author: HAMITER, Justice. McCALEB, Justice. HAWTHORNE, Justice

text:
    214 La. 145
    PLUNKETT et ux. v. UNITED ELECTRIC SERVICE.
    No. 38119.
    Supreme Court of Louisiana.
    Jan. 12, 1948.
    On Rehearing June 15, 1948.

      Thompson & Thompson, of Winnsboro, and Blanchard, Goldstein, Walker & O’Quin, of Shreveport, for defendant-appellant.
    Hussey & Smith, of Shreveport, for plaintiffs-appellees and for intervenors-appellees.
   HAMITER, Justice.

The residence of plaintiffs (John H: Plunkett and his wife), situated at Municipal No. 217 Boulevard Street in the City of Shreveport, together with its contents, was partially destroyed by fire during the early morning of December 25, 1943. For the loss sustained they were paid by the Louisiana Fire Insurance Company of Baton Rouge (insurer of the house) $6,677.28 and by the American Central Insurance Company of St. Louis, Missouri (insurer of the personal property) $2,000, the limit of its policy.

Thereafter, plaintiffs instituted this suit to recover damages from the United Electric Service, a commercial partnership domiciled in the City of Monroe, charging that the fire resulted from a central heating unit installed in the attic of their house by that defendant. They prayed for an award in the total amount of $14,815.78, subject to and with recognition of the subrogations given the insurers for the sums respectively paid to them, the claim being itemized as follows:

'A. Damages to house and loss of use of occupancy thereof during reconstruction, $6677.28;

B. Value of furnishings, fixtures and personal property destroyed $6638.50;

C. Cost of moving from and to said house, inconvenience in being deprived of use thereof, lack of heat, and physical and mental anguish, $1500.00.

For a cause of action, plaintiffs alleged:

“That petitioners do not know the exact cause of the failure of said heating unit to properly function, but aver that if said heating furnace had been properly and carefully installed that same would have operated efficiently and would not have burned petitioners’ said house, and petitioners further aver that the proximate cause of the fire -which partially burned petitioners’ house was the faulty installation or adjustment of said heating unit by said United Electric Service.”

Joining plaintiffs in the suit, by way of intervention, were the mentioned insurers. Each asked judgment, under and by reason of its subrogation, for the amount of insurance paid.

In the answer'defendant admitted the installation of the heating unit, denied that it caused the fire, and averred that it was installed with the utmost care and in a proper manner.

After a trial of the merits defendant was condemned to pay to the Louisiana Fire Insurance Company of Baton Rouge $6,098.15 ; to the American Central Insurance Company of St. Louis, Missouri, $2,000; and to plaintiffs, $1,000.

From the judgment defendant appealed. Answering the appeal were the Louisiana Fire Insurance Company of Baton Rouge and the plaintiffs, they praying that the judgment be increased in their favor, respectively, to $6,677.28 and $5,988.50.

In his well considered written reasons for judgment the trial judge correctly set forth the undisputed pertinent facts of the litigation as follows:

“In December of 1943, defendant entered into a verbal agreement with plaintiffs to furnish and install in plaintiffs’ residence, for the price of $500.00, a central heating unit to replace the one then in the house which was considered of inadequate capacity. Plaintiffs’ house was completed in February of 1941, and was originally equipped with air ducts and a vertical type furnace or heating unit which was located in a closet on the first floor. The one installed by defendant to replace it was a Len-nox horizontal type gas furnace consisting of main unit (furnace), fan, motor and controls. In installing the unit, -defendant connected the existing duct work in the house to a small new amount of duct work by defendant made necessary by the change in location of the heating unit. The furnace installed by the defendant burns natural gas to heat air which is distributed through the ducts to the various rooms of the house by a blower fan operated by a motor using electric current serving the house. Defendant extended the gas pipes from the first floor to the attic and extended the electric wires in the attic, to connect both with the unit.
“Defendant, domiciled in Monroe, Louisiana, sent three of its employees to Shreveport and they did the work of installing the heating unit in the Plunkett home. No permit was obtained by defendant or any of its employees from the Building Inspector, the Plumbing Inspector or Electrical Inspector of Shreveport, nor was the work inspected by these officials as required by ordinance of the City of Shreveport. No pressure tests were made on the gas extension lines installed. These employees of defendant began the installation work about three o’clock in the afternoon of December 22nd and completed the same and started the unit operating about 11 P.M. of the same date when they left the Plunkett home. On December 23rd, in the afternoon, Mr. M. E. Phillips, manager and engineer of the heating and air conditioning division of defendant’s business, came to the Plunkett home, checked and approved the general installation of the unit and pronounced the unit to be working and operating satisfactorily. The unit continued to function thereafter until about ten o’clock of the night of December 24th, when the electrical current in the City of Shreveport was disrupted by rainy and freezing weather causing wires in the City to break under the accumulation of ice. The electricity servicing the Plunkett home was cut off and the house became very cold as the heat from the furnace was no longer conveyed into the lower part of the house by the electrically operated blower.
“The living quarters of the Plunkett home were on the lower floor. On the night of December 24th, practically the entire family was ill with “flu”. Mrs. Plunkett had gotten up out of bed with her baby who was ill and gone into the kitchen where there was a gas range which she lighted for warmth. She says she sat in front of the range most of the night until about six o’clock in the morning of December 25th (Christmas), when she • heard someone pounding on the front door and shouting. It was then discovered that the attic of the house was enveloped in flames and the Plunketts rushed from the building in night clothes and barefooted.
H* * sj< *
“The evidence discloses that this heating unit is a manufactured product, but comes disassembled or broken down. It is assembled or put together at the time and place of installation. The mechanical controls thereon are set at the same time and pláce. All these things, together with the new gas and electrical extensions', were done in this case by defendant’s em-plo.yees. * * * ”

This brings us to a consideration of the issues in the case, the first of which is whether or not the fire started from the heating' unit. Of course, appellees contend that it did. Defendant, in vigorously challenging that contention, insists that the heating unit was perfectly designed and carefully installed and regulated. And it suggests possible reasons. for the commencement of the fire, such as rats playing with matches and also spontaneous combustion in the mass of clothes and other personal property stored in the attic.

In resolving this issue of fact in favor of appellees, the trial judge commented that, “The evidence makes inescapable the conclusion that the fire started from the heating unit.” With this conclusion we cannot disagree; the record fully supports it. Among the first to reach the scene shortly after the fire’s commencement were Captain Turner J. Mangham and his assistants of Station No. 7 of the Shreveport Fire -Department. Captain Mangham testified:

“Q. Captain Mangham, will you relate to the Court just what you did when you arrived at their residence at 217 Boulevard in the City of Shreveport on that date ?
“A. Yes, sir. We had a telephone alarm to 217 Boulevard, house on fire. We came on down Centenary Boulevard and the other company laid hose and my company made up. On arrival we saw the fire coming out of the east end of the gable and the house was full of smoke, so we tried to make our entrance to get to the seat of the fire as quick as possible. We gained entrance through the front door and went to the little hallway, which is usually an easy place to get into the attic. You could tell most of the fire seemed to be coming from the attic. We made entrance with a two and a half inch line with a one and one-eighth inch nozzle through the opening 'for the attic ventilator fan; found most of the fire to our right, the north side of the house, most of the seat of the fire, around a heating unit installed in the attic. Closets below and under were also involved in fire. We put out the large portion of the fire, found escaping gas, ordered gas meter cut off, checked and put out the remaining fire, which was mostly around that section. I think that covers it very well.”

Further, he testified:

“Q. Was this erne of the cases where there was any doubt in your mind as to what caused the fire?
“A. All indications pointing to the start of that fire settled my mind beyond a reasonable doubt that it started around that heating unit and was caused from that heating unit.
“Q. Did you find anything in any part of the building that -indicated to your mind that the fire could have been caused by anything else other than the heating unit?
“A. No, sir, I did not.”

Accompanying Captain Mangham into the burning house were firemen C. A. Freeman and Homer G. McDowell, both of whom were also from Station-No. 7. They likewise found the seat of the fire to be around the heating unit and observed nothing other than that instrumentality to which the blaze could be attributed.

Others entering the house and finding the seat of the fire to have been around the heating unit- were Messrs. Robert Neff and C. I. Ford, both of whom made inspections a few hours after the occurrence of the damage. The former originally constructed the building and rebuilt it after the burning; the latter, whose business is that of adjusting insurance claims, adjusted the losses for the intervening insurers herein.

Having concluded that the heating unit was responsible for the fire, we turn now to determine if appellees have proved specific negligence on the part of defendant in installing it. Their counsel maintain that it has been sufficiently proved, arguing that the evidence establishes that the fire was caused by a failure to properly coordinate the gas valve of the furnace with the electric current; or by the making of a faulty connection of the gas pipe into the furnace; or by leaving a loose connection along the gas line, installed by defendant’s employees in the attic, a few feet from the unit. There was evidence adduced, it is true, tending to show that each of the mentioned acts of negligence might have been committed; but, according to our appreciation of the record, none was proved with legal certainty.

This makes necessary a consideration of the litigation in the light of the doctrine of res ipsa loquitur, relied on alternatively by appellees and applied by the district court in rendering its decision. This doctrine furnishes a rule of evidence, the applicability of which is to be determined on the conclusion of the trial. Gerald et ux. v. Standard Oil Company of Louisiana et al., 204 La. 690, 16 So.2d 233. It is appropriate in a case where the plaintiff cannot be expected to have any information as to the causes of the accident, whereas the defendant, on the contrary, must be assumed to be fully informed on the subject, and further where the accident is of the kind which ordinarily does not occur when due care has been exercised. In such a case the plaintiff need neither allege nor prove the particular acts of omission or commission from which the accident resulted. The accident itself, according to the rule, creates an inference of negligence, and to escape liability the defendant must rebut and overcome the inference. Lykiardopoulo v. New Orleans & C. R. Light & Power Co., 127 La. 309, 53 So. 575, Ann.Cas.1912A, 976; Loprestie v. Roy Motors, Inc., 191 La. 239, 185 So. 11; Hake et al. v. Air Reduction Sales Company, 210 La. 810, 28 So.2d 441.

