author: HAWTHORNE, Justice.

text:
    212 La. 574
    Succession of GEAGAN.
    No. 38588.
    Supreme Court of Louisiana.
    Nov. 10, 1947.

      Walter B. Hamlin, of New Orleans, for plaintiff and appellant.
    Titche & Titche, Samuel I. Rosenberg and Bernard Titche, Jr., all of New Orleans, for defendants and appellees.
   HAWTHORNE, Justice.

Mrs. Juanita Easley Geagan, widow of William J. Geagan, Sr., instituted this suit against William J. Geagan, Jr., individually and as testamentary executor of the succession of his father, William J. Geagan, Sr.; Edward F. Geagan, James Waldron Geagan, and Mrs. Ellen M. Geagan Tircuit, brothers and sister of the deceased, and William J. Geagan Lumber Company, Inc., seeking to have adjudicated to her certain property which she alleged her deceased husband had disposed of in fraud and with intent to deprive her of her share of the community property.

This litigation arose out of the following facts:

Decedent, William J. Geagan, Sr., was married twice, and of his first marriage one child was born, William J. Geagan, Jr. Geagan’s first wife died, and on June IS, 1935, he entered into a second marriage with Juanita Easley, plaintiff herein. No children were born of this marriage. At the time of his second marriage decedent was the owner and sole proprietor of a lumber business in the City of New Orleans, doing business under the name of William J. Gea-gan Lumber Company.

During the months of July, October, and December, 1936, within approximately 18 months after his marriage, decedent purchased United States Savings Bonds, Series B, in his own name, payable in case of death to his son, William J. Geagan, Jr. These bonds have a face value of $9350.00 and are appraised in the inventory at the sum of $9257.00. These are the bonds which the parties have designated in these proceedings as the 1936 bonds.

In the months of July, 1942, April and September, 1943, and April, 1944, approximately seven to nine years after his second marriage, decedent purchased in the name of his son United States War or Defense Savings Bonds, Series E and F, of the face value of $53,000-.00, appraised in the inventory at $40,435.00, which were made payable to him on the son’s death. These bonds have been designated 'as the 1942-1944 bonds.

According to the record, the marriage between Mr. and Mrs. Geagan was not a happy one, and in April, 1944, Mrs. Geagan instituted suit against her husband for separation from bed and board on the ground of cruel treatment, alleging a series of cruelties consisting of cursing, abusing, and beating her. In due time a preliminary injunction issued, restraining Geagan from disposing of the community property, which consisted of the assets of the lumber company and various movable and immovable properties. On June 7, 1944, this suit was dismissed on joint motion, the parties thereto having become reconciled.

On June 14, 1944, shortly after this reconciliation, Geagan purchased a home located at 2601 Calhoun Street for the sum of $6500.00, all1 on terms of credit, secured by mortgage on the property conveyed. When Geagan died, there was a balance of $5000.00 due on this indebtedness. He and his wife resided in this home until his death on September 3, 1946.

On July 14, 1944, a little over a month after the dismissal of the separation suit, in which the wife had obtained a preliminary injunction restraining the husband from disposing of the community property, Geagan organized the William J. Geagan Lumber Company, Inc., and caused to be transferred to this corporation all the assets of the William J. Geagan Lumber Company, consisting of movable and immovable properties. The subscribers to the articles of incorporation were William J. Geagan, Sr.; his brothers, Edward F. and James Waldron Geagan, and his sister Mrs. Ellen M. Geagan Tircuit, and certificates of stock were issued to the subscribers as follows: Certificate No. 1 to William J. Geagan, Sr., 694 shares; Certificate No. 2 to Edward F. Geagan, 10 shares; Certificate No. 3 to James Waldron Geagan, 10 shares, and Certificate No. 4 to Mrs. Tir-cuit, 30 shares. This corporation was controlled and managed by. William J. Geagan, Sr., for a period of approximately two years, until his death on September 3, 1946, and has continued to function.

