author: ELLIS, Judge.

text:
    ELMORE v. JACKSON TRANSFER & STORAGE CO. et al.
    No. 3017.
    Court of Appeal of Louisiana. First Circuit.
    June 30, 1948.

      McHenry, Lamkin & Snellings, of Monroe, for appellant.
    Thompson, Thompson & Sparks, of Monroe, for appellees.
   ELLIS, Judge.

Plaintiff, Opal Elmore, has filed this suit in which she seeks damages for personal injuries arising out of an automobile accident which occurred about one mile north of Laurel Hill on Highway 61 in West Feliciana Parish on May 31, 1946.

Plaintiff alleged that on the date of the accident she was a guest passenger in a Chevrolet automobile owned and operated by Royal J. Bryan when. the automobile was involved in a collision with a truck or moving van belonging to Jackson Transfer & Storage Company and being operated at the time of the accident by its agent or employee, Dante Donati; that the car owned and driven by Royal J. Bryan was also occupied by Donald Bryan, brother of Royal J. Bryan; that prior to and at the time of the accident it was traveling in a southerly direction on Highway 61; that the truck or moving van was traveling on said Highway 61 in a northerly direction; she further avers that the Bryan car was being driven at a reasonable and prudent rate of speed with due care under all the circumstances and being driven along its right hand side or west side of Highway 61, which is a black topped highway; that as the Bryan car approached a curve in the road, the moving van of defendant Jackson Transfer & Storage Company came out of the curve headed in a northerly direction at an excessive rate of speed of more than SO miles per hour, over and across the middle of the black topped highway; that it was raining heavily and visibility was poor; that .the truck or van could not be seen until it came head on out of the curve and that it ran head on into the left front and left side of the Bryan car which resulted in driving the Bryan car off into a deep ditch along the west side of the highway, while the truck sheered off to its right and came to rest in the deep ditch on the eastern side of the highway; that the accident was caused by the gross negligente and recklessness of the driver of the large moving van in traveling at an excessive rate of speed, in failing to maintain a proper lookout, and in coming out of the curve of the road on his wrong side of the road.

Plaintiff itemized her damages for injuries, pain and suffering, expenses and loss of earnings, which totaled $23,070, and accordingly prayed for judgment in that amount in solido 'against the Jackson Transfer and Storage Company, a partnership, and against the individual members thereof, and against the American Fidelity and Casualty Co. Inc., liability insurance carrier of the other named defendants.

Defendants filed an exception of no cause or right of action which was referred to the merits. This exception was based upon a contention by defendants that plaintiff, by accepting $3,500 from the liability insurer of Royal J. Bryan, winch was the Aetna Casualty & Surety Company, m full settlement of her claims against said insurer had received full compensation for her injuries. Clearly, this exception went to the merits of the case.

Defendants then filed an answer in which they denied that there was any negligence whatsoever on the part of the driver of the truck that in any manner contributed to the accident, and alleged that the accident resulted solely from the gross negligence and recklessness of Royal J. Bryan in entering the curve at a very high and dangerous speed on defendant’s side of the road. Defendants further plead in the alternative that if there was any negligence on the part of the truck driver, Donati, then Royal J. Bryan was also negligent in that Opal Elmore was engaged in a joint venture with him, namely, that they were on their way to New Orleans to be married and that she exercised as much control over the car as he did. Defendants further plead in the alternative that if Opal Elmore, plaintiff herein, should be held to have been a guest passenger, she was guilty of independent negligence which contributed to the accident in not objecting to the way the car was being driven by her fiance, Royal J. Bryan, at the time of the accident, and, finally, defendants plead that the plaintiff, Opal Elmore, had heretofore collected $3,500 from .the insurer of Royal. J. Bryan’s automobile as a result of her damages, and this amount so received by her compensates her in full for her damages and injuries.

The case was duly tried and the District Court rendered judgment with written reasons therefor in favor of the defendants and dismissed plaintiff’s suit at her cost. The Lower Court concluded that: “Considering the testimony of Miss Elmore and of the truck driver Dante Donati, together with the physical facts as testified to by other witnesses, the conclusion is that plaintiff has failed to establish negligence on the part of the defendants’ employee with legal certainty by a preponderance of the testimony and, therefore, judgment will be signed dismissing her suit at her cost.”

Plaintiff has appealed from this adverse judgment.

The testimony discloses that plaintiff Opal Elmore left Monroe, Louisiana about noon on May 31, 1946 in a Chevrolet Sedan owned and being driven by her fiance, Royal J. Bryan, with their destination as New Orleans where they were to be married the next day. Also in the automobile with them was Donald Bryan, brother of Royal J. Bryan. It was raining when they left Monroe and continued to rain on their trip, and visibility was poor. The scene of the accident was approximately 140 miles from Monroe, north of St. Francis-ville on Highway. 61, one mile north of Laurel Hill. The accident occurred at approximately 5:30 o’clock in the afternoon at or near the mouth of a curve in the highway.

The testimony shows that Dante Donati had been a licensed truck driver for eighteen years, and, on the date of the accident, was employed by the defendant Jackson Transfer and Storage Company of Norfolk, Virginia, to drive defendant’s 1946 Ford Trail Mobile model. This van and tractor had an over-all length of approximately forty-two feet, and a width of eight feet. The testimony further shows that he had spent the previous night a couple of miles below Natchez and had slept approximately eight hours; that he had left his sleeping place around 8 a. m. and had driven to Baton Rouge, Louisiana, and that about 2:30 or 3 rOO o’clock p. m. he had left Baton Rouge headed for Memphis, Tennessee to reload for his return trip to Norfolk, Virginia; that when he left Baton Rouge on the afternoon of May 31, 1946, it was raining very hard and continuously and that he turned on the lights on the van and tractor and kept them on.

It appears from the record that there were three curves rather close together between Laurel Hill and the scene of the accident. The first curve was a left hand curve and the other two curves were right hand curves. The last curve, at which the accident occurred, was a rather abrupt curve as shown by the photographs filed in evidence.

It is shown that the only living eye witnesses to the accident were Opal El-more, plaintiff, Donald Bryan, and the truck driver, Dante Donati. Royal J. Bryan, driver of the car, was killed in the accident. The Bryan brothers were residents of the State of Washington, and Donald Bryan did not testify in this case nor was his testimony taken by deposition, nor was any reason given for not obtaining :his testimony.

Miss Opal Elmore, plaintiff herein, testified with regard to the accident on page 8 as follows:

“Q. Now, I would like you to describe for the Court, just in your own words, what happened, how the accident happened and what you saw of the accident? A. Well, I remember it was raining pretty hard that day and it was getting late in the afternoon, and we were just entering into this curve and all of a sudden this big truck appears, and it was just coming right towards us, and it was right in the middle of the road, and I remember screaming to look out for the big truck, and that is all I remember.
“Q. Which way was the truck moving — which way was it headed? A. It was coming right into us.
“Q. It was moving north and you were moving south, is that right? A. That is right.
“Q. Could you say whether or not Jack Bryan, driving the car you were in, was on his right side of the highway? A. Yes; we were on our side of the road.
“Q. Do you recall anything of the size of the truck that came, toward you? A. Well, it was just a big narrow truck, it looked to me like it was the biggest thing I had ever seen because it was coming right into us.
“Q. You say that the truck was coming right at you in the middle of the road, do you mean to say that the truck was over its side of the middle of the road? A. Oh, definitely, it must have been.

Again on Page 20, she testified as follows :

“Q. You say there was nothing that the Bryan car could do to avoid this accident? A. No, sir; because we didn’t see the truck until he was coming around the curve and it was just instantly that it happened. We didn’t see the truck until he was just coming around the curve and in just another second it was right upon us. He was just coming around the curve.
“Q. About how fast were you driving? A. I don’t remember, but we weren’t speeding. One thing, the road had slowed us down, we were talking about being late in getting to New Orleans.”

Ersel Elmore, brother of the plaintiff, testified that he examined the scene of -the accident the morning after and that from his examination that the visibility at the place of collision when traveling north, the direction in which the truck was being driven, was limited to 100 feet or less and that “proceeding south, previous to entering that curve, you entered about a 300 foot straight-away. This curve is rather abrupt at the south end of this -straightaway and, as you approach the curve, it is impossible to see any distance around 'the curve.” He further testified that, from an examination of the scene, the accident occurred at the north mouth of the curve, just as the Bryan car must have been entering the curve and just as the truck or moving van, going in a northerly direction, came out of the curve. It is established by the record that this is the point at which the collision occurred.

