text:
    213 La. 661
    STATE v. MAGNOLIA PACKING CO.
    No. 38546.
    Supreme Court of Louisiana.
    April 26, 1948.
    Irion & Switzer, of Shreveport, John B. Smullin, Eugene A. Conway and Stephen B, Rodi, all of Baton Rouge, for plaintiff and appellant.
    Tucker, Bronson & Martin, of Shreveport, for defendant and appellee, Magnolia Packing Co.
   McCALEB, Justice.

The State claims that the defendant is a wholssale dealer as defined by the General License Tax Law, Act Nd. 15 of the Third Extra Session of 1934, as amended, and seeks recovery of taxes for the years 1944, 1945 and 1946. Defendant resists liability on the ground that it is engaged in the business of manufacturing and, therefore, is exempt from the provisions of the law. This defense prevailed in the lower couft and the State has appealed.

The defendant operates a large meat packing plant in the city of Shreveport, distributing its products' over a wide area of East Texas, South Arkansas and North Louisiana. In pursuance of this business, it buys cattle and hogs on the hoof and slaughters, cleans and dissects them. Part of the meat produced by this operation is sold at wholesale and the balance is processed into lard, beef and pork sausage, cured ham and other cured products, bacon, hides and other by-products.

The State concedes that the part of defendant’s business devoted to making sausage and lard, comprising 35% of its gross receipts, constitutes manufacturing and has excluded from its claim the wholesalers tax on the sales of these products. However, it is contended that defendant is engaged in two other classes of business of a non-manufacturing nature, — the sale of fresh meat (comprising 35% of its gross receipts) and the sale of cured and smoked meats including hams, bacons and loins (comprising 30'% of its gross receipts)— which are taxable under the provisions of paragraph (b) of Section 3 of the statute.

Defendant, on the other hand, denies that any part of its gross receipts are derived from pursuits of a non-manufacturing character. It further maintains that the operation of its meat packing house involves a series of steps by which live animals are converted into various cuts and qualities of edible products and that, in considering whether' the business conducted by it is manufacturing, it must be viewed as a whole as it cannot be classified separately without destroying the fundamental integrated purpose for which it is organized. In short, it proclaims that it is either a manufacturer or not and that its operations cannot be separated for the purpose of exacting a license tax.

Since it is admitted that, a substantial part of defendant’s business involves manufacturing, we believe that it is exempt, from payment of a license tax even though it be assumed, for purposes of discussion (an assumption most favorable to the State), that the conversion of live cattle and hogs into fresh meat and cured hams, etc., for sale as a separate enterprise would not be deemed a manufacture.

Ever since 1879, it has been the public policy of this State to exempt manufacturers from payment of occupational license taxes. This exemption was contained in Article 206 of the Constitution of 1879 and was repeated in Article 229 of' the Constitutions of 1898 and ’1913. Many perplexing problems, however, have been encountered by the courts in the application of the constitutional exemption — for, manufacturing is a term of such broad import that it is sometimes difficult to determine whether a particular enterprise falls within its meaning. Thus; in 1880, a confectioner who peddled ice cream was held not to be a manufacturer (see New Orleans v. Mannessier, 32 La.Ann. 1075), whereas, in 1917 one who made ice cream on an enlarged scale was declared'to be exempt (see State v. Brown, 140 La. 928, 74 So. 253). In truth, cases are legion on the subject; the opinions long and the résults not entirely uniform.

The exemption in favor of manufacturers'was not carried in the Constitution of 1921. Nonetheless, in all license statutes enacted since that constitution has been in effect, the Legislature has specifically provided that manufacturers “shall be exempted from any provisions of this act.” Accordingly, it is apparent that the lawmakers believe that the interest of the people is best served by continuance of the policy of exemption as an encouragement to the establishment of manufacturing .enterprises.

The question arises, therefore, as to whether the Legislature intended to exempt those who, in connection with a manufacturing enterprise, engage in pursuits of a non-manufacturing nature. ’ Section 3 of Act No. 15 of the Third Extra Session of 1934, as amended by Section 2 of Act No. 175 of 1944, declares:

“(b) Except as otherwise expressly provided herein, any person, firm, corporation or association of.persons taxed under this Act having one or more places of business shall pay a separate license for each class of business at each place.” .

Counsel for the State say that, since 65% (30% for cured meat and 35% for fresh meat) of defendant’s gross receipts are derived from pursuits which are allegedly non-manufacturing, the above quoted section applies and defendant, is liable for the tax on these two classes' of business.

The argument is not tenable. Paragraph (b) of Section 3 of the Act applies only to persons “taxed under this Act”. If a meat packing plant be regarded as an integrated manufactory, then it matters not whether a part of its gross receipts is obtained from operations which would not be considered as manufacturing when conducted as a separate enterprise.

Section 8 of Act No. 175 of 1944, in exempting manufacturers from “any of the provisions" of the statute, does not make it essential that all of the gross receipts of a business be derived from manufacturing in order for one to be a manufacturer. In this respect, it differs from certain other statutes on taxation exempting corporations “wholly engaged in carrying on manufactures within the state” (see People ex rel. Schwarzschild & Sulzberger Co. v. Roberts, 11 App.Div. 449, 42 N.Y.S. 317, 318, affirmed in 156 N.Y. 690, 50 N.E. 1121), or the corporate stock of corporations organized for “purely manufacturing purposes”. See Distilling & Cattle Feeding Co. v. People, 161 Ill., 101, 43 N.E. 779, 780.

Albeit, the exemption contained in our act is more on a parity with the provisions of a Massachusetts statute exempting from taxation machinery of a foreign manufacturing corporation which the Supreme Judicial Court of that state was but recently called upon to construe in Commissioner of Corporations and Taxation v. Assessors, etc., 1947, 321 Mass. 90, 71 N.E.2d 874, 876. There, the question arose as to whether the exemption covered the business of Armour & Company which maintained three plants in Boston; ' “one plant where shipments of carcasses sent by the corporation were received and'cut up for dealers, hotels and restaurants, and where sausages were made, lard produced, and bacon and hams prepared; the second plant where operations similar to those conducted at the first plant were conducted with the exception of producing lard; and the third plant where leather soles were cut from hides graded and shipped to shoe manufacturers.” In concluding that Armour & Company was a foreign manufacturing corporation within the meaning of the statute, even though it was not wholly engaged in manufacturing, the court said:

“Corporations whose manufacturing operations are substantial, whether viewed with respect to the financial receipts they bring to the corporation, or the proportion of the entire corporate income that they comprise, or the percentage of the entire capital which is invested in them, or the number of persons employed in them as compared with the total number of employees of the corporations, or the ratio to the entire business activities of the corporation, must be regarded as manufacturing corporations within our statutory definitions specifying those that are exempted from local' taxation of their machinery.”

In the case at bar, the operations of the defendant, which are admittedly manufacturing, are most substantial, i.e., 35% of its gross receipts. In truth, its entire operations are so interwoven with manufacturing that it would be indeed difficult to say that any part thereof can be rightfully separated from the whole. The slaughter of cattle and hogs is just as essential to the production of sausages as it is to the sale of cut meat and cured hams. Accordingly, in the absence of restricted wording in the exemption, such as that contained in the New York and Illinois statutes above referred to, defendant is to be regarded as a manufacturer and therefore not amenable to the provisions of paragraph (b) of Section 3 of Act. No. 15 of the Third Extra Session of 1934, as amended.

The judgment appealed from is. affirmed.

O’NIELL, C. J., does not take part.

       In City of New Orleans v. Ernst & Co., 1888, 35 La.Ann. 746, a manufacturer was defined to be “one who is engaged in the business of working raw materials into wares suitable for use, who gives new shapes, new qualities, new combinations to matter which has already gone through some artificial process. A manufacturer prepares the original substance for use in different forms. He- makes to sell, and stands between the original producer and the dealer, or first consumer, depending for his profit on the labor which he bestows on the raw material. City of New Orleans v. LeBlanc, 34 La.Ann. 596, 597.”
      The following businesses have been declared to be manufacturing: Barrelmaker-City of New Orleans v. LeBlanc, 34 La.Ann. 596; Rice milling-City of New Orleans v. Ernst & Co., supra; Converting saw logs into rough lumber State v. A. Wilbert’s Sons, 51 La.Ann. 1223, 26 So. 106; Newspaper publisher-State v. Dupre and Hearsay, 42 La.Ann. 561, 7 So. 727; Baker-State v. Lanasa, 151 La. 706, 92 So. 306; Sugar refining-State v. American Suger defining Co., 108 La. 603, 32 So. 965; Making telephone poles-State v. American Creosote Works, Inc., 163 La. 547, 112 So. 412; Making bags out of burlap-State v. Bemis Bro. Bag Co., 135 La. 397, 65 So. 554; Converting hogs into lard, ham, bacon and salt meat by packing and smoking-Ballard v. Kentwood Ice Mfg. Co., 147 La. 583, 85 So. 598. Contra, but without citation or discussion of the Ballard case, is State v. Gardner & Jacob Co., 176 La. 221, 145 So. 521; Bottling soft drinks-Ballard v. Hammond Coca-Cola Bottling Co., Ltd., 147 La. 580, 85 So. 597; Machine shop-State v. Transmission Machinery Co., 157 La. 827, 103 So. 180; Extracting oil from cotton seed-State v. Southern Cotton Oil Co., 164 La. 225, 113 So. 825.


source: Caselaw Access Project

author: McCALEB, Justice.

license: Public Domain

text:
    213 La. 670
    INTERNATIONAL LONGSHOREMEN’S AND WAREHOUSEMEN’S UNION et al. v. INLAND WATERWAYS CORPORATION.
    No. 38877.
    Supreme Court of Louisiana.
    April 26, 1948.
    James I. McCain, of New Orleans, for plaintiffs-appellants.
    Robert Weinstein, U. S. Atty., and Nicole E. Simoneaux, Asst. U. S. Atty., both of New Orleans, Amos Lee Ponder, Jr., Asst. U. S. Atty., of Amite, and Thos. M. Brahney, Jr., Asst. U. S. Atty., of New Orleans, for appellee.
   McCALEB, Justice.

