text:
    212 La. 544
    PENNINGTON v. DREWS.
    No. 38607.
    Supreme Court of Louisiana.
    Nov. 10, 1947.

      Fred G. Benton, of Baton Rouge, for applicant.
    Watson, Blanche,' Fridge & Wilson, of Baton Rouge, and Davidson & Davidson, of Lafayette, for respondent.
   PONDER, Justice.

The plaintiff, C. B. Pennington, brought suit against the defendant, T. J. Drews, seeking to enjoin the defendant from doing certain acts in violation of a written contract. The suit was dismissed on exceptions of no cause or right of action by the lower court. Upon review, by way of writs, this Court set aside the judgment and remanded the case to be heard on its merits. Pennington v. Drews, 209 La. 1, 24 So.2d 156. After the case was remanded, the defendant filed a supplemental and amended answer pleading the lapse of five years from the date of the execution of the contract under the provisions of Article 167 of the Revised Civil Code. The matter was submitted upon the pleadings and a stipulation of facts entered into by the litigants. The lower court sustained the plea and denied the preliminary injunction on the ground that the contract was a personal service agreement and cannot be enforced after the lapse of the five year period as provided in Article 167 of the Revised Civil Code. The plaintiff applied for and obtained writs. The matter is now submitted for determination.

There is no dispute over the facts in this case. The case was submitted on the pleadings, annexed instruments, and a stipulation of facts. When the case was presented to us on the exceptions, the contents of the contract was cited at length. See Pennington v. Drews, supra. For the purpose of this decision we see no necessity to recite in detail all the provisions in the contract.

The defendant, respondent, invented an instrument or device which is designated as an “Atomiscope”. It is an electrical instrument used in geophysical work to determine the presence of structure or fault favorable for the accumulation of oil and gas. The respondent, desiring to become employed and associated with some one having knowledge of the exploration a.nd development of minerals in order to conduct geophysical surveys and test the merits of his invention, entered into a contract with the relator, who had approximately 20 years experience in the oil business. At that time the merits of the instrument had not been proven and the respondent, due to financial difficulties and inability on his part to make the proper contacts, had been unable to develop the device. He entered into the contract with the respondent because it would give him opportunity to improve the device and to demonstrate its practical and commercial value as well as to reap the benefits derived from the contract. Under the terms of the contract, the respondent was the sole owner and had the exclusive control of the device. The device was to remain in the possession of the respondent at all times and to be operated by him personally. Any improvement or new discoveries affecting the device was to inure to the benefit of the contract. The respondent was to be ready and willing at all times to do survey or exploration work with the device whenever called upon. The respondent agreed never to purchase, directly or indirectly, any leases in any area surveyed in accordance with the contract without the relator’s consent. The respondent was not responsible for any debts contracted or for the repayment of any expenditures made by the relator. The respondent bound himself not to use the device for any one without the written consent of the relator. He further agreed not to divulge any information obtained by a survey or that a survey had been made without the consent of the relator. Under the terms of the contract, the surveys were to be made only on leases obtained by the relator. Under the original contract the respondent paid the defendant $300 per month for a period of time and $400 per month after a lapse of a certain period of time and traveling expenses plus a 1/28 overriding royalty on all leases that the relator might acquire. The contract further provided for the deduction of $25 per day from the salary of the respondent in case respondent delayed or refused to work with or take the device out when called. A supplemental agreement was entered into on February 6, 1941, amending the terms of the contract as follows:

“On or before January 7th, 1942, the said C. B. Pennington shall have the right and option, by so notifying the said T. J. Drews in writing, to extend this contract for an additional twelve (12) months,4 by the payment of Three Hundred Fifty and No/100 ($350.00) Dollars per month, as salary, to the said T. J. Drews. In like manner (by notifying the said T. J. Drews in writing on or before the 7th day of January of each year) and like payments, ($350.00) per month, this contract may be extended for successive periods of twelve (12) months each, not exceeding ten (10) years from and after January 7th, 1942.

“In addition to the above mentioned salary, the said C. B. Pennington agrees to carry the said T. J. Drews for twenty-five (25%) per cent of the net profits, (by this is meant, 25% of the profits after paying all office rent, office help or office expenses of every nature, advertising, traveling or car expenses, salaries, lease costs, commissions, interest to others, interest on borrowed money, legal, accounting, general operating, equipment, development, experimental, marketing, taxes of all nature and kind, both state and federal, or any other expenses connected with said operations, and in addition thereto allowing C. B. Pennington a salary of Five Plundred and No/.OO ($500.00) Dollars per month), derived by C. B. Pennington as a result of any contract work, surveys or exploration work conducted for any company or individual, other than C. B. Pennington. The manner, method, form or time of securing or deriving at, and receiving said profit, as well as any and all operations, of every nature and kind shall be left to the sole and final judgment and discretion of the said C. B. Pennington.

“In lieu of any interest or percentage of the profits as hereinbefore set forth, should the C. B. Pennington purchase any oil leases for his account, after the area having been first surveyed out with the Atomiscope and mapped after January 6, 1942 as favorable for production of oil, and the lease having been purchased entirely and directly as the direct results of said survey, then and in that event the said C. B. Pennington shall and is given the election, based on the full fee ownership, of carrying the said T. J. Drews for a seven and one-half (7½%) carried working interest (by this is meant seven and one-half (7½%) per cent of the final net profits derived by C. B. Pennington after deducting all costs of lease, commissions, interest to others, legal, salaries, office, traveling, accounting, operating, equipment, development, marketing, taxes or any and all expenses of every kind and nature connected with said lease and its operation), or a one one hundred ninety-second (1/192) carried overriding royalty interest, or a proportionate combination of both. Should the said Pennington purchase any leases in any area surveyed and mapped prior to January 6, 1942, which period shall be treated as an experimental period, nothing herein shall apply thereto.

“The said C. B. Pennington shall also have the right of subdividing or segregating any given lease and under a portion or portions carry the said T. J. Drews for an overriding royalty while on the other portion or portions carry the said T. J. Drews for a working interest in the amount and conditions as set forth immediately above.

“In.the event of a sale of any lease carrying a working interest, at the election and entire discretion of C. B. Pennington shall and is hereby given the right to sell all of the interest and substitute therefor seven and one half (7½%) per cent of the final net profit's derived by the said C. B. Pennington from that particular lease.

“This carried interest or percentage shall only cover the area as mapped as favorable for production of oil and the lease surveyed and mapped after January 6, 1942.

“When the said T. J. Drews has been paid an aggregate total sum of twenty five thousand and No/100 ($25,000.00) Dollars, then and in that event the carried working interest shall automatically be reduced to three and three-fourths (3 3/4%) per cent, and the carried overriding royalty interest shall automatically be reduced to one three hundred eighty-fourth (1/384).

“The proposed carried interest or percentage of the profits or carried overriding royalty interest is not to be construed as being any undivided interest, partnership or ownership in and to any lease or leases or operations, but only a percentage of the final net profits or interest of the said C. B. Pennington, and its distribution shall be left to the sole and final discretion and judgment of the said C. B. Pennington.

“The said T. J. Drews shall not be responsible for any debts contracted or be called upon to pay or repay any expenditures the said C. B. Pennington might spend or direct to others to spend under the contract dated October 7, 1940.” ,

