author: McCALEB, Justice.

text:
    213 La. 475
    PIERCE v. PIERCE.
    No. 38331.
    Supreme Court of Louisiana.
    March 22, 1948.
    G. P. Bullis, of Ferriday, for appellant.
    Clarke & Preis, of St. Joseph, for appel-lee.
   McCALEB, Justice.

By judgment dated October 28, 1940, appellant obtained a divorce (on the ground of adultery) from her husband and was awarded the custody of their five year old child, Sammy Dill Pierce. However, the judgment reserved to the defendant the right to have possession of the child on Friday evening and night of each week and also to have full custody of him for one month each year during the Summer season.

On March 26, 1946, appellant filed a rule seeking a modification of the order permitting defendant to have custody of the child each Friday night and also prayed that he be .ordered to contribute the sum of $50 per month for the child’s support and upkeep.

The defendant resisted the rule and, after a hearing thereon, the judge fixed alimón^ at the sum of $16 per month and ordered that appellant permit defendant to have custody of the child each week from Friday afternoon at 4:00 p. m. until Sunday at 8:00 a. m. during the school year and that he further have custody during the months of July and August of each year. Hence this appeal.

The facts are not seriously disputed and we find them to be as follows:

The judgment of divorce did not require defendant to pay alimony for the support of his child. However, soon afterwards (in January 1941), the judge decided on a rule to show cause that defendant pay $7.50 pel month to appellant as alimony for the child. This alimony was paid until January 1942, when the defendant joined the army and discontinued his payments. Although appellant attempted to have defendant make an army allotment in favor of the child, she was unable to prevail upon him to do so for three years. Finally, in January 1945, defendant made a $30 allotment to the child which was continued by the government for 10 months or through October 1945, at which time defendant was separated from the armed forces. Following his return from the army, the defendant did not contribute anything to the support until he was ordered to pay $16 per month by the trial court under the judgment now on review.

Defendant is presently married to his fourth wife, who operates a beauty parlor-in Ferriday, La. He works in a large store called “Pasternak’s” receiving a salary of $150 per month from which the sum of $14 is withheld for income taxes. Defendant testified that he lists his wife as a dependent for income tax purposes but that he does not claim that the child is a dependent, nor does lie explain why he has failed to pay anything toward the support of his child since he left the army in October of 1945. He also stated that his position required him to work five, and a half days per week and that, on Saturdays, he works from 7:30 a. m¡ to 9:00 p. m. And his present wife testified that she is very fond of the young boy and that her •operations at the beauty parlor would not interfere with her taking care of him on Saturdays because, even if she must be away for a couple of hours or so, she has a maid who is always at the house.

The evidence shows that appellant lives with her parents; ■ that she is employed as •secretary of the U. S. Draft Board in Ferri-day and that she earns a salary of $153.36 per month. She further stated that the actual expenses to support the child, who is now 12 years old, are $59.27 per month.

In view of the evidence, we believe that ■the judge erred in holding that it is for the best welfare of the young boy that he be given to his father and stepmother from Friday afternoon until Sunday morning of ■each week. Indeed, we know of no good ••reason why appellant, having the legal custody of her child, should be deprived of his companionship during each weekend, when ■she and he have some leisure hours, and retain him only during the part of the week when he is going to school and must, for •his own welfare and future, be required to maintain a regular schedule of work and be ■subjected to a certain amount of discipline. Then, too, when we consider that the defendant works on Saturday until 9:00 p. m., the practical effect of the order is to place the custody of the child in defendant’s wife •during the hours he is at. work.

The judge, in his written reasons, states •that he rendered the order only after he had .a “man to man” talk with the boy who, he •says, made a tearful plea for some plan whereby he could have the companionship •of both parents.

The judge fell into error in permitting the desires manifested by the boy to guide his decision in the case — for, as said in State ex rel. Sevier v. Sevier et al., 141 La. 60, 74 So. 630, 632:

“ * * * Nor are we to be governed by the preference expressed by the children, who testified in this case. The minds of children — their likes and dislikes — respond readily to the influence of associations and environment.”

See also Willis v. Willis, 209 La. 205, 24 So.2d 378.

Obviously, if an impressionable twelve year old boy is with his mother at times, when he must go to school and be disciplined, and with his father and stepmother during his periods of. recreation over each weekend, a conflict of emotions and comparisons is bound to develop which ultimately redounds to the detriment of the child.

Moreover, the ruling below seems to overlook the fact that appellant is the legal custodian of the child. While Article 157 of the Civil Code, as amended by Act No. 74 of 1924, does not have the effect of depriving the father of the right to give expression to his natural parental affection by seeing and visiting his child (see Jacquef v. Disimone, 175 La. 617, 143 So. 710 and Shipp v. Shipp, 183 La. 1025, 165 So. 189), this does not authorize the judge to give the father exclusive possession of the child for two nights and over one whole day of each week as such an order is, in legal effect, a grant of part time custody.

Since appellant does not complain with respect to the order which permits defendant to have exclusive custody of the child for July and August of each year, we are only concerned with her contention that the father should not have the child from Friday evening until Sunday morning of each week. As above indicated, we are in accord with the contention and believe that, if the father is permitted to have the child visit him for part of the day on each Sunday at such hours as the judge hereafter finds to be .convenient, it will be ample. Elimination of the weekend custody of the father will, we think, serve the best interest of. the child as he will be living in one home, wholly under the supervision of the parent to whom his custody had been given, and will not be subjected to the conflict and confusion which is apt to occur if he lives in two abodes.

We are also of the opinion that the judge erred in awarding only $16 per month alimony for the support of the child when the undisputed evidence shows that it costs appellant $59.27 per month to maintain him. It is manifest that the figure of $59.27 to feed, clothe and otherwise properly care for a twelve year old boy is modest in these times to say the least and, were it not for the fact that defendant earns a net monthly salary of only $136, we would not hesitate to award appellant the $50 monthly alimony-she prays for. So far as defendant’s evidence is concerned, it would appear that a $50 per month award- would be justified as he does not testify as to the amount of his monthly living expenses nor does he offer to show why he could not pay it. Indeed, the record shows that defendant and his wife are making their way; they are both working; they are buying a three bedroom house and they can afford to. have a maid. But, aside from defendant’s ability to pay, we find his overall attitude regarding his child to be most inconsistent. He professes, on the one hand, great love and devotion but, paradoxically, for three years (1942 to 1945) he did not contribute anything toward the child’s upkeep and was perfectly content, during that period and since he was separated from the armed forces in October of 1945, to let appellant perform his legal obligation.

If we were to view the case solely from the evidence and without giving full weight to the conclusion of the trial judge, we would grant to appellant the amount she prays for. However, when we consider that the judge is well acquainted with the parties, their lives and the particular conditions and circumstances prevalent in their community, we believe that it will be meet to increase the award from $16 to $30 monthly.

For the foregoing reasons, the judgment appealed from is amended in part and annulled in part, as follows: •

The order fixing the alimony payable by Harry L. Pierce for the support -of his child at $16 per month, beginning on July 1,1946, is amended by increasing the amount thereof to $30 per month. The order granting Harry L. Pierce the custody of Sammy Dill Pierce from Friday afternoon until Sunday morning of each week is annulled and set aside and the case is remanded for further proceedings not inconsistent with the views herein expressed.

The costs of the proceedings here and in the district court are to be paid by Harry L. Pierce.

HAWTHORNE, J., concurs in the decree.


source: Caselaw Access Project

author: HAWTHORNE, Justice.

license: Public Domain

text:
    213 La. 483
    STATE v. HARTSON.
    No. 38711.
    Supreme Court of Louisiana.
    March 22, 1948.
    No attorney for appellant.
    Fred S. LeBlanc, Atty. Gen., M. E. Cul-ligan, Sp. Asst. Atty. Gen., and James T. Burns, Dist. Atty., of Covington, for appel-lee.
   HAWTHORNE, Justice.

Defendant was convicted of receiving stolen things having a value of $85.00, Article 69, Louisiana Criminal Code, and was sentenced to serve two years at hard labor in the penitentiary. He appealed, but filed no brief here and made no appearance before this court.

No bill of exception was reserved in the court below, and there is no error patent on the face of the record in this case. Under the law of our state, an appeal taken in a criminal case without the reservation of a bill of exception in the trial court or without error patent on the face of the record presents nothing for review.

The conviction and sentence are affirmed.


author: HAMITER, Justice.

text:
    213 La. 485
    JOHNSON v. SHREVEPORT PROPERTIES, Inc., et al.
    No. 38244.
    Supreme Oourt of Louisiana.
    March 22, 1948.
    Phelps, Dunbar, Marks & Claverie, of New Orleans, and Foster, Hall & Smith, of Shreveport, for plaintiffs and appellants.
    Milling, Godchaux, Saal & Milling and Sidney G. Roos, all of New Orleans, for defendants and appellees.
   HAMITER, Justice.

In the instant case W. Harry Johnson sues to recover double the amount of earnest money ($5000) deposited by him under and in connection with his alleged agreement to purchase real estate owned by Shreveport Properties, Inc. Those made defendants are the said owner, its real estate agent, Newton B. Stoer, with whom the deposit was made, the Protective Committee for W. K. Henderson Iron Works and Supply Company, Ltd. (which owned all the outstanding capital stock of Shreveport Properties, Inc.), and the individual members of that committee.

In a companion case styled Newton B. Stoer v. Shreveport Properties, Inc., et al, La.Sup., 35 So.2d 31, the plaintiff therein seeks a judgment of $3625 against the named owner corporation, and also against the mentioned,committee and its members, for a realtor’s commission or fee allegedly earned by him in arranging a sale of the real estate for Shreveport Properties, Inc., to W. Harry Johnson.

The actions were consolidated, and tried together on their merits, in the district court; but, separate judgments were rendered. The demands of W. Harry Johnson were rejected except as to Newton B. Stoer, against whom there was judgment in the sum of $5000, the amount of the deposit placed with him. Stoer’s suit was dismissed as to all defendants.