On March 26, 1947, Inland Waterways Corporation, which operates the Federal Barge- Lines, entered into a labor contract with International Longshoremen’s and Warehousemen’s Union, C.I.O., wherein it agreed, among other things, to recognize the Union as its sole and exclusive collective bargaining agency for all employees of the terminals at Baton Rouge and New Orleans, Louisiana; Vicksburg, Mississippi ; Helena, Arkansas and Mobile, Alabama, and to give preference in employment within certain limitations to employees who are members of the Union in good standing. It was provided that the agreement would become effective on its date and would remain in force until June 30, 1947, “and thereafter from year to year unless either party gives thirty (30) days written notice of a, desire to alter it.” The contract was supplemented on two separate occasions so as to raise the wage scale of employees at the terminals.

On August 13, .1947, the Corporation had in its employ nine Union watchmen covering its Upper and Lower Fleets and the Galvez Street Wharf in the city of New Orleans. Having previously decided to discontinue direct employment of watchman and to let out this work to an independent contractor, the Corporation notified each of the nine Union watchmen in-writing that, after September 13, 1947, his services as watchman would be terminated and that, should he so desire, he would' be reassigned as a laborer, effective September 14, 1947, according to seniority.

The affected employees complained to the Union and the latter protested to the Corporation, contending that the proposed discontinuance of direct, employment -of watchmen, was a violation of the contract. Notwithstanding these objections, the Corporation carried its plan into effect and, on' September 14, 1947, it entered into a contract with Lehon’s Protection Police Service, Inc., to provide the necessary watchman service for its Upper and Lower Fleets and its Galvez Street Wharf.

However, prior to the time the employment was terminated, viz., on September 12, 1947, the aggrieved watchmen and the Union filed this suit in the Civil District Court seeking to restrain and prohibit the Corporation, its officers and agents, from terminating their employment as watchmen and a mandatory injunction directing their reemployment in the event of their discharge subsequent to the filing of the suit.

A rule nisi was issued by the court and, on the return day, the Corporation appeared and resisted the demand on two grounds: (1) That plaintiffs are not entitled to injunctive relief because they have not alleged injury not compensable in damages, and (2) that, iij any event, the acts complained .of are not violative of the contract.

After a hearing, there was judgment in favor of the Corporation and- plaintiffs’ suit was dismissed. They have appealed devolutively and the case has been submitted for decision on briefs by joint motion of the parties under the provisions of Section 8 of Rule IX of this Court.

An examination of the record and the briefs of the litigants makes it unnecessary-that we determine whether plaintiffs have an adequate remedy at law, inasmuch as we are convinced that the action taken by the Corporation in discontinuing direct employment of watchmen is not violative of-its contract with the Labor Union. A perusal of the agreement reveals that, aside from certain covenants respecting general working conditions, leaves of absence, seniority, grievances and the like, it is nothing more than a preferential employment arrangement- under which the Union is recognized as the sole and exclusive collective bargaining agency to supply the Corporation’s employment needs:

“(b) Insofar as consistent with legislation, directive, regulations or Federal Personnel policies, now or hereafter in effect, Hi * * ”

It should be borne in mind, at the outset, that the Inland Waterways Corporation is a creature of Congress and, hence, is controlled by such legislation, directives and regulations . as the Federal Government sees fit to impose. The agreement with the Labor Union fully recognizes the limited contractual powers of the Corporation for it is made “Subject to the laws' of the United States of America (including Section 305 of the Government Corporations Appropriations Act of 1947, 60 Stat. 586,) and authorized directives of agencies of the United States in conformity with the laws of the United States, now or hereafter in effect, * *

The contract does not require the Corporation to continue in its employment a - 'certain number of Union employees or. a particular class of employee. Therefore, it was within its rights when it discontinued direct employment of watchmen- and hired an independent contractor to supply -it with watchman service. Witnesses produced by the Corporation testified that it dispensed with direct employment of watchmen for reasons of economy and efficiency and that the expected savings accruing to it by the change would amount to $7,496.58 per annum.

The policy of economy is in keeping with the laws of the-United States applicable to the contract involved — for- Section 947(a) of Title 5, U.S.C.A., dealing with executive departments and government officers and employees, provides:

“It is declared to be the sense of the Congress that in the interest of economy and efficiency the heads of departments, and of independent establishments or agencies, in the executive branch, including Government-owned or controlled corporations, shall terminate the employment of such of the employees thereof as are not required for the proper and efficient performance of the functions o,f their respective departments, establishments, and agencies.”

Counsel for plaintiffs does not for. a moment contend that there is an express provision in the contract which requires the Corporation to retain the watchmen on its payroll during .the existence of the agreement. Nor does he assert that Le-hon’s Protection Police Service, Inc., is not an independent contractor or that its employees are subject to- the, supervision and control of the Inland Waterways Corporation. He takes the position that the substitution of an independent contractor in the place of the, watchmen constitutes an actionable violation because a consideration of the contract as a whole exhibits that it was the intention of the parties that the services of employees were not to be discontinued while the agreement was 'in force unless the service rendered by such employees was- also discontinued. In other words, it is counsel’s contention that the hiring by the Corporation of an independent contractor to perform the watchman service is merely a device, by which an avoidance of the implied provisions of the contract is effected, -which cannot be countenanced in equity.

In support of this proposition, counsel relies on several provisions of the contract fixing the scale of wages, tour of duty, overtime, and other related matters .and also on Section 6 of Article II, dealing with “General Working Conditions,” which declares :

“Established, positions - shall not be discontinued- and new ones created under a different title covering relatively the same class of work, for the purpose of reducing the rate of pay or evading the application of seniority rules or other conditions of work set forth in this Agreement. * * *”

The contention cannot be sustained. We do not view the contract as restricting in any manner the liberty of the Corporation to discontinue direct employment for any work in which it is engaged and to let-out such work or any part thereof to an independent contractor. For instance, if the Corporation should' find it more suitable to hire a- stevedoring company to load and unload its barges' rather than to continue performing this work itself through ■its own employees, there is nothing in the agreement, express -or implied, to prevent it from so doing. The contract 'merely vests the Union with the exclusive right of supplying the labor needs of the Corporation from its membership.

Nor do we think that the provisions of Séction 6 of Article II of the contract enhance plaintiffs’ cáse to any -extent. That section, in effect, forbids an unfair labor practice — that is, the discontinuance of established positions and creation of new ones under a different title for the purpose .of reducing the pay rates and evading seniority rules. Nothing of such a nature has been attempted by the Corporation in this case.

The judgment appealed from, is affirmed.

       Owned by the Federal Government, being created by Act of Congress of June 3rd 1924, 43 Stats. 360, 49 U.S.C.A. 151 et seq.

       It is not amenable to the Taft-Hartley Act. Act of June 23rd 1947, C. 120, Title I, § 101, 61 Stat. 137, Title 29, U.S.C.A. § 152, exempts from the term “employer” “any wholly owned Government Corporation, * * * ”


author: O’NIELL, Chief Justice.

text:
    213 La. 678
    STATE ex rel. DAVION v. DEMOCRATIC EXECUTIVE COMMITTEE OF CITY OF OAKDALE.
    No. 38967.
    Supreme Court of Louisiana.
    April 12, 1948.

      Grover C. Vidrine, of Oakdale, for relator-appellant.
    C. W. Berry, Jr., of Oakdale, for defendant-appellee.
   O’NIELL, Chief Justice.

This case was submitted on briefs, without oral argument, on the joint motion of the parties, under the provisions of Section 8 of Rule IX of the Rules of this court, 191 La. xiii.

The relator in his petition in the district court prayed for a writ of mandamus to compel the Democratic Executive Committee for the City of Oakdale to certify his name as a candidate for the Democratic nomination for the office of Marshal of the City in the primary election to be held on May 4, 1948, and to that end he prayed also to be permitted to reinstate an application which he had filed with the Committee to become a candidate, and to have his name printed on the official ballots to be used in the primary election. In the alternative he prayed that the Committee should be ordered to cancel and set aside its resolution dated March 4, 1948, calling a Democratic primary election to nominate a candidate for Mayor, candidates for five members of the Board of Aldermen, and candidates for three members of the Democratic Executive Committee for the City, and that the Committee should call anew the primary election for the nomination of these offices and should include in its call the office of City Marshal, for which office the relator was an aspirant. The defendant, Democratic Executive Committee, filed a number of exceptions to the petition, including an exception to the manner in which the allegations of the petition were verified, an exception of nonjoinder of necessary parties, a plea of laches, a plea of estoppel, and an exception of no cause or right of action. At the same time the defendant filed an answer to the petition, which answer was virtually a reiteration of the plea of laches.

The case was tried and submitted on all of the exceptions and on the issue joined by the defendant’s answer. The judge gave judgment for the defendant rejecting the relator’s demand, and he is appealing from the decision.