In the stipulation of facts, various documents and letters attached to the petition were admitted to be true and authentic and to be considered as evidence by the court. These documents include the original contract, the supplemental contract, and a number of letters showing the relator had complied with the contract and that relator had timely taken the necessary steps to have the contract extended. It is admitted that the respondent, prior to his becoming interested in inventing various devices in discovering minerals, was engaged in the business of coffee salesman. From October 1, 1940 to December 3, 1942 the relator conducted geophysical surveys and the respondent used and operated the device in these surveys whereby 230 wells were' drilled and their results observed. It appears from the stipulation of facts that the respondent, from December, 1942 to December, 1943, operated under the contract approximately 85 days. The respondent underwent an operation) during February, 1944 and was physically incapacitated for a period of 60 days to do any work under contract, but at all other times was physically competent to do so if required. The relator has been engaged in the oil business, individually and as a broker, for some 20 years in such a way as to become familiar with the development of oil and the methods employed in such enterprises. At the time the contract was entered into the respondent represented to the relator that, due to financial difficulties and inability on his part to make the proper contacts, he had been unable to develop the device and desired to become employed and associated with the relator, who was familiar with the exploration and development of minerals and had numerous contacts; in order that the merits of his invention might be further advanced; in order to improve upon the methods for operating the device and to further demonstrate its practical and commercial value, as well as reap the benefits therefor. After the respondent demonstrated the instrument to the relator, who assisted him in its use and operation for a limited period of time, it was found that the device offered some prospect for practical and helpful usage in making geophysical tests. The principle and method of operation of the device is unknown to the commercial and scientific world and is known only to the relator and respondent. The inner-workings and construction of the device is known only to the respondent. It appears that the device detects the areas of oil sands and various minerals. The original contract of October 7, 1940 was complied with by both parties until the amendment of it on February 6, 1941. Thereafter the contract, as amended and extended, was complied with by the parties up to and inclusive of January 6, 1944, except for a short period of time when the respondent was granted a leave of absence. The respondent was incapacitated following his operation of February 15, 1944 for a period of 60 days. Since recovery from his operation, he has refused to comply with the contract. The relator addressed two communications to him, one in April and one in May, insisting upon his compliance with the contract, without avail. Prior to October 7, 1940, Pennington, in cooperation with Drews in the invention and development of a similar device, expended more than $5,000 of h;« personal funds. When the contract was first entered into, the device had not been developed to the point where it had any practical or commercial value and it was not until the first part of 1942 that it began to obtain a satisfactory degree of proficiency. It is admitted that the relator, in addition to paying the respondent the regular salary, has expended large sums of money, running into thousands of dollars, to provide the expense and overhead for hundreds of surveys and to complete tabulations thereof that were made for no other purpose than to improve the method of operating the device and to demonstrate its commercial and practical value. It is admitted that the respondent had little knowledge, at the time the contract was entered into, as to oil exploration and no knowledge of mapping and survey recordings whatever; that he had no contact with oil men or oil companies to speak of and no background that would have enabled him to carry out these experiments without relator’s cooperation; and that as a result of these efforts which the relator materially contributed in, the method of operating the device was vastly improved until highly satisfactory results were obtained. A record was built up and recorded under the relator’s direction and supervision of a nature which demonstrated to the oil fraternity generally the highly desirable advantages in geophysical work carried on with the benefit of the device. The relator has not received any return commensurate with the time and money which he has invested under contract. The relator has at all times complied with the contract and cooperated with the respondent by minimizing his personal responsibilities; by decreasing the amount of work required of him; by paying him advances in salary in excess of sums due; by agreeing to train and substitute respondent’s son for such personal service that might be required so as to relieve the respondent as much as circumstances would permit; by recognizing all and reasonable excuses for failure to work at any given time; by granting him leave of absence when it was requested; and by generally making such other concessions as were necessary to accommodate him personally, in order to make his work easy and the results obtained satisfactory and valuable.

The relator is seeking in these proceedings to enjoin the respondent from rendering any services, personal or otherwise, of the nature contemplated in the contract to any one other than the relator; from using or attempting to use the device and improvements or any other device based on the same principles for the benefit of any other person; from making a new device and using it for the benefit of any other .person; and from removing or allowing any one else to remove the device and its improvements from the State.

Article 163 of the Revised Civil Code provides as follows: “Free servants are in general all free persons who let, hire or engage their services to another in this State, to be employed therein at any work, commerce or occupation whatever for the benefit of him who has contracted with them, for a certain price or retribution, or upon certain conditions.”

Article 167 of the Revised Civil Code provides: “Persons who have attained the age of majority cannot bind themselves for a longer term than five years.”

The judgment of the lower court is based on Article 167, R.C.C. and the holdings in the cases of Page v. New Orleans Public Service Inc., 184 La. 617, 167 So. 99; Hill v. Missouri Pacific Ry. Co., D.C., 8 F. Supp. 80; Shaughnessy v. D’Antoni, 5 Cir., 100 F.2d 422; and Caldwell v. Turner, 129 La. 19, 55 So. 695.

From an examination of the cited authorities, we find that they deal with personal service contracts. Such being the case, they are not pertinent to the present controversy. If the contract under consideration involved only the question of personal services, the quoted articles of the Civil Code and the decisions cited would be pertinent and decisive, but this contract involves more than personal services. In fact, the agreement is in the nature of a joint enterprise or joint adventure. The respondent, who had no experience in the oil business and who had invented a device which he believed would detect or locate oil or other minerals, approached the relator, a man experienced in the oil business, in order to obtain an opportunity to test and develop his device and entered into a contract for the mutual benefit of both parties. The primary object of the contract was the discovery of min-erais with the device. The services of the respondent were incidental to the main purpose of the contract. The clause in the contract providing that the ownership of the device was to remain the property of the respondent, remain in his possession arid to he operated by him personally was for respondent’s benefit and protection. His services were not essential to the- fulfillment of the main purpose of the contract for another person could have been trained to operate the device. In fact, Pennington suggested that Drews’ son be trained to operate the device, but Drews would not agree to this. There is no attempt made to fetter Drews’ freedom. If he desires to operate the device himself and not permit any one else to operate it, it cannot be said that Pennington is fettering Drews’ freedom. Under the circumstances in this case, it would be manifestly unfair to permit Drews to withdraw from the contract after receiving benefits and the improvement of his invention at the enormous expense of Pennington, simply because Drews will not permit the device to be operated by another. He cannot under the circumstances avoid his engagement simply because he received a salary and rendered personal services during the engagement, especially when there is no attempt made to fetter his freedom. If Article 167, R.C.C. were applicable to a contract where one of the parties rendered personal services in a joint adventure or during the life of a contract, it would prevent a person of meager means who had something of prospective value from engaging in such. In this case Drews would not have been able to carry out his part of the venture without sufficient means to live on. It is extremely doubtful whether he would have been able to interest another person possessing Pennington’s experience and financial backing in joining such an enterprise. His device at that time had not been perfected and it was uncertain whether it could ever be improved to such an extent as to have a practical or commercial value.

The decisions cited in support of Drews’ contention are to the effect that an adult cannot bind himself longer than five years but can perform for the sixth year if he is willing to do so, which is wholly optional with the employee. Under the facts in this case it is optional with Drews whether he renders the services or not. He is not compelled to render the services and could permit another to be trained to render the services essential to carry out the purpose of the contract.

We have been unable to find any decisions of this Court where Article 167 has been applied to any contract except those involving strictly personal services. This article would not be applicable, in our opinion, to a joint enterprise or contract where mutual benefits are received. However, if it were applicable, the freedom of Drews has not been fettered. He has the option to render the services or permit some one else to do so. Moreover, the court is not asked to compel the respondent to render any personal services in this suit.

For the reasons assigned, the judgment of the lower court is reversed and set aside; the plea that the contract was no longer binding on account of the lapse of five years, under the provisions of Article 167 of the Revised Civil Code, is denied. The writs are made mandatory and the temporary restraining order is reinstated. The case is remanded to be proceeded with according to law and consistent with the views herein expressed. The cost of the proceedings in this Court to be paid by the respondent. All other costs to await the final disposition of the cause.


source: Caselaw Access Project

author: DORE, Judge.

license: Public Domain

text:
    MOSSLER ACCEPTANCE CORPORATION v. NAQUIN.
    No. 2968.
    Court of Appeal of Louisiana. First Circuit.
    Dec. 30, 1947.
    Writ of Certiorari Denied Fell. 16,1948.
    McLoughlin & West, of New Orleans, for appellant.
    Leonard Greenburg, of Houma, for ap-pellee.
   DORE, Judge.

Once previously this case has been before us on appeal taken by the plaintiff, from a judgment dismissing its suit, dissolving a writ of sequestration, awarding defendant damages in reconvention and dismissing the calls in warranty.

In our opinion rendered on May 20, 1947, the issues presented in the lower court and also presented in this court have been clearly set forth. See 30 So.2d 766. This present appeal is on behalf of C. Ben Snell, warrantor of defendant Naquin and the purchaser of the automobile from William A. Richardson, Jr., whom Snell had called in warranty. For the purpose of this opinion it is ápropos that a short résumé of what transpired, even if repetitious, be given.

From an adverse judgment dismissing its suit, a judgment in reconvention against it and in favor of Naquin, defendant, and dismissing all calls in warranty by Naquin against Snell, Snell against Richardson and Richardson against Nastasi, plaintiff appealed to this court. Defendant Naquin also appealed from the judgment dismissing his call in warranty. Both appellant's perfected their appeals.

In this court Naquin answered plaintiff’s appeal, praying for an increase in the amount of the award on his demand in re-convention. Richardson also answered plaintiff’s appeal, praying that in the event the judgment be reversed, that there be judgment in favor of the plaintiff against the defendant Naquin, and in favor of Naquin against the various warrantors, then that the defendant faquín was not entitled to recover from any of the said war-rantors the damages claimed by him. Snell did not take any action in this court. The case was argued and submitted on April 9, 1947, on the issues thus made.

On May 20, 1947, we avoided and reversed the judgment of the lower court in so far as it dismissed plaintiff’s suit, and granted judgment in favor of plaintiff in rem. We affirmed the judgment of the lower court in so far as it dismissed the calls in warranty, stating: “We note that none of the defendants or warrantors have answered the appeal praying that in the event cf a reversal of the judgment appealed from they be given judgment on their respective calls in warranty. To the extent that the judgment dismissed all calls in warranty, therefore, it will have to be affirmed as it cannot be amended in so far as co-appellees are concerned.” 30 So.2d 772(5).