In determining the applicability of the doctrine the courts often resort to the possession test, i. e., whether or not the instrumentality allegedly causing the accident was at the time in the exclusive possession and control of the defendant. A. & J., Inc., v. Southern Cities Distributing Company, 173 La. 1051, 139 So. 477; Jones v. Shell Petroleum Corporation et al., 185 La. 1067, 171 So. 447; Davis v. Teche Lines, Inc., 200 La. 1, 7 So.2d 365.

But the fact of possession and control by the defendant is not always an essential element. The doctrine has been held to be applicable in numerous actions where the offending articles were not possessed and controlled by the defendants on the occurrence of the accidents, such as those for damages resulting from exploding bottles of carbonated beverages, from leakage of drums of acid, and from the blowout of a plug in a cylinder of acetylene gas. Important though in actions of this class is that the plaintiff prove freedom of fault on the part of all through whose hands the instrumentality passed after it left the defendant. Motor Sales & Service, Inc., v. Grasselli Chemical Co. et al., 15 La.App. 353, 131 So. 623; Auzenne v. Gulf Public Service Co., La.App., 181 So. 54; Auzene v. Gulf Public Service Co., La.App., 188 So. 512; Lanza v. De Ridder Coca Cola Bottling Co., La.App., 3 So.2d 217; Meyers v. Alexandria Coca-Cola Bottling Co., Ltd., La.App., 8 So.2d 737; Ortego et al. v. Nehi Bottling Works et al., 199 La. 599, 6 So.2d 677; Hake v. Air Reduction Sales Company, supra.

In the instant case, which appears to be similar in principle to the actions of the last mentioned class, the heating unit placed in plaintiffs’ home by the defendant concedingly was of the kind that does not ordinarily set fire to a building when due care has been exercised in installing it. Too, plaintiffs cannot be expected to have the information regarding its installation that defendant is assumed to possess. On the other hand, at the time of the fire the unit was in plaintiffs’ home and "Under their control and management. From all of which, and in keeping with the above authorities, it follows that the doctrine of res ipsa loquitur is applicable here if it has been proved that plaintiffs were -in no manner negligent in their control, management and operation of the unit.

Respecting this issue, defendant contends that since the system was functioning perfectly when its engineer left the premises approximately 39 hours before the fire Mr. Plunkett m.ust have tampered with the controls of the unit to obtain more heat. In rejecting this contention, as well as in holding the doctrine applicable, the trial judge commented : “ * * * This Mr. Plunkett says he did not do and so does Mrs. Plunkett. We accept.fheir testimony as true. Why would Plunkett want to turn up the gas in this furnace in the attic after the City electric current had failed and stopped the blower, fan, the only means to get the heat to the lower floor? Obviously, no additional heat could be thus secured.”

The record furnishes no good reason for our refusal.to approve this finding of fact. Especially is this true since the trial judge was in a much better position to pass upon the integrity of plaintiffs than are we.

Therefore (the doctrine of res ipsa loquitur being applicable), defendant, to escape liability herein, carried the burden of overcoming the inference of negligence on its part that was created by the occurrence of the fire. To do this it showed that after the installation certain tests, on two different occasions, were conducted by its engineer and its employees which disclosed no defects in the system. Admittedly, however, it did not secure an inspection, together with a pressure test, of the gas line which its employees extended into the attic as is required by ordinance to be made by 1he plumbing inspector of Shreveport. And in this connection, according to the. record, the firemen on entering the attic of the house found there burning gas being emitted from the extended gas -line, some six or eight feet from the unit, which was described as either broken or containing a loose, connection. Furthermore, as w« appreciate the evidence, defendant’s engineer and employees did not test the unit with the electric service disconnected, which omission becomes seemingly significant when it is remembered that the fire occurred while the electric blower was not in operation due to a disruption of tin» electric service to the house.

Had these last mentioned two tests, together with the ordinance required inspection, been carried on, very probably plaintiffs’ house would not have been burned. And'because of the omission of defendant in these respects we are compelled to agree with the district court that its burden of overcoming the inference of negligence has not been discharged.

As to the quantum, the awards made seem to be neither excessive nor inadequate. Further, in making them the trial judge thoroughly and correctly analyzed the evidence as follows:

“The fire insurance policy on the house is not in evidence. Although Louisiana Fire Insurance Company paid plain-Affs $6,677.28, the house was rebuilt by /.obert Neff, contractor, under a contract (P-4) calling for the ‘complete restoration * * *, removing and replacing all burned materials, removing all discernible signs of fire and water damage,’ for which the sum of $6,098.15 was paid. The evidence does not account for the difference. We think the insurance company can only recover the latter sum.

“The policy on the personal property is not in evidence. American Central Insurance Company paid plaintiffs the full amount of the policy, to-wit: $2000. Mr. C. I. Ford testified thát he checked the items of personal property and was satisfied that the loss was sufficient to absorb the entire amount of the policy. The company is entitled to recover this amount.

“Plaintiffs’ claim in item ‘A’ damages for ‘loss of use of occupancy during reconstruction,’ but the evidence shows that plaintiffs moved into the home of plaintiffs’ sister after the fire and remained there until they reoccupied their rebuilt home-and paid no rent. There is no proof to support a judgment for this claimed loss.

“For the personal property destroyed, plaintiffs’ claim in item ‘B’ the sum of $6,638.50 or $4,638.50 more than the amount paid them by American Central Insurance Company. We think the proof in this regard unsatisfactory and too indefinite to support a judgment in excess of the $2000 which is adjudged to the subrogated insurance company.

“Finally, plaintiffs claim $1500 for inconvenience in being deprived of use of their home, for physical and mental anguish, etc. Without doubt, plaintiffs were greatly inconvenienced and suffered much physical and mental anguish in the damage to their new home and being forced therefrom barefoot and clad in night clothes, exposed to the ice and cold of the outside in the early morning hours when they and their children were ill with flu and threatened with pneumonia or other complications. Such things are not susceptible of exact proof in damages, but they are nonetheless real injuries for which damages should be allowed. Plaintiffs were out of their home some two and one-half or three months. Fortunately, the evidence does not suggest that the illnesses in the family were aggravated or prolonged by their terrible experience. In such cases the Court must exercise its discretion in fixing the damages and we think the sum of $1000 to be fair and adequate.”

The judgment is affirmed.

McCALEB, J. dissents, 'being of the opinion that the doctrine of res ipsa loquitur is without application to this case.

HAWTHORNE, J., concurs in the decree except insofar as it affirms that portion of the judgment of the lower court awarding damages to the plaintiffs for inconvenience, being of the opinion that the damages allowed are excessive. From this portion he dissents.

On Rehearing.

McCALEB, Justice.

A rehearing was granted herein in order to reconsider our ruling respecting the application of the doctrine of res ipsa loquitur. However, counsel for defendant have devoted much of their reargument to a critical analysis of the findings of fact. They maintain that we erred in approving the conclusion of the district judge that the fire was attributable to the heater installed in plaintiff's attic by their client, asserting that the judge merely assumed that such was the fact without any believable evidence in support of his finding.

In view of the earnestness of counsel, we have re-examined the evidence in the case and" conclude that the trial judge was fully warranted in his holding that plaintiff has established with reasonable certainty that the heater, which had been installed in the residence by defendant some 39 hours prior to the fire, was the sole and only cause thereof. It would be inutile for us to discuss the testimony as it has been fully analyzed in our former opinion wherein we have quoted extensively and approvingly from the decision of the trial judge.

Since we believe that the plaintiff has successfully demonstrated that the heater originated the fire, does it logically follow that fault on the part of the defendant, as the vendor and installer of the instrumentality, is to be inferred? This question-has been answered in the affirmative in our ■original opinion where we concluded that, even though the heater was not in the possession of the defendant at the time of the damage, the rule of res ipsa loquitur was nonetheless applicable inasmuch as plaintiff had established that no one had tampered with or attempted to manipulate the heater from the time it was installed by defendant’s agents until the time of the fire, some 39 hours later. In resolving thus, we rested our decision on a similarity between the facts presented here and those in cases involving damages resulting from exploding bottles of carbonated beverages, leakage of drums of acid and the blowout of a plug in a cylinder of acetylene gas. See Hake et al. v. Air Reduction Sales Co., 210 La. 810, 28 So.2d 441 and other cases cited in the original opinion.

A reconsideration of the rationale of our former decision has strengthened our conviction of the correctness of the views there expressed. The. only reason suggested for denying res ipsa loquitur in this case is that the plaintiff is supposed to have had control of the heater, the general rule being that the doctrine applies only when the defendant is in charge of the thing which does the damage.. One reason why this argument cannot be maintained is that the matter falls within the exception made in cases of exploding bottles or other substances in sealed containers. Another reason why the contention must fail is that it is not correct to say that the heater was under plaintiff’s control at the time of the damage. Consider the facts. Plaintiff buys a gas burning heater from defendant who installs it in plaintiff’s residence and warrants, impliedly at least, that-it will satisfactorily perform the function for which it is purchased. However, less than two days from the time of its installation and without any act by plaintiff, it starts a fire which causes grievous damage'to the house. Can it be fairly said in these circumstances that plaintiff, and not defendant, has control of the instrumentality that caused the damage ? Or is it more in keeping with common sense and plain justice to hold that, in the nature of things, the heater would not have caused the fire if it was functioning properly and that plaintiff cannot be expected to know whether it was defectively constructed or installed whereas defendant, as seller and installer, is fully able to show a freedom from negligence? We think the questions answer themselves. It must be remembered that, in cases like this, (unlike most instances where res ipsa loquitur is invoked) the plaintiff does not obtain the benefit of the doctrine by merely showing the unusual accident and the resulting injury. On the contrary, plaintiff is required to establish with certainty that the instrumentality installed by defendant is the source of the damage; that he was without fault and that the time elapsing between the installation and the damage was such as to make it reasonably evident that the damage would not have been caused if the device had been free from defect and had been properly installed. However, when all of these elements are proven, we see no good reason for not requiring the defendant to show freedom from negligence as then it is fair to assume that the accident would not have occurred but for a faulty installation or defect in the heater.