The judge found that the relator had waited too long to file his suit after the Committee had called the primary election to nominate candidates for the offices of Mayor, Aldermen and members of the Democratic Executive Committee for the City. In calling the primary election, the Committee did. not include in the call the office of City Marshal. It appears that the reason for that was that the term of the incumbent in that office was not to expire until December 31, 1948, according to the understanding ■of the Committee. Hence the Committee intended to call the primary election in September 1948 to nominate a candidate for the office of Marshal. The judge decided that the relator was guilty of laches in failing to bring his mandamus suit in time to allow the Committee to include the office .of Marshal in its call for the Democratic primary election. The record shows that that defense is well founded. The Committee in its call for the primary election for the office of Mayor, members of the Board of Aldermen and the three members of the Democratic Executive Committee for the City, designated March 15th as the date of the deadline for candidates for the Democratic nomination to qualify. It was not until the afternoon of that date, March 15, 1948, that the relator in this suit presented tó the secretary of the Committee an application to qualify as-a candidate for the nomination for the office of city Marshal. The suit was not filed until 'March 29, 1948. As far as the record discloses the general election for the municipal offices of the City of Oakdale, such as Mayor and Aider-men, does not fall on the same day on which the general election for state and parochial offices is held. Section 25 of Act No. 46 of 1940, as amended by Section 2 of Act No. 351 of 1946, provides that where the election of municipal officers of any particular municipality does not fall on the date fixed by law for the general state election, or on the date fixed.by law for congressional elections, the date to be fixed by the Democratic Executive Committee of the municipality for the primary election shall be not less .than 60 nor more than 70 days prior to the date on which the municipal election is to be held. In such cases the Democratic Executive Committee for the municipality is required to meet not less than 111 days nor more than 126 days previous to the date on which the election is to be held. As far as the record discloses it would have been impossible for the Committee in this case to meet and call a Democratic primary election for the nomination of a' candidate for the office of Marshal within the time prescribed by law after the relator filed this mandamus suit.

Besides, the court properly ruled that the relator’s petition did not disclose a cause or right of action to compel the Committee to certify his name as a candidate for the office of City Marshal in the primary election to be held on May 4, 1948, because in fact no primary election had been called to nominate a candidate for that office. By the same token the Committee could not have been: ordered to print relator’s name on the ballot' to be used in that election, which' was called only for the nominations for the offices- of Mayor, members of the- Board of Aldermen and three members of the Democratic Executive Committee for the City.. . And, by the same token, the relator has no cause or right of action to compel the Committee to cancel and set aside its resolution calling a primary election for the nomination of candidates for the office of Mayor, members of the Board of Aldermen and members of the Democratic Executive Committee for the City. Not being a candidate for any of these offices the relator has no interest in having the resolution of the Committee can-celled so far as it called a primary election for these offices. In fact it' is likely that candidates for the Democratic nomination for these offices have filed their applications and affidavits showing their qualifications for the Democratic nomination for these offices.

The judgment appealed from is affirmed at the cost of the appellant


author: HAMITER, Justice.

text:
    213 La. 684
    HOLCOMBE et al. v. SUPERIOR OIL CO.
    No. 38514.
    Supreme Court of Louisiana.
    April 26, 1948.
    Liskow, Lewis, Gerard & Shepard, of Lake Charles, for defendant-appellant.
    Jones, Kimball & Owen and Plauche & Stockwell, all of Lake Charles, for plaintiffs-appellees.
   HAMITER, Justice.

In these consolidated suits, docketed in this court under a single number, the plaintiffs, as owners of mineral rights, seek damages allegedly resulting from a geophysical trespass admittedly committed by agents of the defendant. Their rights, totaling 1163.5 mineral acres, are in and to portions of a large tract of land of approximately 2098 acres located in Calcasieu Parish and known as the Gibson Farm. The Layne Louisiana Company owns that tract of land, subject to outstanding mineral rights on 1363.5 acres, including those of the plaintiffs herein.

The trespass occurred in August, 1944, when defendant’s agents, without securing permission to do so, entered the Gibson Farm (it is enclosed by a strong fence) after breaking a lock on one of its principal gates and made a thorough geophysical survey thereof, exploring at numerous points completely around the premises.

Thereafter the Layne Louisiana Compa-' ny sued defendant for damages caused by the trespass and recovered judgment in the district court for $6297.50. Of this amount $3672.50 was for the value of the exploration rights wrongfully exercised by defendant, being $5.00 for each of the 734.5 mineral acres owned by that claimant. The remainder of the award was for damage to the land itself and for loss of cattle permitted to escape. On appeal to this court the judgment was affirmed on March 18, 1946. See Layne Louisiana Co. v. Superior Oil Co., 209 La. 1014, 26 So.2d 20.

The same trespass forms the basis of the present suits in which the respective plaintiffs, who were not parties to the Layne Louisiana Company litigation, allege damage to their mineral interests (totaling 1163.5 mineral acres) as follows: (1) value of exploration rights wrongfully exercised and information illegally taken, $5.00 per acre; and (2) loss of value for mineral leasing purposes, $10.00 per acre.

The district court, after trial, rejected the claim for the second item, obviously because the evidence adduced did not disclose that plaintiffs had been prevented from granting leases affecting their mineral interests as a result of the geophysical survey. It sustained plaintiffs’ claim for the first item, however, and rendered judgment in their favor for the total sum of $5817.50, this amount representing a value on the exploration rights of $5.00 per acre for the 1163.5 mineral acres which they owned in the aggregate.

Defendant appealed from the judgment; and it contends here, to quote from the brief of its counsel, that the district court erred:

“(a) In allowing plaintiffs damages in any amount; and in holding that as mineral right owners they were entitled to recover for a geophysical trespass on the land owned by another.
“(b) In allowing damages based on alleged value of privilege exercised by defendant when there was no proof of any kind that damages were suffered by plaintiffs.
“(c) In fixing damages based on the highest price paid by defendant for mineral leases affecting lands located several miles from the scene of the trespass.”

As defense counsel point out, these plaintiffs do not own any part of the surface of the Gibson Farm on which the ■exploration work was performed and the trespass committed. The entirety of that surface belongs to the Layne Louisiana Company, the plaintiff in the previous litigation to which reference is made above. They do own, however, mineral rights throughout the greater part of the 2098 acre tract, having reserved them some years ago when selling the property; and attending their interests is the right to enter upon the land and explore for and produce the oil, gas and other minerals that may lie thereunder. Furthermore, with respect to their mineral interests, which are distinguishable from mineral royalties, plaintiffs are necessary parties to the execution of any oil and gas lease effective against the property and they are entitled to share in the bonus and the delay rentals payable under such a lease, as well as in any production resulting from it. In sum, theirs is a real right in the land. Gulf Refining Company of Louisiana v. Glassell, 186 La. 190, 171 So. 846; Vincent v, Bullock, 192 La. 1, 187 So. 35; St. Martin Land Company v. Pinckney et al., 212 La. 605, 33 So.2d 169. It constitutes incorporeal immovable property which may be protected and defended in the same manner as the ownership and possession of other immovable property. Act 205 of 1938; International Paper Company v. Louisiana Central Lumber Company et al., 202 La. 621, 12 So.2d 659. And every act that damages or depreciates that right gives rise to a cause of action against him who is responsible therefor. Civil Code Article 2315; McCoy v. Arkansas Natural Gas Company, 184 La. 101, 165 So. 632; Angelloz v. Humble Oil & Refining Company, 196 La. 604, 199 So. 656.

Owning such a right in and to the Gibson Farm these plaintiffs were entitled to be paid proportionately for the privilege of exploring or making geophysical tests on the tract for oil and gas. According to John J. Doyle, a witness for defendant whose testimony is in the record of this case, payment is often made for a privilege of that kind, the average price in “wildcat” territory being fifty cents per acre for a six months’ exploration period and $1.00 per acre for one year. Therefore, it can be correctly said that when this defendant explored without authority the Gibson Farm, and obtained information regarding the minerals thereunder, it took from plaintiffs a property right valuable to them. And for this unauthorized and illegal taking, which constituted damage to their mineral interests, plaintiffs can recover. This conclusion is identical with that reached by us in the Layne Louisiana Company case.

Of course, only compensatory, not punitive, damages are recoverable. And in determining the quantum much discretion is vested in the trial judge. Civil Code Article 1934; Angelloz v. Humble Oil & Refining Company, supra. In the instant case, as well as in the Layne Louisiana Company case, he concluded that $5.00 per mineral acre was the value of the exploration privilege illegally assumed by defendant. In arriving at this value he reasoned:

“ * * * The defendant, according to the record, was willing and did pay as much as $5.00 an acre to some land owners for the privilege of making a geophysical survey upon their property. It is true that these particular tracts were not adjacent to the property in which we are interested at the present time; however, these tracts for which the defendant paid $5.00 an acre, were in the same block, that defendant then had and upon which defendant was operating.
******
“The defendant could hardly be heard to say that it would not have paid for the right to make a survey of the property in question, since it was willing to violate the law in order to secure the survey. We must, of necessity, consider that it was interested in that property as much as in any other property, and, since the maximum it had paid in the lease block was $5.00 per acre, therefore, it follows, in our opinion, that it would have been willing to pay $5.00 per acre to shoot this particular property.”

In view of all of the facts and circumstances of the case, we can not say that the trial judge abused the discretion given him in fixing the quantum of damages.

The lease block of defendant, to which the trial judge refers, consisted of thousands of acres within an area extending approximately eight miles from the Gibson Farm, some of the acreage lying adjacent to the property. With reference to the leases, according to a stipulation in the record, counsel for the litigants agreed:

“The map filed by defendant in suit number 23,467 referred to as Drl therein and to be offered in this suit shows in yellow the leases that were acquired by the Superior Oil Company in the ■ spring of 1944; the original consideration paid for these leases was one dollar per acre except as to the west sixty acres of the N% of NE%,.as to the SE% of the NW%, and the' SWJ4 of SWj4 of Section 20, and the SWJ4 of N,W% of Section 21, Township 8 South, Range 8 West, as 'to which leases the original consideration was at the rate of five dollars per acre; that the leases for which one dollar per acre was paid as original consideration in the main provided an original term of six months before the accrual of a rental to maintain the lease in lieu of drilling operations, except that the lease from Quatre Parish Company for which one dollar per acre was paid gave an original term of one year, while the leases for which five dollars per acre was paid gave an original term of one year, except the lease affecting the sixty acres in the N% of the NEJ4 of Section 20, which was for an original term of four months and five days, the term spoken of being a term before drilling or an additional payment was required in order to maintain it in force; the primary terms of the leases being generally around five years during which they could be maintained by rentals; the leases in other respects being substantially in the usual commercial form; the first rental under the one dollar leases and in all of the leases due after the first original term were in the majority of cases five dollars per acre; and all of said leases had either been formally released by the defendant Superior Oil Company or permitted by it to expire prior to the filing of these suits.”