On May 30, 1947, Naquin applied for a rehearing and pointed out to us, amongst other errors assigned, that he had appealed from the judgment of the lower court dismissing his call in warranty against Snell by motion in open Court made on January 3, 1947, the date of judgment, and had perfected the appeal by furnishing bond on January 17, 1947, and the appeal was filed before the return date in this court and the costs of the appeal were paid.

On June 2, 1947, Snell filed an application for rehearing in which he sets forth that we erred in holding that the chattel mortgage was valid and in holding that all calls in warranty should be dismissed. In this application, he informed us that, he had filed in the lower court a petition for a devolutive appeal from the judgment rendered therein on January 3, 1947.

In passing on these applications for rehearing, we acknowledged our mistake in having overlooked the appeal taken by Naquin,1 and amended our former decree by allowing judgment in favor of Na-quin on his call in warranty, against Snell, in the sum of $1,530.40, with legal interest from judicial demand until paid, and costs. As to Snell’s application, we stated: “ * * * as he did not appeal from the judgment of the District Court which had dismissed his call in warranty nor did he answer the appeals taken, his application cannot be considered or acted upon. In his application, it is stated that ‘he has filed in the Seventeenth Judicial District Court for the Parish of Terrebonne, State of Louisiana, a petition for devolutive appeal from the judgment rendered therein on the 3rd day of January, 1947,’ but the record contains no evidence of such appeal.” All applications for rehearing were refused, 31 So.2d 247, 248(4).

On July 2, 1947, Snell filed a second application for rehearing. This application was not considered by us.

The record shows that on June 2, 1947, Snell petitioned for and was granted a devolutive appeal from the judgment dismissing his call in warranty against Richardson. This appeal was lodged in this court on July 2, 1947.

On July 14, 1947, Richardson, warrantor and appellee in this appeal, filed a motion to dismiss the appeal and a plea of es-toppel. The motion to dismiss and the plea of estoppel are predicated on the following reasons: (1) That Snell, in his answer and call in warranty, prayed (a) for a judgment in favor of Naquin and against plaintiff, dismissing plaintiff’s suit at its costs; (b) that the claims of Naquin be denied; (c) that he, Richardson, be called in warranty and that in the event he, Snell, should be cast in the" call in warranty of Naquin, then in that event, he, Snell, should have judgment in like amount against him, warrantor of Snell;' (d) and “for all necessary orders necessary in the premises * * * and for all general and equitable relief”. (2) That that portion of the said judgment dismissing all calls in warranty was a necessary complement and in strict compliance with Snell’s prayer for general and equitable relief. (3) That a party in whose favor a judgment has been rendered, in strict compliance with his own prayer, cannot appeal. (4) That Snell is now estopped from denying the correctness of the judgment since it was in strict accordance and compliance with his own prayer.

On July 14, 1947, with reservation of his rights under his motion to dismiss the appeal and his plea of estoppel, Richardson answered the appeal, praying that the judgment dismissing Snell’s call in warranty be affirmed; and, in the alternative, then and in that event his call in warranty against Nastasi be maintained, and judgment rendered in his favor and against Nastasi.

It is the contention of Snell that no appeal on his part was necessary in the beginning, for the reason that under Code of Practice, Article 385, if the defendant be cast in the action, it necessarily follows that the judge must pass upon and render a judgment in favor of the defendant against his warrantor and that we should have thus rendered such judgment in his favor. However, he contends that as soon as he received a copy of our judgment, he took an appeal within the time prescribed by law, that is, Code of Practice, Article 393.

On motion to dismiss and the plea of estoppel.

It is apparent from the record that the demand of Naquin, the warrantee of Snell, was, in the judgment rendered, fully granted.

He had prayed for the non-effect of the chattel mortgage and the dissolution of the writ of sequestration, with damages. Such was the prayer of Snell’s, answer, and Richardson’s also. The remainder of Naquin’s and of the warrantors’ prayers in their answers, was for a call in warranty for a like judgment as might be rendered in favor of Naquin. Since judgment was not rendered against Naquin, we have our serious doubts that either Naquin or the warrantors had any right of appeal. It is now definitely settled that a litigant may not appeal from a judgment in his favor rendered in strict accordance with his own prayer. See State ex rel. John T. Moore Planting Co. v. Howell, Judge, 139 La. 336, 71 So. 529; White v. Hill, 10 La. App. 146, 122 So. 75.

Snell now contends that no appeal on his behalf was necessary in that the call in warranty was an ancillary demand, depending entirely on the outcome of plaintiff’s suit. He cites Code of .Practice Article 385, which reads as follows: “If the defendant is cast in the action, the judge, when he gives judgment against such defendant, must render at the same time judgment in favor of the defendant against his warrantor, for whatever indemnity may be due to such defendant.” He further contends that the dismissal of the calls in warranty by the trial judge was purely surplusage. Then for stronger reason, since it was surplusage, there was nothing from which he could appeal.

Furthermore, if the dismissing of the calls in warranty was surplusage and we should have been guided by Code of Practice, Article 385, then Snell, being an appellee, was called-upon, on the first hearing, to have answered the appeal, and request, in the alternative, to recognize his call in warranty as against his warrantor, Richardson, and to call, in his application for rehearing, to our attention the said Article. On the hearing of the case, Snell did not argue or furnish a brief, relying altogether on the arguments and briefs furnished this court 'by Naquin and Richardson. On his application for rehearing, he did not furnish a brief, relying solely on his appeal taken on June 2, 1947.

Since the calls in warranty were a part of the case on the original hearing, we feel that it was encumbent upon Snell to have answered the appeals taken by the plaintiff and Naquin as provided for by Code of Practice, Article 888. Since he failed to do so, he is foreclosed by Code of Practice, Article 889, from thereafter taking an appeal, regardless of Code of Practice, Article 593, which grants a devolutive appeal from a final judgment if taken within a year from the judgment’s rendition.

In the case of Hebert v. Lefevre, 31 La. Ann. 363, it was decided that a call in warranty was an incidental demand to the suit and must be determined with it. The controversy between the parties could not be divided. The incidental demand and the main action have been irrevocably linked to one another and have to be disposed of at the same time. It may be that we were mistaken in not considering the calls in warranty in our first opinion. However, it is now too late to reconsider the case in that our judgment has become final. It was up to Snell to ask for a writ from the Supreme Court to review our judgment. If he finds himself in a predicament, he has only himself to blarJie.

For these reasons this appeal is dismissed.


author: HARDY, Judge.

text:
    JENKINS v. CENTRAL CULVERT CO.
    No. 7054.
    Court of Appeal of Louisiana. Second Circuit.
    Rehearing Denied Dec. 17, 1947.
    Nov. 26, 1947.
    Dhu Thompson, of Monroe, for appellant.
    Theus, Grisham, Davis & Leigh, of Monroe, for appellee.
   HARDY, Judge.

This is a compensation suit in which plaintiff claims to have been totally and permanently disabled as the result of an accident, which occurred in the course of his employment by defendant, on or about the [13th day of February, 1946. Compensation was paid through date of May 16, 1946, and defendant denies liability on the ground that any injuries received by plaintiff have not continued to be disabling subsequent to said date.

After trial there was judgment in favor of defendant rejecting plaintiff’s demands, from which judgment plaintiff has brought this appeal.

There is no dispute as to the occurrence of the accident on the date set forth, nor as to the fact that plaintiff sustained some injury. The sole issiue tendered herein concerns the extent of plaintiff’s injuries and the duration of disability resulting therefrom.

At the time of the accident plaintiff, a 55 year old colored man, was working at a concrete mixer, standing on a slightly elevated runway between the mixer and a platform above the concrete floor of the plant. The conveyor belt broke and loosened pieces of timber above plaintiff’s head, apparently joists of the shed in which he was working, which scattered with some force in various directions. In attempting to escape from the danger of the flying pieces of timber plaintiff fell backward against the platform and thence to the concrete floor, sustaining injuries to his back. The accident occurred a short while before noon and plaintiff was taken to the company doctor for treatment some hour or so later. The testimony shows that plaintiff sat on the seat, of the cab of the truck during the ride from the plant to the doctor’s office and that he climbed the steps to the second floor of the building, in which the doctor’s offices were located, without assistance from any other person. Examination by the phy-sican, Dr. Morgan Simonton, disclosed no abrasions, lacerations, 'bruises or other objective signs of the injury which was then-diagnosed as a back sprain in the sacroiliac region.

Plaintiff continued under .the treatment of Dr. Simonton until April 19, 1946, at which time payment of compensation was terminated, and he consulted an attorney, who had examinations made, and, subsequently, made demand upon-the company for .compensation. Payments of compensation and treatment of plaintiff were resumed until May 17, 1946, on. which date plaintiff was discharged from treatment and payment of compensation was terminated.

In determining this matter it is necessary to establish the existence vel non of back injuries as well as the extent and effect thereof. Always a difficult problem for solution, the case at hand is further complicated by the complete disagreement in opinion between the medical experts who testified as witnesses. The trial consumed parts of three days and the transcript of evidence comprehends 154 pages of which more than 125 pages consists of the highly technical testimony of nine medical experts, four of whom testified on behalf of, plaintiff and five on the part of defendant.