From the judgments Stoer and Johnson appealed. Appellees have answered the appeals, praying that their exceptions of no cause of action, urged in the district court, be maintained.

We find no merit in the exceptions. Under them it is first contended that the pleadings of both appellants show conclusively that Johnson’s offer to purchase was not accepted. The petition in each case alleges an acceptance of the offer, and the documents annexed thereto lend support to the allegation. Secondly, under the exceptions, it is argued (quoting from the brief of appellees’ counsel) that:

“But there is another reason why said exceptions of no cause of action should have been maintained, as to Mr. Johnson. His petition alleges — through the attachment of his offer, of date January 30, 1943, that he was to have fifteen days, after delivery of the abstracts to him, for examination of the title and consummation of the sale.
“He then alleges that he requested that the abstracts be delivered to his attorneys • and that they were so delivered on March 4, 1943, and that the attorneys approved the title on March 16, 1943. That left Mr. Johnson but three days, or until March 19, 1943, to consummate the sale (even had his-offer been accepted — which is not the case) but your Honors will find no allegation, that Mr. Johnson made any attempt to consummate the sale within the fifteen days after delivery of the abstracts, nor any allegation that said period of fifteen days was extended. On the contrary, he alleges that it was not until April 13, 1943 — forty days after delivery of the abstracts — that he signified his readiness to take title. Now, we respectfully submit that it is elementary, in Louisiana, that a plaintiff must show that he has complied with the terms and conditions of his contract before he can recover thereon. * * * ”

If time were of the essence of the contract under consideration the argument thus made might be effective. But the pleadings, which are being assailed, together with the annexed documents, do not show that to be true. In fact, incidentally, on the trial of the case it was clearly and definitely disclosed that the fifteen day period stipulated for the consummation of the sale was of no importance and further that it had been waived by the parties.

At to the merits of the litigation the record reveals that for some time prior to January 30, 1943, the real estate in question, which is situated in Shreveport and consists of three separate tracts, belonged to Shreveport Properties, Inc., All of the outstanding capital stock of that corporation was owned by a group known as the “Protective Committee for W. K. Henderson Iron Works and Supply Company, Ltd., First Mortgage Six and One-half Percent Serial Gold Bonds, Dated: June 1, 1928.”' This Protective Committee also owned all of the debts due by the corporation. C. G. Rives, Jr., occupied the dual capacity of President of Shreveport Properties, Inc., and of Chairman of the Protective Committee.

On June 29, 1942, C. G. Rives, Jr., to the knowledge of the other members of the Protective Committee, granted to Newton B. Stoer, a licensed real estate broker of Shreveport, an exclusive 'listing for the sale of the property. The written authorization provided for selling it either in whole or in part; fixed a price for the sale of the tracts separately and another and different one ($158,500) for selling them collectively; and stipulated a commission to be paid the broker, being certain percentages of the sale price. The listing was accepted by Stoer in a letter of July 2, 1942.

Pursuant to the employment contract, Stoer endeavored to interest various prospects in purchasing the property, and kept Rives informed as to his progress. Among these prospects was W. Harry Johnson. Regarding his negotiations with Johnson, Stoer, on January 25, 1943, wrote the following to Rives:

“My main reason in writing this letter to you is to tell you that I have had another contact with W. Harry Johnson regarding the purchase of the property, and although he made it clear that he was not definitely making the offer, he intimated that he likely would pay the sum of $135,000.00 for all of the property involved. It was understood that I was to make this information, known to you and upon receipt of a letter from you after your consideration of this information, I am to contact Mr. Johnson again.
“I will appreciate it if you will consider what I have said herein and write me about you consideration of it in such a manner that if need be, I can let Mr. Johnson read your letter; however, if you find it advisable, you might write a second letter of explanation going into detail to guide me in representing you.”

To this suggestion Rives gave a telephone reply, obviously favoring the reception and entertaining of a proposal by Johnson to purchase, for in Stoer’s next letter to Rives, dated January 30, 1943, he commented:

“Enclosed you will find the offer to purchase t'he Shreveport Properties, Inc., property, the former W. K. Henderson Iron & Supply Works property, located here in Shreveport, as per long-distance telephone instructions from you.
“The offer is sent to you in triplicate signed by the purchaser. I respectfully request that those in authority sign all three (3) copies and affix the date at the time it is signed. You are to retain one (1) copy for your files and return two (2) copies to me, one to be delivered to the purchaser and the other to be filed in our office with the escrow feature, wherein I hold the deposit of Five thousand and no/100 Dollars ($5,-000) subject to the terms of the contract.
“Immediately upon receipt of your acceptance of this offer, I will deliver a signed copy to the office of the purchaser, and should inform him at that time that you have authorized me to' obtain abstracts down to date for delivery to him, at which time I will take an official receipt for the abstracts and have the receipt dated over his signature and return a copy to you to be attached to the papers enclosed herewith. After getting the negotiations for this deal developed as outlined above, I will follow same through to the consummation of same, keeping you advised when necessary.” (Italics ours.)

The enclosed offer of Johnson, evidently prepared by Stoer because it was written on his letterhead, reads as follows:

“N. B. Stoer, Realtor
“210 First National Bank Building
“Shreveport, Louisiana
“Through you, as agent for the owners, I offer to purchase the following described real estate: (Here follows description of property.)
“For the above described real estate I agree to pay the total sum of One Hundred Thirty-five Thousand and no/100 Dollars ($135,000.00) in cash at the time the act of sale is signed passing the title to me.
“This offer is subject to existing leases and rental agreements that exist between the present owners and the tenants now on the property; this offer, is also subject to the property described herein as having a good and merchantable title and being free of all encumbrances except the rental agreements now in existence.
“It is agreed and understood between the present owners and myself that the taxes for the year 1943 and the rental income as provided for by the present rental agreement shall be provided as of the date of the act of sale passing title to me.
“The" present owners shall deliver to me an abstract of title to all of the above' described real estate for the purpose of examination ; the said abstracts are to become my property at the consummation of this sale.
“I hand you herewith attached my check made payable to your order as Agent for the amount of Five Thousand and no/100 Dollars ($5,000.00) as earnest money which you are to cash and hold the funds therefrom in escrow, subject to the property described herein as having a good and merchantable title; this said deposit and earnest money shall be delivered by you to the owners of the property described herein after the examination of 'the abstracts of title and at the time the act of sale is signed passing title to me.
“You are hereby given five (5) days after the date of the receipt of this signed offer to obtain the acceptance thereof by the owners; and if accepted, this offer shall be signed by the owners and delivered to me within the time allowed; and it is understood that I am to have fifteen (15) days after the date of the delivery of the abstracts to me for the examination of the title and the consummation of this sale.
“Thus done and signed in triplicate this 30th day of January A.D. 1943.”

The three copies of Johnson’s offer were not signed by “those in authority,” as Stoer had requested. Instead, on February 3, 1943, within the five days stipulated in the offer, Rives, as President of Shreveport Properties, Inc., and as Chairman of the Protective Committee, wrote and signed the following letter:

“Shreveport Properties, Inc.
“New Orleans, February 3, 1943.
“Mr. N. B. Stoer “First National Bank Building “Shreveport, Louisiana “Dear Newt:
“This will acknowledge your letter of January 30, enclosing the offer by Mr. W. H. Johnson to you under date of January 30, 1943, offering to purchase certain property in Shreveport owned by the Shreveport Properties, Inc., being the former W. K. Henderson Iron and Supply Works property located in Shreveport
“The members of the Protective Committee for W. K. Henderson Iron Works and Supply Co., Ltd., First Mortgage Six and One-half Percent Serial Gold Bonds, Dated: June 1, 1928 (which Committee owns all of the stock of Shreveport Properties, Inc.) as well as the Officers of the Shreveport Properties, Inc., are willing to sell said property to Mr. Johnson for the price stated. The abstract for this property is in the hands of Pugh, Grimmet and Boatner, 514 Ricou Brewster Building, and we will authorize them to deliver said abstract to you and authorize you to have it brought up to date.
“As to the delivery of the title of the property, it can be delivered immediately by the Committee in the form of all of the capital stock of the Shreveport Properties, Inc., together with all of the indebtedness of the Shreveport Properties, Inc., all of which are owned by the Bondholders Protective Committee. It is entirely possible Mr. Johnson would prefer to retain this corporation and get the benefit of the tax base it has established. He could very readily ascertain from R. V. Whittaker and Company, accountants for the Shreveport Properties, Inc., or his own accountant, that the Shreveport Properties, Inc., has no other indebtedness other than that being delivered to him. If, however, he does not need this corporation, it can be readily liquidated by him and he would have the property free and clear of all liens.
“However, if he does not want title in this manner, there will necessarily be a delay incident to the corporation being liquidated by the Committee to Mr. Johnson. If title is given in this manner, it will be necessary to have proper approval by the Commissioner of Internal Revenue.
“I believe, however, the attorney for Mr. Johnson could easily ascertain from R. V. Whittaker and Company that the statement of the Shreveport Properties, Inc., shows all of its obligations, all of which would be transferred to Mr. Johnson, together with all of the stock.” (Italics ours.)

Returned with this letter to Stoer were two copies of the Johnson proposal to purchase.

Thereafter abstracts of title were furnished to Johnson and on March 16, 1943, he received an opinion from his attorneys stating that the Shreveport Properties, Inc., possessed a good, valid and merchantable title in and to the property. But prior to the last mentioned date, as well as subsequent to it, considerable correspondence was indulged in and much thought given by the interested parties and their agents relative to the manner of Johnson’s taking title to the property. Illustrative of this is a letter addressed to Rives, dated February 17, 1943, and written by the law firm of Foster, Hall & Smith, in which the following was said:

“Mr. W. H. Johnson has asked that we pass on the matter of the way in which he should take title to the W. K. Henderson Iron Works and Supply Company properties; that is whether to take a deed direct from the Shreveport Properties, Inc., or simply acquire the stock of Shreveport Properties, Inc.”

Eventually, Johnson informed Stoer of his decision to accept title to the property from Shreveport Properties, Inc., rather than to take over the stock of the corporation, and Stoer on April 13, 1943, conveyed this information to Rives. Before any definite action was taken relative to Johnson’s decision, however, Rives, on April 18, 1943, died.