Application of res ipsa loquitur to matters of this kind is not without precedent in other jurisdictions. For a parallel case see Candler v. Automatic Heating, 1929, 40 Ga.App. 280, 149 S.E. 287. In fact, our conclusion is conformable with the “tendency of modern courts to extend the principle to an ever broadening line of cases”. Shain on “Res Ipsa Loquitur” page 438.

Counsel finally assert that we were in error in failing to hold that the defense evidence is sufficient to exhibit a freedom from negligence. This question is one of fact which was resolved against defendant by the trial judge. In our original opinion, we discussed the evidence in detail and concluded that the judge did not err in his resolution, After a careful re-examination of the testimony, our view is unchanged.

Our original opinion and decree herein are reinstated as the final judgment of this court.

HAWTHORNE, Justice

(dissenting).

This court said in Hake et al. v. Air Reduction Sales Co., 210 La. 810, 28 So.2d 441, that there are cases involving a certain type of accident wherein the matter of possession in the defendant is not an important consideration. Those cases were actions for damages resulting from exploding bottles of carbonated beverages and from leakage of drums of acid. In those cases, however, there was no question whatever as to the instrumentality causing the damage, and no question that from the circumstances of each case the accident was such as would not ordinarily have occurred unless there had been negligence on the part of the defendant, and accordingly the doctrine of res ipsa loquitur was applied.

In my opinion, in those cases in which possession is in the plaintiff, the courts should demand the strictest proof that the instrumentality of the defendant caused the damage. The proof in the instant case is certainly not conclusive that the fire was caused by the heater. The most that can be said of the proof from a summation of all the witnesses’ testimony regarding the cause of the fire is that in their opinion the heater must have caused the fire because they could not attribute the fire to any other cause. An examination of the evidence shows that every witness who testified on this point concluded that the heater caused the fire because the attic of plaintiffs’ house was charred most in the area around the heater, which I consider is omy circumstantial, and not conclusive, evidence that the fire was caused by the heater. This case, therefore, is not a proper one, in my opinion, for the application of. the doctrine of res ipsa loquitur.

       The writer of this opinion has been converted to this view.


source: Caselaw Access Project

author: PONDER, Justice.

license: Public Domain

text:
    214 La. 169
    COTTON v. WRIGHT.
    No. 34028.
    Supreme Court of Louisiana.
    June 15, 1948.
    Walter J. Suthon, Jr., of New Orleans, for appellant.
    Cobb & Saunders, Morris Wright and Charles D. Marshall, all of New Orleans, for appellee.
   PONDER, Justice.

This is a motion to dismiss an appeal from a judgment ordering an accounting.

The plaintiff brought suit against the defendant for the liquidation of communnity property and asked for an accounting from the defendant of h'is administration of the property. The defendant was ruled to show cause why he should not render the accounting, to which the defendant excepted on the grounds that the community had been re-established by a reconciliation between the parties that nullified the separation from bed and board. The exception was overruled and, on trial of the rule, the defendant was ordered to render an accounting. The defendant has appealed. The plaintiff has moved to dismiss the appeal on the ground that this Court is without jurisdiction to entertain an appeal from an interlocutory order or judgment that works no irreparable injury.

A decree of separation from bed and board carries with it a dissolution of the community which is not re-established by the reconciliation of the parties'. It was pointed out in Crochet v. Dugas, 126 La. 285, 52 So. 495, that Article 1451 of the Code Napoleon, authorizing the re-establishment of the community by notarial act between the parties, had not been incorporated in the Louisiana Civil Code. Since that date a statute has been enacted, Act 200 of 1944, amending Article 155 of the Revised Civil Code authorizing the re-establishment of the community, upon reconciliation of the spouses, by notarial act. Since the spouses have not re-established the community in the manner prescribed by law, it stands dissolved.

A judgment ordering an accounting is not a final or definitive judgment. It is an interlocutory order or judgment and such as would work no irreparable injury. Benham Ziegler & Co., Inc. v. Mouledoux, 175 La. 711, 144 So. 428.

A motion to dismiss an appeal founded on the want of a legal right to the appeal may be made at any time. Such appeal may be dismissed by the court ex proprio motui. Sample v. Wheless, 159 La. 844, 106 So. 325; Mercadel v. Mercadel, 179 La. 895, 155 So. 391.

The defendant contends that the motion to dismiss the appeal was not filed within three days after the filing of the transcript of appeal and that it should not be considered. He cites Askew v. Parker, 131 La. 733, 60 So. 226; Saxon v. Southwestern Brick & Tile Co., 113 La. 637, 37 So. 540. The later jurisprudence of this State is to the contrary and founded on a more reasonable rule. The want of a legal right to appeal should be raised at any time and, if not raised, the court should on its own motion dismiss the appeal for the reason that the law does not authorize such appeal.

For the reasons assigned, the appeal is dismissed at appellant’s cost.


author: O’NIELL, Chief Justice. MOISE, Justice. O’NIELL, Chief Justice McOALEB, Justice

text:
    214 La. 173
    STACY et al. v. MIDSTATES OIL CORPORATION et al.
    No. 38315.
    Supreme Court of Louisiana.
    Dec. 15, 1947.
    On Rehearing July 2,1948.

      Cook, 'Clark & Egan, of Shreveport, for Midstates Oil Corp. and others.
    C. F. Currier and J. P. D’Artois, both of Shreveport, for Ohio Oil Co.'
    Foster, Hall & Smith & Herold, Cousin & Herold, all of Shreveport, for plaintiffs-appellees.
   O’NIELL, Chief Justice.

The plaintiffs have a mineral lease, dated February 24, 1942, on SO acres of land, consisting of the SE% of NE^ and the S 10 acres of the NE1/^ of NE1^ of Section 21, T. 23 N. R. 8 W. They are suing to have the lease recognized as a valid and subsisting lease. The validity of the lease depends upon whether a former lease, granted by the landowner, R. P. Bond, to James E. Smitherman, on February 14, 1919, and covering the 320 acres consisting of the SW% of SW% of Section IS, Wi/2 of SEJ4 and Ei/2 of SW% and S%> of NE% and NEJi of NE%. of Section 21, T. 23 N. R. 8 W., has expired by'its terms, for want of production in paying quantities, so far as the lease embraced the 200 acres, forming the NE% of NE^ and Sy£ of NEJ4 and of SE% of Section 21, which 200 acres of course includes the 50 acres On which the plaintiffs acquired their lease from the landowner on February 24, 1942. The defendants, respectively, hold leases, either directly or by assignment, on the several parts of the 320 acres covered by the original lease dated February 14, 1919.

The defendants met the suit with an exception of no cause or right of action, the exception being founded upon the failure of the plaintiffs to allege either that there was no production of oil or gas in paying quantities from the remaining 120 acres composing the SWof SW^ of Section 15 and E]/2 of SWJ4 of Section 21, or that the lease had become divided so that production of oil or gas from the. 120 acres would not keep the lease in force as to the 200 acres embracing the 50 acres on which the plaintiffs acquired their lease; and the exceptors contended that the original lease of the 320 acres was essentially indivisible. In that connection the plaintiffs did allege in their petition that Smitherman assigned his lease to The' Ohio Oil Company on September 10, 1930, so far as the lease covered the 200 acres composed of the S% of N'E% and NE% of NE% and Wj4 of SEi/4 of Section 21. The alleged assignment is attached to and made part of'the plaintiffs’ petition, and under a well-settled rule of pleading it must control the question whether it constitutes an assignment such as to effect a separation of the ■lease on the 200 acres from the lease on the remaining 120 acres, or whether it was ■only a sublease of the 200 acres, which would not constitute such a division of the original lease on the whole 320 acres. After hearing arguments on the exception the judge overruled it. The defendants, reserving the benefit of the exception, answered the petition, and before and during the trial objected to the introduction of any and all evidence on the ground that the petition did not disclose a cause or right .of action. The judge overruled the objection and after hearing the case on its merits gave judgment for the plaintiffs, declaring their lease on the 50 acres to be a valid and subsisting lease. The defendants have appealed from the decision.

The question whether the ruling on the exception of no cause of action was right or wrong depends upon whether the instrument dated September 10, 1930, did or did not effect a division of the original lease on the 320 acres. The defendants argue that the ruling is wrong on the ground that the instrument which the plaintiffs rely upon as effecting a division of the lease is only a sublease of the 200 acres, and not an assignment. The plaintiffs, on the other hand, argue that the ruling is correct on the ground that the instrument on which they rely as effecting a division of the lease is in reality an assignment and not a sublease. The defendants base their argument, that the instrument constitutes a sublease, on the fact that Smitherman, by the terms of the instrument, reserved unto himself an overriding royalty of Ys2 of the proceeds of all oil that might be thereafter produced from the 200 acres of land from a depth exceeding 3,000 feet below the surface. The plaintiffs, on the other hand, base their argument, that the instrument constitutes ■an assignment of the lease in so far as it affects the 200 acres, upon the declaration in the instrument that Smitherman surrendered to The Ohio Oil Company all control over the lease on the 200 acres and expressly vested in The Ohio Oil Company the exclusive right either to preserve or to forfeit the lease so far as it covered the 200 acres. That clause in the instrument reads as follows:

“Development of and operations on the premises, if any, and the extent and character thereof, as well as the preservation or forfeiture of the leasehold, ■ shall be solely at the will of said The Ohio Oil Company or its successors or assigns, and, upon termination of the leases covering the lands above described, for any cause whatsoever, there shall be no further liability hereunder.”