Ersel Elmore further testified that he observed six motor vehicles traveling north, and that five out of the six went over the center line in the south bound traffic lane in making this curve, but that, as a general rule, those traveling south remained on their side of the road; however, on this point Sheriff Martin testified that he had observed cars coming south into this curve and that some of them would use the inside of the curve and some of them would not We believe that this is correct, and whether or not cars going north or south did cross out of their lane of traffic to make this curve would depend more or less upon" the -speed of each individual car. It does not seem reasonable that a car traveling at an excessive rate of speed could negotiate this curve without using the inside or outside thereof, regardless of whether it was traveling north or south.

Roy Cash was placed upon the stand by the plaintiff and testified that he was a friend of the Elmore family and had visited the scene of the accident with Ersel El-more. His testimony was of no value.

The defendants" testimony with regard to the accident consists in the main of the testimony of Dante Donati, the driver of the truck. Donati testified that the motor unit which he was driving was only four months old and had always been driven by him, and that it was in first class condition in every respect; that in view of the fact that it was a rainy day and visibility was bad, he had turned on his headlights and all other lights on the van and that they were on just prior to and at the time of the accident; that he had negotiated two curves prior to entering the third curve and that he was traveling at about 25 to 30 miles per hour; that as he came out of the curve in which the accident took place, he was traveling on the inside there-' of and that the outside rear dual wheel was riding the shoulder of the black topped highway while the inside rear dual wheels on the right were on the black topped surface of the. highway; that just before coming out of this curve he perceived the Bryan car coming down a hill from the opposite direction at a rapid rate of speed. He estimates the distance at which he first saw the Bryan car at approximately 500 feet, but he testifies that it was on its right side of the road at that time; that when the Bryan car got within approximately 100 feet of him, he noticed the car was skidding toward his side of the highway, and he realized then that the car was going to run into him; that on his right hand side of the highway, there was a five foot ditch and that the shoulder was very soft; that he applied his hand brake on the van but that he could not use the pedal brake for the reason that this would have caused the van and tractor to have jack-knifed.

He testified that the Bryan car struck him on his left front fender and then continued on to the running board of the tractor, struck the gasoline tank in the rear of the tractor, and struck the van which protruded approximately fifteen inches beyond the sides of the tractor; that as a result of the collision his truck unit traveled approximately twelve feet after the impact and went into the ditch on his right side of the highway. It -was shown that the damage done to the truck amounted to approximately $1,300. Donati testified that the Bryan Chevrolet traveled about twenty or thirty feet south and came to rest in the west ditch, facing north, the opposite direction from which it was traveling. Donati .testified that he did not recall blowing his horn on negotiating the curve in question or just prior to the accident.

Deputy Sheriff Daniel of West Feliciana Parish testified that jus.t a short time before the accident he passed the truck and, at that time, this truck was traveling in its right lane and at a reasonable rate of speed with its lights burning. Donati’s testimony with regard to the positions of the two motor vehicles immediately after the accident is corroborated by Deputy Sheriff Daniel and also by Sheriff Martin of West Feliciana Parish.

Therefore, the evidence of the plaintiff and of the truck driver, Donati, ■ the only two eye witnesses to testify in this case is wholly irreconcilable. The only physical facts in the case are the position of the two' vehicles after the accident, the photographs which are in evidence showing the Bryan automobile to be practically demolished with the greater damage done • to the left side of the car and the left front part of the top bent in, evidently where it struck the van of the truck. There was- also testimony that'on the right' hand side of the road, about twelve or fifteen feet from where the truck went into the ditch, there were two gouges, however, no witness could say that these gouges were the result of the accident. The record shows that it was very difficult to dislodge the truck unit from the ditch, and it was entirely possible that these gouges could have been made when this was done. Therefore, these two gouges cannot be considered as tending to prove that the accident occurred on the right hand side of the road going north. It is definitely established, however, that the left front fender of the truck had a long scratch in it which extended on down to the running board of the truck which was damaged,the gasoline tank was demolished, and the front left corner of the van damaged, as well as the chassis, and frame of the truck immediately under the dual wheel connection. The marks just described on the truck tend to prove that the Bryan car ran into the truck, first coming into contact with it on the left front fender.

■Also in evidence are photographs taken by placing the camera 100 feet south of the point where the truck and Bryan automobile left Highway 61 after the collision, as well as photographs taken with the camera facing south, 100 feet north of where the truck and automobile left the road. The evidence fails to disclose at exactly what angle or place on the road the camera was located when these pictures were taken. It appears from these pictures, that each driver, when he got within 100 feet of the south of the curve, could see at least an additional 100 feet around the curve. In other words, Royal J. Bryan and Donati should have been able to have seen each other when they were two hundred feet apart.

Plaintiff, in briefs and in argument, contends that there should have been judgment in the Lower Court in favor of plaintiff, and that the judgment of the Lower Court should be reversed for the reason that Dante Donati, operator of the defendants’ truck, committed three acts of negligence, each of which was a proximate cause of the accident, viz.:

(1) that he was over the center line of the highway on. the wrong side of the road at the time of the accident;

(2) that he admitted that he was traversing hills, curves and defiles and that his vision was limited around this particular curve, and that he failed to sound his horn in warning signal of his approach, thereby violating one of the rules of the road as set forth in the Louisiana Highway Regulatory Act of 1938 as amended, (Dart’s Louisiana Statutes Section 5221, Act No. 286 of 1938, § 3, Rule 16.); and

(3)that he was traveling at an excessive speed under the facts and circumstances in the present case and, because of that speed, he was unable to stop his truck or van or to bring it under control as he should have been able to do.

As to plaintiff’s first contention that defendant’s truck was over the center line on plaintiff’s side of the road at the time the collision occurred, there is nothing in the record to bear out this contention other than the testimony of the plaintiff, herself, and, from her version, the truck was right on top of them before she even saw it. We see no reason why she should not have seen this truck when it was approximately 200 feet away. Further, her testimony was that the truck must have been over on their side of the road. Opposing her testimony 'is that of the truck driver who states that he observed this car several hundred feet away but that it was only when it got within approximately 100 feet that it began to come over on his side of the road. It 'is certainly reasonable that this trained truck driver, with many years experience, upon seeing this car several hundred feet away would take every precaution to be on his side of the road. . There was nothing to prevent h'im from being on his side’of the road, as his speed was only twenty-five to thirty miles ■per hour.

Further, it is definitely .established that the Bryan car ran into the truck and not the truck 'into the' car. As to the position of the cars after the wreck, one might speculate that had the truck been over the center line, it would have remained more.in the middle of the road rather than going off into the.ditch; however, strange things happen in automobile collisions that are unexplainable. It is only those physical facts which, of themselves, without speculation, prove, a positive fact that can be co.nsidered as positive evidence in a case. On the other hand, there is no doubt but that the Bryan car was traveling at an excessive rate of speed as testified to by Donati, the driver of the truck, by reason of the fact that the Bryan car was practically demolished which is shown by the photographs. This certainly proves it was going at an excessive rate of speed when it struck the truck. The extent of damage •done to the truck and van by the Bryan •car, a part of which consisted of knocking the rear dual wheels on the tractor completely loose from the springs, is also evidence that the Bryan car struck the truck with great force, which is attributable to the excessive speed of the car.

From the testimony as to the nature of this curve and from the photographs of the curve itself introduced in evidence, which are very clear, there can be no doubt that a motor vehicle traveling at an excessive rate of speed going either north or south, would be unable to remain in its proper lane of traffic going around this curve. For these reasons, we are of the opinion that the truck of the defendants was not over the center line at the tíme of the accident.

On the other hand, we are convinced, from the testimony and physical facts as shown by the record, that the Bryan car was being operated at an excessive rate of speed and came over the center line of the highway and struck the truck of defendant.

The second contention is that the defendant driver did not sound his horn as required by Rule 16 of the Louisiana Highway Regulátory Act of 1938 as amended. While Donati testified that he did not recall blowing his horn, it 'is evident from a consideration of his entire statement with regard to this phase of the case that he did not blow his horn. The testimony fails to show the length of the curve and, furthermore, the statute clearly provides that the horn shall be blown on entering the curve and there is nothing in the record to prove that the driver and other occupants of the Bryan car could have heard the horn of the truck had it been blown on entering the curve. The accident 'in this case happened just after the truck had completed the curve and just as the Bryan car was about to enter the curve, in other words, just at the mouth of the curve.

We do not think that the failure to blow the horn on entering the curve has been proven to be a proximate cause of the accident. Plaintiff relies on the case of Hollins v. Crawford, La.App., 11 So.2d 641, in support of her contention that failure to blow the horn was the proximate cause of the accident. In that case, the plaintiff was walking down the highway on the right side thereof and the defendant was traveling in his automobile, and, upon seeing plaintiff walking in front of him, pulled way over to the left side of the highway but did not sound h'is horn at any time. Just as the defendant got opposite the plaintiff, plaintiff became aware of tile car and became frightened and lunged across the highway into the side of the car. The Court held that had the defendant sounded, his horn as he should have done, even though the plaintiff was walking on the wrong side of the highway, plaintiff would have had time either to have gone completely across the highway to the proper side or to have gotten completely off the paved highway, and, 'in either event, the accident would not have occurred. The Court clearly held that the failure to blow the horn in that case was the proximate .cause of the accident. In the present case, as stated, there is nothing in the record to prove that the occupants of the Bryan car could have heard the horn at any greater distance than they should have been able to have seen the truck, which had all of its lights on.