On April 20, 1943, Stoer wrote to the president of the Whitney National Bank of New Orleans expressing regret and sympathy on the passing of that institution’s vice-president, and making reference to Rives’ acceptance, in his letter of February 3, 1943, of Johnson’s offer to purchase. Regarding the acceptance Stoer said:

“The offer of January 30, was mailed to Mr. Rives, who did not sign the offer, but he did accept the offer in his letter of February 3, 1943, and signed as Chairman of the Protective Committee for the W. K. Henderson Iron Works and Supply Com-any First Mortgage 6%% Serial Gold Bonds Dated June 1, 1928, and also signed for the Shreveport Properties, Inc., C. G. Rives, Jr., President. In his letter Mr. Rives stated that the Corporation would either convey the fee title of the property or would transfer the stock, but he suggested that the purchaser consider taking the entire stock ownership of the corporation, and Mr. Johnson considered doing this in great detail, but he finally decided to accept fee title.
“The purchaser has examined the abstracts which Claude arranged to have brought down to date and delivered to the purchaser’s attorney, who found the fee title merchantable and acceptable, and the purchaser is now ready to accept title.
“The writer will appreciate your consideration of having this transaction carried through to consummation.”

Stoer’s letter was referred to the remaining members of the Protective Committee, and they, on May 19, 1943, replied, among other things, that:

“We, as the surviving members of the committee, are still ready and willing to sell, for $135,000.00 cash, all of the capital stock of Shreveport Properties, Inc., and all of the indebtedness of Shreveport Properties, Inc., to the committee; but that is all that was ever authorized, and is as far as we are willing to go at this time.”

The last sentence, of course, meant that the members of the committee refused to have the corporation convey title to Johnson, the reason assigned in their letter being that the proceeds from such a conveyance might constitute taxable income.

As a result of the refusal this suit, as well as the companion action by Stoer, was instituted. In both the respective plaintiffs contend that Rives, by his letter of February 3, 1943, unqualifiedly accepted Johnson’s offer on behalf of Shreveport Properties, Inc., thereby creating a binding contract, and at the same time he made. alternative proposals, respecting the transfer of the property, on behalf of the Protective Committee which owned all of the stock of the corporation, together with all of its indebtedness. Appellees, on the other hand, insist that Rives’ letter did not constitute an acceptance of the offer. They maintain (1) that Johnson’s proposal to purchase required that an acceptance be written on the bottom of the copies sent to Rives, which was not done, and (2) that the alternative methods suggested by Rives for Johnson’s acquiring the property rendered his letter a mere counter o-ifer.

There is no requirement that the acceptance of an offer be made in the same act. To the contrary this court has said:

“The circumstance that the acceptance was not by the same instrument is insignificant, since article 1804, Rev.Civ. Code, expressly provides that the acceptance need not be by the same act.” Union Sawmill Co. v. Mitchell et al., 122 La. 900, 48 So. 317, 318.

The question of whether or not Rives’ letter constituted an acceptance of Johnson’s offer on behalf of Shreveport Properties, Inc., and, hence, effected a binding contract, must, we think, be answered in the affirmative. In that letter, addressed to Stoer and which made reference to Johnson’s offer to pay to the owner $135,000 in cash, Rives said: “The members of the Protective Committee * * * as well as the officers of the Shreveport Properties, Inc., are willing to sell said property to Mr. Johnson for the price stated.” The corporation owned the property, and when the president thereof (who was authorized to act as hereinafter shown) agreed to Johnson’s proposal there came into being a complete obligation on its part to deliver title. Civil Code Article 1803. Concurring were the three circumstances requisite for a perfect contract: The thing sold, the price and the consent. Civil Code Article 2439. (Italics ours.)

If it had never been intended that the corporation would deliver title — if Rives’ letter meant, as appellees contend, that only the members of the committee would deliver the property in either of the alternative methods mentioned therein — why were the officers of the corporation referred to in the letter, and further why did Rives sign as president and on behalf of the corporation? If such were the true situation the intervention of the corporation and its officers would have been unnecessary. Moreover, in several of the letters written to Rives subsequently by Stoer, Johnson and others, mention was made that Johnson had not decided whether to take title from the corporation or to acquire its stock, and in not a single instance did Rives even intimate in replying to those letters that the corporation would not transfer title. This circumstance renders appropriate the provisions of Civil Code Article 1956, reading: “When the intent of the parties is doubtful, the construction put upon it, by the manner in which it has been executed by both, or by one with the express or implied assent of the other, furnishes a rule for its interpretation.”

Unquestionably, there was good reason for Rives, in the capacity of Chairman of the Protective Committee, to propose in his letter of February 3, 1943, the alternative methods for transferring the property. The committee owned not only all of the stock of the corporation but it also owned all of the indebtedness thereof; and it was eager, as shown by previous letters from Rives to Stoer, to sell the property and liquidate the indebtedness. In view of this, and obviously to facilitate and expedite the sale, Rives suggested a transfer of the stock as a possible advantage to Johnson; and he further suggested the other method of dissolving the corporation and having the committee transfer the property so that Johnson would be assured of obtaining an unencumbered title. There is nothing in Rives’ letter of February 3, 1943, however, that precluded a transfer of title by the corporation, such as was contemplated by Johnson’s offer which was addressed to Stoer as agent for the property’s owner, Shreveport Properties, Inc.

Since the corporation has refused to transfer title to Johnson, as shown by the letter of May 19, 1943, he is entitled to recover from it double the $5000 earnest money deposited with his offer. “But if the promise to sell has been made with the giving of earnest, each of the contracting parties is at liberty to recede from the promise; to wit: he who has given the earnest, by forfeiting it; and he who has received it, by returning the double.” Civil Code Article 2463. Furthermore, the completed contract of sale having been breached, Stoer must be paid by the corporation the real estate commission of $3625 which he earned.

But there is no liability for those sums on the part of the Protective Committee or the individual members thereof. Neither of the alternative proposals made by Rives as chairmen of the committee was accepted by Johnson; nor did the committee, or any of its members, give any guaranty in connection with the transaction. Further, Rives’ signing of the letter of February 3, 1943, for and on behalf of the corporation was fully authorized, as appears from a formal resolution of its Board of Directors ratifying and confirming that act.

For the reasons assigned the judgment of the district court is reversed and set aside insofar as it dismisses plaintiff’s suit against the defendant corporation, and there is now judgment in favor of W. Harry Johnson and against Shreveport Properties, Inc., in the full sum of $10,000, together with five percent per annum interest thereon from May 19, 1943, and for all costs of this suit in both courts. In all other respects the judgment is affirmed.


text:
    213 La. 503
    NEWTON B. STOER v. SHREVEPORT PROPERTIES, Inc., et al.
    No. 38245.
    Supreme Court of Louisiana.
    March 22, 1948.
    Foster, Hall & Smith, of Shreveport, and Phelps, Dunbar, Marks & Claverie, of New Orleans, for plaintiff and appellant.
    Milling, Godchaux, Saal & Milling, and Sidney G. Roos, all of New Orleans, for defendants and appellees.
   HAMITER, Justice.

For the reasons assigned in cause No. 38,244 on the docket of this court, entitled Johnson v. Shreveport Properties, Inc., et al., 35 So.2d 25, this day decided, the judgment appealed from is reversed and set aside insofar as it dismisses plaintiff’s suit against the defendant 1 corporation, and there is now judgment in favor of plaintiff, Newton B. Stoer, and against Shreveport Properties, Inc., in the full sum of $3625, together with five per cent per annum interest thereon from May. 19, 1943, and for all costs of this suit in both courts. In all other respects the judg-' ment is affirmed.


author: FOURNET, Justice.

text:
    213 La. 504
    THREE WAY FINANCE CO., Inc. v. McDONALD et al. (MONROE AIRPARK et al., Garnishees).
    No. 38868.
    Supreme Court of Louisiana.
    March 22, 1948.

      Travis Oliver, Jr. and Theus, Grisham, Davis & Leigh, all of Monroe, for garnishees-appellants.
    James H. Trousdale, Jr., of Monroe, curator ad hoc.
    McHenry, Lamkin & Snellings, of Monroe, for plaintiff-appellee and proponent in motion.
   FOURNET, Justice.

The plaintiff and appellee, Three Way Finance Company, Inc., having instituted suit against the nonresident defendants, W. M. McDonald and Aircraft Investment Corporation, by way of attachment, garnisheed certain amounts allegedly due these defendants by the partnership, Monroe Airpark, and its component partners, G. Foster Wallance and H. Girardet Pro-phit, Jr., on notes executed by them in favor of the nonresident defendants and 'these garnishees, having been ordered by the court to hold and retain the amounts due by them on these notes pending the final determination of the suit and the further orders of the court, appealed from such judgment. In this court the plaintiff has moved to have the appeal dismissed on the ground that the ruling of the court appealed from is an interlocutory decree and not a final judgment and the garnishees are, therefore, without right to appeal at this stage of the proceedings, citing in support thereof the cases of A. Rochereau & Co. v. Guidry, 24 La.Ann. 294, Feitel v. Feitel, 169 La. 384, 125 So. 280, and In re Byrne, 193 La. 566, 191 So. 729, 730.

“One may appeal from all final judgments rendered in causes in which an appeal is given by law, whether such judgments have been rendered after hearing the parties, or by default.” Article 565 of the Code of Practice. “One may likewise appeal from all interlocutory judgments, when such judgment may cause him an irreparable injury.” Article 566. “Definitive or final judgments are such as decide all the points in controversy, between the parties” and “have the force of res judicata” (Article 539), while “Interlocutory judgments do not decide on the merits; they are pronounced on preliminary matters, in the course of the proceedings." Article 538.

The logic behind these codal pronouncements was very aptly stated in the case of In-re Byrne, supra, to be that “The law does not favor the interrupting of judicial proceedings by appealing from interlocutory decrees. Hence comes the rule that an appeal is not allowed from such a decree unless it is one which may cause irreparable injury.”