If, in a transfer of a lease on only a part of the leased premises, by the original lessee, he retains any of his rights ■on that part of the leased premises under the original lease, the transaction is a sublease, as distinguished from an assignment; but, if, in such a transaction, the original lessee transfers all of his interest in the lease so far as the land covered ■by the transfer is concerned, the transaction is not a sublease but an assignment of the lease, to that extent. The reason for that distinction is that, in the case of a sublease of a part of the leased land, the ■original lessee does not rid himself of all interest in and authority over the -land subleased; whereas, if there is no such reservation on the part of the original lessee, his assignee acquires complete control over that part of the lease which is assigned. Smith v. Sun Oil Co., 165 La. 907, 116 So. 379; Johnson v. Moody, 168 La. 799, 123 So. 330; Swope v. Holmes, 169 La. 17, 124 So. 131; Roberson v. Pioneer Gas Co., 173 La. 313, 137 So. 46, 82 A.L.R. 1264.

In the present case it is declared, unqualifiedly, in the instrument by which the lease on the 200 acres was transferred to The Ohio Oil Company, that thenceforth the company should have complete control over the lease on the 200 acres, and should have the exclusive right either to preserve or to forfeit the lease so far as it covered the 200 acres. Hence in this case the transfer of the lease on the 200 acres to The Ohio Oil Company must be characterized as an assignment, notwithstanding the reservation of the overriding royalty on any oil that might be produced from a depth exceeding 3,000 feet below the surface. The controlling feature of the transaction, in determining that it was an assignment, and not a sublease, is that it gave to the transferee, The' Ohio Oil Company, the exclusive right to forfeit the lease on the 200 acres to the original lessor at any time.

On April 23, 1921, Smitherman made what is conceded to' have been a sublease, to The Ohio Oil Company, of the 200 acres described in the contract dated September 10, 1930. At the same time The Ohio Oil Company gave to Smitherman a counter letter, which was never recorded, and which reads as follows:

“Shreveport, La., April 23, 1921
Mr. J. E. Smitherman,
Shreveport, Louisiana.
Dear Sir:
“With reference to the act of assignment executed this day by you unto The Ohio Oil Company transferring and conveying unto said company one hundred twenty-eight oil, gas and mineral leases covering and affecting lands situated in Claiborne Parish, Louisiana, in Twp: 22 North, Ranges 7 and 8 West, and in Twp. 23 North, Ranges 6, 7 and 8 West, this writing is addressed to you for the purpose of expressing the agreement of this company that if at any time hereafter we shall elect to release, surrender or cancel all or any part of any one or all pf said leases then before effecting such release or cancellation such lease or leases or part or parts thereof will be first offered to you, and if you shall request it, same will be reassigned or. reconveyed to you by this company instead of being released or surrendered direct to the lessors.
Yours very truly,
The Ohio Oil Company
By: J. K. Kerr. Vice President.”

It is argued in the defendants’ brief that this counter letter had the effect of nullifying the stipulation in the transfer dated September 10, 1930, that the right to forfeit the leasehold on the 200 acres should be solely that of The Ohio Oil Company. The argument is destroyed by the fact that the counter letter refers expressly and only to the sublease dated April 23, 1921. Even if the counter letter could have reference to the subsequent assignment, dated September 10, 1930, it could not have effect against third parties, such as the plaintiffs in this case, because it was not recorded. Rev.Civ.Code, art. 2239. It is sufficient to say, however, that no such counter letter was given in connection with the contract dated September 10, 1930.

The defendants contend that a division of the lease was not legally possible because mineral leases are, essentially, indivisible. It has been held that the' mutual or reciprocal obligations incurred by the parties to a mineral lease are indivisible. Murray v. Barnhart, 117 La. 1023, 42 So. 489; Cochran v. Gulf Refining Co., 139 La. 1010, 72 So. 718; Nabors v. Producers’ Oil Co., 140 La. 985, 74 So. 527, L.R.A.1917D, 1115. But a mineral lease can be made divisible into separate leases on separate parts of the land covered by it by agreement of the parties to the lease. Smith v. Sun Oil Co., 165 La. 907, 116 So. 379; Swope v. Holmes, 169 La. 17, 124 So. 131; Roberson v. Pioneer Gas Co., 173 La. 313, 137 So. 46, 82 A.L.R. 1264. Hence there is no apparent reason why a mineral lease cannot be so divided into separate leases by the original lessee, provided the rights of the lessor are not thereby prejudiced. There is nothing in the record to show any such prejudice to the rights of the lessor in this case.

The next question is whether there has been in fact a cessation of production in paying quantities from the 200-acre tract. The only evidence in the record on the subject is the record of production from the 200 acres for 1940, 1941, and the first half of 1942. The record lists production of oil •in 1940 as 1287 barrels; 1941, 1171 barrels; and the first half of 1942, 366 barrels. The production, therefore, may be expressed in barrels per acre per day as follows: 1940, Ym; 1941, %2; and the first half of 1942, %oo. In the case of Logan v. Tholl Oil Co., 189 La. 645, 180 So. 473, a production of %20 of a barrel per acre per day was •held not to be production in paying quantities. In Caldwell v. Alton Oil Co., 161 La. 139, 108 So. 314, a production of Vee of a barrel per acre per day was held not to be production in paying quantities. In Brown v. Sugar Creek Syndicate, 195 La. 865, 866, 197 So. 583, a production of Vi8 of a barrel per acre per day was held to be production in paying quantities. However, a comparison of the production in the present case with the production in the cases cited is not a satisfactory comparison, •for two reasons. The first is that there is no showing that the value of oil in the years 1940, 1941, and 1942 was the same as at the time of the production in the cases cited. The second reason is that the decisions in the cases cited were not based •upon production by barrels per acre per day. The basis for the decisions in those cases was a comparison of the lessor’s royalty with the original consideration for the lease, or with the delay rentals stipulated during the primary term of the lease. In fact, in Brown v. Sugar Creek Syndicate, it was stated that the decision was based upon the finding that the lessee was making a fair and reasonable profit, considering the operating costs and the revenue. Therefore we are unable to make an intelligent decision on this point without having the benefit of evidence as to the value of the oil produced from the 200 acres during 1940 and 1941, and in the first half of 1942. We have concluded, therefore, that this case must be remanded to the district court for the purpose of receiving further evidence on this subject.

The plaintiffs contend that The Ohio Oil Company surrendered or abandoned the original lease from Bond to Smither-man, as to the 200-acre tract, by taking in 1937, top leases from all the land owners and owners of mineral rights as to that tract, except Mrs. Fannie Williamson Bond. The multiple original top leases are attached to a stipulation of facts in connection with an' exception of non-joinder of parties defendant filed by the defendants. Each of the multiple originals covers the entire 200-acre tract, and each contains the following paragraph:

“21. This lease shall supersede the present oil and gas leasehold contracts of The Ohio Oil Company affecting the above described lands * * *

That is the only evidence that was introduced to show abandonment of the lease as to the 200 acres by The Ohio Oil Company. We do not consider this recital in the top leases sufficient, of itself, to support a finding that The Ohio Oil Company intended to abandon, or did in fact abandon, the lease from Bond to Smitherman insofar as it affected the 200-acre tract. Nor do we consider the faking of the top leases as being entirely inconsistent with the continued existence of the original lease. It is a matter of common knowledge that lessees often take top leases when they are doubtful about the validity of a former lease, without intending to impeach the title of a former lessor, or to surrender their rights under any former lease which may turn out to he valid.

The record discloses that, before the plaintiffs, appellees, acquired their lease from Mrs. Fannie W. Bond of date February 24, 1942, she sold to S. J. Beene a one-acre mineral interest in the 40 acres described as SE^ of NE% of Section 21, and that The Ohio Oil Company took a top lease from Beene on this 1 acre mineral interest, as the company had done with regard to all other owners of mineral interests in the property involved, except Mrs. Bond. Accordingly, it is conceded by the plaintiffs, appellees, that the judgment appealed from, if affirmed, should be amended so as to cover only i%o of the mineral rights in that 40-acre tract. As we have found'it necessary to remand the case the district judge will have an opportunity to make this correction.

The record discloses also that on December 9, 1924, R. P. Bond, who then owned all of the 320-acre tract covered by .the original lease, transferred the land to his five children, namely, J. L. Bond, husband of Mrs. Fannie W. Bond, J. N. Bond, Mrs. Bertha Bond Kirkpatrick, R. E. Bond and Mrs. Lucy Ray Sanders. On May 8, 1928, the five co-owners partitioned the land, and in the partition the 50 acres involved in this suit fell to J. L. Bond, husband of Mrs. Fannie W. Bond, who afterwards acquired the 50 acres. R. P. Bond had transferred mineral interests throughout the 320-acre tract and in consequence there was a lack of uniformity in the mineral interest which he owned in the several parts of the 320 acres. Subsequent to the partition the five co-owners entered into an agreement which was expressed in a letter addressed to The Ohio Oil Company in which they declared that they authorized the company to continue the method of distribution -of the royalties due to each of them in the way in which it had been distributed theretofore, because the act of partition which they had made was made for the sole and only purpose of partitioning the surface of the land, it being their intention not to divide the royalty interests. The result of that agreement or mutual declaration on the part of the five joint owners of the 320 acres is that there is now a dispute between the plaintiffs and the defendants in this case as to whether Mrs. Fannie W. Bond owned at the time when she made the lease to the plaintiffs, on February 24, 1942, all of the mineral rights which R. P. Bond had owned in the 50-acre tract, or owned only % of the mineral interest which he had owned. Since we have concluded to remand the case to the district court for a hearing of further evidence, we find if unnecessary to decide at this time the question as to whether Mrs. Fannie W. Bond’s interest was all that R. P. Bond had owned or was only y5 of the interest which he had owned in the 50-acre tract.