The third contention of the plaintiff, and the most serious, is based on the theory that the truck unit’s speed of 25 to 30 miles per hour on this wet, slippery, black topped road during a pouring rain was negligence per se because of the admission of the truck driver that he was afraid to apply his pedal’ brakes when he perceived the Bryan car at a distance of approximately 100 feet, skidding toward h'is side of the highway. The • testimony shows that Donati, driver of the truck, saw the approaching car some four or five hundred feet away, but at that time it was traveling on its own proper side of the highway, and it was not until it had reached approximately 100 feet from the truck that it began skidding over the center line of the highway in the truck’s lane of traffic. Under these facts, the testimony was that the driver of the truck, immediately upon being confronted with this emergency, applied his hand brake on the van and at-temped to pull over further to his right. He testified that from his experience under these facts and circumstances the safest method of stopping the truck or materially slowing it down was to do just what he did. He testified that should he have put on the pedal brake he thought that this would have caused the van to skid or jack-knife, which more than likely would have caused the truck to go off into the ditch on the right hand side and also would have so blocked the south lane of traffic to such an extent that the Bryan car, even if it had been able to rema'in on its proper side of the road, would have been forced to run into the van. Even if he had been able to bring the truck to a dead stop, there is nothing in the record to show with legal certainty that the accident would have been prevented, that is, that the Bryan car would not have still run into the truck.

The plaintiff also relies on the case of Redden v. Blythe et al., La.App., 12 So.2d 728, 731. In that case, plaintiff and defendant were traveling in opposite directions on the highway. According to defendant’s version, which the appellate court accepted as being more correct than the plaintiff’s version, when the two cars were five or six hundred feet apart, the defendant saw the plaintiff attempting to pass a truck traveling in the same direction as the plaintiff, and that while the defendant unconsciously retarded the speed of h'is car so that the automobile of the plaintiff could either pull ahead of the truck or drop behind and thus regain its proper side of the road, that defendant took no other precaution, and when the on-coming vehicle was a little over 100 feet from the defendant’s car, he suddenly realized that the driver of the autombile was unaware of the presence of defendant’s car and that an emergency had been created. The defendant then immediately slowed down and ran the right wheels of his car on the shoulder of the road but could not apply his brakes because the road way was wet and he feared that if he did he would skid over into the left .hand side of the road into the truck, and that by pulling on to the shoulder of the road he did everything he could under the circumstances to prevent a collision.

The Court said: “In testifying with respect to the situation confronting him just prior to' the accident, Blythe said that, when he first noticed the truck and the automobile approaching him, he was 500 or 600 feet away and that, while he unconsciously slowed down, he was not in a position to apply his brakes at the time he foresaw the possibility of an accident because the roadway was too wet. It seems to us that it was imprudent for him, while traveling on a wet road, not to have slowed down immediately to such a speed that he could have applied h'is brakes with safety. It will not do for him to say that he elected to wait until an emergency was created and that he could not apply all effective means at his command because it was too late. Caution demanded otherwise. His failure to act when he had time to act ■must be regarded as negligence which had causal connection with the ensuing accident.”

In the cáse at bar, there was no reason for the driver of defendant’s truck, when he first observed the Bryan car some several hundred feet away, to anticipate that the Bryan car was suddenly going to come over on h'is side of the highway. As soon as the Bryan car began to skid across the highway into the north bound traffic lane, the defendant driver in the present case acted immediately and did what he thought was best and safest for himself and the on-coming Bryan car.

Counsel for plaintiff, in a supplemental brief and in oral argument cites the case of Daw v. Matthews, La.App., 34 So.2d 666, 668. In that case the Court said, in part: “Accepting plaintiff’s version of the facts of the accident, he saw the other truck coming toward him, over the road’s center in ample time to stop his own vehicle or to have pulled it several feet to the right and into a zone of safety until the impending danger had passed. Obviously, on this theory of the accident, he had the last clear chance to avert it and failed to avail himself of the opportunity then open to him.”

In the case at bar, while it is true that Donati saw the Bryan vehicle approaching some five hundred feet away, it was only when it reached a point approximately 100 feet away that it began to skid across the center line of the highway. The testimony shows that the outside right rear dual wheel on the tractor of the truck was over on the shoulder of the road. The evidence does not reveal the width of the shoulder on Donati’s side of the highway but does reveal that the shoulder was soft as a result of the heavy rains, and that there was a deep ditch along side of the highway at this point. Furthermore, Donati acted wisely and to the best interest of himself and the Bryan car by putting on .the van brake rather than attempting to come to a dead stop. It is, therefore, not shown by the record in this case that Donati could have safely stopped his own vehicle or pulled it any further to the right without endangering himself and the occupants of the on-coming Bryan car, or that had he been able to bring the truck to a dead stop that the accident would have been prevented.

For the reasons above stated, it is, therefore, ordered that the judgment of the District Court be affirmed, the plaintiff to pay all costs.


source: Caselaw Access Project

author: FOURNET, Justice. PER CURIAM.

license: Public Domain

text:
    214 La. 18
    STATE v. BROWN.
    No. 38953.
    Supreme Court of Louisiana.
    June 15, 1948.
    Rehearing Denied July 2, 1948.
    Eugene Stanley, of New Orleans, for appellant.
    Bolivar E. Kemp, Jr., Atty. Gen., M. E. Culligan, Asst. Atty. Gen., and Herve Raci-vitch, Dist. Atty. and Girard J. Fernandez, Asst. Dist. Atty., both of New Orleans, for appellee.
   FOURNET, Justice.

The defendant, Edward Brown, prosecutes this appeal from his conviction on an indictment charging him with the murder of Milton Hayes and his death sentence thereunder, presenting for our consideration nine bills of exceptions, none of which were reserved until after the evidence had been adduced.

The first bill is levelled at a statement made by the district attorney during the course of his argument to the jury, the second and third at the refusal of the trial judge to charge the jury that a verdict of attempted murder and of attempted manslaughter are responsive verdicts under a charge of murder and to instruct them on the law with respect to these offenses. The fourth, fifth, sixth, and seventh bills were reserved in connection with the defendant’s motion for a new trial while Bill of Exceptions No. 8 was reserved when the trial judge overruled that motion and Bill of Exceptions No. 9 was reserved when he overruled the motion in arrest of judgment.

It is the contention of the defendant that we should disregard the per curiams of the trial judge to these several bills of exceptions for the reason that they were not filed by him until two months and nine days after he had granted the defendant a suspensive appeal, despite the fact that the bills were timely filed and tendered to him for action and he failed to reserve to himself the right to prepare the per curiams at the time he granted the appeal, citing in support of such contention the cases of State v. Hauser, 112 La. 313, 36 So. 396; State v. Ruffin, 117 La. 357, 41 So. 647; State v. Griggsby, 117 La. 1046, 42 So. 497; State v. Barrett, 137 La. 535, 68 So. 945; State v. Young, 153 La. 605, 96 So. 275; State v. Cole, 161 La. 827, 109 So. 505; State v. Allen, 167 La. 798, 120 So. 372; State v. Woods, 175 La. 1045, 145 So. 2; State v. Mistich, 186 La. 174, 171 So. 841; State v. Carlson, 192 La. 501, 188 So. 155; State v. Calvin, 209 La. 257, 24 So.2d 467; and State v. Borde, 209 La. 905, 25 So.2d 736.

With the exception of the Woods, Mis-tich, and Borde cases — holding, respectively, that a per curiam filed after appeal has been granted will not be considered, that the right to appeal is extended after the expiration of the tenth judicial day an additional day for each day the trial judge fails to act upon the bills of exceptions, and that a per curiam may not be supplemented by the trial judge after the case has been submitted to this court on appeal — the authorities cited by counsel for the defendant are authority for the proposition that after an appeal has been granted the trial court is divested of jurisdiction and bills filed thereafter and presented for the judge’s signature and per curiam come too late and cannot be.considered on appeal unless, prior to the granting of the appeal, the trial judge has allowed the defendant additional time within which to perfect such bills and they have been perfected within this ex.tended period.