It necessarily follows, therefore, that this court, in the several cases relied on by the mover, correctly held that the garnish ee whose indebtedness to the main defendant was not in dispute either as to the existence of the debt or the amount thereof, all of the interested parties being before the court, was a mere stakeholder to whom no injury could result by reason of the court’s order to withhold the funds, and, consequently, that these parties were without interest to appeal from such interlocutory decrees.

However, these holdings are not controlling in the instant case for the parties here garnisheed are makers of notes that while payable to the order of the debtors of the plaintiff, the nonresident defendants, are negotiable instruments that are in the hands of third parties who have not been made parties to the suit. We think, therefore, that the appellants are entitled to have the matter of the right of the plaintiffs to have these funds withheld and retained during the pendency of the decision on the main demand expeditiously and finally determined.

Qearly bona fide persons holding these notes, not being parties to the proceedings, would not be bound by the judgment of the court ordering the garnishees to pay the amounts represented by the notes to the attaching creditors and they would not even be compelled to wait until the final determination of the main issues in the case for payment. Instead, they could demand payment when it is due and if not promptly paid by' the makers, they could then very easily seize the property given as security and cause the garnishees not only the expense incidental to such a procedure, but also injury and loss occasioned 'by tying up in litigation the property given in security.

For the reasons assigned the motion to dismiss the appeal is denied.


author: PER CURIAM.

text:
    JONES v. ILLINOIS CENT. R. CO. et al.
    No. 18914.
    Court of Appeal of Louisiana. Orleans.
    April 26, 1948.
    Monroe & Leman, and Robert G. Polack, all of New Orleans, for Barclay Compress Co., Inc., defendant and appellant. •
    Rosen, ICammer, Wolff, Hopkins,, and Burke, of New Orleans, for American Mut. Liability Ins. Co., defendant and appellee.
   PER CURIAM.

This matter1 comes before us on motionl of American Mutual Liability Insurance Company .to dismiss the appeal of Barclay Compress Company, Inc., from that part of the judgment, dismissing the suit of plaintiff, Winton Jones, and the intervention of T. Smith and Son, Inc., insofar as the said American Mutual Liability Insurance Company is concerned.

, A clear understanding of the, relationships between the various parties is necessary. Jones alleges that while he was engaged as an employee of T. Smith and Son, Inc., in carrying out the duties-of his hazardous employment, he sustained injuries as the result of the falling of a part of the concrete ceiling of the wharf in which he was working under circumstances which rendered the Illinois Central Railroad Company and Barclay Compress Company, Inc., liable, and that American Mutual Liability Insurance Company was also rendered liable because it had issued to Barclay Compress Company, Inc., a policy of public liability insurance. He averred that he had been paid compensation under the Workmen’s Compensation Laws by his employer, T. Smith and Son, Inc., at the rate of $20 per week for a total of fifty-one weeks, and that his said employer had paid medical expenses amounting to $500 and that his said employer was, therefore, subrogated to his rights against the defendants for the amounts paid. He prayed for solidary judgment against these said corporations, to wit: Illinois Central Railroad Company, Barclay Compress Company, Inc., and American Mutual Liability Insurance Company in the sum of $59,650.50.

T. Smith and Son, Inc., intervened and alleged that it had paid to Jones $1,040 up to the time at which the intervention was filed and had also paid medical expenses in excess of $350. It further alleged that it might be required by law to malee additional compensation payments or to expend under the Workmen’s Compensation Law additional amounts for other purposes and it prayed for judgment, for such amounts as it had expended or might be required to expend, against Illinois Central Railroad Company, Barclay Compress Company, Inc., and American Mutual Liability Insurance Company, in solido.

Illinois Central Railroad Company denied all liability in the matter, but averred that if it should be held liable to any extent, Barclay Compress Company should be held liable to it as warrantor because of a lease contract between the said railroad company and Barclay Compress Company under which the latter company had assumed all risk of injury and damage.

Barclay Compress Company, Inc., denied all liability to plaintiff or intervenér, averring that the injury was caused by the negligence of the employees of T. Smith and Son, Inc. It further averred that the Board of Commissioners of the Port of New Orleans had assumed all risk of injury and damage resulting from the construction, condition or state of repair of the wharf and that, therefore, if the Barclay Compress Company, Inc., should be held liable to plaintiff or intervener, or both, the said Board of Commissioners, as warrantors, should in turn be held liable to the Barclay Compress Company, Inc., and it prayed for judgment in warranty against the said Board of Commissioners.

Barclay Compress Company, Inc., did not call the American Mutual Liability Insurance Company in warranty. Whether it could have done so under the terms of the policy is a question on which we express no opinion.

, In answer to the petition of plaintiff and of the intervener American Mutual Liability Insurance Company denied all liability, averring especially that because of failure to comply with policy requirements as to the giving of notice of the accident, it had been relieved of any liability under its policy if, in fact, any liability ever existed under the state of facts which led up to and which surrounded the accident. It also called the Board of Commissioners of the Port of New Orleans in warranty.

, The Board of Commissioners of the Port of New Orleans filed exceptions of no right of action and no cause of action to the calls in warranty of the Barclay Compress Company, Inc., and of the American Mutual Liability Insurance Company. These exceptions were sustained and the calls in warranty against the said Board of Commissioners of the Port of New Orleans were dismissed.

After a trial on the merits, there was judgment in favor of Winton Jones, Plaintiff, and T. Smith and Son, Inc., against Illinois Central Railroad Company and Barclay Compress Company, Inc., in solido, in the sum of $12,500. There was further judgment to the effect that T. Smith and Son, Inc., should receive out of the said amount all amounts paid by it as compensation or in connection with the compensation claim of Jones, together with attorney’s fees, and there was further judgment in favor of the Illinois Central Railroad Company over against the Barclay Compress Company, Inc., in the sum of $12,500, and also judgment dismissing the suit of the plaintiff and of the inter-vener as against American Mutual Liability Insurance Company.

The plaintiff and the intervener did not appeal, but Barclay Compress Company, Inc., appealed and expressly appealed from that part of the judgment which dismissed the suit of the plaintiff and the intervener insofar as American Mutual Liability Insurance Company is concerned.

It is the last appeal by Barclay Compress Company, Inc., against American Mutual Liability Insurance Company, Inc., which the insurance company now moves to dismiss.

. While the status of the various parties is somewhat confusing, the issue which is presented by the motion to dismiss presents a simple question of law.

Where, in a tort action, a defendant is sued as a tort-feasor and his insurer is also made a direct defendant under Act No. 55 of 1930, and the tort-feasor does not or cannot call the insurer in warranty under the insurance policy, if a judgment is rendered against the tort-feasor but in favor of the insurer, and the plaintiff does not appeal from the judgment insofar as it dismisses the suit against the insurer, may the tort-feasor appeal from that part of the judgment which dismissed the insurer?

The Insurance Company, moving to dismiss the appeal, asserts that no appeal lies in favor of Barclay Company from that part of the judgment which dismisses the suit as against the Insurance Company.

Counsel for the Barclay Compress Company assert, on the other hand, that since that company and the Insurance Company were made defendants in a suit in which solidary judgment is prayed for against both, either has a right to appeal from a judgment which dismisses the other. They base this contention largely on the result which was reached by the Supreme Court in Quatray v. Wicker, 178 La. 289, 151 So. 208, 212, in which there was involved a claim ex delicto against two alleged joint tort-feasors. A solidary judgment was rendered against both, and this judgment was paid by one of them, who took a subrogation to all the rights of the plaintiff against the other and then, by attachment, sought to collect from the other half of the amount paid. The Supreme Court held that the other defendant must contribute “half of the amount of the judgment.”

Counsel for the Barclay Compress Company, Inc., now contend that as a result of this holding, since the Barclay Company and the American Mutual Liability Insurance Company were sued solidarily by the plaintiff and by the intervener, the Barclay Company, as a solidary obligor, is within its rights in appealing from the judgment which dismissed the suit as against the company which could have been held with it as a solidary obligor and which the Barclay Company now contends should be so held.

The truth is, however, that as between the .Barclay Compress Company, Inc., and the American Mutual Liability Insurance Company, those two defendants are not solidary obligors. It is true that by Act No. 55 of 1930 the plaintiff is given the right to sue them solidarily and to collect the entire amount from either or from both, but as between, them, they are not in truth solidary obligors since, if there is any liability under the -insurance policy, the insurer is liable to the Barclay Compress Company, Inc., for the entire amount, not for a prorata share. Counsel for appellant themselves recognize this since, in their answer, they admit that the American Mutual Liability Insurance Company is the insurer of the Barclay Compress Company, Inc., and in their answer to the motion to dismiss the appeal, they make the following statement: “1. Although this suit was filed by plaintiff against Barclay Compress Company, Inc., and American Mutual Liability Insurance Company in solido, and their liability to plaintiff in the event of judgment in plaintiff’s favor would be in solido, as between Barclay and the Insurance Company, the rights are fixed, by the insurance policy, and it is the Insurance Company’s obligation to indemnify Barclay.”

In other words, the truth is that any right which the Barclay Company may have against the American Mutual Liability Insurance Company does not result from the fact that the two are solidary obligors, but results solely from the fact that the one (American Mutual Liability Insurance Company) is the insurer or warrantor of the other. If, under the- terms of its policy, the Barclay Company could, in this suit, have called the Insurance Company in warranty and could have asserted any rights which it might have against the Insurance Company (Bordelon v. Ludeau’s Lumber Yard, La.App., 177 So. 436) it did not do so. Had it called the Insurance Company in warranty, it could have appealed from the judgment dismissing that call in warranty or dismissing the suit insofar as the Insurance Company is concerned.

If it has any rights against the Insurance Company under the policy, those rights, as between it and the Insurance Company, have not been passed upon.