The judgment appealed from is affirmed in so far as it recognizes that the plaintiffs’ petition discloses a cause of action, but is set aside in all other respects, and the case is ordered remanded to the district court to receive further evidence on the -question whether the lease on the 200-acre tract, described as S)4 of NE% and NEJ4 ■of NE% and W% of SE% of Section 21, has expired for want of production of oil in paying quantities, and to receive further evidence on the question whether The Ohio Oil Company, by taking top leases from all of the holders of mineral interests except Mrs. Bond, in 1937, thereby abandoned all rights of the company under the original lease from R .P. Bond to James E. Smitherman, dated February 14, 1919; and for such further proceedings as may be consistent with our opinion in this case. All costs of this proceeding shall abide the final disposition of the case.

BOND, J., absent.

On Rehearing

MOISE, Justice.

This is a suit instituted by R. A. Stacy of Caddo Parish, La., and Moses Ascher of New York City, N. Y., in which they seek to have themselves recognized as owners, under an oil and gas lease executed in their favor by Mrs. Fannie W. Bond on February 24, 1942, of a valid mineral lease affecting the SE14 of the NE% and the South 10 acres of the NEJ4 of the NE% of Section 21, T. 23 N., R. 8 W., Claiborne Parish, Louisiana, and as such entitled to recover their proportionate share of the oil now being produced from this property; claiming that a prior existing lease covering 320 acres hád expired by its terms ■as to 200 acres, of which the above 50 acres form a part, because of lack of production in paying quantities for several years prior to the date of plaintiffs’ lease •from Mrs. Bond. Parties defendant are (1) James E. Smitherman (the original owner of the prior existing lease and the claimant of an overriding royalty through that lease); (2) the Midstates Oil Corporation (the company which had successfully drilled a well, subsequent to plaintiffs’ acquisition of their lease from Mrs. Bond, on a portion of the property covered by the Smitherman lease); (3) the Ohio Oil Company and T. L. James & Co. Inc. (which also claim overriding royalties under the lease held by Midstates); and (4) certain other mineral claimants who need not be enumerated since they are not necessary to a decision. The case comes before us on an appeal taken by the above named defendants from a judgment overruling the exceptions of no cause and no right of action, and a judgment in plaintiffs’ favor on the merits, as prayed for.

The defendants re-urge the foregoing exceptions, claiming now that the district court improperly overruled them.

It is a rule of law that, for the purpose o-f considering the exceptions of no cause and no right of action, all of the well-pleaded facts in the petition, as well as the documents made a pant thereof, must be accepted as true.

From the allegations of plaintiffs’ petition and the annexed documents, it appears that on February 24, 1942, the plaintiffs acquired a lease from Mrs. Fannie W. Bond covering the SO acres above described, she having acquired the title to this property by purchase from R. P. Bond in 1933. Prior thereto, in February of 1919, Bond had given a lease covering 320 acres of land (including this 50'acres) to James E. Smitherman. In this lease was contained the stipulation that the lease would remain in effect after the primary term so long as production was continued in paying quantities. The right to develop the E% °f the NEJ4 of Sec. 21, included in the original 320 acre lease to Smither-man (of which the 50 acres in controversy form a part) was acquired by the Mid-states Oil Corporation. Subsequent to the date of plaintiffs’ lease, this company commenced and successfully completed a producing well in paying quantities on this acreage. It also appears that in the various transfers of the original lease insofar as it affects the E% of the NE%, Smither-man, the Ohio Oil Company, and T. L. James & Co., Inc., retained overriding royalties. Plaintiffs claim that the lease from Bond to Smitherman, insofar as it affected 200 acres (including the E% of the NE}4 of Sec. 21 operated by Midstates) had expired by reason of no production thereon in paying quantities for several years prior to acquisition of plaintiffs’ lease, a fact that the then owner of the lease (the Ohio Oil Company) recognized by taking top leases from all of the mineral owners' excepting Mrs. Bond.

The basis for the exceptions of no cause and no right of action lies in defendants’ contention that the plaintiffs predicated the validity of their lease upon the alleged nullity of a portion of an indivisible prior existing lease embracing a larger area because of failure of production on this portion in paying quantities, without having alleged the failure or lack of production on the remaining acreage.

Plaintiffs in their argument, both orally and in brief, apparently concede that the lease is indivisible, but contend that such a lease is subject to division by the consent of all parties, and that by their subsequent actions, all parties concerned have consented to such division and the lease has in effect been divided.

An examination of the petition and documents attached thereto fails to disclose any allegation that would support the plaintiffs’ contention. The documents upon which their argument is based were not a part of the petition but instead were introduced in evidence after the defendants’ objection to any and all evidence on the merits of the case had been made general by the trial judge. Consequently this contention cannot be considered in disposing of these exceptions.

We believe, therefore, that the exceptions were well founded and should have been maintained.

For the reasons assigned, the judgment of the district court is annulled and set aside; and it is now ordered, adjudged and decreed that the exceptions of no cause and no right of action be maintained and plaintiffs’ suit dismissed at their cost. The right to apply for a rehearing is reserved to the plaintiffs.

O’NIELL, Chief Justice

(dissenting from the opinion and decree on rehearing).

I adhere to my opinion that the plaintiffs’ petition, together with the documents attached thereto and made a part thereof, did state a cause of action. In their petition the plaintiffs alleged that they held a mineral lease on certain described land which had been subject to a previous lease covering a larger area, part of which area (including the area affected by the plaintiffs’ lease) was the subject of an assignment by the original lessee, J. E. Smith-erman, and the Ohio Oil Company, dated September 10, 1930, a certified copy of which assignment was attached to and made part of the plaintiffs’ petition. They alleged that there had not been any production, in paying quantities, for the past several years, on the area included in the assignment of September 10, 1930, and that therefore the portion of the original lease which was the subject of the assignment had lapsed according to its own terms.

As I pointed out in the opinion which I wrote for the court on the original hearing of this case, by the terms of the agreement of September 10, 1930, the original lessee, J. E. Smitherman, relinquished all control over the original lease so far as it affected the area described in that agreement. The agreement -therefore constituted an assignment of part of the original lea-se; and, since the record did not disclose that the transaction affected adversely the interests of the original lessor, the transaction constituted a division of the lease. So that, if, as the plaintiffs alleged, there was no production in paying quantities on -that portion of the original lease which was assigned, the lease on that portion of the land would have lapsed and the plaintiffs as holders of the subsequent lease would be entitled to their rights under -that lease.

It is stated in the opinion on rehearing that an examination of the plaintiffs’ petition and of the documents attached thereto fails to disclose any allegation that would support the plaintiffs’ contention that all parties to the original lease consented, subsequent to the assignment dated September 10, 1930, to the division of the lease. It is stated also in the opinion on rehearing tha-t the documents on which the plaintiffs’ argument is based were not a part of the petition but instead were introduced in evidence after the defendants’ objection to any and all evidence on' the merits of the case had-been made general by the trial judge. It is plain, however, that our decision rendered ■ originally in this case, maintaining that the plaintiffs’ petition, together with the documents annexed thereto and made part thereof, did disclose a cause of action, was not based in any way upon any document that was not annexed to and made part of the plaintiffs’ petition.

For these reasons, together with those stated in our original opinion, I respectfully dissent from the opinion and decree on rehearing reversing our decision on the exception of no cause of action.

McOALEB, Justice

(concurring in part and dissenting in part).

I am in accord with the ruling that plaintiffs’ petition does not state a ca-use of action since they have failed to aver that the lease, indivisible unilaterally, has been actually divided by consent of all of the parties. However, the maintenance of the -exception does not, in my opinion, authorize the absolute dismissal of the suit, for as stated in our recent decision in Bates v. Prudential Insurance Company of America, 192 La. 1029, 190 So. 120, 122:

“It is well established that an exception of no cause of action based upon an insufficiency of allegations in the petition is really an exception of vagueness, and although it is meritorious and -sustained, the plaintiff would still be entitled to amend the petition to supply the want of allegations of fact. Brunson v. Mutual Life Insurance Company of New York, 189 La. 743, 180 So. 506; Reeves v. Globe Indemnity Co. of New York, 185 La. 42, 168 So. 488; McCoy v. Arkansas Natural Gas Company, 184 La. 101, 165 So. 632; Lejeune v. Lejeune et al., 184 La. 837, 839, 167 So. 747; Davis v. Arkansas Southern Railway Company, 117 La. 320, 41 So. 587”.

' Thus, in the instant case, if the plaintiffs are able to allege -that the lease, though originally indivisible, has been in fact divided by and with the consent of all parties, they should be permitted to supplement their pleadings and not suffer a summary ejectment of their action.

For these reasons, I respectfully dissent from that part of the decree which dismisses plaintiffs’ suit.


text:
    214 La. 196
    JAMES v. NOBLE et al.
    No. 38861.
    Supreme Court of Louisiana.
    June 15, 1948.
    W. M. Pollock, of Mansfield, for appellant.
    Blanchard, Goldstein, Walker & O’Quin, of Shreveport, and Craig & Magee and Colvin & Hunter, all of Mansfield, for ap-pellees.
   PONDER, Justice.

The plaintiff, the owner in possession of eighty acres of land located in DeSoto Parish, brought this suit against the defendants seeking to have certain instruments decreed null and erased from the records of DeSoto Parish and to recover damages in the sum of $2,000.00 He alleges that the instruments are casting a cloud on his title and that he is entitled to the damages for the alleged slander of his title. The instruments sought to be annulled and erased from the records are as follows : a mineral deed conveying one-fourth of the mineral rights in and under the property executed in favor of J. M. Nabors on July 22, 1916; an acknowledgment executed by the plaintiff on August 18, 1943 in favor of the heirs of J. M. Nabors and his wife, both deceased; and certain leases executed by the' Nabors’ heirs and their assignees. He further seeks to have the one-fourth mineral interest decreed free of a lease executed by him covering the property.

The defendants interposed exceptions of no cause and no right of action and a plea of estoppel. The exception of no right of action and the plea of estoppel were sustained by the lower court and the plaintiff’s suit dismissed. He has appealed.