Also, the record shows that defendant held free exploration privileges on considerable acreage within its block, some of which adjoined the Gibson Farm on its west side.

Considering then that defendant purchased its leases in 1944 and dropped them in 1945 (these suits were filed July 27, 1945), and also considering the free exploration privilege it had on other acreage, it is reasonable to assume, as the trial judge found, that the leases were obtained primarily for exploration purposes. Further, considering that for some of the leases in the block it paid $5.00 per acre, and that, as the record discloses, the Gibson Farm lies closer to oil production (the Gillis Field, only one and one-half miles away) than they, it can not be correctly said that a value of $5.00 per acre for the privilege of exploring plaintiffs’ acreage is excessive.

For the reasons assigned the judgments are affirmed.


text:
    213 La. 693
    FORREST v. HUNTER.
    No. 38444.
    Supreme Court of Louisiana.
    April 26, 1948.
    K. Hundley and Provosty, Sadler & Scott, all of Alexandria, for appellant.
    T. F. I-Iunter and Walter M. Hunter, both of Alexandria, for appellee.
   HAMITER, Justice.

In this petitory action the plaintiff, John M. Forrest, seeks among other things to be decreed the owner of approximately 55 acres of land situated in Rapides Parish and possessed by the defendant, Oscar M. Hunter. The disputed property is out of a larger tract of 205.45 acres owned at one time by Joseph W. Swann. From a judgment dismissing his suit, plaintiff has appealed.

To properly pass upon the issues presented by the appeal, we mu'st take into consideration a former suit, to which the instant action is a sequel, instituted in 1927 by this defendant (and some co-owners who need not be mentioned) against this plaintiff. That suit was also commenced as a petitory action, but thereafter it was tried and dealt with purely as an action to fix the boundary between the contiguous estates of the litigants.

Those estates were within the above mentioned larger tract of 205.45 acres that Joseph W. Swann formerly owned. On February 6, 1911, Swann, for a consideration of $650, sold a part of the tract to Columbus F. Wilkerson, and by a separate deed (of the same date), reciting a consideration of $650, conveyed the remainder to Stephen A. Herring. According to the testimony of those vendees, found in the record of the former suit, the property was purchased in equal proportions, Herring receiving the northern half and Wilkerson the southern half. This testimony is corroborated by two circumstances; each ven-dee paid the same consideration ($650); and the aggregate acreage recited for each parcel was practically the same, the Herring deed stating that his contained 70 acres more or less, and the Wilkerson deed 67 acres more or less. The stated acreage was incorrect, of course, for the entire tract contained 205.45 acres; but it indicated an equal division of the property.

Thereafter, by mesne conveyances, the entire half- that had been acquired by Wilkerson came into the ownership and possession of Oscar M. Hunter.

Herring sold his half in two parts. He conveyed the southern part of his acquisition on December 31, 1912, to John M. Forrest, the deed reciting a consideration of $500 and evidencing a conveyance of: “The south half of a certain piece or parcel of land * * * the description of the entire tract the southern half of which is herein conveyed being as follows: (here follows a description of the land purchased by Herring from Swann).”

On June 11, 1914, Herring sold the northern part of his acquisition to Willie W. Forrest (a brother of John M. Forrest) for a consideration of $500, the deed describing the part sold as: “The north one-half of a certain tract or parcel of land * * * beginning at a point * * * (here the boundary of the Herring tract, said to contain 70 acres more or less, is sought to be delineated). The tract herein conveyed being the remaining portion or north one-half of the above described tract of land, which original tract was purchased by this vendor from J. W. Swann by deed of date February 6, 1911, and the south half having been sold by this vendor to J. M. Forrest by deed of date December 31, 1912.” This last part so sold by Herring to Willie W. Forrest was later acquired, through mesne • conveyances, by Ben D. Hawkins and contains (according to the latter’s deed) 55 acres more or less. (It is the property in dispute in the instant action.)

When the former suit was commenced in 1927, therefore, the 205.45 acre tract (the original Swann property) was owned in the proportions of one-half by Oscar -M. Hunter, one-fourth by John M. Forrest, and one-fourth by Ben D. Hawkins. Hunter’s specific part was the entire south half; Forrest’s (it was contiguous to Hunter’s) was the south half of the north half; and Hawkins’ (it adjoined Forrest’s on the north) was the north half of the north half. In that suit, to which Hawkins was not a party, the sole issue presented was that of establishing the boundary between the contiguous estates of Hunter (the plaintiff therein) and.Forrest (the defendant therein).

On the first trial of that suit, after taking into consideration a survey of the property which had been ordered, the district court concluded that from the description given in Hunter’s deed the dividing line could not be located. Then, applying the provisions of Civil Code, Article 850, he held that the 205.45 acres should be equally divided between Hunter and Forrest, and he proceeded to designate the division line and to direct the establishment of it by surveyors whom he named. In keeping therewith judgment was rendered ordering “that all that portion of said 205.45 acre tract lying south of said division line when established shall constitute the property of plaintiffs as contemplated under their titles running back to the title to Columbus F. Wilkerson from Joseph W. Swann; and that all that portion lying north of said line to be established shall constitute the property of defendant as contemplated under his titles running back to the title to Stephen A. Herring from said Joseph W. Swann, subject to such portion thereof as defendant may have alienated.” The judgment further ordered “that said surveyors .shall, after they have established said division -line as herein-above directed, prepare a true and correct description of each of said respective tracts and return same into this court with their proces verbal same to form the basis of a final decree of this court setting forth in correct detailed descriptions of the respective properties.”

On an appeal by Forrest from the judgment, we agreed with the district court that the litigation presented only a question of boundary, observing: “The parties are owners of contiguous estates; neither questions the title of the other; their only difference is the boundary line between them.” It was our view, however, that perhaps the boundary might be located through a survey based on the description in Forrest’s deed. Accordingly, the case was remanded for the purpose of obtaining such a survey. 183 La. 434, 164 So. 163.

Obeying the instructions of this court, the district judge ordered a survey made in accordance with Forrest’s title. But from this new survey he was still unable to locate the disputed boundary, and, as on the first trial, he rendered judgment dividing the 205.45 acre tract equally between Hunter and Forrest pursuant to the rule stated in Civil Code, Article 850.

Again Forrest appealed, and the judgment was affirmed on June 28, 1940. (195 La. 973, 197 So. 649.) The appellant did not apply for a rehearing.

Thereafter, the line designated for providing an equal division of the tract was surveyed, and the surveyors’ proces verbal filed in the district court. Forrest opposed the homologation of the proces verbal; but after a regular hearing on the opposition, the court on April 14, 1942, signed a judgment approving the survey. The judgment also decreed Oscar M. Hunter “to be the true and lawful owner, as contemplated under his title running back to the title to Columbus F. Wilkerson from Joseph F. Swann, of the following described portion of the entire tract of 205.45 acres involved herein * * * (here follows a description of the portion).” The judgment further decreed John M. Forrest “to be the true and lawful owner, as contemplated under his title running back to the title to Stephen A. Herring from Joseph W. Swann, of the following described portion of the entire tract of 205.45 acres involved herein * * * (here follows a description of the portion).” Then, for the third time, Forrest appealed to this court.

In affirming that judgment on February 1, 1943, we said :

“ * * * He contends that the area of land alloted to him by the survey which the judge has approved includes land belonging to other parties not parties to this suit, and gives to the plaintiffs more land than they are entitled to and in fact more than they sued for. The appellant contends that the surveyors could have surveyed the land and located the dividing line according to the directions given by this court in its first judgment, and therefore that article 850 of the Civil Code is not applicable to this case. All of this is nothing more or less than to say that the judgment which this court rendered on June 28, 1940, and which became final two weeks later, was not a correct judgment. It is sufficient to say that it was and is yet a final judgment, and is not subject to review. The judgment not only established the law of the case but decided definitely the issue which is argued again by the appellant on this appeal. The only method by which that judgment could have been reversed or amended was by an application by the defendant for a rehearing. ‡ ‡ J)

A rehearing was denied on March 18, 1943. (202 La. 648, 12 So.2d 667, 668.)

On November 24, 1943, Oscar M. Hunter purchased from Ben D. Hawkins, for a cash consideration of $800, the northern one-fourth of the original 205.45 acre tract, the deed reciting that it contained 55 acres more or less. This is the identical property which Herring, on June 11, 1914, conveyed to Forrest’s brother, and which the latter, by mesne conveyances, transferred to Hawkins.

Admittedly John M. Forrest has never had any title whatever to this 55 acres. Nevertheless, on September 8, 1945, he instituted the instant suit against Hunter praying that he be decreed the owner of it, entitled as such to the possession thereof, and for further judgment condemning Hunter to pay him the sum of $500, being the value of a house that was removed from the land. In the alternative, Forrest prays that there be judgment avoiding and setting aside all of the judgments rendered in the former suit (both by the district court and by this court) and establishing the correct boundary between the original estates owned by him and Hunter. Further, in the alternative, upon the setting aside of those judgments, Forrest prays that Hunter be condemned to pay him the value of timber cut from land shown to belong to him when a proper boundary line is established. The district court dismissed the suit, after a regular trial, and Forrest perfected this appeal.