In spite of the vehement protest of counsel for Barclay Compress Company that the decision of our Brothers of the First Circuit in Reid v. Monticello, La.App., 33 So.2d 760, 762, may be distinguished, we do not see the distinction, and find the reasoning in that opinion sound, and applicable here. There a plaintiff in a tort action sued the alleged tort-feasor and its liability insurance carrier, the latter as a result of Act No. 55 of 1930. Before the suit was tried it came to light that the alleged tort-feasor carried another liability policy in another company and the plaintiff then made the other insurer a party defendant and prayed for solidary judgment against this second insurer along with the alleged tort-feasor and the insurer which had been originally sued. There was judgment in favor of the plaintiff against the tort-feasor and the first insurer, but the suit as against the second insurer wás dismissed. The plaintiff appealed only as to the amount and that only as against the tort-feasor and the first ■ insurer. The tort-feasor and the first insurer appealed from the judgment not only insofar as it ran in favor of plaintiff, but also insofar as it dismissed the1 second insurer. The second insurer moved to dismiss this appeal and the appeal was dismissed, the Court saying: “True it is that in their motion for appeal, Monticello and Car & General Insurance Company complain of the judgment on both grounds, namely that it decrees liability against them and that it also relieved their codefendant of liability, yet this court is without power to entertain their complaint as to their codefendant because- as between them and their code-fendant, no issue was contested or controverted nor was any issue between them adjudicated by the judgment appealed 'from.”

That is what we say here. The judgment adjudicated no rights as between Barclay Company and American Mutual Liability Insurance Company. Counsel for the Barclay Company say that the Court, in deciding Reid v. Monticello, failed to consider the effect of the decision of the Supreme Court in Quatray v. Wicker. Even if it be assumed that as a result of the decision in Quatray v. Wicker, a solidary obligor, who is discharged in a judgment, may be kept in the case by the appeal of the other solidary obligor — > and the. decision does not expressly so, hold — still, as already pointed out, the case at bar is not in truth one involving the right of a solidary obligor to require another solidary obligor to remain in the case as a party - defendant, since, as we have already pointed out, between the Barclay Company and the American Mutual Liability Insurance Company there is not a relationship of solidary obligors. - Even in' the case of solidary obligors, if only one is sued, it cannot call the other in warranty or insist that the other be made a party defendant. It is only where both are sued and judgment is rendered against both that one may require the other to contribute. There is no such situation here.

The Barclay Compress Company, Inc., has no’ right to appeal from the judgment, which, in fact, adjudicated no rights as between it and American Mutual Liability Insurance Company.

The appeal of Barclay Compress Company, Inc., insofar as American Mutual Liability Insurance Company is concerned, is dismissed at the cost of Barclay Compress Company, Inc.

Motion to dismiss sustained.


text:
    STATE ex rel. MASSICOT v. BAHNS, Judge, et al.
    No. 19006.
    Court of Appeal of Louisiana. Orleans.
    April 26, 1948.
    L. R. Wortheimer, of New Orleans, for relator.
    George H. Fust, of New Orleans, for respondents Mr. and Mrs. Frank 'Gambino.
   PER CURIAM.

This is a rule for possession. It orig-nated in the First City Court of New Orleans. Judgment was rendered making the rule absolute and ordering defendant (the tenant) to vacate the premises. Within the time provided by law he sought and obtained an order for suspensive appeal and also within the necessary time limit filed the proper bond. Shortly thereafter plaintiffs and appellees filed, in the First City Court, a rule directed to defendant and ordering him to show cause why the order of appeal should not be rescinded as having been improvidently granted. The relator (defendant) then applied to this Court for writs of prohibition seeking to prevent the Judge of the First City Court from proceeding with the trial of the rule to show cause why the order of appeal should not be rescinded. Though the case is one which would be tried de novo in this Court on appeal, the question presented has been considered by the Court en banc. We issued the necessary order to show cause and the Judge a quo has now filed his return.

The return of the Judge reads as follows: “Now into this Honorable Court comes W. Alexander Bahns, Judge of the First City Court for the City of New Orleans, Sec. ‘A’, who says that inasmuch as defendant in this particular suit has stated under oath and in open Court that he has removed from the said premises five months ago, it is, therefore, my opinion that this defendant has no appealable rights, and when I signed the motion of- appeal I informed counsel that I did not believe that the defendant had any right to a suspensive appeal and hold this property for the reason that he vacated same five month ago, and he,, therefore, is without interest in said appeal; and when said rule was filed in this Court and signed by me ordering defendant to show cause why the appeal herein granted should not be. set aside as improvidently granted, he having removed from the property five months ago, and, therefore, is without any interest in the subject.”

There is much authority to the effect that where it is contended that an order of appeal has been improvidently granted, the trial court still retains- jurisdiction to determine whether such is actually the case. State ex rel. Clentat v. Judge, 32 La.Ann. 814; State ex rel. James Gill v. Tissot, Judge, 34 La.Ann. 90; Charvanel v. Esvard, 150 La. 305, 90 So. 658; Boudreaux v. Bennett, 161 La. 217, 108 So. 420. We believe, however, that the latest ruling on the subject is to be found in Borgnermouth Realty Co. v. Gulf Soap Corporation, 211 La. 255, 29 So.2d 841, 842. In that case, though an injunction was involved, the Court held that the special provisions governing injunction cases were not applicable, since the case was tried on the merits and a definitive judgment was rendered. The Supreme Court said: “Under the law governing appeals generally, the perfecting of an appeal vests jurisdiction of the case in the appellate court, and the trial court is thereby divested of jurisdiction for all purposes except to test the solvency or sufficiency of the appeal bond, and to transmit the record to the appellate court. Code of Practico, Art. 575; State v. Cobb, 1913, 134 La. 207, 63 So. 877; New Orleans Silica Brick Co. v. John Thatcher & Son, 1922, 152 La. 649, 94 So. 148; Mundy v. Phillips, 1925, 157 La. 445, 102 So. 519. Therefore, when the defendant in this case furnished the appeal bond, on November 29, 1946, the trial court was divested of jurisdiction to rescind the order of appeal, unless it can be said that the issuing of the rule, on November 26, in some way affected the defendant’s right to perfect its appeal. We see no reason why that effect should obtain. If the judge had rescinded his order before the appeal bond was furnished, or perhaps if the return day had been fixed within the ten-day period in which the defendant was allowed to perfect his appeal, there might be some reason for saying that the defendant’s right to perfect a suspensive appeal was taken away. But that is not the case here. If the defendant had withheld the furnishing of the suspensive appeal bond until the judge acted finally upon the rule to show cause why the order for the suspensive appeal should not be rescinded, the time allowed by law for the furnishing of the suspensive appeal bond would have expired; and it might have been contended then by the plaintiffs, respondents, that the defendant had forfeited its right to a suspensive appeal.”

In the case at bar the appeal bond was - actually filed and thereby the appeal was perfected before the rule to rescind the order of appeal was filed.

It is suggested that the relator should not proceed by application for prohibition, but should wait until the trial judge has actually acted on the rule to rescind the order of appeal and that, therefore, this action is premature; in other words, that it is possible that the Judge may not rescind the order and that if he does not do so, then appellant will have no complaint. We think that since, under the decision of the Supreme Court in the Borgnemouth Realty Company case, the Judge cannot rescind the order, we would be permitting a vain and useless thing if we allowed him to hear the rule. For, if by chance, he should make the rule absolute and rescind the order, then the appellant would have to come back to this Court for appropriate writs, or would have to apply for a sus-pensive appeal from the order rescinding the original order of appeal, if he is entitled to a suspensive appeal, and there may be some doubt on this point. See State ex rel. James Gill v. Tissot, Judge, supra, and Reynolds v. Egan, 122 La. 47, 47 So. 371.

It seems clear to us that relator is entitled to the relief he seeks. It is, therefore, ordered that the writ of prohibition heretofore issued is now perpetuated; costs of this proceeding to be paid by respondents-app ellees.

Writ perpetuated.


author: ELLIS, Judge. PER CURIAM.

text:
    McDANIEL v. CAPITOL TRANSPORT CO., Inc., et al.
    No. 2984.
    Court of Appeal of Louisiana. First Circuit.
    April 21, 1948.
    Rehearing Denied May 26, 1948.

      Taylor, Porter, Brooks & Fuller, of Baton Rouge, and S. S. Reid, of Amite, for appellants.
    Ponder & Ponder’,'of Amite, for appellee.
   ELLIS, Judge.

This suit arises as a result of an automobile accident between the plaintiff, Vernie E. McDaniel, and the defendant, Capitol Transport Company, Inc. The plaintiff alleged that he was driving south on U. S. Highway 51 in the Parish of Tangipahoa, Louisiana, on December 12, 1945, in his Chevrolet automobile, at or near the hour of 7 P.M., and that as a car was approaching him, he saw something pass between the lights of the approaching car and his own car and began to slow down, and he discovered that it was several cows crossing from the east to the west side of the highway; that the truck of the Capitol Transport Company, Inc. was traveling south in the same direction as the plaintiff- and to the rear of plaintiff at a very fast rate of speed, and in disregard of the presence of the plaintiff, and that when plaintiff was forced to slow his automobile down on account of the cows on the highway in front of him, that the truck of the Capitol Transport Company, Inc. ran into the rear end of his automobile and, as a result, plaintiff suffered serious permanent personal injuries and property damage; that plaintiff was operating his motor vehicle in its proper traffic lane and under proper control, and that he had both his front and rear lights working and was in no wise contributorily- negligent; that -the driver of the Capitol Transport Truck was negligent in operating the truck at a fast and unlawful rate of speed, and petitioner alleges that, as a result of the excessive rate of speed of -the Capitol Transport Truck, the blow to the plaintiff’s car was-of such force that it knocked plaintiff’s car a distance of more than fifty yards down the highway and into a ditch on the right or west side of Highway 51.

Plaintiff further charges that the driver of the defendant’s truck was negligent in that it was not being operated under the proper control, and the driver was not keeping a proper outlook and failed to heed the presence of petitioner in front of him.