On May 13, 1946, a few months before his death, Geagan, Sr., surrendered his Certificate No. 1 for 694 shares in the corporation, and in lieu thereof had issued two certificates, one to his son, William J. Geagan, Jr , for 184 shares, and the other to himself for 510 shares. An act of donation was executed by the father as donor and the son as donee in the presence o,f two witnesses and a notary public under date of May 13, 1946, in which it was declared that Geagan, Sr., gave these 184 shares of stock to his son in ■consideration of the love and affection which he had for him, the donee.

On July 30, 1946, 60 shares -of the capital stock of the corporation were issued to William J. Geagan, Jr.

On July 18, 1946, the corporation purchased in its own name from the State of Louisiana for $10,800.00 in cash certain real estate to he used as a lumber yard.

Geagan, Sr., died on September 3, 1946, leaving a last will and testament in which he named his son as executor of his estate with full seizin and without bond. William J. Geagan, Jr., in due time qualified as testamentary executor, and an inventory of decedent’s estate was made.

According to this inventory, the community property, which consisted of cash on hand, shares of stock in the William J. Geagan Lumber Company, Inc., household furnishings, the immovable property described as 2601 Calhoun Street, and other miscellaneous properties, was appraised at $73,148.88. Of course this figure did not include the various dispositions of community funds by the decedent during his lifetime, which we have found to total $55,512.50, being the issue price of the 1936 bonds in the sum of $7012.50, that of the 1942-1944 bonds, $39,300.00, and 184 shares of stock in the corporation, similar stock being appraised in the inventory at $50.00 a share, or a total for these 184 shares of $9200.00.

After learning that Mr. Geagan had made the foregoing dispositions of property, Mrs. Geagan instituted this suit. She prayed that she be decreed to be entitled to one-half, or one-half the value, of the government bonds purchased by her deceased husband; that the formation of the corporation styled ■“William J. Geagan Lumber Company, Inc.” be decreed a “sham, delusion and snare”, null and void, as having been created for the purpose of defrauding petitioner of her share in the community property, and that the community of acquets and gains be recognized as the owner of the assets thereof, and that she be sent into possession of one-half of the assets; and, further, that a certain sale of movable property made by Gea-gan, Sr., to the corporation be set aside, and that she be recognized as the owner of one-half of this movable property or one-half the value thereof, and that the purchase of certain immovable property be set aside and decreed null and void.

In the alternative, petitioner prayed that, in the event the court should decree the corporation to be bona fide and lawful, she be recognized as the owner of one-half of 694 shares of the capital stock of the corporation issued to her husband, and that the two transfers or issuance of stock to defendant, William J. Geagan, Jr., on May 13, 1946 (184 shares), and July 30, 1946 (60 shares), be decreed null and void and without effect as being without consideration and in fraud of petitioner’s rights. Further in the alternative, she prayed for judgment on behalf of the succession against the corporation in the sum of $5000.00 as salary due the decedent and earned by him for the last five months of 1944.

In the lower court ail the issues were tried, with the consent of all parties, as if the final account had been filed in the succession of William J. Geagan, Sr., and the following judgment was rendered:

The United States government bonds which the parties have designated as the 1936 bonds were decreed to be the separate property of the estate of William J. Gea-gan, Sr.

The United States government bonds which have been designated as the 1942-1944 bonds were declared to belong to the community of acquets and gains existing between plaintiff and her deceased husband.

Plaintiff’s claim that the formation of the William J. Geagan Lumber Company, Inc., be declared null and void and that the community of acquets and gains be recognized as the owner of the assets thereof was denied.

The 694 shares of stock in the corporation, issued under date of July 15, 1944, to William J. Geagan, Sr., were declared to belong to the community of acquets and gains which existed between plaintiff and her deceased husband, and the plaintiff was declared to be entitled to have transferred to her in her own name and right 347 shares of this stock.

Plaintiff’s claim as to the outstanding shares of stock of the William J. Geagan Lumber Company, Inc., was denied.

Mrs. Geagan’s claim for judgment on' behalf of the succession and against the corporation in the sum of $5000.00 as salary due the deceased was denied, with full reservation to the succession to claim such salary in proper proceedings.

All other items on the inventory taken in' these proceedings were approved except two items, Nos. 64 and 65, with reference to which claims were still pending before the lower court.