The alternative demand of appellant, which is to set aside the judgments of the former suit establishing the boundary between the original properties belonging to him and Hunter, calls in question the equities of the litigation. For this reason, even though the issue of boundary has long since been foreclosed as pointed ou't in our decision of February 1, 1943 (202 La. 648, 12 So.2d 667), we shall give it first consideration. In connection with that demand counsel for Forrest, to quote from their brief, argue: “There can be no doubt that originally there was error in the judgments rendered for there never was 205.45 acres owned by the original plaintiff Hunter and the original defendant Forrest to divide. Yet the court did order that amount of acreage divided equally between them, when 55 acres were included therein which belonged at the time to a man named Hawkins * * *. To enforce the judgment awarding Hunter 102.725 acres, as acquired under the division, and then to give him the 55 acres he subsequently purchased from Hawkins, thereby reducing Forrest’s portion to 47 acres would unquestionably be inequitable and unconscionable.”

It appears to be the contention of counsel that under Civil Code, Article 850, which was applied in effecting the division, the property of Hawkins should not have been considered; that only the acreage of Forrest should have been pooled with that of Hunter and then the aggregate divided between those two. The mentioned article provides:

“If the titles exhibited do not mention the quantity of land which each person ought to have, or unless it can be established in a legal manner, the limits must be so fixed as to divide the land equally between them.”

Perhaps the district court (and this court on appeal) erred in applying that codal provision and in ordering an equal division of the 205.45 acres between Forrest and Hunter, especially since Hawkins owned 55 acres of the tract and he was not a party to that suit. But we are not at all convinced that an injustice has been done to any one by the final judgment which purposed only to establish the boundary between the respective properties of Forrest and Hunter. The title of Hunter was derived from Wilkerson and called for all the property that the latter purchased from Swann, being the south half of the 205.45 acre tract. On the other hand, the titles of Forrest and Hawkins came from Herring who had acquired from Swan the northern half of the 205.45 acre tract. Of that Herring land, as above shown, Forrest’s title called for the southern portion (only one-fou'rth of the whole tract, an important fact which the contention of Forrest overlooks) and Hawkins’ the northern portion (the other one-fourth). It does not appear, therefore, that Forrest was in any manner injured by the boundary as established and the division as made. Hunter was entitled to all of the Wilkerson land (south half of the 205.45 acres or 102.725 acres), and he received no more than that. The remaining 102.725 acres (the Herring land) belonged to Forrest and Hawkins, each owning the particular part thereof which his title prescribed.

In effect the situation presented is the same as it would be if Swann had sold directly to Hunter the south 102.725 acres and to Forrest the north 102.725 acres, and thereafter Forrest had conveyed the northern portion of his acquisition to Hawkins. Under those circumstances certainly no one would contend that it would be improper to establish the dividing line between the tracts of Hunter and Forest on the basis of their respective deeds.

It is noticed, of course, that of the Herring land apparently Hawkins received 55 acres and Forrest only 47 acres. But that difference of acreage is of no importance here; in so far as we know it has never been and is not now a litigated issue. Neither has there arisen any question as to the boundary between the Hawkins and the Forrest lands.

The main demand of Forrest in the instant case, which is that he be decreed the owner of the 55 acre tract purchased by Hunter from Hawkins for $800 on November 24, 1943, has as its basis the judgment signed in the former suit on April 14, 1942, approving and homologating the survey that located the dividing line and decreeing Forrest “ * * * to be the true and lawful owner, as contemplated under his title running back to the title to Stephen A. Herring from Joseph W. Swann, of the following described portion of the entire tract of 205.45 acres involved herein * * the description given covering both the Forrest and the Hawkins tracts. And, in connection with the judgment, Forrest pleads that Hunter, by certain actions and conduct in the former suit, is estopped to deny that he (Forrest) is the owner of the ■ Hawkins tract, and that Hunter’s purchase of it inured to his benefit.

If it could be said that such judgment on its face recognizes Forrest as the owner of the Hawkins tract, to that extent clearly it is ineffective. In the first p'ace the former proceeding was only a boundary action; it was of the kind in which titles to property are not adjudicated, in the second place Hawkins, the then owner of the property, was not a party to that suit, and certainly under those circumstances his title could not legally be called in question. But the judgment, in our opinion, recognizes Forrest as the owner only of that part of the described tract to which he holds a deed, for his recognition as owner is qualified by the clause” * * * as contemplated under his title running back to the title to Stephen A. Herring from Joseph W. Swann * * (Italics ours.)

With reference to the issue of es-toppel and inurement counsel for Forrest take the position that the boundary line would not have been established pursuant to Civil Code, Article 850 had the courts known that neither Hunter nor Forrest owned the Hawkins tract. And they argue : Plaintiff in original suit Hunter knew all the time there was included in the lands divided the Hawkins tract but he did not call the same to the attention of either court. Forrest knew the same also and 'endeavored to point it out to the court unsuccessfully.”

From our study of the case we can not conclude that Hunter at any time made misrepresentations to the courts or assumed an improper position with respect to the ownership of the 55 acre tract. Rather, the record convinces us that the courts, as well as both Hunter and Forrest, knew all the time that such tract belonged to Hawkins. All that Hunter did was to insist that the boundary between him and Forrest be fixed according to the Herring and Wilkerson titles, those persons having originally purchased from Swann the 205.45 acre tract in the proportion of one-half to each and Hunter having later acquired Wilkerson’s entire one-half. A position of that kind could not possibly serve as a basis for estoppel.

We agree thoroughly with the fol-owing remarks of the district judge, found in his written reasons for judgment, viz.:

“Hawkins owned the property and had the right to sell it to whom he pleased. The defendant, Hunter, had never owned that land or represented that he owned it; he at no time took any position that Hawkins did not own it, and did nothing, so far as I can find from this record, to induce the plaintiff, Forrest, to think or believe that he, Forrest, owned it. The doctrine of inurement partakes of the nature of an estoppel, such as where one represented himself to own a title and sells it to another and afterwards acquires the true title. In such a case it would inure to the benefit of the purchaser. The seller would be estopped from questioning his vendee’s title. However, in the case at bar I can find no act or representation on the part of Hunter by which he would be estopped to deny any title which Forrest would attempt to assert to the Hawkins tract. For this reason his title would not inure to the benefit of Forrest.”

The judgment appealed from is affirmed.


author: FOURNET, Justice.

text:
    213 La. 707
    Succession of DAVID. WIMBERLY v. DAVID et al.
    No. 38074.
    Supreme Court of Louisiana.
    April 26, 1948.
    C. F. Boagni, Jr., of Opelousas, for defendants and appellants.
    N. S. Hoffpauir, J. Donald Aaron, and H. Purvis Carmouche, all of Crowley, for administrator, plaintiff, and appellee.
   FOURNET, Justice.

Joseph C. Wimberly, who was appointed and qualified as the administrator of the succession of Homer David on April 27, 1922, filed an account of his administration on April 7, 1938, after having been ordered to do so by tjie court upon the motion of some of the heirs. The movers opposed this account, challenging, in effect, each and every item and requiring strict proof. They are now appealing from a judgment of the lower court dismissing their demands and approving and homologating the account.

The record shows that Homer David died intestate in Acadia Parish on March 30, 1922, leaving his widow, six children, and eight minor grandchildren (children of a predeceased daughter by her marriage tc Ignace Guidry). His estate was so involved that neither the widow nor any of the children, all majors at the time, were willing to accept the succession. On April 11 following, at the urgent request of all of the heirs (the grandchildren being represented by their father and legal tutor), Joseph C. Wimberly, the husband of Dora David, one of the daughters, applied for appointment as the administrator of the succession. An inventory and appraisal disclosed that the estate consisted of movable property valued at $7,416 and immovables valued at $15,320, or a total of $22,736. In July of 1925, in accordance with authorization obtained from the court and after due advertisement, the administrator sold at public auction at the home of the deceased certain movable and immovable property of the estace, recording a procés verbal thereof. At the time this authority was obtained, a new inventory and appraisal was made at the request of the administrator and it showed the value of the property sought to be sold to be $13,473.50. The procés verbal of the sale shows this property brought $20,569 at public auction. A large crude oil engine that had been used in connection with the irrigation of the property had previously been sold for $2,-927.81, all of the heirs signing the act of sale, including the minors through their tutor.

On March 23, 1938, approximately 16 years after the death of Homer David and 13 years after the sale of this property, ten grandchildren (seven children of the deceased's only son, Wilfrey David, and three children of Ignace Guidry) and one daughter (Elmire David Thibodaux, admittedly incompetent at the time the account was demanded and judicially interdicted immediately thereafter) moved to have Wim-berly show cause why he should not file an account of his administration and produce his official bank book showing the funds collected and deposited to the account of the estate, in default thereof, why he should not be dismissed from office and condemned to pay the statutory penalties provided upon the funds collected and not deposited. In response to this rule the administrator filed an account wherein he listed.in detail the funds received from the estate (amounting to $27,017.50) and his liquidation of the succession debts (amounting to $29,119.46), the unpaid balance shown thereon ($1,041) ■constituting the costs incidental to the administration. The account also showed that there remained undisposed of a tract of land valued at $60, unsalable farm equipment (valued at approximately $600 in 1922), and worthless corporate stocks and promissory notes. He explained that his failure to account was due to ignorance rather than avoidance of duty, he being unaware an accounting was required when there were no funds left in the estate after all the debts had been paid. He was unable to produce all of his records for a .great many of them were lost, mislaid, or destroyed when the Commercial Trust and Savings Bank of Church Point, Louisiana, the officially chartered state bank in the parish in which he had deposited the succession funds, was merged with the Farmers Bank & Trust Company in 1927. Pie asked that notice of the filing of the account be given to the heirs not already parties to the suit.

In a lengthy and involved opposition (obviously filed, as the trial judge points out, as a mere inquiry and investigation without any knowledge of the facts), filed by all of the parties who had demanded the accounting (Elmire David Thibodaux represented this time by her daughter, Alice Thibodaux Daigle, her legal curatrix), each and every item purporting to be a debt of the succession was challenged. In addition, the opponents contended (1) that the debts incurred in the farming operations conducted on the property during the interval between the death of Homer David and the sale of his property were not for the benefit of the succession but for the benefit of the administrator personally, and that he should be made to pay an annual rental of $3,000 for three years in compensation for the unauthorized farming operations he conducted on the property; (2) that the administrator should be condemned to pay the penalties provided for in Article 1150 of the Revised Civil Code (i. e., 20% annually) because of his failure to deposit funds belonging to the estate in a chartered bank in the parish and his disbursement of them without court order; (3) that the account fails to include a 12-acre tract of land; and (4) that the account was not complete since it did not include detailed information about the crops raised on the property other than rice.