Plaintiff further charges that the driver of the defendant’s truck was negligent in not applying brakes in an effort to avoid striking plaintiff’s car; that the driver of the defendant’s truck was also negligent in not making any effort whatever to slow down its speed or any effort to go around plaintiff’s car. Plaintiff further invokes the doctrine of “Res Ipsa Loquitur”; that the, plaintiff was of the impression that the defendant’s truck was attempting to pass his automobile, but while in the act of so doing, saw another car approaching and, in order to avoid a head-on collision, swerved his truck into the rear of plaintiff’s automobile and that such action was gross negligence upon the part of the driver of the defendant’s truck.

Plaintiff further alleges that Highway 51 is a national highway burdened with heavy traffic, and that the truck of the defendant was attempting to pass the plaintiff as both vehicles were approaching a curve in the highway, - which was gross negligence upon the part of the driver of the defendant’s truck.

Plaintiff further alleges that, as a result of the collision, he sustained a compressed fracture of the vertebra, a torn and bruised kidney, and that the ligaments in his back are sprained and torn to such an extent that plaintiff will be permanently and totally disabled. Plaintiff also alleges that he was employed at the Ethyl Corporation in Baton Rouge, Louisiana, and was earning from $235 to $250 per month; that he has been unable to return to work and, as a result of the accident, lost his employment with the said corporation. Plaintiff, therefore, prayed for damages in the full sum of $33,337.

The defendants, Capitol Transport Corporation, Inc., and Bruce Dodson and Company, its insurer, who was also made a party to this suit, filed answer denying the main articles of plaintiff’s petition, and further alleged in their answer that the truck of the Capitol Transport Company was being operated at a speed not in excess of 25 miles per hour, and, “that the plaintiff, evidently seeing cattle in the highway, stopped his car suddenly and without warning, just as another car was proceeding north, and that, as plaintiff stopped his car, respondents’ driver was blinded by the lights of the on-coming car and in default of any warning of the stopping of the plaintiff’s car, the truck struck plaintiff’s car a very gentle blow and inflicted no injuries to the plaintiff and no damage whatever to the plaintiff’s car.”

The defendants in their answer charge that the sole cause of the collision was “the fact that the plaintiff stopped his car suddenly and without warning, and therefore, respondents plead contributory negligence as a bar to any demands which plaintiff may have on account of the collision.”

The case was duly tried, and, without written reasons, the Judge of the District Court rendered a judgment in favor of the plaintiff and against the defendants in the full sum of $6500 for personal injuries and the further sum of $299.50 for property damage, or a total of $6799.50, with legal interest thereon at the rate of 5% per annum from date of judicial demand until paid and all costs of suit.

The defendants have appealed from the judgment of the District Court and the plaintiff has answered the appeal and ásked that the judgment of the District Court be amended and substantially increased to the sum as prayed for of $33,337.

On December 12, 1945, between the hours of seven and seven-thirty P.M., the plaintiff McDaniel who was employed by the Ethyl Corporation of Baton Rouge, Louisiana, was on his way to work, traveling upon U. S. Highway 51 when, at a point on the highway near what is known as Felder’s Cabins approximately five miles south of Amite, Louisiana, a car approached. him traveling north on said highway, and the plaintiff noticed some object between the lights of the approaching car and his own, and reduced the speed of his car and discovered that there were approximately three cows that had crossed the highway and were blocking the south lane of traffic, and, in order to avoid striking the cows, according to the testimony slowed his car down to approximately five miles an hour in order to bring it to a stop if necessary.

The truck of the defendant," Capitol Transport Company, Inc., was being operated by its driver, traveling south behind the automobile o-f plaintiff, and, when the plaintiff slowed his .car down to five miles an hour or, as defendants contend, brought it to a sudden stop, the driver of the defendant’s truck was unable to bring his truck to a stop soon enough to avoid striking the left rear portion of the plaintiff’s automobile. The driver of the defendant’s truck testifies that it was raining, the pavement was slippery, that his truck had its lights on, as well as the plaintiff’s automobile and also the approaching car; that his truck was traveling 50 feet behind plaintiff’s car at a speed of 30 to 35 miles y>er hour; that' he applied his brakes but due to the slippery condition of the highway his truck slid some and it was impossible to stop it in time, to avoid striking plaintiff’s car. However, he testified that he swung his truck out to the left in an effort to avoid the collision. The right front half, from the right fender to the middle portion of the bumper, struck the left rear portion of the trunk, and the left rear fender of the plaintiff’s automobile. The pictures of the plaintiff’s automobile are in evidence.

As a result of the blow to the rear end of plaintiff’s automobile the-backs of the front seats gave way and plaintiff and the passenger riding in the car with him, Connie Reeves, were thrown on to the back seat, and the automobile veered off the highway and stopped in the -ditch on the west side of said Highway approximately 50 feet from the point of impact.

Plaintiff has alleged specific acts of negligence and defendant has set up contributory negligence on the part of the plaintiff, and plaintiff has introduced "its proof as to the alleged negligence of the defendant, and defendant has introduced its proof as to the alleged negligence of the plaintiff, and the Court is clearly in a position to decide the case upon the entire testimony in the- record without regard to the doctrine of “res ipsa loquitur” which is plead alternatively.

In Hill v. Knight, La.App., 163 So. 727, 728, the following rule of law found in Blashfield’s Cyclopedia of Automobile Law, Volume 1, Paragraph 942, was cited with approval:

“The driver of a car following a few feet behind another, 'under circumstances such that he should anticipate the possibility of obstruction or trouble of some sort, should have his car under such control or proceed at such a rate of speed that he can stop at once if the car in front stops.
“The only- rule that can govern the interval to be maintained is that of reasonable care under the circumstances. The mere fact that a vehicle is moving in close proximity to a moving vehicle ahead and keeping up with it does not of itself constitute negligence. In determining whether or not a driver was negligent in not maintaining a proper distance between his automobile and the one preceding him, the speed at which he was traveling, the condition of the road, the amount of traffic, the condition of his brakes, and his ability, acting with ordinary care, to stop his car if required to do so by a situation not produced by another’s negligence, should be considered.”

Again in Hill v. Knight, supra, the Court held:

“We recognize and approve the rule of law that a following driver should drive at such a speed and maintain such an interval that -he can avoid collision with the leading car, under circumstances which should reasonably be anticipated- by him. We do no-t think the established facts in the instant case called for any anticipation on the part .of plaintiff of the gross negligence of defendant’s driver in abruptly stopping his truck, without any signal or conduct suggesting such action or any apparent circumstance calling for it.
“Conditions in the country differ so greatly from those in a city, and in a city, in different sections and on different occasions, that no hard and ‘fast rule can be laid down. Each case must 'be decided according to its own peculiar conditions.
“We are satisfied from the meager damage done that, had defendant’s driver slowed down gradually, pulled in to the curb, looked behind, or held out his h§md in warning signal, plaintiff would have avoided the -collision. Hegewisch v. Seiferth, 17 La.App. 199, 135 So. 712.”

In the case of Overstreet v. Ober et al., 14 La.App. 633, 130 So. 648, 650, the Court held:,

“Under ordinary circumstances, that would not be an excessive rate of speed, but the question whether an automobile is running at an excessive rate of speed depends upon the conditions and circumstances surrounding the particular point under consideration. We think a speed of 25 or 30 miles an hour was excessive-under the circumstances shown in the present case. Appellant’s driver saw the truck ahead of-him and did not, he says, intend to pass it. He drove up to within 25 or 30 feet of it, still maintaining a speed of 25 or 30 miles an hour. He says that, when he saw the truck begin to turn, he did not have time to stop. That is no doubt true. But it was negligent for him to follow so close behind the. truck at such speed that he could not stop in case of emergency. We quote the following from Blashfield’s Cyclopedia of Automobile Law, Vol. 1, § 29, p. 454. ‘In trailing other cars, a motorist must govern his speed or keep back a reasonably safe distance so as to provide for the contingency of a car in front suddenly stopping, and so that he can stop without a collision, or can turn out sufficiently to pass the vehicle in front without going across the street in the way of traffic approaching from the opposite direction, as that will naturally result in collision with such traffic.’
:“And the following from Berry on Automobiles (6th Ed.) Vol. 1, § 1034, p. 870: ‘A driver of an automobile on a public road, upon approaching another automobile from the rear, must look out for the man ahead, and must have his machine well in hand to avoid injuring the car ahead,, so long as the man ahead is driving in accordance with his rights.’”

The driver of the defendant’s truck testified that he intended to pass plaintiff’s car as soon as the car approaching from the south passed on north, and while the facts would lead us to believe he was closer than 50 feet, it would seem that whatever distance he actually might have been to the rear of plaintiff’s • car was too close as he did not have his truck under such control that it could be' stopped in time to avoid striking plaintiff’s car in the rear in case of an emergency. He well knew that it was impossible should an emergency arise, for him to pass plaintiff’s car to the east or in the north bound traffic lane, due to the fact that he saw the lights of an approaching car. While it is doubtful that plaintiff, in the face of the emergency on a rainy night, put out his hand in warning, he acted in the only manner reasonable under the circumstances, that is, by reducing the speed of his car in order to bring it to a stop if necessary. When the plaintiff materially reduced his speed, this alone should1 have been sufficient warning to the driver of the defendant’s truck that something was wrong, and, in view of the fact that the driver of the truck knew positively that it was impossible for him to pass to the left of- plaintiff’s car, he should • have been at such a distance, taking into consideration’’ the rainy night, poor» visibility, and the slippery condition of the highway, that he could have brought his truck to a stop in time to avoid the accident.

Even-if defendant’s truck was following at a distance which ordinarily would be considered safe, such a distance, under the facts ’ and circumstances of the present case was not safe. The facts and circumstances as shown by the testimony in this case prove that the approximate cause of the accident was due to the driver of the defendant’s truck driving at an excessive rate of speed and too close to plaintiff’s car under the conditions existing at the time of the accident. Also, the trial cpurt resolved the question of liability, which is one of fact, in favor of the plaintiff, and certainly we find no error, in his judgment on this point.

The plaintiff at the time of this accident was 34 years of age, married and had two minor children. He was employed at the Ethyl Corporation in Baton Rouge, Louisiana, and had been so employed approximately two years. The record fails to reveal the nature of his work, that is, just what duties he performed for his employer. After the accident he proceeded on to Baton Rouge to report for his work but his back began to hurt him and. his brother-in-law brought him back home the next day.