Plaintiff's principal medical witness, Dr. C. H. Mosley, testified that the injuries consisted of a fracture through the lamina of the fifth lumbar vertebra on each side; a crushing of the fourth lumbar vertebra; a marked scoliosis; a crushing injury to the third lumbar vertebra; and callous formations between the third, fourth and fifth lumbar vertebra, all; resulting from the injury sustained.

The existence of most, if not at all, of the back conditions described by Dr. Mosley were substantiated by the opinions of Dr. H. V. Collins, Dr. J. E. Walsworth and Dr. I. J. Wolff. All of these witnesses expressed the opinion that plaintiff was permanently and totally disabled from performing manual labor.

The opinions expressed by plaintiff’s witnesses were flatly contradicted by the medical experts who testified on behalf of defendant, namely, Dr. Morgan Simonton, Dr. W. L. Smith, Dr. A. Scott Hamilton, Dr. D. M. Moore and Dr. John G. Snelling, who concurred in the opinion that plaintiff had not sustained any serious injuries as the result of the accident of February 13, 1946, which proved disabling .after May 17, 1946.

In connection with the testimony of the medical experts several x-ray films were introduced in evidence which are described by exhibits numbers as follows:

(a). P-1 and P-5 made by Dr. Mosley on April 19, 1946;

(b). P-2, P-3 and P-4 made by Dr. Mosley on September 19, 1946;

(c). D-l and D-2 made by Dr. D. M. Moore on February 22,1946, at the request of Dr. Simonton;

(d). D-3 and D-4 made by Dr. Moore on July 30, 1946, at the request of Dr. Hamilton.

(e). D-5 and D-6 made by Dr. W. L. Smith on February 6, 1942 (in connection with diagnosis of an alleged back injury received by plaintiff while employed by Commercial Solvents Company).

, The testimony in connection with the x-ray films, which unquestionably must be considered as being of prime importance in any diagnosis of the character of injuries-involved in this case, was given as follows

For plaintiff:

(a). By Dr. C. H. Mosley, a physician who has been practicing since 1907, but who was not qualified, insofar as the record discloses, as an expert x-ray technician or roentgenologist, and whose own testimony is to tifie effect that it has been his custom in his practice to interpret x-ray films made by a machine which he owned and operated.

(b). Dr. H. V. Collins,' a general practitioner of some 36 years standing, who made a complete physical examination of plaintiff, but who testified that he made little attempt at x-ray interpretation, customarily depending upon explanations and interpretations by a qualified roentgenologist.

(c). Dr. J. E. Walsworth, .a qualified surgeon, practicing since 1914, who made an examination of plaintiff on the 16th or 17th of September, 1946.

(d). Dr. I. J Wolff, who- has been a general practitioner since 1921, who made an examination of plaintiff on September 13th and 14th, 1946, and who testified that his interpretation of x-ray pictures is limited, but that the pictures involved in this, case were so plain as to render the opinion of a roentgenologist unnecessary.

For the defendant:

(a). Dr. W. L. Smith, a specialist in x-ray diagnosis and treatment since 1926, and who was at the time of trial the radiologist in charge of x-ray work for the Conway Memorial Hospital in Monroe.

(b). Dr. Morgan Simonton, who has been practicing medicine since 1933, and who was the physician who examined plaintiff on the day of the injury and treated him for his back condition until May 17, 1946.

(c). Dr. A. Scott Hamilton, a graduate of Tulane Medical School in 1931; surgical interne at the University of Minnesota, 1931-32; teacher of anatomy in said school, 1932-33; a fellow in orthopedics at Louisiana State University and Charity Hospital at New Orleans, 1933-36; practitioner of orthopedics in Monroe from 1936 to 1941; a member of the armed services, 1941-46, in which time he rose from the rank of First Lieutenant to that of Colonel, and was, among other distinguished services, Chief of Orthopedics and Chief of Surgery at Camp Claiborne Hospital, and surgical consultant to the Eighth Army in the Philippines and Japan.

(d). Dr. D. M. Moore, who has been practicing medicine since 1913, and who has been specializing in x-ray diagnosis and treatment for some 25 years and was at the time of trial of this case the roentgenologist of the St. Francis Sanitarium at Monroe, in charge of all x-ray work for that institution, having occupied that position for 21 years prior thereto.

(e). Dr. John G. Snellings, who has been practicing since 1924, and who testified that a considerable portion of his practice necessitated the interpretation of x-rays in connection with traumatic surgical work.

We think no useful purpose would be served by an attempt on the part of this Court, made up of laymen, who are unqualified by education, training or experience to pose as experts in the field of medical science, to enter into a detailed discussion and analysis of the highly involved and supertechnical testimony of the learned gentlemen named above, whose unquestionable qualifications have been set forth more or less in detail, particularly in view of the fact that the expressions of opinions as to the conclusions reached as between these distinguished doctors are irreconcilable.

After careful examination and consideration of all of the medical testimony, we have no hesitancy in expressing the opinion that the same definitely preponderates in favor of the. contentions made by defendant in this case. With due deference and the utmost respect to all the medical experts as to the sincerity of their opinions, we are impelled to feel that because of the highly specialized qualifications of defendant’s witnesses in the fields of orthopedics and x-ray diagnosis they have better established and justified the basis for their conclusions.

But, departing for the moment from further discussion of the medical testimony, we feel it desirable to give some attention to the testimony of lay witnesses and to other circumstances in connection with complainant’s contentions which properly are entitled to consideration as having important bearing upon the determination of this case.

The learned Judge of the District Court quoted in' his written reasons for judgment that plaintiff “gave the court an impression of unreliability and could have misrepresented personal history and subjective conditions to the several examining physicians.”

We think the record amply justifies the impression made upon the trial Judge. Plaintiff, after denying any previous back injury in his testimony on direct examination, later admitted on cross-examination that he had forgotten about his employment by Commercial Solvents at Sterling-ton and a back injury which he had received in the employ of said company in February of 1942. Plaintiff’s lapse of memory is rendered the more inexplicable in consideration of the fact that in answer to a question on cross-examination, apparently without hesitation, he gave the exact date of the settlement which he had made on the claim resulting from the injury he had forgotten.

Dr. Simonton, who was the physician in charge of treatment of plaintiff, testified that plaintiff’s complaints of pain and suffering increased after treatment; that because of these complaints he had x-rays made some week or 10 days after plaintiff was injured, and that, despite the continuance of treatment, plaintiff appeared to be getting worse rather than better.

The pattern of plaintiff’s conduct, as expressed by Dr. Simonton, is practically identical with that which was testified to by Dr. Snellings, who treated plaintiff for the back injury which he allegedly received on February 6, 1942. Dr. Snellings testified that the x-rays taken at that time indicated the existence of an old back trouble; that after treating plaintiff he appeared to get worse rather than better, despite what the doctor regarded as an apparently trivial injury; that as a result he sent plaintiff to Dr, Durham of Shreveport and to Dr. Guy Caldwell at New Orleans for examination, following which plaintiff’s claim was settled out of court; and that, in his opinion, the plaintiff was definitely malingering at that time.

The joint petition, judgment and release in connection with plaintiff’s claims resulting from an alleged injury of February 6, 1942, are comprehended in the record, and evidence the fact that a compromise settlement was entered into on the basis of payment of the sum of $250 in addition to amounts previously paid, which were shown to have been made at the rate of $10.40 per week for a period of 12 weeks.

In the attempt to substantiate his awn testimony plaintiff produced the testimony of two colored friends, but, like the District Judge, we do not find that this testimony has any material bearing upon the case.

We feel assured that neither plaintiff’s counsel nor the doctors, who examined him and depended upon his narrative of personal history in connection with such examination, were acquainted with the facts concerning the accident and alleged injury which had taken place some four years prior to the date of the accident here involved.

In consideration of all of these facts, and further in view of the judgment of the lower Court in which we find no error, we have experienced no difficulty in concluding that plaintiff’s demands were properly rejected.

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

KENNON, J., absent.


author: OTT, Judge.

text:
    DELAHOUSSAYE v. CITY OF NEW IBERIA.
    No. 2967.
    Court of Appeal of Louisiana. First Circuit.
    Dec. 30, 1947.
    Rehearing Granted Feb. 2,. 1948.

      Helm & Simon, of New Iberia, for appellant.
    O. J. Mestayer, Jacob S. Landry, and Guyton H. Watkins, all of New Iberia, for appellee.
   OTT, Judge.

The plaintiff filed this suit against the City of New Iberia-to recover damages in his own behalf in the sum of $309.50 and in behalf of his minor son, Albert Delahous-saye, Jr., in the sum of $10,500, on account of personal injuries received by said minor son on February 16, 1946, when he fell off a bridge across a ditch of canal in said City.