Four of the remaining Guidry children answered the notices served on them, adopting the pleadings of the opponents, while the other living daughters of the deceased (Hermina D. Barousse, Jr., Ellina D. McBride, Dora D. Wimberly, and Zoe D. Hig-ginbotham) and the remaining Guidry child (Austin J. Guidry) joined the administrator, approving his account and its homolo-gation.

Although this case was tried on the merits on the issues thus presented in September of 1939 and was to be submitted on briefs within the delays fixed by the court, it was not until after the judge had ruled the attorneys in the case on December 24, 1943, to show cause why the matter of the approval and homologation of the account should not be submitted on briefs, and numerous extensions of time had been granted by the court, that judgment was finally.rendered on May 31, 1945, dismissing the opposition, approving the account and ordering it homologated, and cancelling the administrator’s bond.

It is most important to a proper decision in this case that the events leading up to and surrounding the administration of this succession be thoroughly understood. The picture we find reflected by the record is as follows:

Around 1917 or 1918 Homer David and his son-in-law, Ignace Guidry, undertook the cultivation of rice on a partnership basis, David furnishing the land and Guidry being largely responsible for the farming operations. Shortly thereafter the country entered the depression era that followed in the wake of the First World War, when most things, particularly farm property and products, were of precarious value. In 1920 the bottom dropped out of the rice market. Rice, that had been sold for $15 a sack early in 1920, brought only $1 a sack in the fall of that year. . In 1921, being unable to meet pressing obligations, the partnership was dissolved, and David was left with the job of harvesting the crop and liquidating the debts. Stamm-Scheele Manufacturing Company, Ltd., was then threatening to foreclose on the $4,000 solidary note given them on March 3, 1920, by David and Guidry to secure payment of the 100 Horse Power Giant Fuel Oil Engine and other property vitally needed in rice farming operations, including a pulley, water circulating pump and tank, storage tank, wagon tank, and all fittings. In the meanwhile, David, who was the president of the Farmers Union Gin Company, Inc., and the owner of a large block of its stock, had personally assumed a number of the obligations of that corporation to prevent the seizure and sale of its property and had, besides, endorsed notes of a number of his relatives. In an effort to secure funds to harvest the standing crop and to liquidate some of the more pressing obligations, David, on July 11, 1921, borrowed $6,500 from the Mortgage Securities Company of New Orleans, securing the loan with a mortgage covering the four tracts of land comprising the 243.21 acres on which the nrincipal rice farming was done. On the same day he also borrowed an additional sum of $975 from this company and secured it with a second mortgage on this property. Conditions grew worse. In the early part of 1922 David began to worry about planting operations, being unable to work the property himself and being without the necessary funds. On February 16, 1922, he 'borrowed $4,323.25 from the Commercial Trust and Savings Bank, securing this loan with the other four tracts of property owned by him fhat were of any consequence, although at that time he was deeply in debt to this bank on unsecured paper, including a solidary note for $1,155 given the bank on June 10, 1921. Upon the advice; of his son-in-law Wimberly (the administrator), David employed Robert Rayon to take over the farming operations on a tenant-sharecrop basis, agreeing to furnish the water (by operating the irrigating well and pumping equipment), sacks for the rice, hauling, threshing, a.nd storage. Almost ■ immediately thereafter — on March 30, 1922 — Homer David died. The estate being so obviously involved, none of the heirs were willing to take charge of the succession and administer it. They prevailed upon Wimberly to salvage what he could out of the wreck, having faith in his integrity and in his ability in agricultural pursuits. He sought to carry out these duties to the best of his ability and in good faith, though largely without court order.

Wimberly naturally had no choice but to carry out the contract David had entered into with Rayon; besides, he and the heirs felt real estate values were so uncertain that it would be unwise to put the property on the market at that time. Under his personal supervision the property was farmed during 1922 and resulted in a profit to the estate of $1,415.17, after all expenses were deducted. However, in view of the then prevailing conditions, Wimberly thought it best not to attempt to work the property again in 1923, particularly since pressing debts could not be paid and he had no operating capital. It was only at the insistence of the heirs, and after Mrs. Homer David, the widow, offered to secure a loan of $3,000, from the Federal Land Bank in her own name to tide the estate over until it could be more profitably liquidated, that Wimberly agreed to again let the property out to tenants and to supervise their operations. The profit realized in 1923 amounted to $554.10. His operations the following year (when the profit was $105) were only undertaken after he had explained the conditions to the heirs and had received their approval. In 1925, after the crop had been planted, Wimberly found himself forced to petition the court for authority to sell the property of the decedent in order to raise sufficient funds to pay pressing creditors of the estate with whom no settlement had as then been made. At that time the property sought to be sold was appraised at $13,473.50 and the procés verbal of the sale discloses that it brought $20,-569 at public auction, the widow of the deceased acquiring two of the tracts involved, the largest tract (consisting of 200 acres with irrigating well and pit and gas engine) being sold for $15,600, $9,498.09 in cash, and the balance by the assumption of the mortgages against the property held by the Mortgage Securities Company. Following this sale, the administrator paid all of the debts of the estate.

It might be well to observe here that the funds were insufficient to liquidate all of the debts and the administrator personally made up the deficit. The only debts that remain due and unpaid today, according to his account, are those that were incidental to the administration, that is, the administrator’s fee, attorney fees incurred in filing the account, and court costs.

It might also be well to observe that the fathers of the opponents here, Wilfrey David and Ignace Guidry, were largely responsible for the insolvent condition of the deceased’s estate, since it appears that in addition to the large indebtedness resulting from the joint farming venture undertaken with Guidry, the deceased bound himself personally on many other obligations of these two men and they were, additionally, the chief beneficiaries of the worthless notes forming a part of the succession. Further, it appears that Wilfrey David was weak, both mentally and physically, and was cared for (as was also his large family, including seven of the opponents here) almost entirely by the deceased during his lifetime; that Mrs. El-mire David Thibodaux, another of the opponents, was a similar charge of her father ; that one of the tenant farmers on the property of the estate during 1923 and 1924 was Mrs. Thibodaux’s son-in-law, the husband of her curatrix; and that Mrs. Wilfrey David and her children farmed on this property during the entire time it was under administration.

There can be no question but that the administrator, though lacking the technical knowledge of the legal requirements attendant upon the administration of successions, attacked the thankless job thrust upon him with the earnestness and zeal he would have applied to his own property, and that in all he did he had the full knowledge and support of the heirs, as well as their consent and acquiescence, the minors being represented by their legal tutor. This is unmistakably evidenced by the action of the only living daughters and heirs who were capable of handling their own affairs in joining the administrator and approving the homologation of his account. The only other parties at interest who could attest to their approval of his actions are now dead: Ignace Guidry died around 1928 or 1929, Wilfrey David died in 1936, and Mrs. Homer David, the widow, died in 1937. His final account is not only full and complete in every detail, but each and every item thereon is amply supported by competent evidence. The entire record reflects that Wimberly was possessed of an earnest and honest desire to salvage something from the estate for the creditors and heirs and that all of his efforts were exerted toward that end.

This was also the conclusion of the trial judge, for in his written reasons for judgment he says: “ * * * he was not a bad or inattentive gestor of the estate’s affairs, but on the contrary, administered the estate as well as he would his own affairs; * * * his final account, though tardily rendered, is complete in every respect, and shows on its face a detailed statement of all revenues he received from farm rents and crops, less expenses incurred, during -the year 1922, 1923, and 1924, and the proceeds from all the private sales he made of movable property, and those he realized from the public sale he made under an order of court of date July 11, 1925, and a list of a few items of property remaining unsold. * * * There is not a scintilla of evidence to show maladministration or personal enrichment by the administrator * * * . After carefully reviewing the entire record in this involved succession * * * it is the opinion of this Court that the opponents have absolutely failed in establishing by proof any material allegation in their opposition; * * * that no loss to the creditors and/or the heirs was shown, and that under the explanations made concerning the conduct of the administrator in his liquidation of this insolvent and involved succession, there was no maladministration nor malfeasance in office * *

We therefore conclude that under the provisions of Article 1150 of the Revised Civil Code, as modified by our jurisprudence, the enforcement of the penalties provided for the failure of an administrator to deposit funds of the succession, disburse them without court order, and tardily account, lies within the sound discretion of the court, and where it is found that the faults of the administrator do not amount to malfeasance, but result, rather, from errors of judgment, we will not disturb these findings, particularly when all of the heirs tacitly joined him in all that he did and no loss to either them or the creditors was occasioned by his administration. See, Congregation of St. Mary of Mount Carmel Church v. Farrelly, 34 La.Ann. 533; Succession of Myrick, 38 La.Ann. 611; Succession of Barrett, 43 La.Ann. 61, 8 So. 438; Succession of Stille, 52 La.Ann. 1538, 27 So. 954; Succession of Bertrand, 127 La. 857, 54 So. 127; Succession of Rhodes, 164 La. 488, 114 So. 107; Succession of Gandolfo, 173 La. 190, 136 So. 561, 83 A.L.R. 720; and Succession of Benoit, 196 La. 509 199 So. 625.

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

O’NIELL, C. J., does not take part.


author: LeBLANC, Judge.

text:
    BARROW et al. v. LE BLANC.
    No. 3006.
    Court of Appeal of Louisiana. First Circuit
    May 26, 1948.
    William H. Talbot, of New Orleans, and Pettigrew & Duval, of Houma, for appellant.

      Elton A. Darsey, of Houma, for appel-lees.
   LeBLANC, Judge.