On March 28, 1946, he was dropped from the employ of the Ethyl corporation “because of outside automobile accident he was incapable of performing duties assigned him.” He had done no work since the accident and up to the date of the trial on October 25, 1946.

He was treated by Dr. McConnell, however, Dr. McConnell did not testify in this case.

Dr. Stafford of Franklinton was propounded interrogatories and cross interrogatories which have been filed in. the record. Counsel for defendants in their brief state that “his testimony has been taken by deposition but in as muoh as the commission to take same had expired at the time it was taken, the deposition is not admissible in evidence.” The record shows that the return date was .November 12, 1946, and the certificate of the Clerk of Court of Washington Parish, before whom the deposition was taken, shows that the' interrogatories and cross interrogatories were propounded to the witness on December 17, 1946.

Counsel for defendants cites the case of Arceneaux v. Louisiana Highway Commission, La.App., 12 So.2d 733, 737:

“We now consider the contention that the depositions are inadmissable because the respective commissions hád expired. In Flower v. Swift, 8 Mart, N.S., 449, the Supreme Court held that where the commission to take testimony has expired, the officer to whom it is directed is without authority to take it. It is true that that case involved the taking of testimony not by written interrogatories but 'by examination in person. But the rule laid down there has been followed in other cases involving testimony taken by written interrogatories, and it has been held that such testimony, taken after the return day, is inadmissable.”
“It is contended on behalf of plaintiff that defendant cannot urge this objection for the reason that, when counsel- for defendant filed their cross-interrogatories, the time had already expired and that, therefore, when they did so they waived the right to contend that the testimony had not been taken in time. We do not think so and for two reasons. In the first place, since under the jurisprudence from which we have quoted, the commission having expired, the officers were entirely without authority to submit the questions to the respective witnesses, nothing that counsel could do could re-create in those officers the authority which had completely come to an end. And, in the second place, the Code of Practice, in Article 439, provides that the proper time for making such objections is the time -at which the rule to use the testimony in evidence is made returnable. Objections at that time, and in writing, were properly made in accordance with this provision of the Code of Practice.”

The Court in this case also cited the holdingi of the Court in Wiggins v. Guier, 12 La.Ann. 177, to the effect that:

“The Supreme Court held that where the commission has expired, there is no authority whatever in the officer designated, and that his act in taking the testimony after the return day “would be null.” We do not think the commission which issues under the provisions of the Code of Practice an idle form. On the contrary, we consider it the power under which the officer taking the testimony is enabled to act, and without which his acts would be null. Vyhen, therefore, the return day mentioned in the commission had expired, the authority conferred by it was also at an end, and the testimony taken under it was taken by one without authority.”

In Bonnet-Brown Sales Service v. Bunkie Record et al., 3 La.App. 410, the Court of Appeal for the Second Circuit said:

. “ * * * the testimony was taken after the time , named in the commission for taking it had expired and it was therefore inadmissable .under the authority of Wiggins v. Guier, 12 La.Ann. 177. The Trial Judge properly refused to allow the admission of this evidence.”

There was no rule taken in the present case to use the testimony in evidence but instead, on October 25, 1946, the following minute entry is in the record:

“Vernie E. McDaniel v. No. 12305 Capitol Transport Company, Inc. This day this case came up pursuant to regular order of assignment. The plaintiff represented by Ponder' and Ponder and .the defendant represented by S. S. Reid and Taylor, Brooks, Porter and Fuller, and it is agreed that statement of Dr. Stafford be put in the record and that defendant submit to examination by Dr. McVeigh this day. After hearing the testimony the matter submitted on briefs to be filed by plaintiff within ten .days after he. receives the testimony and the defendant given ten days additional to file briefs.”

The defendant, according to the above quoted minute entry, waived any objection it might have had to this testimony and it should, therefore, be considered.

Dr. Stafford treated the plaintiff from December 14, 1945, to January 17, 1946, and then at irregular intervals until about June 1, 1946, and in his answer to the interrogatories and. cross interrogatories, Dr. Stafford states that he was during that time unable to perform any strenuous labor, that he made no X-ray but that the plaintiff did suffer pain and it was necessary to administer sedatives from December 14, 1945, to January 17, 1946; that he found that the plaintiff was highly nervous and suffered intense pain, and that he had an injury to the back in the kidney region and that further examination of a urinal specimen showed numerous red •blood cells and pus; that he knew that plaintiff, on several occasions, b^d attempted to take up his old job; that is, between the date of the accident and the date he was dropped by the Ethyl Corporation, but that each time he had to give it up and, as a result, would have to stay in bed a few days.

Dr. J. H. McClendon of Amite testified that he had treated the plaintiff for an injury and that he made an X-ray of the plaintiff’s back. Dr. McClendon testifies positively that, in his opinion, the X-ray shows a compressed - fracture of the vertebrae; that if plaintiff did not have a compressed fracture of the vertebrae, in his opinion, he was a malingerer; that the trouble was between the fourth and fifth vertebrae, and that the last time he examined plaintiff, which was sometime after January, 1946, that the plaintiff was not able to work, and that, if he was going to get well, it should not take longer than one to two years from the date, of the injury, and that as to whether a person ever completely recovers from a compressed fracture of the vertebrae depends on their physical condition, their age and severity of the fracture.

Dr. A. L. Lewis of Amite by agreement placed a report in the record which shows the result of an examination of the plaintiff on February 7, 1946. In this report it shows that the X-ray picture was made by Dr. McClendon on January 18, 1946; physical examination by Dr. Lewis states that there was an “area of tenderness on deep pressure over fourth and fifth lumbar vertebrae; painful on stooping and painful while lying on abdomen and over extending thighs; no hernia, nor any other signs of disease or injury.” Patient also stated to Dr. Lewis that he had had a kidney stone in 1942 but there had been no recurrence since then. Dr. Lewis’s impression was that "painful back from a traumatic injury; no evidence of fracture, or dislocation of spine; traumatic injury to kidney which is completely recovered and is causing no disability.” Under the head of “prognosis” it is Dr. Lewis’s statement .that: “Is undertermined as all of his complaints are subj ective and I do not know how long his pain will last.” Dr. Lewis examined the X-ray picture and in his opinion it did not show a compressed fracture of the vertebrae.

Dr. Dorothy Mattingly testified as an expert witness in the case. She practised “all phases related to specialized X-ray” the past eight years. She obtained her degree from Louisiana State University and also had four and one-half more years training in X-ray at Charity Hospital and devoted four years of that time exclusively to X-ray work, and, in addition, spent two months at Peter Van Brigham Hospital in Boston in particular training in X-ray work. She testified positively that the X-ray plate made by Dr. McClendon, which is the only one made of the plaintiff, did not show any compressed fracture of the vertebrae. On Page 46 of the Transcript, she testified as follows:

“Q. Will you interpret the plate? A. It is an AP view of the lumbar spine in the upper pelvis. There was no evidence of fracture or dislocation. There is hypertrophy of the last lumbar transverse procT esses, with bilateral sacralization and there is incomplete fusion of the fifth lumbar and first sacral vertebrae.
“Q. Is this hypertrophy of the last lumbar transverse processes with sacralization bilaterally and incomplete fusion of the lumbar and sacral vertebra due to trauma or to a congenital condition? A. Congenital defect.”

She would not testify whether the congenital defect which she described could cause pain or not.

Also in the record is the testimony of Dr. Charles McVea who did not qualify himself as an expert in the interpretation of X-ray plates but who had at least the same training as Dr. Lewis and Dr. McClendon and in his practice had occasion to read X-ray plates. In his opinion, he could not find any evidence of a compressed or depressed fracture of the vertebrae.

Dr. McVea, on the date of the trial, made an examination of the plaintiff and stated that he believed the plaintiff “had suffered some muscular strain of his back and I think at the present time he still has some evidence of muscular strain.” He did not believe that the condition of muscular strain or pain could be due .to, kidney disease, but thought it could well be due to trauma for the reason that he did not “believe that kidney disease alone would give him the stiffness that was exhibited in his back on examination.”

Dr. McVea on cross examination testified as follows:

“Q. Dr. McVea, the medical staff of Ethyl Corporation, discharged this man because' he was unable to do industrial labor — work in their plant — due to an injury sustained. Do you think that would be a correct result of such injuries as you have learned he sustained in this automobile collision? -A. I think that is a possible result, yes.”

There is no evidence in the record that the plaintiff ever had his back strapped or wore a brace. As. there are three doctors, one of them an acknowledged expert in X-ray work, who testified that plaintiff did not suffer a compressed fracture of the vertebrae as against one who did testify that he' had a compressed fracture of the vertebrae, the plaintiff has certainly not borne the burden of proof in this respect, and from the testimony we find that the plaintiff suffered an injury to his kidney which had healed at the time of the trial, and an injury to his back in the nature of a muscular strain which had not healed at the time of the trial.

The record shows that the plaintiff at the time of the injury was employed by the Ethyl Corporation; it also shows that he was dropped from this employment “because of outside automobile accident he is incapable of performing duties assigned him.” He was unable to work and even at the date of the trial, which was approximately ten months after the accident, defendant’s doctor found evidence of the muscular injury to the back, and he is therefore entitled to loss of earnings for at least ten months which the record shows to be approximately $275 per month or a total of $2750.

We are of the opinion that $2000 damages for his injuries and pain and suffering would be sufficient. He is also entitled to $299.50 damages done to his automobile, making a total judgment of $5049.-50 together with legal interest from date of judicial demand until paid in favor of the plaintiff and against the defendant.

As amended the judgment of the District Court will be affirmed, costs to be paid by the defendants.

On Application for Rehearing.

PER CURIAM.