The state, although apparently conceding that these cases are controlling, argues “that if the law on the subject and the decisions are re-examined and re-considered, the holdings of these cases should be overruled.”-

This court in construing Article 545 of the Code of Criminal Procedure, declaring that “After an appeal has been granted no further action in the case can be taken by the trial judge; provided, that as to matters of ministerial or not in controversy on appeal, the trial court may render interlocutory orders and definitive judgments,” has consistently done so in the light of the prior jurisprudence.

The suggestion of counsel for the state that both from a legal and a practical standpoint the trial judge should be permitted to write and file his per curiams to these bills at any time up to the lodging of the transcript in the Supreme Court is a matter that is beyond the province of the court and one that addresses itself to the legislature, for the code, in unmistakable terms, declares that after the appeal has been granted the trial judge is powerless to take any further action with respect to the case. The only exception is that he may render interlocutory orders and definitive judgments as to matters that are ministerial or are not in controversy on appeal. A per curiam is neither an interlocutory order nor a definitive judgment. Accordingly, in passing on the bills of exceptions, w.e will not consider the per curiams to them filed by the trial judge.

There is no merit to the first bill of exceptions, reserved when the defendant’s counsel objected to the assistant district attorney’s argument to the jury to the effect that from the facts presented by the evidence as he appreciated, them if the defendant was guilty of anything, he was not guilty- of negligent homicide. It is counsel’s contention that this statement is at variance with the law making negligent homicide. a responsive verdict to á charge of murder, regardless of the facts. Under Article 381 of the Code of Criminal Procedure, “Counsel may argue to the jury both the law and the evidence of the case, but must confine themselves to matters as to which evidence has been received, or of which judicial cognizance is taken, and to the law applicable to the evidence; and counsel shall refrain from any appeal to prejudice,” and it is the established jurisprudence of this state that “District attorneys are entitled to argue their cases to the jury with the same latitude as counsel for the defense.” State v. Genna, 163 La. 701, 112 So. 655, 661. See, also, State v. Horton, 151 La. 683, 92 So. 298; State v. Holbrook, 153 La. 1025, 97 So. 27; State v. Graziani, 168 La. 297, 121 So. 872; State v. Davis, 178 La. 203, 151 So. 78; and State v. Dallao, 187 La. 392, 175 So. 4.

Bills of Exceptions Nos. 2 and 3, as previously pointed out, were reserved when the trial judge refused to charge the jury that verdicts of attempted manslaughter and attempted murder were responsive verdicts to a charge of murder and also refused to charge the jury with respect to the law covering these two crimes. In view of the holdings of this court in the cases of State v. Love, 210 La. 11, 26 So.2d 156, decided in April of 1946, and reaffirmed a few months later in the case of State v. Bray, reported in the same volume, 210 La. at page 573, 27 So.2d 337, the trial judge was justified in his rulings in these respects.

However, counsel for defendant has presented such a convincing argument that our decisions in these two cases are not only contrary to the intention of the authors who drafted the Louisiana Criminal Code, the legislature that adopted it as Act No. 43 of 1942, and the established jurisprudence in numerous other states where similar statutes have been adopted (see 42 C.J.S., Indictments & Informations, page 1304, Sections 285 and 299; 1 Wharton’s Criminal Procedure, 10th Ed., 356, Sec. 311; 7 Louisiana Law Review 127 and 311; and 21 Tulane Law Review 281) but are violative of the clear and unambiguous language of Articles 27 and 29 of the Louisiana Criminal Code and contrary to the holdings of this court with respect to other crimes than murder (State v. Fernand, 210 La. 394, 27 So.2d 174, 167 A.L.R. 559; State v. Carter, 213 La. 829, 35 So.2d 747, that we have come to the conclusion we were in error in holding that an attempt to commit murder or manslaughter is not responsive to a charge of murder and the Love and Bray decisions in this respect will, consequently, have to be overruled.

The error committed in these cases lies in the fact that the holding that “on an indictment for murder only verdicts of the lesser crimes of manslaughter and negligent homicide are permitted,” was based on the erroneous assumption that murder and attempt to commit murder are not generic offenses and that the lesser crime is not included in the greater, plus the erroneous conclusion with respect to the legislature’s intention in adopting Act No. 147 of 1942 amending and re-enacting Article 386 of the Code of Criminal Procedure to provide that “Whenever the indictment sets out an offense including other offenses of less magnitude or grade, the judge shall charge the jury the law applicable to all offenses of which the accused could be found guilty under the indictment, and in all trials for murder the jury shall be instructed that they may find the accused guilty of manslaughter or negligent homicide.”

The legislature by its adoption of Act No. 147 of 1942 clearly did not intend to modify or in any way affect the substantive law of this state. Had it, then the act would be null and of no effect. See, State v. Rodosta, 173 La. 623, 138 So. 124. This article was amended upon the recommendation of the Louisiana Law Institute for the sole purpose of adding the phrase “or negligent homicide” so that the procedural law in this respect would conform to the substantive law being adopted at this same session of the legislature as the Criminal Code, in which code, for the first time, negligent homicide was made one of the grades of homicide along with murder and manslaughter.

In Article 27 of the new Criminal Code, an attempt to commit a crime is also made a crime. This article contains the specific provision that “An attempt is a separate but lesser grade of the intended crime; and any person may be convicted of an attempt to commit a crime, although it appears on the trial that the crime intended or attempted was actually perpetrated by such person in pursuance of such attempt.” Moreover, in the comment (which we are admonished to consider in construing the articles of the code, State v. Davis, 208 La. 954, 23 So.2d 801; State v. Truby, 211 La. 178, 29 So.2d 758; State v. Logan, 213 La. 451, 34 So.2d 921) to be found under Article 29 of the Criminal Code, wherein homicide is made a crime and is divided into the three grades of murder, manslaughter, and negligent homicide, is the observation that "under an indictment for any basic offense a conviction of the lesser crime of an attempt to commit such offense should be proper,” evidencing the fact that the intention of the drafters of the code is in accord with the views here expressed. (Italics ours.)

The defendant, therefore, was entitled to have the jury charged as requested, for the Code of Criminal Procedure specifically declares that “When the crime charged includes another of lesser grade, a verdict of guilty of the lesser crime is responsive to the indictment, and it is of no moment that the greater offense is a felony and the lesser a misdemeanor.” Article 406, and Article 386, herein quoted above, makes it the mandatory duty of the judge to charge the jury with the law applicable to all of the offenses of which the accused can be found guilty under the indictment. The failure to do so, constitutes reversible error.

For the reasons assigned, the conviction and sentence of the defendant are annulled and set aside and the case is remanded for a new trial according to law, consistent with the views herein expressed.

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

On Application for Rehearing.

PER CURIAM.

In the application for rehearing the state contends that our opinion, in effect, holds that the legislature cannot specifically ex-elude certain verdicts as responsive to the crime charged, which verdicts would be responsive under the general rule that a verdict of guilty of a lesser crime is responsive to a charge of a greater crime if such lesser crime is necessarily included in the greater, arguing that such a result is erroneous for it is within the province of the legislature to determine what verdicts shall be responsive to the crime charged.

We did not intend to hold as contended by the state and our opinion does not, in fact, so hold. In any event, any language therein from which such an inference might be eked out would be obiter.

The application for a rehearing is refused.


author: FOURNET, Justice.

text:
    214 La. 29
    COSTANZA et al. v. CANNATA et al.
    No. 38057.
    Supreme Court of Louisiana.
    June 1, 1948.
    Rehearing Denied July 2, 19-18.

      Samuel M. Robertson, of Baton Rouge, for appellants.
    Taylor, Porter, Brooks & Fuller, of Baton Rouge, for defendant-appellee.
   FOURNET, Justice.

The plaintiffs, Michael A. Costanza and Paul S. Spedale, after having recorded their written acceptance of a building constructed for them by the defendant Bernard A.’ Cannata, provoked this concursus proceeding under the provisions of Act No. 298 of 1926, depositing the amount retained by them under the contract in the registry of the court and impleading the contractor; the New Amsterdam Casualty Company, the surety on the contractor’s bond; and all of the materialmen who had filed liens against the building. In this same proceeding the plaintiffs sought to recover damages caused by the contractor’s alleged failure to complete the building in accordance with the plans and specifications. They are now appealing from the judgment of the district court awarding them damages in the sum of $1,089, with attorney fees of $400. The defendant surety, answering the appeal, is asking that the judgment be reversed in so far as it awards the appellants damages and that it be amended to reduce the attorney fees to an amount not in excess of $250.