This is a slander of title suit instituted by Miss Irene F. Barrow, Mrs. Hallette Barrow, wife of Dr. C. G. Cole, Mrs. Jennie Barrow, wife of Dr. Harris P. Dawson, Mrs. Clara Slatter, widow of Wilson J. Gaidry and Mrs. Annis Slatter, wife of Smith Hickman, who claim to be the owners in indivisión, in the proportions set out in their petition, of certain property situated below Houma in the Parish of Terre-bonne described, according to government surveys, as being Lots 1, 2, 3 and 4 of Sec. 78, T. 18, S.R. 18 E., containing 106.78 acres. They allege that they are in possession of the property described and that the defendant, Jean Baptiste LeBlanc, is slandering their title by claiming to be the owner and by having caused to be placed on the conveyance records of the parish, a map of his property made by one Guy J. Seghers, in May, 1937, on which their said property is included.

Following the procedure outlined in an action of this kind the plaintiffs pray for judgment against the defendant ordering him either to disclaim title to the property or else assert his own title or such rights as he may have to the property, within a certain time or else that there be judgment decreeing them to be the owners thereof.

In his answer the defendant denies the ownership and possession set out by the plaintiffs, admits the slander by claiming himself to be the title owner and also claiming ownership by title and possession of 1, 5, 10 and 30 years.

By the nature of the answer filed by the defendant in which he asserts his title to the property, the action has been changed from one of a slander of title to one that is petitory in its nature, and having declared his title as in a petitory action, the defendant assumed the burden of sustaining the same. He has become, as it were, the real plaintiff in the suit and the real plaintiffs stand in the position of a defendant in a petitory action. Under the well known and well recognized doctrine in such an action, the plaintiff can only recover on the strength of his own title and cannot stand on the weakness of his adversary’s. See Goertz v. Menard, La.App., 168 So. 747.

The issues were thus presented in the district court and on the documentary evidence and the testimony adduced, especially that relating to the possession on which the defendant relies, the trial judge rendered judgment in favor of the plaintiffs recognizing them to be the owners of the property. The defendant has taken this appeal. Plaintiffs have filed a plea of 10 and 30 years prescription in this court.

By the documentary proof offered.it is shown that these four lots were patented by the State of Louisiana to R. R. Barrow, an ancestor of the plaintiffs, on September 21, 1857, and as far as the record title is concerned it seems to us to be clearly in the name of the plaintiffs in this suit as the decedents and heirs of the patentee. The claim of title made by the defendant is by his purchase from an immediate ancestor of these plaintiffs, Robert R. Barrow, on April 14, 1890, of the land situated immediately in front of the property in controversy and fronting on Bayou Grand Caillou. The description as given in the title at the time of his acquisition is ten arpents and sixty feet front on the bayou “by the depth of survey.” He purchased additional acreage fronting on Bayou Grand Caillou from other parties but in each sale the depth is again referred to as being “by depth of survey.” The claim made by him is that the phrase “by depth of survey”, as generally used, means up to the 40 arpent line from the front or from the bayou and that if the rear line is extended back 40 arpents from the bayou the four lots described as being in Sec. 78 are included within that area and therefore the property is included within the bounds of his title.

The testimony taken is rather voluminous and most of it relates to possession. We believe that in the final analysis defendant would have to rely on his plea of prescription, with possession, if he is to succeed in the case, and viewed from the standpoint of the possession shown, not only do we think that his case is weak but the testimony strongly preponderates in favor of the plaintiffs.

But we will discuss further the question of title as asserted by the respective parties. It is conceded by the defendant that these four lots were patented by R. R. Barrow from the State in the year 1857 and there is no record to indicate that any transfer was ever made by him or anyone else of this property, described as being these governmental subdivisions known as Lots 1, 2, 3 and 4 of Sec. 78. On the other hand there is considerable' doubt whether the description of the property acquired by the defendant and which conveys the property he bought to “the depth of survey” means, in this case, that it extended 40 ar-pents from Bayou Grand Caillou.

A good reason for which we do not believe this appears from the fact that all the land which he bought was included in what is known as the Talbo grant or concession and, according to the maps and records offered in evidence and to the statement of the trial judge who is familiar with it, it appears that the Talbo grant did not extend 40 arpents in depth from the bayou on account of the meanderings of Bayou Grand Caillou at this point. When the expression was used in the transfer of the property in the neighborhood and particularly in that concession that it ran to “the depth of survey” we believe that it meant that it ran to the depth of survey of the Talbo concession as made by the government. That seems to us to be borne •out by the fact that as far back as September, 1923, the defendant himself entered into an agreement with his neighbor Joseph A. Waguespack to the south by which they established and adopted the line separating their respective properties. This agreement was executed in notarial form and placed of record and it shows that in establishing that line it only extended as far back as the rear of the Tal-bo concession.

With all of these facts relating to titles therefore we are convinced that the title offered by the defendant is far from being in any way a stronger title and certainly that of the plaintiffs is by no means a weak•er title than his.

If he has to rely on his prescriptive title, under possession, defendant is in no better position because whatever possession he has shown is so weak in com-parrison to that shown by the plaintiffs we hold that the district judge was absolutely correct in ruling in their favor.

We have serious doubt that the defendant ever did take possession of property under his title as far back as 40 arpents from the bayou. There is some testimony regarding a line and also about a ditch or a canal, and also some testimony to the effect that his property extended as far back as the open prairie or marshland which was recognized as being at that time open government land, but all the testimony on this point appears to be of a very weak character. The same may be said about testimony relating to his having cut timber in the rear of his property with which he built his house. It may be that he cut timber in the rear of the land which he acquired but if he ever intended to claim possession as far back as the land in controversy he certainly allowed adverse claims of possession which undoubtedly interrupted any possession he may have ever had.

Against whatever acts of possession the defendant claims to have exercised, the record shows that in 1924 the plaintiffs sold to A. W. Pettigrew, Inc. the timber situated on the property in controversy, which sale was put of record without any protest or question on his part; that in considering the means by which he would remove the timber from the property, Mr. Pettigrew found it necessary to obtain a right of way from the defendant to go over his land and accordingly he took the matter up with the defendant himself who agreed to and did give him a right of way for and in consideration of the price and sum of $75. He thereafter cleared a ditch or canal on defendant’s property through which he removed the timber from the swamp.

Defendant admits having received this consideration and tries to explain it in a manner which is by no means satisfactory. But not only that, Mr. Pettigrew being uncertain as to where the line was between defendant’s property and the property he was to conduct his timber operations on, asked the defendant to point it out to him, whereupon the defendant referred him to his son Edward LeBlanc who went with Mr. Pettigrew in the swamp and showed him the line which was marked by a concrete block and followed clear across the property marked by three hacks to the tree. The defendant denies this rather meekly but' the trial judge gave full credence to Mr. Pettigrew’s testimony and we certainly find no reason for not following him on this issue of fact.

On another point regarding possession there is considerable testimony in the record relating to the trapping privileges granted on the land in controversy. Defendant claims that he leased the land to various parties for trapping and claims that that supported the possession he sets out but when we examine this question we find that back in 1931 and 1932 the land was being leased by R. R. Barrow, Jr. to other parties who testified that they trapped it, some of them saying that they were shown the line by Edward LeBlanc, the defendant’s son. Notations of these trapping privileges and the amounts paid to Barrow are shown by a record which he kept of these transactions and tracing through that record we come to the trapping season of 1932-33 when we find that Edward Le-Blanc himself leased it from Barrow for that season and paid him $50 for the privilege.

In addition to this there are records of oil and mineral leases granted by plaintiffs at different times and as late as 1942 and 1943 a grant of a right of way over the land to United Gas Line Company.

Other acts relating to possession might be referred to but we believe those mentioned are sufficient to disprove any such claims as are presented by the defendant. The record convinces us that not only has he failed, to show as strong a recorded title as have the plaintiffs but that he has also failed to show any title by prescription such as he relies on.

The judgment appealed from which recognized the plaintiffs as owners of the property and ordered the Clerk of Court, ex-officio Recorder of Conveyances of the Parish of Terrebonne to make proper correction of the Conveyance Records of that Parish to show that defendant has no claim thereto is found to be correct and for the reasons herein stated it is affirmed at the costs of the defendant, appellant herein.

ELLIS, J. absent; J. CLEVELAND FRUGE, acting as Judge ad hoc.


author: Le BLANC, Judge.

text:
    LEDOUX v. BEYT et al.
    No. 3000.
    Court of Appeal of Louisiana, First Circuit.
    May 26, 1948.

      Guidry & Willis, of St. Martinville, for appellant.
    Davidson & Davidson, of Lafayette, for appellees.
   Le BLANC, Judge.

Plaintiff filed this suit as an action in tort against the defendant Dr. J. L. Beyt and his public liability insurance carrier, Traders & General Insurance Company, for damages by reason of the negligence of the driver of one of Dr. Beyt’s sugar cane trucks, in having pai'ked it on the highway in the nighttime, in the center of its lane of traffic, without lights and without any warning or other signal of its presence there, thus causing him to run into it with his automobile with the result that he suffered severe physical pain and the loss of his car. The demand is for the total sum of $1556, including pain and suffering, the cost of an operation for hernia which, it is alleged, has been made necessary by reason of the injuries sustained, loss of time from work and damage to his automobile.

The defendants filed, an exception of no cause or right of action which was overruled by the trial judge and with full reservation of their rights thereunder they filed an answer which may be said to constitute a general denial of all of the allegations of negligence charged by the plaintiff against the driver of the truck. They further plead that not only was the driver not negligent in any respect but that on the contrary he took all the precautions necessary and which were available to him in the short time after his truck had become disabled and he had to stop on the highway with it, expressly averring that the lights were all burning and that the driver himself endeavored to hail plaintiff as he approached the truck. On the facts as alleged by them they further plead that even if there had been any negligence whatever on the part of the truck driver, plaintiff himself was guilty of contributory negligence which bars his recovery.