The purpose of this suit is to regain title to the one-fourth mineral interest standing in the name of the Nabors’ heirs and to have it decreed free of the leases executed by these heirs and a lease executed by the plaintiff. The suit hinges on the validity of the acknowledgment executed on August 18, 1943. If this acknowledgment is valid, the other questions pass out of the case. The plea of estoppel is urged in event the exception of no cause of action - is denied.

The acknowledgment of August 18, 1943 was executed by the plaintiff in the form of an authentic act. It is stated therein that the plaintiff is the owner of a described eighty acres of land and that J. M. Nabors acquired one-fourth of the minerals thereunder by act of sale of date July 22, 1916, which is recorded at page 580 in the records of DeSoto Parish. The following pertinent provisions are contained in th.e acknowledgment, viz.: “That it is hereby acknowledged that prescription against said mineral interest acquired by the said J. M. Nabors has not accrued; but such prescription has been interrupted and/or suspended by reason of the fact that minors have heretofore succeeded to the rights and interest of J. M. Nabors and his deceased wife, Mrs. Mary Lee Nabors; and that in consideration of One and no/100 ($1.00) Dollar, in hand paid, and other valuable considerations, said appearer does hereby acknowledge that an undivided one fourth 04) interest in the oil, gas and other minerals in and under the above described tract of land is presently vested in the heirs, legatees and successors in title of the said J. M. Nabors and Mrs. Mary Lee Nabors, his wife, both deceased, and does hereby renew and continue the rights of said persons which are derived by virtue of the original conveyance of mineral rights dated July 22, 1916, above referred to.”

Counsel for the plaintiff contends that the acknowledgment became null and of no effect after Act 232 of 1944 went into effect and that the Nabors’ heirs did not avail themselves of the provisions of this act by asserting their rights within one year. •

The acknowledgment was executed prior to the enactment of this statute, Act 232 of 1944, and prescription began to run anew from the date of the acknowledgment. Act 232 of 1944 was enacted to prevent the minority of a coproprietor from interrupting prescription as to the major coproprietors, as was provided in Article 802, Revised Civil Code, which read as follows : “If among the coproprietors there be one against whom prescription cannot run, as for instance a minor, he shall presérve the right of all the others.” Under the provisions of Act 232 of 1944 liberative prescription runs against coproprietors not under legal disability. The statute by its very terms is made to apply -to existing mineral rights and gives those whose rights are effected one year from its effective date to exercise their rights. At the time this statute was enacted the rights of the Na-bors’ heirs were in full force and effect by virtue of the acknowledgment and the prescriptive period by which these rights could be lost has not terminated. Their rights are not now dependent on an interruption of prescription. Under the circumstances, the statute has no application.

Counsel for the plaintiff contends that the acknowledgment is null for lack of consideration. He alleges 'in his petition that the consideration recited in the acknowledgment was not paid. He has not favored us with authorities to the effect that a special consideration must be given to support an acknowledgment and we know of no law that requires it.

Under the provisions of Article 3520, Revised Civil Code, “Prescription ceases * * * to run whenever the debt- or, or possessor, makes acknowledgment of the right of the person whose title they prescribed.” This Court has considered this article of the Code on numerous occasions. Some of the most recent cases, reviewing the jurisprudence on the subject matter, are the cases of Frost Lumber Industries, Inc. v. Union Power Co., 182 La. 439, 162 So. 37; Vincent v. Bullock, 192 La. 1, 187 So. 35. It is apparent, from a reading o'f the opinions in these cases and those cited therein, that the legal requirement for an acknowledgment sufficient to interrupt ten years prescription for nonuser of a mineral servitude must be expressed and certain, must have been made for that purpose and must adequately describe the property to which it applies. The acknowledgment in the present case was by authentic act and was made for the expressed purpose of interrupting prescription and the property was adequately described. We have reviewed a number of the decisions of this Court involving an acknowledgment of this nature and do not find that the question of a special consideration for acknowledgment was ever raised. In fact, a number of the acknowledgments approved and given effect were not supported by an independent consideration. The reason that this question has not heretofore been raised is that there is no provision in our law requiring a special consideration for an acknowledgment.

The plaintiff contends that the acknowledgment does not comply with Article 2272 of the Revised Civil Code. He cites the case of International Accountants Soc. v. Santana, 166 La. 671, 117 So. 768, 659 A.L.R. 276. Article 2272 is incorporated in the Code in that part of it dealing with the proof of obligations and sets forth the essential elements of recognitive acts. Conceding that this article of the Code is applicable, it would afford the plaintiff no relief. The case he relies on, International Accountants Society v. Santana, supra, is to the effect that the intention to ratify an act not binding on a party, provided by Article 2272 of the Civil Code, must be clearly and unequivocally shown, whether it is validated by a formal instrument or by its voluntary execution. It is pointed out therein that the intention to ratify an act not binding on a party cannot be inferred. The acknowledgment in this case is clear and explicit and shows on its face that it was purposefully executed to interrupt the then running prescription.

We have concluded that the acknowledgment was valid and that the lower court properly sustained the exception of no cause of action. Such being the case, there is no necessity to pass on the plea of estoppel.

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

O’NIELL, C. J., and HAMITER, J., taking no part


author: HAMITER, Justice.

text:
    214 La. 203
    PARKER, SEALE & KELTON v. MESSINA.
    No. 38509.
    Supreme Court of Louisiana.
    June 1, 1948.
    Rehearing Denied July 2, 1948.

      Jesse Hunter Inman, of Baton Rouge, for defendant-appellant.
    Lemuel C. Parker and Hamlet D. May, both of Baton Rouge, for plaintiff-appellee.
   HAMITER, Justice.

The law partnership of Parker, Seale & Kelton, domiciled in East Baton Rouge Parish and composed of L. C. Parker, A. G. Seale and Ralph M. Kelton, instituted this action against Sam Messina seeking to recover on a quantum meruit a fee of $2500 for legal services rendered to the defendant’s wife, Mrs. Mabel Jane Burnham Mes-sina.

The district court rendered judgment in favor of plaintiff in the sum of $1250 and the defendant appealed. Answering the appeal, plaintiff prays that the award be increased to -the amount originally demanded; and, in the alternative, that it be awarded damages as for a frivolous appeal.

The record discloses that during the evening of Sunday, September 9, 1945, Ralph M. Kelton, of the plaintiff law firm, went to his office at the request of Mrs. Messina and conferred with her regarding marital difficulties which she was then experiencing with the defendant. The conference having resulted in a decision to seek a dissolution of the marriage, a settlement of the community existing between the parties, and alimony for the wife, Kel-ton spent several hours that night preparatory to drafting the appropriate pleadings. About 11:00 o’clock the following morning a suit for separation from bed and board was filed, it charging the husband with cruel and inhuman treatment. In connection therewith the attorney recorded a notice of pendency of the action, and he obtained the issuance of a temporary restraining order and a rule for a preliminary writ of injunction, all to prevent a disposal of the community property. Also, there was issued a rule for alimony pendente lite.

Shortly thereafter Kelton learned that previous to the suit’s institution, but on the same day, the defendant had transferred to his brother, John J. Messina, by a notarial act, some immovable property allegedly belonging to the community. Thereupon he prepared and filed another suit to obtain the annulment of the transfer; and, incidental thereto, he recorded a notice of pendency of that action and secured the issuance of a writ of judicial sequestration.

The rule for alimony pendente lite was heard on October 2, 1945 (the testimony elicited at the hearing consumed some forty pages of the transcript), and the court awarded the wife $100 per month, commencing from the date of the filing of her separation suit.

On November 19, 1945, pursuant to an order of court, there was prepared an inventory and appraisement of the property (both real and personal) belonging to the community existing between the husband and wife. It listed various items having a total value of $24,676.84.

On April 15, 1946, defense counsel filed a motion in the separation proceeding suggesting “that the plaintiff herein did on trial of the above entitled and numbered suit, move for the dismissal thereof; that the injunction therein already in effect and the judicial sequestration against both defendant and his brother, John J. Messina, fall as a necessary consequence.” And, as a result of that motion and suggestion, the court ordered “that the injunction and the judicial sequestration coupled with the above suit be and the same are hereby vacated, annulled and set aside.”

The record does not reveal the exact date of the dismissal of the separation suit;, it contains no court minutes of the proceeding. Evideatly, the dismissal occurred prior to April 4, 1946, for on that date John J. Messina retransferred to the defendant the immovable property about which the second or annulment suit was filed.

The instant action, instituted by the wife’s attorneys against the husband to recover a fee for the legal services rendered, was filed April 24, 1946. For its success the plaintiff law partnership relies on the well established jurisprudence of this court, as well as of the Courts of Appeal of this state, relating to cases of this kind. That jurisprudence is to the effect that if the' wife is successful 'in her separation or divorce action, she is entitled to a judgment against her husband for reasonable attorney’s fees; 'but if, on the other hand, she-is not successful in the action, and the community of acquets and gains is not dissolved, the attorney for the wife has a cause-of action for such fees against the husband, as head and master of the community, upon a quantum meruit for services rendered,, it being a community obligation. Benedict et al. v. Holmes, 104 La. 528, 29 So. 256; Gosserand v. Monteleone, 159 La. 316, 105 So. 356, 42 A.L.R. 310; Gosserand v. Monteleone, 164 La. 397, 113 So. 889; Spiller v. Spiller, 170 La. 813, 129 So. 212; Starns v. Starns, 176 La. 610, 146 So. 165;, Hughes v. Hughes, 177 La. 785, 149 So. 455; Tullis v. Calhoun, 184 La. 207, 165 So. 714; Alpha v. Aucoin, La.App., 167 So. 835; Benton et al. v. Losavio, La.App., 176 So. 676; Wilson v. Henderson, La.App., 191 So. 602.