It is charged in plaintiff’s petition that the bridge on which Delahoussaye, Jr., fell was defective and that the City had actual or constructive notice of the defective condition of this bridge; that the City dug a drainage ditch through the City some four years ago, which ditch is about 6 feet wide and four feet deep; that two o.r three years ago, the City built sidewalks along the avenue. across which this ditch passes, and in-order to afford a passage of the. sidewalk over this ditch, the City built a bridge over this ditch with hoards about twelve inches wide; that said bridge had no side rails and no supports at the bottom to keep .the. bridge from sagging; that because of the sagging of the middle plank in said bridge and the other defects permitted to exist in the bridge, the said minor tripped on the center plank and fell on his back and then fell to the ground, injuring his side and spleen, requiring an operation for the removal of his spleen.

The answer of the City is a denial of negligence on its part, and a denial of notice, actual or constructive, of any defects in the bridge, if any defects existed; and, in the alternative, it is alleged that the injury caused to young Delahoussaye resulted from his own careless and reckless use of said bridge by jumping up and down on the bridge while crossing it.

The trial judge rendered a judgment in favor of the defendant on the ground that the City did not have any notice, actual or constructive, of the defective condition of the bridge. From the judgment of dismissal, plaintiff has appealed.

There are four principal questions presented in the case: First, was the bridge defective; second, did the City have actual or constructive notice of the defective condition of the bridge; third, if the City was negligent, was the minor child guilty of such contributory negligence as to bar his recovery; and fourth, if there is liability on the part of the City, the amount of damages ?

The evidence shows that the bridge in question forms the sidewalk across a six foot ditch or canal and the bridge is the same width of the sidewalk — three feet. The bridge was built of three planks eighteen feet long and each plank 12 inches wide and three inches thick. Both ends of the boards extended over both sides of the ditch about six feet. When the bridge was first constructed it had braces or supports under it to keep the boards from sagging. For some four or five months before the accident these, braces or supports had either washed out or had rotted and given way so that the middle plank was resting on the ground on each side of the ditch lower than the other planks, and when a person would walk across the bridge the middle plank would'sag. Just how much this center plank would sag is variously estimated by the witnesses from one inch to twelve inches. There was no railing on either side of the bridge.

Two witnesses testified that they fell on this bridge a few months before the Dela-houssaye boy fell on it, one of these witnesses testifying that he quit passing over the bridge after he fell on it. There is no doubt but that the middle plank across the ditch was lower than the other planks, and when a person would cross the bridge this plank would sag and shake. The City had the bridge repaired the same day the boy was injured by putting braces under the boards and railings on the sides.

A municipal corporation owes a duty to the public to keep its sidewalks, streets and bridges in such condition that pedestrians who are ordinarily careful will not be exposed to danger. Lemoine v. City of Alexandria, 151 La. 562, 92 So. 58. A bridge made of three long planks resting on the ground or bulkheads across a six foot ditch with no railings on the sides and with the planks uneven and the middle plank sagging when a person puts his weight on it could hardly be said to be a safe bridge where many pedestrians pass over the bridge daily.

Mr. Lopez who lives on the opposite side of the street from where the boy fell testified that he told the street commissioner in September, 1945, that children were playing on the bridge and that it needed some repairs to which the commissioner replied that he was too busy at the time putting down gravel. The street commissioner denied that he had such a conversation with Mr. Lopez. This is about the only evidence in the record tending to show that the officials of the City had actual notice of the defective condition of the bridge before the accident occurred. The trial judge .made the following comment on this part of the testimony: “It seems however, that Mr. Lopez’s complaint can hardly put the City on notice that the bridge was unsafe for pedestrian trayel, as it mentioned only the fact that children would play on it and that in doing so the bridge would sway.”

We do not understand the trial judge to mean that Mr. Lopez did not have the conversation with the street commissioner about the bridge, but that the conversation was not of such a nature as to give him actual notice of the condition of the bridge. If Lopez did have the conversation with the street commissioner which he related, it was certainly of such a nature as to put this official on notice that something should be done about the bridge. While the trial judge found that the bridge had been in a defective condition for not over five months, he concluded that this was not a sufficient length of time for the bridge to remain in this condition to charge the City with constructive notice of the condition by reason of its duty to make inspections at periodic intervals.

The street commissioner testified that he makes inspections of the streets every six months or oftener. He says there are 150 to 200 bridges in the City, but he admits that most of these are small one plank crossings placed over the ditches by private individuals to enable them to get to their property. He admits that the bridge on which the boy fell is about the longest bridge in the City. He says that the bridge was inspected before the boy fell on it, but he could not say how long before the accident occurred.

The decided preponderance of the evidence is to the effect that this bridge had ■been in a defective condition for at least four or five months before the accident. In our opinion, this was sufficient time for the proper city officials to find out about the condition of one of its longest bridges and one over which many pedestrians passed daily, and concerning which at least ■some kind of complaint had been made to the street commissioner some five months before the accident.

It was held in the case of Smith v. City of New Orleans, 135 La. 980, 66 So. 319 (a case similar in some respects to the present case), that where a city makes bridges and coverings of wood which is subject to rot and decay, the municipality is under the duty to inspect these structures regularly in order to ascertain their condition and make proper repairs where, because of decay in some of the material, the structure might become dangerous. In the case of Parker v. City of New Orleans, La.App., 1 So.2d 123, the court held that the city had constructive notice of a defect in the sidewalk where the condition had existed for two months. See also Kernstock v. City of New Orleans, La.App., 147 So. 371.

Considering the nature of the bridge in question, its use and importance, we are of the opinion that, if the City did not have actual notice of the ¿ondition of the bridge, it is charged with constructive notice of its defective condition.

The next and most serious question is whether or not young Delahoussaye was guilty of contributory negligence. He was about eleven years old at the time of the accident and was in the third grade at school. His father and mother had warned him to be careful in crossing this bridge. He had crossed the bridge many times before. The accident happened in broad open daylight. He says he was walking on the side plank and he nearly fell in the ditch and then put his foot on the middle plank and this plank bounced and he fell on the bridge and rolled over in the ditch. He says he was not jumping or running on the bridge, but that he was walking “kinder fast.” On being asked how long he had known the bridge was supposed to be in bad condition, he replied:

“A few months. You would walk on it and it would bounce back.” Plaintiff’s witness Lopez testified that the boy was trotting like a child as he came over the bridge.

A child under twelve years of age, even though he is capable of contributory negligence, is not held to the same degree of care and caution as is required of a mature person. Whether or not such a child is guilty of such contributory negligence as to bar recovery depends on his capacity, his degree of maturity and the particular circumstances of the case.

In the case of Lorenz v. City of New Orleans, 114 La. 802, 38 So. 566, 567 a girl nine years old was held not guilty of contributory negligence when she stepped in a hole in the street during the twilight period. The girl was running across the street and her foot struck the covering of a fire well. Her foot went through a hole in a rotten plank, injuring her hip. The court said in that case:

“We do not think that there is any good ground for the plea of contributory negligence, based on the facts that the child on the previous evening saw a boy drawing water from the well, and that she ran diagonally across the street, instead of using the regular crossing. A child must 'be judged as a child, and there is nothing to show that she knew that it was dangerous to cross the covering of the well.”

The situation is different in this case, as young Delahoussaye was older than the girl in the cited case, and he not only knew of the dangerous condition of the bridge and had crossed it many times, but he had also been warned by both of his parents to be careful in crossing the bridge. Moreover, the condition of the bridge was apparent to any one who crossed it in the day time, and there was no condition of darkness or obscurity to prevent the defects in the bridge from being seen by this boy as he “walked fast” or “trotted” across the bridge.

In the case of Cato et al. v. City of New Orleans, La.App., 4 So.2d 450, a thirteen year old child was excused from the charge of contributory negligence when she tripped on a loose brick in the sidewalk on the ground that the accident occurred at night when visibility was affected by the shades of night.

The alleged contributory negligence of persons sustaining injuries by falling on defective walks or streets has been excused in many cases for the reason that the defect in the walk was not apparent or easily observed, such as was the condition in the case of Parker v. City of New Orleans, supra, and the recent case of Rodrigues et ux. v. City of Sulpher, La.App., 28 So.2d 771. Or in those cases where the accident occurs at night and the injured person is not familiar with the condition of the walk or street. But where the injured person is familiar with the condition of the walk or bridge and the accident happens in the day time, a much greater degree of care is required. Where the pedestrian is familiar with the condition and could see and avoid the danger if he keeps a proper lookout, his negligence will bar his recovery.

In our opinion, the following two cases have considerable application to the present case: Cusimano v. City of New Orleans, 123 La. 565, 49 So. 195, and Bodenheimer v. City of New Orleans et al., La.App., 18 So.2d 224.

Our conclusion is that the Dela-houssaye boy was guilty of such contributory negligence as to bar his recovery, and for that reason the judgment which dismissed his claim and that of his father is hereby affirmed.


text:
    WEEKS v. SEAMAN.
    No. 2958.
    Court of Appeal of Louisiana. First Circuit.
    Dec. 30, 1947.
    Julian C. Hunter, of DeRidder, for appellant.
    Kay & Kay, of DeRidder, for appellee.
   DORE, Judge.