From this judgment plaintiff, Mrs. Gea-gan, appealed suspensively, and William J. Geagan, Jr., individually and as testamentary executor, appealed devolutively. All defendants have filed an answer to the appeal of Mrs. Geagan, and she has likewise answered the devolutive appeal, each party praying that the judgment be reversed in so far as his or her respective interest was adversely affected.

1936 Bonds

These bonds, as previously pointed out, were United States Savings Bonds, Series B, acquired in the name of, and issued to, William J. Geagan, Sr., and payable in case of death to his son, William J. Geagan, Jr.

Having been purchased during the existence of the community of acquets and gains between decedent and plaintiff-appellant herein, these bonds are presumed, under the provisions of Article 2402 of the Revised Civil Code, to be community property. To overcome this presumption the defendants contend that it was impossible for the decedent to have used community funds to purchase these particular bonds, which were bought during the first 18 months of his marriage with plaintiff, because during this time the total community income was not of a sufficient amount to pay the issue price of these bonds. On the other hand, they contend that he had a separate estate of a sufficient amount out of which he could have paid for the bonds, and they argue that for these reasons the judgment of the lower court recognizing these bonds to be the separate property of the deceased and belonging to his separate estate should be affirmed.

The record does not show the source of the particular funds used to purchase these government obligations — that is, whether they were funds belonging to his separate estate or community funds or funds commingled belonging to each estate. However, in our opinion, the negative proof that the community did not earn a sum sufficient to make this purchase during the first 18 months of its existence is not sufficient to overcome the presumption that these obligations are community-property and were purchased with community funds.

Despite our finding that under the law of this state these bonds are community property, we are bound to give full force and effect to the laws and regulations governing United States Savings Bonds, as pointed out by this court in Succession of Land, 212 La. 103, 31 So.2d 609, and, as the purchaser designated his son as beneficiary in case of death, under these laws and regulations we must recognize William J. Geagan, Jr., as full owner of these particular bonds. Conrad v. Conrad, 66 Cal.App.2d 280, 152 P.2d 221; Mitchell et al. v. Edds et al., Tex.Civ.App., 181 S.W.2d 323, affirmed Edds v. Mitchell et al., 143 Tex. 307, 184 S.W.2d 823, 158 A.L.R. 470; Warren, Executrix, v. United States, 68 Ct. of Cl. 634, certiorari denied, 281 U.S. 739, 50 S.Ct. 346, 74 L.Ed. 1154.

However, we will not permit William J. Geagan, Sr., to do by contract with the Federal government what he could not have done by donation mortis causa in this state, that is, dispose of his wife’s share of the community property at his death in favor of a third person; Mrs. Geagan is therefore entitled to judgment against William J. Geagan, individually, in' an amount equal to one-half the appraised value of the bonds as of the date of the death of William J. Geagan, Sr. — or $4628.50, which is half of the total appraised value of $9257.-00 as shown on the inventory.

It follows that the judgment of the lower court holding these particular bonds to belong to the separate estate of the decedent will have to be reversed.

Validity of the Corporation

Plaintiff-appellant, Mrs. Juanita Easley Geagan, contends that the formation of the corporation on July 14, 1944, was fraudulent, and that the sale or disposition of the community property to this corporation was by fraud on the part of her husband and to her injury, and that the formation of the corporation should be declared to be null, void, and of no force and effect.

The last paragraph of Article 2404 of the Revised Civil Code provides that, if it be proved that the husband has sold the common property or otherwise disposed of it by fraud to injure his wife, she may have an action against the heirs of her husband in support of her claim in' one-half of the property on her satisfactorily proving the fraud.

It is well to note that, although this article gives the wife a right of action against the heirs of her husband in support of her claim in one-half the property on her satisfactorily proving the fraud, plaintiff in this case did not pray for a judgment against the heir, William J. Geagan1, Jr., for one-half of the property transferred to the corporation, but prayed that the community of acquets and gains be recognized as owner of all the assets of the corporation, and that she be recognized as owner of one-half of these assets. We express no opinion as to whether this court could grant the relief prayed for in the pleadings in this matter, since we have reached the conclusion that the corporation was validly and legally formed and that plaintiff-appellant has not been injured by its formation.