On March 31, 1941, the plaintiffs entered into a contract with Cannata for the construction, on property belonging to them on Bayou Sara Road (also referred to as Scenic Highway) near the city of Baton Rouge, of a one-story concrete block commerical building in accordance with the plans and specifications prepared by L. P. Manson, attached to and made a part of the contract. This building was to be erected “in a perfect and thoroughly workmanlike manner” at a cost of $9,800, 90% to be paid in installments as the work progressed and the remaining 10% to be retained by the plaintiffs until the building was completed and turned over to them free of liens and privileges. It was to be ready for occupancy on or before June 23, 1941, in default of which the contractor was to forfeit by way of liquidated damages $3 a day. In accordance with the provisions of Section 2 of Act No. 298 of 1926, the plaintiffs exacted of the contractor a bond, the condition of which was that he would truly and faithfully perform the contract and pay all subcontractors, laborers, and materialmen. The contractor furnished as the surety on this bond the New Amsterdam Casualty Company. The contract and bond were then recorded.

It appears that during the progress of the work Mr. Malison, who was checking for the owners, called their attention to the failure of the contractor to comply with the plans and specifications on a number of occasions and that when they remonstrated with the contractor he refused to proceed with the construction unless permitted to pursue the course he was following, leaving the job several times in protest. The plaintiffs reported these conditions to the local agent of the surety from time to time. Because of these delays and heavy rains, the building was not ready for occupancy on June 23, 1941. Shortly after July 1 the tenants who had leased half of the store from the plaintiffs appeared with their stock and fixtures loaded on trucks but were denied admittance to the building by the contractor. Inasmuch as it was raining at the time, the contractor finally consented to this equipment being placed in the store, but he refused to turn over the keys to the building until the plaintiffs formally accepted the job. This they did on July 14, but only after the contractor had agreed to correct certain defects and complete the unfinished parts. The acceptance was recorded on July 16 following. In the meanwhile, in an effort to expedite matters, the plaintiffs had, on July 8, agreed to cancel their right to the liquidated damages for delay in delivering the building on June 23. Under these conditions, the plaintiffs and and their tenants occupied the building.

On August 4, 1941, the defects not having been corrected and the building not having been completed, the owners, through their architect, formally notified the contractor in writing of the items that had to be taken care of before the building would meet the requirements of the plans and specifications, as amended by the addenda, sending a copy of this letter to the agent of the bonding company. The agent, in turn, referred the matter to the contractor who, becoming ill on August 7, sought to have the work done from his bed with the assistance of his wife and, under her supervision, some of these items were taken care of. However, some of the work still not being acceptable and, in certain instances, not completed, the plaintiffs, in November, secured estimates of the cost of finishing the job from three contractors, these estimates being for $1,049, $1,310, and $1,407.50. D,espite the submission of these estimates to the surety, no further action was taken in the matter and the plaintiffs, in January of 1942, instituted this con-cursus proceeding seeking to have the liens recorded against the building by the materialmen and subcontractors cancelled and to recover damages in the amount of $1,533.05, the amount of the highest bid submitted to them the previous November, plus an amount of $125.55 for the correction of defective electrical equipment not included in the bid.

In its answer the surety company denied that the building had been constructed in a defective and unworkmanlike manner, pleading specially that the plaintiffs, by their formal acceptance of the building as it was, were estopped from questioning the quality of the work or the materials incorporated therein. When none of the impleaded materialmen answered the suit, many of them having filed separate suits against the surety previous to the institution of the concursus proceeding, the surety, on October 5, 1942, asked that each of these mate-rialmen be served with a rule compelling them to assert their claims in this proceeding instead of in the separate actions filed by them and, in compliance with this rule, all of the parties formally appeared and asserted their respective claims.

On December 11 thereafter the plaintiffs, in order to meet the increased cost of material and labor, sought, in a supplemental and amended petition, to have the amount originally prayed for increased to $2,782, listing as remaining unfinished and defective with the estimated cost of each, the following: (1) Setting terra cotta coping on walls ($51.60); (2) calking all windows and door frames ($30); (3) painting all exterior wood, metal, and masonry including a coat of bondex on outside exposed surfaces ($3-51.60); (4) connecting downspouts from roof to storm sewer ($105.60); (5) reinforcing five trusses supporting roof ($480); (6) raising skylights on roof so water can run off ($108); (7) installing standard 20-year guaranteed roof and flashing ($681.60); (8) refinishing wood floors and levelling concrete in drug store ($853.56); and (9) replacing structural glass where broken ($120). They also sought to have the attorney fees increased to $766.63, and, while they sought to recover $125 as damages for merchandise ruined in one of the stores because of leaks, this claim has apparently been abandoned.

The defendant surety excepted to this petition on the ground that it was prescribed by the prescription of one year under the laws of this state, and particularly Section 14 of Act No. 298 of 1926.

On the issues as thus made up, the trial judge rendered judgment against the contractor and his surety in solido and in favor of the materialmen in the aggregate sum of $3,059.04, and in favor of the plaintiffs in the sum of $1,089, with attorney fees of $400; in favor of the surety and against the contractor in the amount the surety is required to pay under the judgment on behalf of the contractor; and cancelling the contract, bond and liens against the property. None of the parties appealed except the plaintiffs and it is their contention that they should have recovered a sum based on the cost of the material and labor under the conditions existing at the time they filed their supplemental petition rather than on the amount it would have cost to complete the work at the time the proceedings were instituted, before the inflationary spiral brought about by the declaration of war in the fall of 1941 had occurred.

The defendant surety, on the other hand, while conceding there were some minor defects, in the building, contends (1) that the plaintiffs, by their formal acceptance of the building, waived their right to recover for any and all defects that were apparent to them and to their architect at the time the building was accepted, (2) that if wrong in this contention, then the recovery should be limited to the amount allowed by the trial judge; and (3) that the claim for increased damages and for defective construction not included in the original petition, has been prescribed by the failure to sue for them within one year following the re-cordation of their acceptance of the building under Section 14 of Act No. 298 of 1926.

We find no merit to this first plea. The record clearly shows that the plaintiffs accepted the building with the understanding that the items complained of would be corrected and completed. This was not only testified to by the plaintiffs, but is amply supported by the actions of the contractor who, after the acceptance, although ill at the time, sought to carry out his obligation thereunder with the assistance of his wife.

The plea of prescription is likewise without merit. Section 14 of Act No. 298 of 1926, relied on by the defendant, was clearly intended to limit the period within which the materialmen and laborers having claims against the building contractor for their part in the construction could bring an action against the contractor’s surety. See, Dixie Building Homestead v. Massachusetts Insurance Company, 167 La. 399, 119 So. 405.

This leaves for our consideration, therefore, the amount to which the plaintiffs are entitled, if any, for the contractor’s failure to complete the building in accordance with the plans and specifications.

When the contractor was formally notified in writing on August 4, 1941, with a copy to the surety, of the items that had to be corrected and completed, and the bonding company was thereafter furnished with three estimates secured by the plaintiffs for such work but did not authorize the plaintiffs to have the building completed under one of these bids, it assumed the risk attendant upon the possibility that a delay in having the work done would result in an increase in the ultimate cost because of fluctuating costs and cannot now be heard to complain that, because of the declaration of war in the fall of 1941 with the resulting increase in the cost of labor and material, the plaintiffs were compelled to revise these figures in their amended petition in order that they might be fully protected because of these contingencies. Neither of the cases relied on by the surety in support of their contention is applicable or controlling here. Seaton v. New Orleans, 3 La.Ann. 44, was a suit for damages and loss of profits resulting from the breach of a building contract before the construction had even been undertaken, the suit having been filed before the arrival of the time for the full performance thereof. Vance v. Tourne, 13 La. 225, is only authority for the proposition that damages for failure to deliver stock under a contract of purchase is the difference between the purchase price and the amount of the stock on the open market on the date of the breach and not the stock market price at the time the suit was instituted, particularly where the purchaser neglected to put the seller in default at the time of the breach and only instituted proceedings some six months later when the stock had soared in value.

The only items listed in the supplemental petition and their costs that are seriously controverted are those listed under Nos. 5, 6, 7, and 9, in connection with which the defendants sought unsuccessfully to show that they had resulted from defective planning and unsuitable materials. All of these items are supported by the testimony of a competent contractor and the only effort made by the defendant to disprove those not controverted was limited to minimizing the extent thereof and establishing that they were not required under the contract and the attached plans and specifications.

We have carefully studied and analyzed the contract and the documents attached thereto, the testimony of the experts given in connection therewith, and the testimony of the parties to the contract, and we have come to the conclusion that the items listed in the supplemental petition cover matters that were required for the completion of the building “in a perfect and thoroughly workmanlike manner” and were either defectively constructed or not completed as called for. Our conclusion, therefore, is that the plaintiffs are entitled to recover the amounts listed in connection with them in the supplemental and amended petition.

We now pass to the question of the amount to be awarded the plaintiffs as attorney fees. The trial judge fixed this amount at $400 and by their appeal the plaintiffs are seeking to have the amount increased to the $766.63 prayed for in the supplemental petition, while the defendant surety contends the recovery for this service should be limited to a reasonable fee for provoking this concursus proceeding, claiming that $250 for such service is ample.