Plaintiff brought this suit to annul and set aside a tax deed to defendant of an undivided one-half interest in and to the Sy2 of SWy4 of Section 15, T-4-S, R-8W, containing approximately 80 acres, situated in the Parish of Beauregard. The tax sale was made on June 19, 1943, for the delinquent taxes of 1942 due on the whole of the property. A certified copy of the tax deed was attached to the petition and was made a part thereof. According to the tax deed, at the tax sale, no particular portion of said property was pointed out by the tax debtor. The Sheriff, ex officio tax collector for the Parish of Beauregard, then offered the least portion of said property for an amount sufficient to pay the taxes, interest and costs due thereon. Under such offering and in response to a bid submitted by the defendant, the sheriff, ex officio tax collector, proceeded to offer the undivided one-half interest in the whole of said property for the taxes, interest and costs due by the said plaintiff, and adjudicated the said undivided one-half interest in the said property to, defendant, he being the last and highest bidder.

The plaintiff alleges that the adjudication and the deed executed thereon are null, void and without legal effect because the 80 acre tract of land, being without improvements, was at the time of the sale and is now divisible in kind of equal area in portion and value; and since the property was and is divisible in kind, the Sheriff, ex-officio tax collector, had no authority to sell an undivided one-half interest in and to said property.

Defendant, in answer, contends that the adjudication and sale are proper and legal in all respects. He particularly denies that the property was and; is divisible in kind and further denies that the property could have' been offered in separate or specific smaller tracts less than the whole.

The trial of the case resulted in a judgment, with written reasons assigned, in favor of plaintiff and against the defendant annulling and setting aside the tax sale and ordering its cancellation from the records of the Parish of Beauregard, upon plaintiff reimbursing the defendant for the taxes, interest and costs. Defendant has appealed.

Defendant filed in this court an exception of no cause of action, contending that since, according to plaintiff’s allegations, the tax sale was made in strict compliance with the provisions of the Constitution of 1921, as amended, Article 10, Section 11, which said Constitutional Article is self-operative, plaintiff’s petition does not show that the tax sale of the undivided interest in the land in question was in violation of any law. In the alternative, defendant contends that if any act or acts of the legislature might have been violated, then and in that event such legislation is inconsistent with the constitutional provisions supra and has been repealed or is therefore unconstitutional.

The consideration of the exception necessarily embodies the consideration of the merits of the case, and we .shall treat the two as one.

Article 10, Section 11 of the Constitution of 1921, reads as follows: “There shall be no forfeiture of property for the nonpayment of taxes, but at the expiration of the year in which said taxes are due, the collector shall, without suit, and after giving notice to the delinquent in the manner provided by law, advertise for sale in the official journal of the parish or municipality, provided there be an official journal in such parish or municipality, or if not, then, as is now or may be provided by law for sheriff’s sales, the property on which the taxes are due in the manner provided for judicial sales, and on the day of sale he shall sell such portion of the property as the debtor shall point out; and in case the debtor shall not point out sufficient property, the collector símil, at once amd without further delay, sell the least quantity of property which any bidder will buy for the amount of taxes, interest and costs. The sale shall be without appraisement * * ⅜”. (Italics ours.)

A research of the several constitutions of the State shows that such a provision did not exist in the Constitution of this State prior to the Constitution of 1879. We find, however, practically verbatim the part of Section 11, supra, in the Constitution of 1879 as Art. 210, and in the Constitutions of 1898 and 1913 as Art. 233.

As stated supra, prior to the constitution of the State adopted in 1879, there were no constitutional provisions relating to the tax sales of real 'property. However, the Supreme Court, in the case of McDonough v. Elam et al., 1 La. 489, 20 Am. Dec. 284, had under consideration the question of whether the tax collector could legally sell an undivided interest in several lots. In disposing of that question, the Supreme Court stated:

“We are not acquainted with any difference between a forced sale for taxes, and one under a fi. fa. except the mode and period of advertising, and the form of the deed.

“A sheriff must seize the property he sells, and have it ready to show, or point out to the purchaser that he may possess himself of it, if it be susceptible of actual possession. He cannot sell an undivided part of the defendant’s property or chattel or piece of land. For many a purchaser would be deterred from buying that of which he could not obtain the possession without entering into a contract, or instituting a law suit, and the defendant, though he must submit to have a determinate and specific part of his property taken away cannot be compelled to have a co-owner unnecessarily and gratuitously imposed on him with whom he must have a voluntary or legal partition.

“In the present case less than ten dollars were due by one of the parties and-by the other, he therefore should have begun by selling one lot and then another, till he had raised a sufficient sum, or at least put up one determinate square, without selling at once, twelve indefinite lots.

“Surely if a man has twenty Negroes on whom taxes are due, one of these may be taken and sold — and more if necessary: but the sale of the twentieth of all the slaves, would likely be productive of unnecessary sacrifice to the owner, and trouble to him and the purchasers.

“He who sells his own property, may do so in any manner which will be agreed on by a vendee, but an officer who makes a forced sale has no right to carve out any particular estate unnecessarily and gratuitously, without the consent of the owner.

“We conclude that the sale made by the treasurer, was irregular.”

The Constitution of 1879, Art. 210, provides that: “There shall be no forfeiture of property for the non-payment of taxes, State, levee district, parochial or municipal, but at the expiration of the year in which they are due the collector shall, without suit, and after giving notice to the delinquent in the manner to be provided by law (which shall not be by publication except in case of unknown owner) advertise for sale the property on which the taxes are due in the manner provided for judicial sales, and on the day of sale he shall sell such portion of the property as the debtor shall point out, and in case the debtor shall not point out sufficient property, the collector shall at once and without further delay sell the least quantity of property which any bidder zmll buy for the amount of the taxes, interest and costs. The sale shall be without appraisement,” etc. (Italics ours.)

When this Constitutional Article was adopted, it is reasonable to presume that the members of the Constitutional Convention were cognizant of the holding of the Supreme Court in the case of McDonough v. Elam, supra, that a sale of an undivided interest in a tract of land divided (or subject to be divided) in lots or squares was improper, otherwise the Convention would have expressed themselves differently.

In the case of The Gulf States Land & Imp. Co. v. Succession of Fasnacht, 47 La. Ann. 1294, 17 So. 800, 801, decided in 1895, the Supreme Court had under consideration the annulment of a tax sale as being in contravention of Art. 210 of the then Constitution and the interpretation of that portion of the article relative to the sale of the least quantity of the property to be sold. The following excerpt from that decision is apropos in this case: “As Burroughs puts it, dealing with statutory requisites not stronger, if as emphatic, as our constitution, requiring the least quantity to be sold: The same principle would be enforced by the courts if. there was no statute. The general principle as to sales by sheriffs and tax collectors is often enforced on grounds of equity and reason, which forbids selling a whole tract when a few acres would be sufficient. Burroughs, Taxation, c. 15, § 113. It would be more satisfactory if legislation had provided the method of division for sale by the tax collector of land assessed for taxes inconsiderable in proportion to the value of the property. Still, we cannot hold the constitutional requirement in this respect to be less stringent because of the absence of such legislation. In this case there were two distinct portions of property, each, too, susceptible of at least the division of setting apart the quantity apt to produce readily the sum required to discharge the small amount of unpaid taxes. We cannot appreciate that any serious attempt was made to comply with the requirement of selling the least, quantity. No specific quantity was offered. There is. the statement in the deed that the entire property was the least quantity any one would purchase, and, in the testimony, that the collector first offered to sell a portion, and, there being no bid, he proceeded to sell the whole. This imports no compliance with his duty. That was to offer for adjudication a portion, so that the purchaser would know the extent and situation of the property proposed to be sold, and so that delivery could be made. Nothing of the kind was done or attempted.” (Italics ours.)

Again, the Supreme Court, in the case of Bristol v. Murff, 49 La.Ann. 357, 21 So. 519, decided on February 1, 1897, had under consideration Article 210 of the Constitution. The following extract from this decision is appropriate: “The failure of the tax collector to comply with Article 210 of the constitution is more serious than the other reasons alleged for the nullity of the sale. The tax deed is prima facie evidence of a valid sale. Its recitals, however, are not conclusive, but may be contradicted as to the essentials required for a valid tax sale. One of these essentials is that the tax collector shall ‘sell the least quantity of property which any bidder will buy for the amount of the interest, taxes and costs.’ * * * The lot contained 197½ acres. It was easy of subdivision, and could have been offered in less quantity than the whole tract * * * Whenever the property can be conveniently offered in less quantity than the entire tract, the compliance with the article of the constitution is imperative. In municipalities, when the lots have a designated size, it is impractical to offer less than the minimum size of the lot prescribed by municipal ordinances.” The court approved its holding in the case of Gulf State Land & Improvement Co. v. Succ. of Fasnacht, supra.

The effect of these decisions is that, to be in accord with the then constitutional mandate, the tax collector, when the property offered for sale is easy of subdivision, shall offer a subdivision of the said property and when the said property is not easy of subdivision then he shall offer for sale the whole of the property or an undivided interest therein.