After trial of the case on the merits there was judgment in the court below in favor of the defendants, rejecting the plaintiff’s demand at his costs, from which judgment this appeal was taken.

The trial judge has supplied the record with a very well considered written opinion in which he analyzed the facts in detail and cited and applied the law and the jurisprudence which he thought pertinent to the issues that were involved. We have carefully reviewed the record and find ourselves in thorough accord with the conclusions reached by him, especially those with regard to the plea of contributory negligence which had been urged against the plaintiff.

The law" which governs the case is that which relates to the duties of drivers of motor vehicles on the public highway after dark or in the nighttime. Rule 15(a) of Section 3 of Act No. 286 of 1938 provides that if a motor vehicle “is left parked, attended or unattended, one half hour after sunset or one half hour before sunrise, the person stopping it or parking it at that time or place, (upon the paved or improved or main traveled portion of any highway) or causing it to be so stopped or parked or left standing, shall display appropriate signal lights thereon, sufficient to warn approaching traffic of its presence thereat.” By the terms of subsection (c) of the same rule, its provisions do not apply “to the driver of any vehicle which is disabled while on the paved or improved or main traveled portion of a highway in such manner and to such extent that it is impossible to avoid stopping and temporarily leaving such vehicle in such position; * *

Act No. 164 of 1936, known as the “Flare Law” requires operators of motor truck vehicles or combinations thereof, among others, driving on the highways during the period from one half hour after sunset to one half hour before sunrise, to have their truck equipped at all times with at least three portable flares which may be plainly visible for a distance of five hundred feet. The operator of such truck must, immediately upon bringing his vehicle to a stop on the highway or immediately adjacent to the traveled portion thereof, during the period referred to, display the lighted flares at certain places on the highway as designated in the act.

Subsection (g) of Section 9 of Act No. 286 of i938, requires that “every vehicle operated upon a public road, highway or bridge in this State, during the period cf one-half (%) hour after sunset to one-half (%) hour before sunrise, and at any other time when there is not sufficient light to render clearly discernible any person on the highway for a distance of two hundred (200) feet ahead, shall be equipped with lighted front and rear lamps as required by this Act for the different classes of vehicles, * * *.”

There is another rule which, although not embodied in any provision of the State Highway Regulatory Act, may be said to have become crystallized into law by the jurisprudence of this State. That is the rule which makes it incumbent on the driver of any motor vehicle at night to keep the same under such control as to be able to stop it within the distance projected ahead of him by his headlights. From the provisions of the rule just stated regarding lighting equipment we would infer that his headlights should project a distance of two hundred feet in front of him.

It is a general proposition of law which seems to be well established in this State that the violation of the provisions of any statute such as we are here concerned with, or with any rule laid down in them, does not constitute negligence per se and in each case negligence vel non must be judged on the particular facts presented.

The testimony in this case is somewhat voluminous but we think the essential facts may be briefly stated as follows:

The driver of the truck whose name is Husville Melancon, is a man over twenty-five years of age. He had been driving trucks some three or four years before the time of this accident. He was entrusted by his employer, Dr. J. L. Beyt, with the driving of one of these enormous sugar cane trucks during the sugar cane harvesting season. On the night of January 9, 1945, at about eight-thirty o'clock, he was on his way from a point near St. Martin-ville to New Iberia to deliver a load of sugar cane, weighing approximately ten tons, to a sugar factory.' When he was about three miles south of St. Martinville the truck developed some trouble in the left rear wheel, evidently a hot box or burnt bearing, and he found it necessary to do-something about it. As he was nearer St. Martinville he decided to turn around and try to return there. He turned and had gone a mile or so when he noticed that there was more smoke coming from the hub cap of the wheel so he decided to stop. He parked the truck on the east travel lane of the highway at a point near the Daigre Canal. He summoned assistance from the garage in St. Martinville where his employer’s trucks were taken care of but it never reached him until after the plaintiff, who was driving his car from New Iberia to St. Martinville, had run into the rear end of the truck.

Plaintiff claims that he was blinded by the glaring headlights of four different automobiles which approached him, one after another, from the opposite direction as he neared the truck and that he was unable to see it. He claims too, that there were no lights at all. burning on the truck and on account of its barrel shape in the rear and it being covered with mud and dirt, its col- or -blended -with the -color of the highway and all of that made it still more impossible for him to see it.

There are two disputed questions of fact presented in the case. One with regard to whether or not the lights on the truck were on and the other with regard to whether or not the driver of the truck did, as he said he did, stand behind the truck to warn approaching traffic of its presence on the highway.

There may be reason to question the fact testified to by the truck driver that the tail light was burning. He testified that it was and plaintiff testified that it was not. There was no way of telling after the accident whether it was or not, because evidently it was broken by the force of the impact between the two vehicles. Plaintiff and one of his witnesses testified that even the clearance lights were not on but on this point the preponderance of testimony favors the defendants. These clearance lights, showing from the side of the truck, should, in our opinion, have afforded some sort of signal to anyone approaching it from either direction, that there was some object parked on the highway which required prudent and attentive driving.

The testimony of the driver of the truck that he stood some ten feet behind it and waved his handkerchief in an effort to have plaintiff stop before reaching the truck is sharply disputed by plaintiff and because of the testimony of the witness Ivy Lou-viere who met the truck just after it had stopped and before plaintiff ran into it, that the driver was then standing near the front of the truck, we entertain some doubt on this question also.

A serious and important point on the matter of the truck driver’s negligence is the one concerning his parking the truck on the paved portion of the highway without any effort, apparently, to park it on the shoulder. His only reason for not doing so was, as he says, that with the heavy load it had, he was afraid the truck would bog down. That, to us, seems to be a debatable proposition. There is no testimony to show that the shoulder was soft and besides when he had turned around on the highway just a moment before, surely it must have been necessary for him to drive part of this long truck on the shoulder. The law, as we have seen, although making an exception in the matter of parking on the paved or improved or main traveled portion of a highway in favor of disabled vehicles, grants that favor only when a vehicle is disabled “in such manner and to such extent that it is impossible to avoid stopping and temporarily leaving” it in such position. Since the truck in this case was still running when the driver decided to stop it, evidently it was not disabled to the extent that he could not have pulled over on the shoulder where, as far as the record shows, it would have been safe for him to go-

Melancon, the truck driver, testified that only two or three minutes elapsed between the time he stopped and the time he noticed plaintiff’s car approaching from the rear, and in that interval he could not possibly have displayed the flares which he carried in the truck, as required by the “Flare Law”. Whilst the statute uses the word “immediately” in providing how soon after coming to a stop the driver shall display his lighted flares, ordinary reasoning forces the court to take the time involved in getting the flares out, lighting them and placing them on the highway into consideration, as an element in construing what is meant by the word “immediately” and it has been held in certain cases that anywhere from two to five minutes, depending on the circumstances, is not an unreasonable time to allow for a compliance with the terms of the statute. See Beach v. Union Brewing Corp., La.App., 187 So. 332 and Bourgeois v. Longman, La.App., 199 So. 142.

If therefore, there was any negligence whatever on the part of the driver of the truck, it arose out of his failure to have parked his truck on the shoulder instead of in his lane of travel on the paved portion of the highway, and in this respect we may well assume that he was negligent and yet plaintiff could not recover because of his own negligence which was a contributing cause of the accident.

Plaintiff had alleged in his petition that the dirt and mud which had accumulated on the rear end of the truck had the effect of giving it a color which blended with the color of the pavement and that made it difficult for him to see it in the dark. He also alleged that when he reduced his bright lights to dim that had the effect of projecting the light beam downward and on account of the scooped or barrel shape of the rear end of the truck, his lights did not reflect it standing there before him. But what proof there is in the record is not sufficient to bear out these contentions. Besides, as already pointed out, even though the tail light on the truck may not have been burning, the preponderance of the testimony shows that all the clearance lights were on and these, it strikes us, should have given him some warning of a vehicle or some object being stationed on the highway.

Plis claim of having been intermittently blinded by the glaring headlights of four cars which he met coming from the opposite direction is not supported by the proof. There is serious conflict in the testimony with regard to more than one car having met his and as to this one, the meeting took place when he was forty feet away from the truck. It is significant that he states that he was not blinded by the lights of this car. But even if he had been, he had his dimmers on at the moment they met and he admits that they projected a distance forty feet ahead of him. This car, having met his forty feet away, naturally the blinding effect which its lights had produced on him had passed away and why he yet did not see the truck until he was only ten feet away from it, as he admits, is a circumstance which militates very strongly against him.

From the physical facts resulting from the impact of the car with the rear end of this truck, we are inclined to believe that plaintiff was not driving as slow as he says he was, that is from twenty-five to thirty miles an hour, and it may be that on account of the speed at which he was traveling he was unable to stop his car or take any more precautions than he did to avoid running into the truck.

The trailer on this truck is built in what is called a barrel shape. The sides are rounded and they taper at the front and back ends. The bottom of the frame stands about two and a half to three feet above the level of the ground. There are dual wheels on the rear end which fit on each side into an axle and the axle itself is bolted to the frame of the trailer with half inch bolts, four on each side. The car rammed into the truck with such force that it shoved the axle forward about one foot, breaking off the four bolts on the left side and twisting the four on the right side. The front end of the car was all mashed up and jammed so tightly under the trailer that it was necessary to get a wrecker to pull it away. All of this is mute but convincing evidence of plaintiff’s negligent driving under the circumstances and his negligence, we hold, as did the learned district judge, “was the active force and the proximate cause of the accident which he complains of. His own contributory negligence bars his recovery.”

The demand was properly rejected and the suit dismissed by the judgment appealed from and it is accordingly affirmed. Appellant to pay all costs.

ELLIS, J., absent.

J. CLEVELAND FRUGE serving as Judge ad hoc.