed from the judgment of the lower court awarding the plaintiff disability insurance, statutory penalties for delayed payment, and attorneys’ fees.

The insurance policy involved in this case was issued to the plaintiff June 2, 1924, in the amount of $20,000, payable in twenty annual installments and contained provision for the payment of $300 per month should the insured become totally disabled. The judgment of the lower court awards the plaintiff $6,600, representing disability payments and penalties up to and including March 1, 1946; legal interest on $3,300 from date of judicial demand; legal interest on $3,300 from date of judgment; $1,750 as attorney’s fees with interest from date of judgment; and costs.

The pertinent provisions of the contract are as follows:

“Permanent Total Disability — Should the insured become permanently totally disabled, the company will waive the payment of future premiums and pay to the ■insured a monthly income of three hundred dollars, all subject to the conditions set out on the succeeding pages of this pol-
“Should the insured, before the anniversary of this policy nearest the date on which he shall attain the age of sixty years and while this policy is in full force and no premium thereon in default, become permanently totally disabled, as hereinafter defined, the company, subject to thp conditions hereinafter set forth, will waive the payment of all future premiums required under the conditions of the policy as they become due and pay the insured a monthly income of $300.00, such waiver to be effective and the first of such monthly income payments to become due and the period of disability to commence as of the date of the receipt at the home office of the company of due written proof of such disability and a subsequent payment to be made on the first day of each month thereafter during the continuation of such disability. Such waiver of premiums and income payments shall not affect any other benefits or values provided under the policy.
“Permanent Total Disability, as used herein is defined to mean:
“(1) Disability caused by accident, bodily injury or disease which totally and permanently prevents the insured from performing any work or engaging in any oc•cupation or profession for wages, compensation or profit; or-
“(2) Disability caused by accidental 'bodily injury or disease which totally prevents the insured from performing any work or engaging in any occupation or •profession for wages, compensation or profit and which shall have totally and continuously so prevented the insured for not less than ninety days immediately preceding the date of receipt of due written ■proof thereof; or
' “(3) The irrecoverable loss of the entire sight of both eyes, or the amputation .at or above the wrist or ankle of both 'hands or both feet or a hand and foot, if such loss or amputation is caused by accidental bodily injury or disease.”

It is alleged in the plaintiff’s petition •that he became totally disabled on or before May 1, 1945 and has made demands ■upon the defendant for the disability benefits under the policy without avail. The ■defendant .admits in its answer the issuance of the policy, that it is in full force and effect, that amicable demands for payment have been made under the total disability provision and avers that it has refused to pay the benefits for the reason •that the plaintiff is not totally disabled. The present suit was instituted on March 19, 1946. The record does not disclose that the defendant made any effort to ascertain the truth of the plaintiff’s condition or towards the adjustment of the claim ■during the period beginning May 1, 1945 and ending March 19, 1946, from the date the claim was first asserted to the date the suit was filed.

It appears from the evidence that the plaintiff was for many years engaged in the operation of a general mercantile establishment in Jonesboro, Louisiana doing a general furnishing business to farmers and others, usually on a credit basis from season to season. During the time he carried on this business, he was more or less engaged in the cotton business, buying and selling cotton. He was successful in his business enterprises and acquired considerable property. His mercantile establishment was destroyed by fire in the latter part of 1941 and he has engaged in no other business or occupation since that date. He is receiving approximately $300 per month income' from his property, which was acquired prior to the loss of his business establishment.

The plaintiff states that he began to notice that his hearing was defective in the year, 1940 and that on account of his defective hearing he did not reenter the mercantile business after the loss of his establishment in 1941 because he desired to wait awhile to ascertain if his hearing would improve. According to his testimony his hearing progressively became worse and prevented him from again entering into the mercantile and cotton business. He stated that he was treated by specialists in 1944 and lost his hearing in 1945, at which time he made a claim to the defendant for the disability insurance. The medical, as well as the lay, testimony shows that the plaintiff cannot carry on a conversation without the aid of a microphone or hearing aid. The medical testimony, as well as the lay testimony, shows that the plaintiff is almost, if not totally, deaf. From the medical testimony and a number of merchants who testified in the case, it is impossible for the plaintiff to carry on the business of merchant and cotton buyer in his present condition. The ■ witnesses state many reasons why it would be impossible for the plaintiff to carry on the business he had been engaged in without the ability to hear. It is not necessary for the purpose of this decision to recite those various reasons for the reason the defendant has produe'ed no evidence to contradict it. The defendant’s testimony consists of two physicians who admit that the plaintiff is deaf for all practical purposes without the use of artificial aid.