The basis for the plaintiffs’ right to attorney fees is to be found in section 10 of Act No. 298 of 1926, and it is limited to compensation for provoking the concursus proceeding. It is not extended to include the services of such attorney in connection with the prosecution of the claims of the owner against the contractor and his surety. We believe the amount awarded by the trial judge in this case is excessive and that the amount suggested by the attorneys for the surety is ample.

For the reasons assigned, the judgment appealed from is amended in so far as it affects the defendant insurance company, the New Amsterdam Casualty Company, by increasing the amount awarded the plaintiffs, Michael Constanza and Paul S. Spe-dale, from $1,089 to $2,782, and by reducing the amount awarded as attorney fees from $400 to $250, and as thus amended, the judgment is affirmed. The costs of this appeal are to be borne by the defendant surety.

O’NIELL, C. J., absent.


text:
    214 La. 41
    STATE v. ALEXANDER.
    No. 38673.
    Supreme Court of Louisiana.
    June 1, 1948.
    Rehearing Denied July 2, 1948.
    Claude B. Prothro, L. Wright Lee and D. C. Dickson, all of Shreveport, for appellant.
    Fred S. LeBlanc, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Edwin L. Blower, Dist. Atty., and Wm. F. Woods, Jr., Asst. Dist. Atty., both of Shreveport, for appellee.
   FOURNET, Justice.

The defendant, Robert Talley Alexander, is appealing from his conviction and sentence under a charge of violating Act No. 148 of 1936, in that he, as the president of the Southern Equitable Life and Accident Association, conducted the business of industrial life insurance without first having complied with the provisions of that act. As the basis for the reversal of his conviction and sentence the defendant contends (1) that there was no evidence adduced in support of the charge upon which he was convicted, and (2) that he was not amenable to the provisions of Act No. 148 of 1936, governing industrial insurance companies, since he was operating as a fraternal organization under the provisions of Act No. 256 of 1912.

The record shows that although the defendant did incorporate as a fraternal benefit society under the provisions of the 1912 act and file his charter with the Secretary of State, receiving a certificate showing the filing and recordation of such charter, no permit was ever issued to him under this act authorizing him to operate as such for the reason that he failed to comply with the other requirements of the act, such as furnishing the Secretary of State with certified copies of the rules, regulations, constitution, and by-laws of the association, as well as with copies of all proposed forms of benefit certificates, etc., as required in Section 12. Despite this, the defendant, nevertheless, proceeded to issue, as the president of this association, and deliver, policies of the class and character termed industrial policies as described in Section 2 of Act No. 148 of 1936, without first having obtained a permit to do so as required in Section 9, such action being denounced and made punishable as a misdemeanor in Section 13.

While Section 4 of the 1912 act (an act to provide for the organization, admission, and regulation of associations transacting the business of life, accident, sick benefit or physical disability insurance on the fraternal plan) specifically declares such societies or organizations shall be governed by the provisions of the act and are exempt from all insurance laws, it was not intended that the state would thereby surrender its right to thereafter police the organization and operation of these societies. On the contrary, in this same section it is provided that “no law hereafter enacted shall apply to them, unless they be expressly designated therein." Consequently, the legislature in adopting the 1936 act clearly showed its intention that fraternal orders would be amenable thereto 'by specifically designating in Section 4 that these organizations were among those to be governed by the act. (Italics ours.)

We therefore conclude that there is no merit to the contentions of the appellant.

For the reasons assigned, the conviction and sentence are affirmed.

O’NIELL, C. J., absent.


author: FOURNET, Justice,

text:
    214 La. 45
    STATE ex rel. ZELDEN v. HOME REALTY INV. CO., Inc., et al.
    No. 38983.
    Supreme Court of Louisiana.
    June 15, 1948.
    Sanders, Miller, Downing & Rubin, of Baton Rouge, for appellant.
    Kemble K. Kennedy, of Baton Rouge, for plaintiff-appellee.
   FOURNET, Justice,

Sam Monk Zelden, who secured a judgment in the lower court ordering the Home Realty Investment Co., Inc., to record on its books the transfer to him of 55 shares of stock and refusing to entertain a con-cursus proceeding in which Leah Calmes Janney had been impleaded as one of the rival claimants of the stock shares, is now seeking to have the appeal taken from this judgment by Mrs. Janney dismissed on the ground that she was without right to appeal, not being a party to the suit and having no interest in the matter.

A number of pleadings were filed in this case, many of them not pertinent for a decision on this motion. Those that are pertinent reveal that Zelden. proceeded by mandamus to compel the Home Realty Investment Company, Inc., to record the transfer to him of 55 shares of its capital stock of the par value of $100 a share, represented by Certificate No. 11, alleging that he had acquired the stock for value from Cecile S. Calmes. Upon motion of Zelden’s counsel the case was transferred to the same division of the court then considering two other cases having a material bearing upon the issues involved, namely, Succession of James F. Calmes and Leah Calmes Janney v. Cecile S. Calmes. The defendant, after securing additional time within which to plead, first filed a plea of vagueness, levelled principally at Zelden’s failure to allege the consideration given by him for the stock, and that Cecile S. Calmes, from whom he acquired it, was the owner thereof. Answering later, the company, averring it had been informed by Leah Calmes Janney that she was the owner of the stock sold by Cecile S. Calmes to Zel-den, sought to invoke a concursus proceeding for the purpose of relieving itself of any liability in connection with the transfer, impleading the rival claimants and impounding the stock pending the determination of the ownership thereof. Mrs. Janney answered the rule issued in the concursus proceeding asserting her ownership of the stock certificate and denying that Zelden had purchased the shares for value and in good faith. She prayed that the company be ordered to issue a new stock certificate in her name for these 55 shares and that Cecile S. Calmes be decreed to have no right or interest therein. Zelden then sought to secure a judgment or peremptory mandate on the pleadings and the Home Realty Investment Company, answering the rule issued under this motion, asked that if the concursus proceeding be decreed to be inappropriate in this case, then that the demands of Zelden be summarily denied inasmuch as the company might be prejudiced by any ruling that might be made since it would not be binding on the adverse claimant.

On these pleadings the trial judge overruled the exception of vagueness, rescinded and set aside the rule issued in the con-cursus proceeding, and ordered the company to record the transfer of the 55 shares of stock to Zelden and to issue to him a new certificate therefor. From this judgment Mrs. Janney appealed, alleging that as the owner of the stock she is interested in the res or subject matter of the suit and that she has been aggrieved by the judgment ordering the company to recognize its sale to Zelden and also by the order recalling the rule issued in the concursus proceeding, in which proceeding she was impleaded and answered. She further averred that when some doubt was expressed during oral argument that ownership of stock could be contested in a concursus proceeding, she proferred an intervention wherein she again asserted her claim to the ownership of the stock but the court refused to entertain it on the ground that it had been filed too late. This is borne out by the judge’s written reasons for making absolute the rule issued under Zelden’s motion for a peremptory mandate.

Clearly under these facts the appellee’s motion is without merit. Practically all of the grounds asserted by the appellee as the basis for his motion anticipate the issues that must be determined on the merits of the appeal and cannot, therefore, be considered on the motion to dismiss. Mutual Life Ins. Co. v. Houchins, 52 La.Ann. 1137, 27 So. 657; First Nat. Bank of Ruston v. Lagrone, 164 La. 907, 114 So. 832. The only question that is before us for decision in passing on the motion to dismiss this appeal is whether the appellant is entitled to have the merits of her opposition to the judgment rendered in the lower court between Zelden and the Home Realty Investment Co., Inc., hereafter considered. She unquestionably has that right.

The right of appeal is given not only to those who are parties to a cause, but to third persons who have been aggrieved by a judgment even though they are not parties:. Article 571 of the Code of Practice. The appellant, on the record as made up, has not only appealed as a party who claims to have been aggrieved by the judgment rendered, but also as a party who was impleaded in the concursus proceeding and as a party whose intervention was denied by the trial judge. State ex rel. Graham v. Judge of Eighth Dist.Ct., 23 La.Ann. 595; State ex rel. Pecot v. Judge of St. Mary Parish, 27 La.Ann. 184; Succession of Bothick, 110 La. 109, 34 So. 163; Raines v. Dunson, 145 La. 525, 82 So. 690; Haas v. Haas, 181 La. 265, 159 So. 384.

The motion to dismiss is denied.


author: McCALEB, Justice.

text:
    214 La. 50
    JONES et al. v. JONES.
    No. 38557.
    Supreme Court of Louisiana.
    June 1, 1948.
    Rehearing Denied July 2, 1948.
    Fred G. Benton, of Baton Rouge, for defendant and appellant.
    Joseph A. Gladney, of Baton Rouge, for appellees.
   McCALEB, Justice.