While recognizing the jurisprudence of this state to be as thus recited, defense counsel contends that under it recovery of attorney’s fees is allowed only when the wife’s unsuccessful suit was brought on probable cause and in good faith or when there has been a reconciliation between the parties, and he insists that not one of those elements was shown to be present in the litigation under consideration. To quote from his brief, he argues:

“The Court has never held the husband responsible for the wife’s attorney’s fees in a cause brought without probable cause, in legal bad faith, which was not successful and in which there had been no reconciliation barring prosecution of the cause to a successful termination.
'“The suit at bar fails to qualify under any one of these conditions and the demand, therefore, should be denied, together with all costs to be paid by plaintiffs-appel-lees.”

Should probable cause be essential (a question we find unnecessary to decide), its existence is clearly shown by the wife’s pleadings in her separation suit against the husband. Her petition, as amended, contains allegations of numerous .acts of cruel treatment the proof of which would have justified the rendition of the judgment sought. It states, in other words, ■a cause of action. And for the purpose of passing on the claim of her attorneys for services rendered those allegations must be accepted as true; certainly the trial of the separation suit, without the assistance of the wife, is not a condition precedent for recovery.

Of course, it is elemental that good faith is a requisite. But good faith is always presumed, and he who urges bad faith must prove it. Defendant has not shown bad faith on the part of either his wife or her attorneys; in fact he offered no evidence whatever in defense of this suit.

Notwithstanding a statement of defense counsel to the contrary, the record discloses a reconciliation between defendant and his wife prior to the filing of this suit. Before us is a certified copy of the deed dated April 4, 1946, which evidenced a retrans-fer of the property by John J. Messina to this defendant, and therein it is recited that the conveyance is made “unto Samuel Joseph Messina, husband of Mabel Jane Burn-ham, with whom he lives * * And reference was made to this recital by attorney Kelton while testifying during the trial of the case, he having stated without objection: “At the time it was transferred, April 4, 1946, I wish to call the court’s attention to the fact that at that time it was stated in the deed that Mrs. Messina was living with Sam Messina.”

In all events, however, we do not interpret our jurisprudence as requiring a reconciliation between the parties before an attorney can recover his fee (defense counsel contends it does). In Gosserand v. Monteleone, supra, it is true, there had been a reconciliation after the wife’s filing of a separation suit, and her attorney was allowed to recover from the husband a fee for services rendered to the wife. But the recovery was permitted notwithstanding and in spite of the reconciliation, not because of it. Previous to that decision the court had held that where the wife fails in her suit for a separation or divorce the husband is not liable to her attorney (Tucker v. Carlin, 14 La.Ann. 734, 744); but if she succeeded in her demand, and the community was dissolved, liability for the fee attached. Benedict v. Holmes, supra. In subsequent cases on the subject, the matter of reconciliation has been given no important consideration. In fact, in several of them, where the wife’s suit was unsuccessful and the attorney was permitted recovery, it is apparent that no reconciliation took place. Spiller v. Spiller, Starns v. Starns, Hughes v. Hughes, all supra.

Although defendant does not contest here the fee of $1250 fixed by the district court, we have considered the award and do not find it excessive. The representation of Mrs. Messina was attended with many difficulties, as her attorney testified and as was further evidenced by the necessity of instituting a suit to annul the transfer of property by defendant to his brother. Numerous pleadings were prepared and filed, some of which are not described here-inabove, and many conferences were held with the client and with others. Also there occurred the trial of the rule for alimony pendente lite and the taking of an inventory of the community estate which listed property having a total appraised value of $24,-676.84. As said in Gosserand v. Monteleone (on the merits), supra, in fixing the quantum of the fee [164 La. 397, 113 So. 891]: “The difficulties of the case, the amount in controversy, and other attending circumstances must be considered, in connection with the physical and mental labor and the responsibility incurred.”

Neither do we feel justified in increasing the fee, as prayed for by plaintiff in its answer to defendant’s appeal. Much discretion is permitted the trial court in making such an award commensurate with the services performed, and the record does not satisfy us that its discretion has been abused in this action.

Plaintiff’s contention that the appeal of defendant is frivolous and that he should be condemned to pay damages under Code of Practice Article 907 can not be sustained. When an appellee asks that the judgment be amended, as was done in this case, damages for a frivolous appeal will not be allowed. Mahan v. Michel, 27 La.Ann. 96; Dennis v. Huber, 151 La. 589, 92 So. 126; Ferris v. Quinn, La.App., 21 So.2d 106.

The judgment is affirmed.

O’NIELL, C. J., absent.


author: TALIAFERRO, Judge.

text:
    VINES v. HARTFORD ACCIDENT & INDEMNITY CO.
    No. 7202.
    Court of Appeal of Louisiana. Second Circuit.
    June 28, 1948.
    Rehearing Denied Sept. 15,1948.
    Gahagan & Pierson, of Natchitoches, for appellant.
    Stafford & Pitts, of Alexandria, for ap-pellee.
   TALIAFERRO, Judge.

Plaintiff sustained serious physical injuries and his Buick automobile was badly damaged when violently run into by the automobile of C. M. Ashby, Jr., in the intersection of the two eighteen foot paved highways that traverse the Village of Clarence, Louisiana. The accident occurred in the day time. The roads’ surfaces were dry. Each owner was driving his own car. Plaintiff was going easterly and Ashby northerly.

Plaintiff sued to recover damages on account of his injuries and for the amount expended by him to restore his car to good running condition. He blames Ashby for the collision and charges him with the following named acts of negligence as the cause thereof, to-wit:

Driving at sixty-five miles per hour, which was excessive under the circum-' stances, and in violation of the law governing speed in unincorporated villages; failing to observe a caution sign below said village and the traffic light above the center of the intersection; failing to maintain a proper lookout and not having his car under adequate control.

The Hartford Accident and Indemnity Company, carrier of public liability and property damage insurance on the car driven by Ashby, is the sole defendant.

Plaintiff alleged that when about twelve feet from the intersection he brought his car to a complete stop, looked to his right, then to his left, and not observing any motor vehicles on the highway in either direction, slowly proceeded forward into the intersection. He further alleged that he had practically cleared the center line thereof when struck broadside by the Ashby car, traveling at a speed of nearly seventy miles per hour.

Defendant first tendered exceptions of no cause and no right of action. Thése were overruled, and answer was then filed. The exceptions were not mentioned by counsel in oral argument in this court nor are they discussed in brief. For these reasons, we assume that they have been abandoned.

Defendant denies that the accident happened 'because of any negligence or carelessness on Ashby’s part, and charges that it occurred solely from the fault of plaintiff in that he slowed his car down or stopped it completely immediately before he entered the intersection and then suddenly, at a rapid speed, started across the same, notwithstanding Ashby’s car was approaching from the south at a moderate rate of speed; that it was then too late and the cars were too close to each other for Ashby to so maneuver his car to avert the impending collision, although he endeavored to do so by the application of the brakes. In the alternative, defendant pleads that if plaintiff did bring his car to a stop, prior to entering the intersection, he should have seen, and, in law is held to have seen Ashby’s car in plain view; that it was his duty under such circumstances to have re■mained at stop until the Ashby car cleared the intersection; that not having done this, his acts amount to contributory negligence of such character as to constitute the or a proximate cause of the collision, and bars recovery by him.

Plaintiff’s demand was. rejected and his-suit dismissed. Fie appealed. The lower court gave brief written reasons to support its judgment.

Since plaintiff alleged and testified that he came to a complete stop immediately prior to attempting to cross the intersection and he is corroborated by a fellow workman riding with him at the time, we accept his testimony in this respect as being true and shall largely predicate our decision upon this very important uncontroverted fact.

From where plaintiff stopped before entering the intersection, he had unobstructed view for several hundred feet down the highway, the direction from whence Ashby’s car was coming. There existed no reason whatever for him not-having seen the Ashby car which was approaching the intersection at a rapid rate of speed, yet he admits he did not see it until his rear wheels were about on the north-south center line that divides the area embraced in the intersection. It goes without saying that it was negligence of a gross character for plaintiff to have acted as he did and not to have seen what he should have seen. Motor vehicles to his right going northerly on the highway had right of way through the intersection unless su'ch superior right was forfeited by excessive speed. Rule 11(a),\ Act No. 286 of 1938, § 3. Ashby’s speed certainly lost to him the benefits of this law.

Ashby admits that he was driving in excess of fifty miles per hour when he first observed plaintiff’s car crossing the intersection; that the distance then between them was not sufficient for him to stop his car before the collision occurred; that 'because of the filling stations on the corners, adjacent to the intersection, it would have been exceedingly dangerous to have attempted to drive behind or in front of the other car. He did apply his brakes and skidded over thirty feet before contact of the cars.

Clarence is an unincorporated village. Rule 4(c) of the Highway Regulatory Act (No. 286 of 1938) fixes the speed of motor vehicles in this class of villages at not over twenty-five miles per hour. Obviously, Ashby was violating this law when he first observed plaintiff’s car. The violation of a traffic law is per se negligence, but is actionable only when such negligence is the proximate cause of the accident producing the damages sought to be recovered.

The traffic light suspended above the intersection at the time of the accident was not functioning and had not done so for a long time. Its presence, therefore, is of no importance in this case.

When a motorist stops at an intersection whereon traffic is not controlled by a light or other signal, his purpose in doing so is manifest. He thereby tacitly gives notice to nearby traffic, on his right and left, that he accords to it the right to proceed through the intersection and to assume that his vehicle will remain so immobilized until conditions in the intersection are safe for him to cross it. When plaintiff stopped at the intersection, his action virtually amounted to an invitation to Ash'by to continue up the road and through the intersection. No other reasonable interpretation can be placed upon his action in this respect. See Jimes v. Fidelity and Casualty Company of New York et al., La.App., 163 So. 421.

Plaintiff’s failure to see the Ashby car, does not excuse him from the results of such failure.' When he stopped and looked he performed only one-half the duty imposed upon him by law. This action should have been followed by unerring observation of traffic on both sides of him. The books are full of cases announcing this well fixed principle.