In line with the suggestion of the Supreme Court in the case of Gulf State Land & Improvement Co. v. Succ. of Fasnacht, supra, that the legislature should provide the method of division for sale by the tax collector of land assessed for taxes, Section 64, Act No. 170 of 1898 (Dart’s Statutes, Sec. 8491), was passed. That section reads as follows: “The tax sale shall convey and the purchaser shall take the whole, if it is the least quantity or a part of the whole or an undivided interest, if the property is not .divisible in kind, of the property assessed to the delinquent taxpayer. It being the intention of this section, that the purchaser shall only bid an amount to cover all accumulated taxes, interest, penalties and costs and the collector shall not entertain a bid in excess thereof, and if there are bidders, the collector shall require the bid or bids to be for a lesser portion of the whole property, sufficient in quality (quantity) to satisfy the aggregate of all taxes, interest, penalties, and costs.” If the suggestion of the Supreme Court did not prompt the 'legislature to adopt this section, then it cannot ■but be said that the statute embodies the interpretation by the Supreme Court of Article 210 of the Constitution of 1879, and cannot be said to be in conflict with said Article 210. It is not a legislative application and interpretation of the phrase or clause shall “sell the least quantity of property”, but as stated again it is merely a procedural legislation of the application and interpretation of that clause as evidenced by the Supreme Court’s decisions, supra, which said procedural legislation is an entirely reasonable one.

Since that phrase or portion of Article 210 of the Constitution of 1879 is verbatim the same as found in Article 10, Section 11 of the Constitution of 1921, and since Section 64 of Act No. 170 of 1898 is not in conflict with Article 210 of the Constitution of 1879, it then follows, as night the day, that the said Section 64 is constitutional with regard to Article 10, Section 11 of the Constitution of 1921. The Constitutional Convention of 1921 must have taken cognizance of the decisions of the Supreme Court relative to the interpretation of Art. 210 of 1879 since it enacted said Section 11 practically verbatim, particularly so the phrase under discussion.

In the language of the trial judge, “The above described property comprises approximately 80 acres of rural land located in a sparsely settled part of the parish. A public road runs along the west side of the tract, and this road is the only practical existing means of ingress and egress to and from any part of such land. No houses, buildings, fences, wells or other improvements are located on the property. Approximately 40% of the-property is denuded, cut over highland and the remaining 60% is low swampy land, having a growth of hardwood, pine and underbrush. The headwaters of a creek cross this land and a large portion of the property floods annually and remains under water for several months at a time.

“Insofar as the surface of this property is concerned, it is obvious that it can be divided in kind. The dividing line may run north and south, east and west, or in any other direction, or it may consist of natural markings such as the creek which crosses the land.”

“Under the provisions of the above cited act, the tax collector is authorized to sell an undivided interest in the property assessed to the delinquent taxpayer only when such property is not divisible in kind. Neither the tax collector nor the Court is allowed to disregard the rules prescribed by the statute and to sell or maintain sales for taxes made in a manner different from that prescribed by law.

* * * * * *

“Defendant contends arguendo that a division of this property in kind would cause a diminution of its value or loss or inconvenience to one of the owners, and for that reason a division in kind is prohibited by Articles 1336, 1339 and 1340 of the Revised Civil Code. These articles of the Civil Code relate to judicial partitions of property belonging to co-heirs or co-owners where it is necessary that each co-owner receives a portion of the property which will correspond in value to his interest.

“* * * It might be mentioned, however, that in these articles of the Civil Code two types of property are recognized, namely, property which is indivisible by nature and property which cannot be conveniently divided. In a judicial partition neither type of property may be pardoned in kind, whereas in a tax sale all types of property, except that which is indivisible by nature, must be offered for sale or sold in separate portions.,. In a tax sale, if the property is divisible by nature an undivided interest in the property may not be sold even though the property cannot be conveniently divided within the meaning of Article 1340 of the Revised Civil Code. This court does not consider the 80 acre tract of unimproved land involved in this suit to be indivisible by nature.”

During the trial of the case, the defendant offered to prove that the property involved had potential mineral value or, as expressed by his counsel, “might produce oil, gas or other minerals until proved dry.” Plaintiff objected to the admissibility of this evidence as being irrelevant and immaterial to the issues of the case, which objection was sustained. Defendant complains of the ruling of the lower court. From the record, we gather that such evidence excluded consisted of testimony or written documents to the effect that other landowners in the neighborhood had leased their properties for mineral development. There is no evidence in the record that the land in question was within any proven oil, or other mineral territory. The ruling was correct. The evidence sought to be introduced was irrelevant and immaterial to the issue in the case and that is, the divisibility, vel non, by nature of the property at the time of the tax sale.

The defendant cites and strongly relies on the case of Gulf Refining Co. v. Hayne et al., 138 La. SSS, 70 So. 509, L.R.A. 1916D, 1147, Ann.Cas.l917D, 130, in substantiation of his position that the evidence was admissible. Suffice it to say that the mere reading of this case will show that it is altogether inapposite to our case.

Since we agree with the trial judge that the eighty acre tract of land was easily divisible into lots of equal area and value, and applying the decisions, supra, of the Supreme Court to this case, we find that the judgment of the trial court is correct.

For these reasons, the judgment appealed from is affirmed.


author: HARDY,' Judge.

text:
    KUHLMANN v. PURPERA.
    No. 7152.
    Court of Appeal of Louisiana. Second Circuit.
    Dec. 17, 1947.
    Riddle & Riddle, of Marksville, for ap^ pellant.
    ' S. Allen Bordelon and Marc Dupuy, both of Marksville, for appellee.
   HARDY,' Judge.

This is a suit in which plaintiff seeks to recover the sum of $1,500 alleged to be the amount due by defendant as the purchase price of a certain 1941 model GMC Truck and Nabors Trailer. Writs of sequestration were issued under which the truck in question was seized.

Defendant resisted plaintiff’s demands on the ground that the truck was affected with hidden defects of whose existence defendant was not aware at the time of the sale, which defects prevented the truck from performing the services for which it had been purchased, and rendered the same useless to defendant. After trial there was judgment in favor of defendant rejecting plaintiff’s demands and dissolving the writ of sequestration, from which, judgment plaintiff prosecutes this appeal.

On February 13, 1947, the¡ parties to this suit entered into1 an agreement under the terms of which the plaintiff, Rex Kuhlmann, sold to the defendant, Frank Purpera, a truck and trailer for a total consideration of $1,500, the sum of $1,000 being paid in cash with the obligation, to pay the balance of $500 two weeks from the ■ date of the agreement.

The payment of $1,000 was evidenced by check of the defendant but, when presented for payment to the drawee bank, same was refused upon instructions from defendant to stop payment. Whereupon, demands for payment upon defendant by plaintiff being without avail, this suit was instituted.

The truck was purchased by the defendant for use in his logging operations and he contends that plaintiff warranted the truck to be serviceable and satisfactory for such purpose; that after several days’ trial it became evident that the truck, because of mechanical defects, was unfit for the use contemplated and desired, whereupon he stopped payment on the check which had been given to1 plaintiff and advised plaintiff to come and get his truck.

In support of his asserted right to payment of the purchase price plaintiff claims that the only defects affecting the operation of the truck at the time the sale was made were'of a minor and inconsequential nature, and that the serious defects with reference to lack of power, defective steering, excessive consumption of oil, etc., asserted by defendant, resulted from the latter’s improper use and operation of the truck, which defects, as a fact, did not exist at the time of the sale.

There is no serious issue in this case as to the law applicable. While it is true that plaintiff’s counsel contends that the sale was made “as is”, he nonetheless makes the correct admission that such fact does not relieve the seller of all warranty but. only puts the buyer on notice as to qualifications of the implied warranty in a sale of this, nature.

The general law applicable is set forth in Article 2475 of the Civil Code, which provides that the seller is bound to two principal obligations, that of delivering and that of warranting the thing which he sells. It is well established that, warranty being implied in all sales, a vendor warrants the thing sold to be fit for the use for which it was bought, and the sale of movable property, “as is,” even though second-hand, does not relieve the vendor of all warranties. Fabacher v. Ghisalberti, 18 La.App. 599, 139 So. 71.

. It is therefore evident that the issues in this case resolve themselves into questions of fact for the purpose of determining whether plaintiff qualified his warranty to such extent as relieves him of responsibility for the existing defects, and whether the defects actually existing at the time of the sale were sufficient to relieve defendant of his obligation to purchase.

The record in this case comprehends a mass of detailed testimony, pro and con, with reference to the agreement between the parties, the circumstances surrounding the negotiations for the sale, and the condition of the truck, all of which testimony was carefully analyzed by the able District Judge in a written opinion.