This is a suit for the dissolution of a sale of real estate for non-payment of the price, as authorized by Article 2561 of the Civil Code. The property involved is 380 acres of land situated in the Parish of East Carroll which was owned in indivisión by Mrs. Leona N. Jones and her seven children. During October 1941, plaintiffs, Mrs. Jones and six of her children, sold to the defendant, Clifford Tunley Jones, a son and brother respectively, their interest in the 380 acres for a stated consideration of $3557.15 “cash in hand paid unto them at the execution hereof by the said Clifford Tunley Jones, as follows: * * * the receipt of which said respective sums and the composite amount thereof is hereby expressly acknowledged and full acquittance granted therefor by each of said named vendors * *

Alleging that, despite repeated requests on numerous occasions, defendant has never paid the purchase price of $3557.15 or any part thereof, plaintiffs sued to have the sale cancelled and rescinded and annexed to their petition interrogatories on facts and articles.

The defendant interposed an exception of no right or cause of action to the petition which was referred to the merits of the case by agreement of counsel. Thereafter, he filed answer resisting the demand and asserted that he gave full consideration for the land. At the same time, he answered the interrogatories propounded to him and admitted that he did not pay the cash amount recited in the act as the consideration of the sale but insisted that he did give valuable consideration (without stating it).

After defendant responded to the interrogatories on facts and articles and filed his answer to the suit, plaintiffs ruled him into court to show cause why judgment should not be granted on the pleadings. However, before this rule came on for hearing, plaintiffs filed another rule in which they suggested that, since defendant (while admitting the cash amount recited in the deed had not been paid) was contending he had given a valuable consideration, he should be required to amend his original answer so as to state clearly therein the consideration on which he was relying to defeat the dissolution of the sale. An order to show cause was accordingly issued and, on the hearing thereof, defendant’s counsel informed the court that he did not desire or intend to offer any evidence on the trial of the case or to amend his answer as he was relying upon the recitals of the authentic act for full proof of payment of consideration. Upon being thus advised by defense counsel, the court recalled the rule and, thereafter, sustained plaintiffs’ motion for judgment on the pleadings, entering a decree cancelling and dissolving the sale of the land for non-payment of the purchase price. Wherefore the appeal.

In this court, defendant has reurged his exception of no right or cause of action. He asserts that,. since an authentic act makes full proof between the parties and cannot be contested by them except for forgery (Article 2236, C.C.) or fraud or mutual mistake, under the jurisprudence, it was error for the court to permit plaintiffs to contradict their acknowledgment of payment of the cash consideration for the conveyance by means of his answer to interrogatories on facts and articles.

The contention is without merit. It is well settled that parties to authentic acts may, even in the absence of fraud or error, assail the verity of the recitals of the deed either by a counter letter (Article 2239, C.C.) or by answers of the other party to interrogatories on facts and articles (which have the same force and effect as a counter letter). Newman v. Shelly, 36 La.Ann. 100, 101; Crozier v. Ragan, 38 La.Ann. 154; Godwin v. Neustadtl, 42 La.Ann. 735, 7 So. 744; Franklin v. Sewall, 110 La. 292, 34 So. 448 and Templet v. Babbitt, 198 La. 810, 5 So.2d 13.

Counsel for defendant nevertheless maintains that the only instance in which interrogatories on facts and articles may be employed with respect to conveyances of immovables is under Article 2275 of the Code for the purpose of proving verbal sales where possession has been delivered. But this postulation ignores the applicable articles of the Code of Practice, Articles 347-356, authorizing the use of interrogatories on facts and articles and the established jurisprudence, which we have above cited. Indeed, it would be a most irrational doctrine that would deny to a party the right of probing the conscience of his obligor by interrogation and thus prohibit the confession by the latter of the falsity of a recital in a deed on the hollow theory that to permit it would be violative of the parol evidence rule (Article 2276, C.C.).

In Newman v. Shelly, supra, the plaintiff, as tutrix of her minor child, sought the rescission of an authentic act, under which her late husband had conveyed certain properties to his father for $4500, on the ground that the price was not paid notwithstanding that the act contained a clause acknowledging receipt of the price by the vendor. She annexed to her petition interrogatories on facts and articles, probing the conscience of the defendant as to the fact of non-payment of the price. The defendant objected to the interrogatories on the ground that the consideration could not be inquired into as between the parties to the act and their privies and, under the reservation of the objection, confessed that the price had not been paid. The court found that the use of interrogatories on facts and articles was wholly proper. The syllabus of the case puts it thus:

“Even parties to authentic acts and their privies have the right to contradict recitals therein by an appeal to the conscience of the opposing party by means of interrogatories on facts and articles; and answers to such interrogatories confessing the falsity of such recitals are not parol evidence and have all the effect of a counter-letter.”

We are also of the opinion, despite the plea of defense counsel to the contrary, that the judge was correct in granting judgment on the pleadings as enlarged by defendant’s answers to the interrogatories on facts and articles. The confession by defendant in his answer that the cash price was not paid was sufficient unto itself to authorize a rescission of the sale. True, defendant coupled his confession with an attempted avoidance of a dissolution by stating that he “did fulfill the consideration for the sale which was fully understood and agreed to by and between all of the parties before the deed was signed, and which has been consented to by the parties since.” This vague declaration was obviously an effort to allege a consideration other than cash without stating it. Plaintiffs timely and properly sought to have defendant amend his answer by asserting the facts upon which his conclusion of valuable consideration was predicated. But he refused the opportunity, being content to stand upon the recitals of the deed. In fine, the difficulty of the position in which he now finds himself is that his confession of the falsity of the recitals of the deed respecting cash consideration precludes him from offering proof that any other consideration was given in the absence of allegations on his part of the facts upon which he relies.

In oral argument in this court, counsel requested that, should we fail to sustain his contention on the law, the case should be remanded for the purpose of giving defendant the opportunity of amplifying his pleadings so as to state the facts upon which his plea of full consideration is based. This request disregards the fact that he has already been given an opportunity to amend his answer and that he elected to stand on the proposition of law tendered by him to the court. It would be palpably unfair to plaintiffs to permit defendant, at this late date, to shift his position. See Esmele v. Violet Trapping Co., 184 La. 491, 166 So. 477.

The judgment appealed from is affirmed.

O’NIELL, C. J., absent.


text:
    214 La. 58
    STATE v. KIMBLE.
    No. 38987.
    Supreme Court of Louisiana.
    June 15, 1948.
    James T. Spencer, of Farmerville, for defendant-appellant.
    Bolivar E. Kemp, Jr., Atty. Gen., M. E. Culligan, Asst. Atty. Gen., and Truett L. Scarborough, Dist. Atty., of Ruston, for appellee.
   McCALEB, Justice.

The defendant is appealing from a conviction and sentence for unlawfully engaging in the business of handling and storing intoxicating liquor for the purpose of sale. During the course of the trial, he reserved eight bills of exception upon which he relies for a reversal of the judgment.

Bills Nos. 2, 4, S and 7, which may be considered together, were taken to the judge’s action in admitting certain testimony over timely objection. The bills were reserved during the examination of four deputy sheriffs testifying for the State. In each instance, the district attorney propounded to each deputy sheriff the following question: “Have you had complaints that the defendant was engaged in the business of handling and storing intoxicating liquors for the purpose of sale?” Counsel for defendant objected to the questions on the ground that they called for the giving of hearsay evidence, which objections were overruled by the court.

We think that the judge erred in not excluding the evidence on the ground that it was clearly hearsay. While it is not violative of the hearsay rule for a police officer to state that he made an arrest or a search and seizure as the result of information received or a complaint, the exception is limited to the statement of the fact — for, whenever he is permitted to explain the nature of the information or complaint, he does not testify to a fact but to what someone else told him. See 22 Corpus Juris Secundum, Criminal Law, § 729, page 1242, and cases there cited. The rule prohibiting the admission of testimony of this sort is stated by the United States Circuit Court of Appeals for the First Circuit in Enrique Rivera v. United States, 57 F.2d 816, 820, as follows :

“In assignment number two, the defendants allege that the court erred in permitting the inspectors to testify to the confidential information on which they acted. Evidence of this character is admissible in hearings before the court on motions to suppress evidence claimed to have been secured without a search warrant and without probable cause. It is also admissible in trials before the court on motions to return property illegally seized. The cases cited in the government’s brief do not sustain the proposition that such evidence, which is clearly hearsay, is admissible before the jury upon the trial of the case.”

In Mattson v. United States, 8 Cir., 7 F.2d 427, testimony by a Federal agent as to complaints which had been received by him, which led to his visit to defendant’s premises, was held to be hearsay and improperly admitted:

And in Smith v. United States, 70 App. D.C. 255, 105 F.2d 778, 779, the Court observed:

“The rule seems to be that, while an officer may testify before a jury that, acting upon information, he did certain things, he may not go further and testify .as to precisely what he was told about the particular place or the particular person.” (Italics ours.)