In the application of the Capitol Transport Company, Inc., and Bruce Dodson and Company, defendants-appellants, for a rehearing, the second ground stated is as follows :

“2. This Court has held that according to the minute entry of October 25, 1946, defendants waived any objection to the admission of Dr. Stafford’s testimony taken by deposition. It should be noted that that portion of the minute entry stating that ‘it is agreed that statement of Dr. Stafford be put in the record’ was superseded by the Motion and Order reading as follows:
“On Motion of Vernie E. McDaniel and upon suggesting that this matter was tried and it was agreed between counsel that the signed medical report of Dr. H. A. Stafford would be submitted in lieu of his testimony and upon further suggesting that new attorneys have appeared in this suit after the case was tried and upon a date to which it was continued for the purpose of taking the testimony of Dr. A. L. Lewis, defendant physician, and the introduction of the medical statement of Dr. Stafford and upon further suggesting that the newly appearing attorney refusing to permit the introduction of the statement of Dr. H. A. Stafford in line with aforesaid agreement that it was necessary for the plaintiff to take deposition of Dr. Stafford and to which ends a petition and order has been presented and direct interrogatories propounded and upon further suggesting that the defendants delayed in preparing cross interrogatories and that the same have not been returned to this Court together with the commission, desires that the return date be extended to November 12, 1946, and for all other relief.
“It is Ordered And Decreed that the return date for the return of the commission and interrogatories together with answers be extended and continued to November 12, 1946.
“Amite, Louisiana October 25, 1946
“Ponder & Ponder
Attorneys for Mover W. W. Cornish,
Judge.”

Regardless of whether the above quoted motion superseded the minute entry, the testimony in our opinion is sufficient without considering the testimony of Dr. Stafford to sustain the judgment which we have arrived at in this case.

The plaintiff has also filed a motion for a rehearing which we believe is without merit.

It is therefore ordered that the applications of the plaintiff and defendants for rehearing be refused.


text:
    213 La. 509
    J. B. BEAIRD CO., Inc. v. AUBREY et al.
    No. 38344.
    Supreme Court of Louisiana.
    March 22, 1948. .
    Rehearing Denied April 26, 1948.
    Melvin F. Johnson, of Shreveport, for plaintiffs-appellants.
    Booth, Lockard & Jack, of Shreveport, for defendant-appellee.
   FOURNET, Justice.

The J. B. Beaird Company, Inc., and the Fidelity and Casualty Company of New York are appealing from a judgment recognizing Byron D. Aubrey’s right to have his homestead exempt from seizure and sale under the provisions of Section 1 of Article XI of the Constitution of 1921 and enjoining the sale of his homestead seized by the. sheriff in satisfaction of a judgment obtained against him by the plaintiffs unless such property is sold for an amount sufficient to satisfy his homestead exemption claim of $4,000, as well as all costs.

The appellants contend that Aubrey’s liability to them, and upon which the judgment was based, was incurred by him in a fiduciary capacity and that he is, therefore, under the express provision of Section 2 of Article XI not entitled to a homestead exemption since such “exemption shall not apply to * * *' liabilities incurred by any public officer, or fiduciary, or any attorney at law, for money collected or received on deposits.”

It appears that Aubrey, while in the employ of The J. B. Beaird Company, Inc., as an assistant purchasing agent — his duties, according to the comptroller under whose supervision he worked, consisted of locating vital or critically needed materials necessary for the manufacture of various size artillery shells then being machined by the corporation, including what is commonly known as carboloy tips —by a scheme of forging invoices and warehouse receipts, obtained checks of the corporation aggregating $24,652.63 in favor of The Foley Machine Company of Shreveport, Louisiana, the company purportedly supplying these tips, this "amount, after Foley’s commission- was deducted, being secured by Aubrey for the ostensible purpose of paying the fictitious vendor from whom he supposedly secured them for Foley.

Clearly under these facts the defendant did not obtain these funds in a fiduciary capacity. No showing.was made that he handled or had. authority to handle any of the funds or property belonging to the plaintiff corporation or that he had authority to or did sign any of the company checks. It is our opinion, therefore, that the defendant Aubrey’s liability to the plaintiff, upon which the judgment forming the basis of the seizure was predicated, was not incurred by him m a fiduciary capacity within the meaning and contemplation of the constitutional provision here invoked.

Conceding for the purpose of this decision the soundness of the holding of this court in the case of Bridewell v. Halliday, 37 La.Ann. 410, relied on by the appellants, it has no application to this case for that case presents an entirely different factual situation.

For the reasons assigned, the judgment appealed from is affirmed.

O’NIELL, C. J., dissenting.


author: O’NIELL, Chief Justice.

text:
    213 La. 512
    BREAUX v. TRAHAN.
    No. 38864.
    Supreme Court of Louisiana.
    March 22, 1948.

      J. Minos Simon, of Lafayette, for defendant-appellant.
    Welton P. Mouton, of Lafayette, for plaintiff-appellee.
   O’NIELL, Chief Justice.

The Chief of Police of the City of Lafayette brought proceedings against Adam Trahan before the Board of Tax Appeals to have the Board revoke two permits which had been issued to Trahan to sell intoxicating liquor. The Board, after hearing the case, in accordance with Act 15 of 1934, as amended by Act 190 of 1946, revoked the permits. Trahan appealed to the district court, where, according to the provisions of the statute, the case was tried de novo. The district judge gave judgment against Trahan, revoking the permits. The court did not merely affirm the revocation which had been pronounced by the Board of Tax Appeals, but expressly declared and adjudged the permits revoked. Tra-han thereupon appealed from the judgment of the district court to this court. The Chief of Police, as appellee, has moved to dismiss the appeal on several grounds.

The first of these grounds is that the case has become a moot case. The permits were granted in 1947; therefore, by the terms of the statute, they would have expired on December 31, 1947. The court, of course, cannot reinstate the permits at this daté. However, the statute, Act 15 of 1934, as amended, provides that a permit such as those involved here shall not be granted to any applicant who shall have had revoked within five years preceding his application such á permit previously granted to him. Thus, although the permits here concerned cannot be reinstated, the appellant has a substantial interest in having the revocation declared invalid, so that he may, within the next five years, if he sees fit, apply for another permit of the same kind.

The second ground for appellee’s motion to dismiss the appeal is that this court has not appellate jurisdiction in-this case. The appellant relies upon the provision in the fifth paragraph of Section 10 of Article 7 of the Constitution, declaring that the Supreme Court “shall have appellate jurisdiction in all cases * * * where the legality, or constitutionality of any fine, forfeiture, or penalty imposed by a parish, municipal corporation, board, or subdivision of the State shall be in contest, whatever may be the amount thereof.” The appellee argues that the revocation of a liquor permit is not a forfeiture, within the meaning of the constitutional provision, because the term “forfeiture” refers to the divestiture of property, and that a liquor permit is not considered to be property. Conceding for the sake of argument that a liquor permit, such as those here involved, is not property, nevertheless the revocation of such a permit is a forfeiture, as the term is used in the constitutional provision. For example, the revocation of a corporate charter or franchise is referred to generally as a forfeiture. State v. Delmar Jockey Club, 200 Mo. 34, 92 S.W. 185, 98 S.W. 539, 543; State v. Howell, 67 Wash. 377, 121 P. 861, 863; Murphy v. Missouri & Kansas Land & Loan Co., 28 N.D. 519, 149 N.W. 957, 959; Central Nat. Bank v. Dallas Bank 6 Trust Co., Tex.Civ.App., 66 S.W.2d 474, 479. Depriving an official of his office is referred to as a forfeiture. City of Williamsburg v. Weesner, 164 Ky. 769, 176 S.W. 224, 225; State v. Harmon, 115 Me. 268, 98 A. 804, 805. The revocation of a boat pilot’s license has been called a forfeiture. Morris v. Board of Pilot Com’rs, 7 Del.Ch. 136, 30 A. 667, 669. The revocation of a liquor dealer’s license, which is the subject of this appeal, has been referred to as a forfeiture. . Baldacchi v. Goodlet, Tex.Civ.App., 145 S.W. 325, 328. The following definition of , forfeiture has been quoted with approval: “Forfeiture is where a person loses some property, right, privilege, or benefit in consequence of having done or omitted to do a certain act.” See State v. De Gress, 72 Tex. 242, 11 S.W. 1029. Webster’s New International Dictionary, 2d Ed., defines the word forfeiture thus: “1.b Loss of some right, privilege, estate, honor, office, or effects, in consequence of a crime, offense, breach of condition, or other act.” It seems quite certain therefore that the word forfeiture has a larger meaning than the mere divestiture of corporeal property. Section 5 of Act 15 of 1934, as amended by Act No. 384 of 1946, provides that a permit such as those here involved “shall be purely a personal privilege * * The applicant for such a permit has, if he is qualified in accordance with the requirements recited in Act 15 of 1934, as amended, a right to have the permit issued to him, which right he may enforce in the courts of this state. We are of the opinion therefore that the revocation of the permits concerned constituted a forfeiture within the meaning of the constitutional provision conferring upon this court jurisdiction of such a case.

The third ground upon which the appellee bases his motion to dismiss the appeal is that the appeal was not taken from the action of the Board of Tax Appeals revoking the permits, but was taken from the judgment of the district court revoking the permits. That is true. But the constitutional provision does not require that the appeal shall be taken directly from the imposition of the forfeiture by the board; it simply requires that the legality or constitutionality of a forfeiture shall be in contest, in order to give this court appellate jurisdiction. It is not contended that the district court could have revoked the permits except by affirming a revocation made by the Board of Tax Appeals. Therefore, the legality of the prior revocation by the Board of Tax Appeals is certainly in contest in this case.

Assuming that the appellant might •have appealed to this court directly from the order of the Board of Tax Appeals, his appealing first to the district court could not divest this court of the jurisdiction conferred by the Constitution.

The appellee argues that this appeal is returnable only to the Court of Appeal, under the terms of Section 6 of Act 15 of 1934, which, as amended by Act No. 384 ■ of 1946, reads in part: “Within ten (10) calendar days of the signing of the judgment by the District Court on all such appealed cases any aggrieved party may devolutively appeal the judgment to the Court of Appeal having jurisdiction of the District Court.” If this provision shoüld be construed so as to deprive this court of its appellate jurisdiction in this case, as contended by the appellee, it would be unconstitutional.

The motion to dismiss the appeal is overruled.