Dr. Ralph Riggs, a specialist in the diseases of the ear, practicing in Shreveport, examined the plaintiff at the request of the defendant on May 19, 1946, after suit had been instituted and before the answer was filed. On the trial of the case, this witness was placed on the stand by plaintiff. His testimony is to the effect that the plaintiff suffers a loss of hearing of 97.3% in the right ear and 100% in the left ear. He stated that the plaintiff would not be able to hear anything without the use of artificial aids. Dr. Dorf Bean, another ear specialist located at Shreveport, testified that he examined the plaintiff on two occasions, April 24, 1945 and June 17, 1946. He stated that his first examination disclosed that the plaintiffs hearing is 48% defective in the right ear and 47.3% in the left ear and his second examination revealed that his condition had become worse and at that time the plaintiff suffered a loss of hearing of 67% in the right ear and 80% in the left ear. Mr. W. E. Bradford, manager of the Audiphone Company, who made electrical tests of the plaintiff for Dr. Bean and furnished the hearing aid used by the plaintiff, corroborates Dr. Bean’s testimony. This witness stated that 80% in hearing is total deafness and that the hearing aid would not help the plaintiff in the left ear. Dr. C. L. LaRue, another specialist, testified that the plaintiff suffered a loss of hearing of 57% in the right ear and 70% in the left ear. He also testified that 80% loss in hearing is a total loss, or amounts to total deafness. These witnesses used the latest scientific devices to determine the extent of the plaintiff’s disability.

The two physicians placed on the stand by the defendant did not use these modem devices. One of these witnesses fixed the plaintiff’s deficiency of hearing at 48% in the right ear and 47.3% in the left ear. The other one testified the impairment in plaintiff’s hearing was from 60 to 70% approximately, the right ear somewhat better than the left. Each of these witnesses only examined the plaintiff on one occasion. One of these witnesses used a tuning fork in his examination and the other used no instrument whatsoever. Neither of these witnesses used an audiphone or other scientific device.

We had occasion to examine an insurance policy containing similar total disability provisions in the case of Patterson v. Metropolitan Life Ins. Co., 194 La. 106, 193 So. 478, wherein an oil field worker, thirty-three years of age, suffering from a loss of hearing of 80% in one ear and 70% in the other, was adjudged by the trial court totally disabled and awarded the total disability benefits provided for in the policy. We affirmed the judgment. .In reviewing a number of authorities, we rejected the narrow rule followed in some of the cases and accepted the more liberal rule prevailing in this state and in the majority of the states of this country. We pointed out therein that this Court has often declared that the words “total disability”, within the meaning of a policy similar to the one involved in the Patterson case, which is similar to the one involved in the present case, do not mean absolute helplessness, but rather the inability to do practically or substantially all the material acts required in the transaction of the insured’s regular occupation or business in the usual and customary manner.

Under the provisions of Act No. 310 of 1910, the defendant is subject to the penalty of paying to the insured double the amount due under the policy during the period of delay with attorney’s fees, unless the refusal to pay is shown to be based on reasonable grounds. This statute provides that payments under life, health and accident policies shall not be delayed beyond the period of thirty days without just and reasonable grounds such as to put a reasonable and prudent business man on his guard.

The trial judge imposed the statutory penalties on the ground, as reflected by the reasons he gave for his judgment, that the defendant made no showing whatsoever that any effort was made by it to ascertain the truthfulness of the plaintiff’s claim from the time the claim was first made until the suit was filed, and for the further reason that the defendant continued to oppose the plaintiff’s claim after having received the information of the plaintiff’s condition from Dr. Riggs, who had examined the plaintiff at the defendant’s request. The holding in the Patterson case is an additional reason why the penalties should be imposed in this case because the serious impairment of hearing in that case was held to be a total disability. The present case presents a more serious impairment in hearing and a greater disability to conduct the business or occupation engaged in by the insured. A mere reading of the reasons given in the Patterson case is sufficient to convince anyone that such a disability as presented in the present case is a total disability.

The defendant contends that attorney’s fees fixed at $1,750 is excessive and should be reduced to the amount of $1,000. It cites several cases to support his contention, the most recent being Campasi v. Mutual Ben. Health & Acc. Ass’n, 207 La. 758, 22 So.2d 55. In that case the total benefits due under the policy was $1,500 and the total amount of the judgment was $4,550, which included attorney’s fees in the amount of $750. In the present case the total benefits due under the policy was $3,300 and the total judgment is $8,-350, which includes attorney’s fees in the amount of $1,750. The plaintiff relies on "the holding in the case of Fried v. State Life Ins. Co. of Indianapolis, Ind., 180 La. 927, 158 So. 20, wherein $3,500 was allowed as attorney’s fees in recovering a judgment for $5,868.40 for disability insurance was held to be not excessive. In the Fried case the attorney had more work to do than the attorney did in this case. The extent of services of attorneys in cases is so variable that it is impossible to fix a set rule. Consideration must be taken to the amount involved and the amount of services rendered. As stated in the Fried case that while the attorney’s fees allowed by the district judge may seem large in comparison with the amount sued for, yet that is not all that is involved. In this case the company’s liability for future benefits under a $20,000 policy are fixed. In the Fried case the future liability of the company was fixed under a policy calling for $25,000. In view of the holdings in the aforementioned cases and the services rendered by the attorney herein, we are unable to give a good reason why the fees should be reduced.

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

BOND, J., absent

HAMITER, J., dissents from that part of the decree which awards statutory penalties and attorney’s fees; otherwise he concurs.