The judge states in his per curiam in the case at bar that the witnesses were permitted to give only “yes” or “no” answers to the questions. It would have been proper for the judge to have ruled in this manner if the officers had been asked merely whether they had made the arrest and seizure as the result of complaints. However, the questions propounded were highly objectionable because they were coupled with the statement of the nature of the complaints, i. e. “that the defendant was engaged in the business of handling and storing intoxicating liquors for the purpose of sale.” Hence, when the officers were permitted to answer “yes” it was not only a statement of a fact that they acted upon complaints but that they were informed that defendant was engaged in unlawful acts for which he was on trial.

The State, in its brief, relies on State v. Austin et al., 169 La. 777, 126 So. 57, and State v. Moody, 201 La. 1042, 10 So.2d 890, in support of its contention that the evidence was not objectionable.

These cases are inapposite. The onty question presented in State v. Moody was whether there was any evidence to sustain the conviction. In State v. Austin, the attorney for the defendants objected to the testimony of the sheriff that he knew of the existence of a still and that the defendants were the individuals whom he expected to find there, when he was watching the place. The court held [169 La. 777, 126 So. 58] “that the fact that the sheriff knew of the existence of the still and the fact that he was expecting to find the defendants there, was not amenable to the objection to hearsay testimony, * * In other words, it was found that the evidence related to facts within the knowledge of the sheriff and not to anything someone told him.

In view of our conclusion, it is unnecessary to consider the other bills of exception taken by defendant.

The conviction and sentence appealed from are reversed and set aside and the case is remanded to the district court for a new trial.

      The Court, however, did not reverse the verdict on this ground as the witnesses who supplied the information to the inspectors were produced. Under the circumstances, the Court held that the evidence, although hearsay, was not prejudicial.


author: PONDER, Justice.

text:
    214 La. 63
    Succession of SMART.
    No. 38358.
    Supreme Court of Louisiana.
    June 1, 1948.
    J. S. Pickett, of Many, for opponents and appellants.
    S. N. Young, of Shreveport, for legatees and appellees.
   PONDER, Justice.

The plaintiffs opposed the probate of the last will and testament of Ada A. Smart. The opposition is based on the grounds that the will is not entirely written, dated and signed by the testatrix; that it contains prohibited provisions which destroy it as an instrument expressing the testatrix’s will; and that the will as a whole is so ambiguous that the intent of the testatrix cannot be determined. Upon trial of the opposition the lower court gave judgment decreeing two of the particular legacies contained in the will to be void as substitutions and decreed the will to be valid in all other respects. The plaintiffs have appealed.

The will is olographic in form and reads as follows:

“April 5, 1943”
“This is my will of my personal belongings.
My solitair diamond to Mrs. P. W. Bo-gan. My silverware & china dishes to Mrs. P. W. Bogan.
My dinner ring to Lucile Bonham, at her death to go to Ann Lee.
My pin to (sunburst diamond)
My house where Inez lives to her, until her death at her death to Helen Wingate Allen.
My house where Louise Bunch to Mary Ada.
The house where Mr. Neely lives to Ella Mae Self.
The house south of me to Margary White.
The house I live in to Emile & Mattie jointly.
The place at their death to be sold and divided between nieces.
The 42 acres of up-land to Dolph Lea.
My violin to Kile Smart.
My watch to Ella May Self.
My bank stock — $100.00 to Beck — tence her place in SO' she can have a garden.
The rest of it goes to — 100 to the Bapt church divide the money between nieces.
(Signed) Ada A. Smart”

The two provisions in the will decreed to be substitutions are as follows:

“My dinner ring to Lucile Bonham, at her death to Ann Lea.”
“My house where Inez lives, until her death at her death to Helen Wingate Allen.”

There seems to be no complaint urged as to the trial judge’s finding with respect to these two particular legacies and the defendant has not answered the appeal urging any complaint thereto'.

The appellants take the position that a penciled line drawn between two'bequests was not proven to be in the handwriting of the deceased and that the will is not thereby entirely written, dated and signed by the testatrix as required by Article 1588, Revised Civil Code.

An examination of the will shows that there is a line drawn by pencil connecting two bequests. The two bequests appear in the will in the following order:

“My pin to (sunburst diamond) ”
“My house where Inez lives to her until her death! (at her death to Helen Wingate Allen.”

The penciled line begins at the word “to” in the uppermost bequest and runs downward' at an angle to the word “Inez” in the lower bequest. The lower court was evidently of the opinion that this penciled line indicated an intention on the part of the testatrix to give the pin to Inez. The testimony of four witnesses is to the effect that the will is entirely written, dated and signed by the testatrix, but they would not state that the penciled line was in the handwriting of the testatrix.

If the penciled line was written by another and not the testatrix, it must be considered as not written. Article 1589, Revised Civil Code. If it was written by the testatrix, it connects a bequest to one that contains a prohibited substitution and we could not say with any degree of certainty, that the testatrix intended to give the pin to Inez independently or to give it to her with the provision that at her death it should go to Helen Wingate Allen. Consequently, we are bound to conclude that the bequest of “My pin to (sunburst diamond)” is of no effect.

The fact that there are bequests of particular legacies in the will that contain prohibited provisions or substitutions such would destroy only those legacies and would not effect the will as a whole. It is well settled that the invalidity of a portion of a will does not destroy the will in its entirety. Succession of Lissa, 195 La. 438, 196 So. 924, and the authorities cited therein to that effect.

We see no merit in the appellants’ contention that the will as a whole is so ambiguous that the intent of the testatrix cannot be determined. Where there is ambiguity in the description of the legatee, or the thing which the testatrix intended to bequeath, or the quantum or portion of the legatee, or where there is doubt as to the sense in which the words are used by the testatrix, resort may be had to extrinsic evidence. In fact, all circumstances throwing any light on the testatrix’s intention must be considered. Revised Civil Code, Articles 1714, 1715 and 1716. Succession of Montegut, 211 La. 112, 29 So.2d 583.

The will is written in the testatrix’s handwriting in pen and ink, except the penciled line above referred to and the portion at the end of the will reading. ‘TOO to Bapt Church divide the money between nieces”, which is written in pencil. The four witnesses testified that the entire will was written, dated and signed by the testatrix. The only doubt that they expressed was as to the penciled line heretofore referred to. An olographic will does not have to be written in its entirety on the same date and in the same ink. Succession of Cunningham, 142 La. 701, 77 So. 506; Succession of Guiraud, 164 La. 620, 114 So. 489; Jones v. Kyle, 168 La. 728, 123 So. 306; Picard v. Succession of Picard, 179 La. 746, 155 So. 11; and Succession of Tallieu, 180 La. 257, 259, 156 So. 345. Under the same reasoning, it would be equally true where a portion of the will was written with a pencil. All that is required by Article 1588, Revised Civil Code, is that the olographic will must be entirely written, dated and signed by the hand of the testatrix. It is subject to no other form.

The bequest, “The house I live in to Emile and Mattie jointly. The place to be sold at their death and divided between nieces,” is null under the provisions of Article 1520, Revised Civil Code, which prohibits substitutions and fidei commissa. Succession of Hunter, 159 La. 492, 105 So. 596.

In the Hunter case a certain house was bequeathed to a legatee for her use and benefit during her natural life, which was directed to be sold at her death and the proceeds derived therefrom to be paid over to a charitable organization. The Court, after reviewing many of the leading decisions and discussing Article 1520 and Article 1522, Revised Civil Code, which permits testamentary disposition of the usu-fruct of property to one and the naked ownership to another, arrived at the conclusion that the bequest was null because it created a common-law life estate in the legatee and that it could not be regarded as a donation of the usufruct of the property. It is apparent that the bequest in the present case purports to donate a life estate in the legatees, which is prohibited under the provisions of Article 1520 of the Code, as pointed out in the Hunter case.

For the reasons assigned, the judgment of the lower court is amended so as to decree the provisions in the will, “My pin to (sunburst diamond),” meaningless and without effect and the bequest, “The house I live in to Emile and Mattie jointly. The place at their death to be sold and divided between nieces,” to be null and void. As thus amended, the judgment of the lower court is affirmed at appellee’s cost.

O’NIELL, C. J., is of the opinion that there is no disposing clause with regard to the pin of the testatrix described as her sun-burst diamond, and is of the opinion also that the following dispositions are prohibited substitutions: (1st) “My house where Inez lives to her, until her death at her death to Helen Wingate Allen.” (2nd) “The house I live in to Emile & Mattie jointly. The place at their death to be sold and divided between nieces.”