There are certain undisputed facts which may be gleaned from the record and which have a material bearing upon the determination of this matter. The truck in question was of a type described as being a 10-wheel drive, 6x6 G.M.C.-G.I. truck. There is no question as to the fact that both parties to the transaction understood that the truck was being purchased by the defendant for use in logging operations and, therefore, necessarily intended for rough usage. We think it has been satisfactorily established by the testimony that plaintiff represented the truck as being in good condition and suitable for such use. Therefore, the rights of the purchaser to an avoidance or rescission of the sale would fall under the provisions of Article 2529 of the Civil Code:

“Good faith mistake as to quality of article by seller — Effect.—A declaration made in good faith by the seller, that the thing sold has some quality which it is found not to have, given rise to a redhibition, if this quality was the principal motive for making the purchase.”

The burden of proof which is laid upon the purchaser, the defendant in this action, is plainly set forth in the following codal article, 2530:

“Vice — Existence before sale — Proof.— The buyer who institutes the redhibitory action, must prove that the vice existed before the sale was made to him. If the vice has made its appearance within three days immediately following the sale, it is presumed to have existed before the sale.”

There is no question in our minds as to the adequate discharge of this burden of proof by the defendant in this case. It is established by a yast preponderance of the testimony that the trial runs of the truck made during the period of some two or three days before the actual agreement of sale were unsatisfactory. The defects and vices which were evident at this time consisted principally of stoppage of the gas line, lack of power, and difficulty in steering. And it is equally well established that these defects became more pronounced.and that other hidden vices came to light well within three days after the consummation of the negotiations between the parties. These defects and vices consisted of an exaggeration of those which had been noted before the sale, together with the development of a serious lack of power, an unreasonable consumption of oil, and a critical defect in the steering apparatus which, according to the testimony, made the operation of the truck not only difficult but dangerous. There can be no reasonable doubt as to the immediate development of these defects and vices inasmuch as the driver of the truck testified that he refused to continue in such capacity, and so advised the defendant the day following the sale, ati which time defendant notified the bank to stop payment on the check which he had delivered to plaintiff, and sent word to plaintiff to come for his truck.

After careful study of all the testimony in the record, we are convinced that defendant has established that the truck was not suited for the purpose intended, by reason of vices and defects which existed at the time of the sale.

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

KENNON, J., absent.


author: TALIAFERRO, Judge.

text:
    SLAUGHTER v. LIBERTY MUT. INS. CO. et al.
    No. 7146.
    Court of Appeal of Louisiana. Second Circuit.
    Dec. 17, 1947.
    Oglesby & Oglesby, of Winnfield, for appellant.
    Stafford & Pitts, of Alexandria, for ap-pellee.
   TALIAFERRO, Judge.

Daniel A. Slaughter, the husband of plaintiff, was accidentally killed while performing the duties of a contract of hiring with the defendant, R. D. White, who was engaged in a hazardous business, in the Parish of Concordia, Louisiana. She sues, as surviving widow, to recover workman’s compensation for three hundred (300) weeks at the rate of $16.25 per week. White and his insurer, Liberty Mutual Insurance Company, are sued. Plaintiff does not affirmatively allege that to the time her husband was killed they were living together as man and wife, nor that she was then dependent upon him for support.

The suit is resisted on the ground that for two years or more prior to Slaughter’s death he and plaintiff had lived separate and apart; that for said period he lived in concubinage with another woman, and that during this time plaintiff was not dependent upon him for support and actually received no support from him.

The lower court, in written reasons therefor, sustained the urged defense and dismissed the suit. Plaintiff appealed.

Plaintiff and the deceased were married' in the year 1908 and for the ensuing thirty-five years, so far as the record discloses, their marital relations suffered no trying experiences. He regularly followed public works to earn subsistence for himself, his wife and a large number of children that blessed their union. In the main, this was a hard life, but she invariably accompanied him from place to place and shared with him the vicissitudes and hardships that normally attend those who engage in this line of work for a living. In 1943 he rented land and farmed in Catahoula Parish. By this time all the children, except the two younger sons, had reached majority and were living to themselves. The two sons assisted their father in the production of the crop, but were inducted into the military service in the latter part of that year. The deceased’s health was bad, and being deprived of his sons’ assistance, he abandoned farming and returned to public works, leaving plaintiff at home to liquidate the farm assets and pay debts. The evidence warrants the conclusion that the deceased, when he abandoned the farm, had .a fairly well formed purpose to also abandon his wife.

The learned trial judge, in a well written and reasoned opinion, has correctly stated the facts, resolved the issues in the case and has applied the law appropriate thereto. With approval, we quote in part said reasons, to-wit:

“After payment of the farm debts, it appears that the wife had left for her use and support, some small proceeds from the sale of the work stock and hogs and some corn, which she states she used during the years 1944 and 1945. While it appears that deceased, from time to time, made visits to his wife, discussed business with her, and apparently were friendly one with the other, there is no evidence of any renewal of marital relations, nor any evidence that he ever gave her the least financial support after their separation, other than what she salvaged from the farm after payment of the debts, as aforesaid.
“On this issue, we have plaintiff’s testimony as follows:
“ ‘Q. Mrs. Slaughter, did you consider -that you and your husband were separated .at the time of his death? A. Well, he told me one time he was not coming back any more, when he was home on a visit, but he did; he came back just the same as he did before; he didn’t come home that I didn’t ask him to come back home and stay with me like a man should stay with his wife.
" ‘Q. When was that, do you remember? A. Two years ago, this past Fall, and he didn’t say he was quitting me or anything; said he was not coming back.’ ”
“On cross examination, plaintiff further testified that when her husband visited her during the two years’ period prior to his death, he ‘would make his rounds to see all of us and would stay with one of the children at night.’
“The evidence is conclusive that on and after December, 1943, the time of the separation, the husband, at no time made any contributions to his wife’s support from his occupation and labor. It is further conclusive that she, the plaintiff, was supported and maintained solely throughout this period from allotments and pensions from her sons in service and from whatever funds and farm produce remaining from the liquidation of the farming operations aforesaid. The evidence is also conclusive that at the time of his death and for a year or more prior thereto, the deceased was using the whole of his wages in maintaining a home for himself and his concubine, Mrs. Miller, with whom he was living and whom he represented to his employer as his legal wifé.
“Applying the above findings and conclusions of fact to the law applicable, above cited, the Court concludes that the conjugal relationship between plaintiff and the deceased had been severed prior to and continued severed until the time of death.”

Sub-section 2, paragraphs (A), (D) and (K) of Section 8 of the Workmen’s Compensation Law, Act No. 20 of 1914, as amended by Act No. 242 of 1928, pp. 359, 361, is the law that controls in this case and is the law that the lower court applied to the facts. These provisions of the Workmen’s Compensation Law lay down the rule that where the wife was living with her husband at the time of the accident and death, a conclusive presumption arises that she was wholly and actually dependent upon him for support, hut the law (par. D) goes farther and declares that in all other cases “the question of legal and actual dependency in whole or part, shall be determined in accordance with the facts as they may be at the time of the accident and death.” The weakness of this law lies in the fact that a husband, with impunity, may choose and follow a course that makes it impossible, in the event of his death, for his abandoned wife (widow) to hold his employer responsible for payment of compensation that otherwise she could demand and receive.

The trial judge, with deep feelings of regret, was, in view of the prevailing provisions of the Workmen’s Compensation Law, reluctantly forced to deny to plaintiff the relief sought by her. He pertinently observed, as did the Supreme Court in Moy v. Schuylkill Products Company et al., 209 La. 782, 25 So.2d 542, 543, that the weakness of the law was a matter that addressed itself to the Legislative branch of the state government for attention, and not to the Judiciary.

In the Moy case the surviving widow sued in her own behalf and that of her minor children, issue of her marriage with the deceased workman. The court, in passing, said:

“However unfair it may seem that these unfortunate children should be made to continue suffering because of the unworthiness of their father, simply because their mother or some one else on their behalf did not coerce him by means of legal proceedings to fulfill the duties legally imposed upon him as their father, our lawmakers did not provide for such a case under our compensation law and we are powerless to prevent the perpetuation of this injustice that has been brought upon them through no fault of theirs and that must, in the future, be continued in similar instances until the legislature, in its wisdom, may see fit to correct the same, since this is a matter that falls exclusively within the province of that branch of our government.”

In that case the separation had existed for ten years, whereas in the present case the parties had been separated not nearly so long. But, as we view the law, the length of time over which the separation has extended, is not necessarily of the essence. The fact of living apart for a time, coupled with the determination by the husband to preserve that status, plus the failure on his part to render support for his wife, are the controlling factors in such a case.

Defendant cites and, to some extent, relies upon the case of Milton v. Long-Bell Lumber Company, 165 La. 336-340, 115 So-582. In that case the separation and failure to support was for a period of only-three or four months, but compensation was-disallowed. The court did find that the separation was by mutual consent but we do-not believe the court intended to hold primarily that because of this the wife waived' or lost her right to claim compensation. This fact was referred to more to give force to the contention of separation and lack of support on the husband’s part.

The lower court manifestly rendered proper judgment in this case and, for the reasons herein assigned, the judgment appealed from is affirmed with costs.

KENNON, J., absent.