Plaintiff’s counsel relies confidently upon the case of Hanson v. Great American Indemnity Company et al., La.App., 33 So.2d 549, recently decided by this court. There is some analogy between the two cases but close comparison reveals that distinct difference in two pivotal questions prevails. In the Hanson case the taxi driver did not see the plaintiff’s car in the intersection until, when eighty or ninety feet from it, while the two lady passengers therein observed it when some two hundred eighty-five feet away. It was held that if the taxi driver had been keeping a proper lookout he also would have seen the car when the ladies did, and had he done this he could have reduced the speed of the taxi sufficiently or stopped it entirely, in time to have avoided the collision. For this reason the doctrine of the last clear chance was applied to the facts.

In the present case Ashby observed plaintiff’s car when it came to stop before entering the intersection and assumed he would not try to go forward until he (Ash-by) passed over it. He was too close to the intersection to avoid the collision when plaintiff’s car entered it. Obviously, the last clear chance doctrine is not applicable.

We conclude that the negligence of both drivers was of equal gravity; each being a proximate cause of the collision, and, this being true, neither has a cause of action to recover from the other damages resulting from the collision.

For the reasons herein given, the judgment from which appealed, is affirmed with costs.


text:
    PLEASANT v. ANDERSON (STILLE & YARBROUGH, Inc., et al., Intervener).
    No. 7193.
    Court of Appeal of Louisiana. Second Circuit.
    June 28, 1948.
    Rehearing Denied Sept. 15,1948.-

      James W. Jones, Jr., of Natchitoches, pro se and for appellant.
    Gahagan & Pierson, of Natchitoches, for appellees.
   TALIAFERRO, Judge.

Plaintiff agreed with defendant to plant, cultivate and harvest, on the half-share cropper basis, cotton on ten acres of defendant’s plantation in Natchitoches Parish. The agreement was for the year 1946 and thereunder, as is the uniform custom in such cases, defendant, in addition to the land, was obligated to provide the necessary tools, equipment, seeds, feed, etc. for plaintiff’s use while performing his part of the agreement, and a house in which he could live. It was plaintiff’s duty to provide himself subsistence, and to pay for all additional labor needful to the production and harvesting of the crop.

At the time the contract was entered into plaintiff was a minor and not married. His father lived with him.

In the latter part of June the relations of the parties became strained and defendant, over plaintiff’s objection, took over the crop and forbade plaintiff and his father to enter upon the land for any purpose. Defendant assigns as the reason for his action in this respect, that plaintiff had moved from the place to a farm three miles away which he had recently purchased and was neglecting the crop; that the grass was about to “take” it and that although urged to clear the crop of the grass and otherwise give it .appropriate attention, plaintiff declined to so act.

Plaintiff contends that defendant, after being requested to do so, refused to provide him with the necessary farming implements to properly cultivate the crop and for this reason he was unable to promptly service it, but was at all times willing to do so. He also contends that defendant demanded of him the payment of $35.00 he was due and owing to him on account, and coupled therewith the assurance that the crop would be restored to plaintiff’s possession only when that amount was paid.

After the crop had been harvested by defendant and gold, plaintiff instituted this suit to' recover one-half of the proceeds of its sale. He alleges that there were eight bales produced and harvested, which, with the seed, had a value of $1,760.00. He, therefore, sued to recover one-half of this amount, or $880.00.

In the alternative, plaintiff alleged that he is entitled to a settlement and an accounting from defendant for the sale of said crop, and for the value of the labor he put forth in planting and cultivating same to the time defendant took it over.

Defendant justifies his action in taking over, completing the cultivation of, gathering and marketing the crop for the reasons above named. He alleged that regardless of his efforts to attain further results, only three bales were produced, the proceeds of which, including the seed, after paying for ginning, bagging and ties, amounted to $592.61, one-half of which being $296.30. He further alleges that this amount, otherwise due to plaintiff, was wholly absorbed by the following charges, to-wit: Expenses of completing the cultivation of the crop, cost of gathering and hauling same to the gin, an account due defendant 'by plaintiff for advances in cash and otherwise to enable him to plant and cultivate the crop prior to the time of his alleged abandonment thereof. The aggregate of all of these items is $343.44.

The commercial co-partnership of Stille & Yarbrough intervened in the suit and prayed, in the event judgment 'went for plaintiff, that the court recognize a lien in its favor thereon for the amount of an account due them by plaintiff in the sum of $204.36, being for goods, wares and merchandise sold and delivered to plaintiff to enable him to carry out his contract with defendant.

James W. Jones, Jr., attorney for plaintiff, also intervened in the suit and prayed that for contingent compensation for legal services rendered by him to plaintiff herein, a lien and privilege be recognized in his favor on any judgment plaintiff might recover.

Plaintiff’s demand was rejected and his suit dismissed. This action automatically rejected the demands of the intervenors, but the judgment is silent as to these. Plaintiff only appealed.

Testimony bearing upon the issues is conflicting but careful study of it leaves us with the clear opinion that defendant was not justified in taking over this young man’s crop and denying to him the opportunity to completely perform his part of the contract. We are convinced that the crop of cotton was in reasonably fair condition when taken over by defendant and that its condition then promised a yield in excess of most, if not all, of the crops of defendant’s other share croppers. At this time the plants were knee-high and not a great deal of cultivation remained to advance it to the “lay by” period.

The fact that plaintiff had moved to his own property only three miles away, too late to make a crop of cotton that year, did not militate against him giving to the crop on defendant’s place the same sort of attention given it before he changed residence; and defendant admits that to that time plaintiff had efficiently attended to the crop. Surely, it would be most unnatural and would evince total lack of self-interest for a farmer to plant and to the last of June cultivate a crop of cotton and then forfeit the labor performed and the expenses incurred by wilfully abandoning the same. Everyone having knowledge of cotton production in this part of the country, well knows that the battle to produce is almost over by July first. From then on, weather conditions with small contribution from man, determine the final result.

It is shown to our satisfaction that defendant, for a reason not definitely . disclosed but which- appears by implication, delayed supplying plaintiff with indispensable farming implements to.work the cotton and this too, after requests had been made to him therefor.

There is considerable significance to defendant’s demand for payment of fhe thirty-five dollars plaintiff admits he owed him. Half-share croppers, as a rule, have no cash and very little credit. They generally have to depend upon the land owner to furnish or arrange for them to otherwise acquire provisions for subsistence and to supply cash to pay for extra labor in the crop, such as hoe hands. To ask a half-share cropper to pay as much as $35.00 on account in the middle of the farming season is an anomaly. In this instance the end desired was quite obvious. When defendant took charge of the crop and then made the payment of $35.00, a condition precedent to its restoration to plaintiff, he accomplished that which he had in mind from the beginning. He thereby cast upon the impecunious young man an initiative he was wholly unable to meet. Here it is pertinent to ask: If the crop’s condition was such that defendant believed he should take it over to save it, why was he willing to return it to plaintiff if the $35.00 were paid?

In a case of this character it is practically impossible for the share cropper to adduce exact proof of the quantity of cotton gathered from the land he worked. Generally, the land owner alone is in a position to supply such proof. The share •cropper is almost wholly at his mercy in this respect because he is denied the privilege of going upon the ground to check the •cotton as it is being picked, and thereafter ■it becomes commingled with other cotton and its identity lost.

Plaintiff sought to prove the quantity of cotton that was gathered from the land but this proof lacks .sufficient probative weight to predicate a fixing of liability in the amount for which he sued. Four hundred acres of defendant’s plantation were planted in cotton in 1946 and one hundred ninety-six bales were gathered therefrom, ■an average of nearly one-half bale to the ■acre. The production of some tenants exceeded this average while that of others fell far below it.

Defendant produced and filed three customer’s gin receipts that evidence the ginning of three bales of cotton he says were gathered from plaintiff’s crop. These three bales weighed 1,515 pounds and sold for $539.32. 'The seed therefrom, after paying for ginning, bagging and ties, brought $56.-45, making a total of $595.77, one-half of ■which is $297.88.

In view of the testimony we have to accept these figures as being correct and to hold that only three bales were produced on the land tilled by. plaintiff.

Defendant testified that to the time he repossessed the land plaintiff was due him on account $144.44, consisting of five different charges, including the aforementioned and discussed $35.00. He also- testified that he paid the following amounts to complete the cultivation of the crop and to harvest and market the same, to-wit:

Hoeing $ 60.00
Plowing 5.00
Picking Cotton 120.00
■Hauling 9.00
Total ' $194.00"

We have found no Louisiana adjudication in point but under the jurisprudence of several of the other states the land owner who unlawfully repossesses the leased premises and takes over the crop thereon is penalized for so doing by being barred from recovering the amounts advanced by him to complete, harvest and market the crop. The two rules pertinent to this discussion are well expressed in .39 A.L.R., 1358, and read as follows: “If a cropper or tenant abandons his crop, and the landowner enters to cultivate or harvest it, the latter is entitled to recompense himself for the expense of doing this, out of whatever may be due to the former.

* * * * * #

“But the owner is not entitled to such reimbursement if it was because of his fault that the harvesting was not done by the tenant.”

Many cases that support each rule are cited.

Surely the land owner who is guilty of wrongfully taking over a crop under the circumstances revealed in this case, and thereby preventing the tenant from completing and .harvesting his crop, should in some impressive manner, be penalized for his tortious act. To forfeit the right to recover the expenditures made by him as a follow-up of his said wrongful action, should provide a fair rule and measure in this case. And, so we hold.

Plaintiff challenges the correctness of some of the charges on the account of $144.44, but the proof offered by him is not conclusive of his contentions. This amount should be deducted from plaintiff’s one-half of the net proceeds of the sale of the cotton and seed.

For the reasons herein assigned, the judgment from which appealed, is annulled, avoided and reversed, and there is now judgment in favor of the plaintiff, Oreal Pleasant, and against the defendant, R. C. Anderson, for the sum of $153.44, together with legal interest thereon from judicial demand herein, and for all costs of court.