The corporation was organized a short time after the dismissal of the separation suit instituted by Mrs. Geagan, in which a preliminary injunction had issued restraining the husband from disposing of the community property. Plaintiff contends that this fact, together with all other facts and circumstances, constituted on the part of her husband fraud to deprive her of her interest in the community property, to her injury.

In this connection she contends also that the stock issued to the other subscribers, the brothers and sister of the deceased, was issued without consideration, or that, if paid for, the payment was made from funds given to these subscribers for this purpose by the deceased.

At the time of the organization of the corporation, Geagan, Sr., transferred to it all the assets of his lumber company, which he had owned and operated many years, and also certain movable and immovable properties consisting of property designated 135 Alonzo Street and a Buick automobile. In consideration of these transfers 694 shares of the capital stock of the corporation were issued to him. All of this property was transferred to the corporation at an appraised value of $69,400.00, for which the 694 shares of stock were issued at $100.00 per share, as shown by the appraisement found in the record.

Plaintiff does not contend that the deceased in organizing this corporation did not comply with the laws of this state with reference to the formation of corporations, and certainly no one will contend that Geagan, Sr., did not have a legal right to organize such a corporation and to transfer property for shares therein so long as the property was transferred for a fair value and stock of equal value was issued therefor.

Under the facts in this case, when the deceased transferred to the corporation the property belonging to-the community and received in exchange therefor shares of stock in the corporation, the value of the community of acquets and gains which existed between him and his wife was in no way diminished, because the shares of stock represented the property transferred and belonged to the community of acquets and gains existing between the parties, and the surviving spouse in community is not thereby prejudiced in any way.

The formation of the corporation under the facts in this case and the transfer of community property to it at a fair value in exchange for shares of stock of a like value were not a disposition of community property, under the meaning of Article 2404 of the Revised Civil Code, to the injury of the wife, for, as hereinabove pointed out, the shares of stock represented the property transferred, and the wife is entitled to her one-half thereof as surviving spouse in1 community.

We therefore conclude that there is no merit in plaintiff’s contention, and that she has advanced no valid reason why the formation of the corporation should be decreed null and void. The judgment of the district court in this respect will be affirmed.

With reference to the 10 shares of stock issued to each of Geagan, Sr.’s brothers, Edward F. and James Waldron Geagan, and the 30 shares to his sister, Mrs. Ellen M. Geagan Tircuit, the evidence is convincing that each of the brothers actually paid in cash to the corporation $1000.00 and the sister $3000.00, on the basis of $100.00 per share, and that all of these amounts were credited on the books of the corporation to its account.

During the years when the deceased was in the lumber business, he from time to time made donations to his brothers and sister in the nature of bonuses, these relatives being employed by the deceased and having rendered valuable services for many years. Both brothers had had opportunities to accept other employment at a larger remuneration, and the sister in addition to valuable services rendered in the business had helped her brother to rear his son. From the evidence we are unable to say that the various sums received by the brothers and sister from decedent were the identical sums used to pay the full amount of their respective stock subscriptions, and, in our opinion, even if so, this is immaterial.

The judgment of the district court denying Mrs. Geagan’s claim as to these outstanding shares will be affirmed.

Having found that the corporation was legally and validly formed and that the transfer to it of the community property, under the facts in this case, was valid, we see no reason why we should recognize plaintiff-appellant as the owner of one-half of certain immovable property purchased by the corporation on July 18, 1946, from the State of Louisiana for the sum of $10,800.-00, on her theory and contention that this property was purchased with community funds, especially since the record shows that the corporation actually paid from its funds the purchase price of this property.

Sixty Shares of Corporate Stock Issued to Geagan, Jr.

The record discloses that on July 30, 1946, Geagan, Jr., purchased from the corporation 60 shares of its stock for $6000.00, and that this full sum was paid by him to the corporation in cash. In order to make this purchase he borrowed $6000.00 from a bank and as evidence of the loan gave his note, endorsed by his father. The bank issued its cashier’s check for the full amount of the loan, less discount. The check bears the following endorsements: “William J. Geagan, Jr.” and “For Deposit William J. Geagan Lbr. Co., Inc.” Geagan, Jr., gave his check to the corporation for $42.00 to make up the full $6000.00. Photostatic copy of the original note evidencing the $6000.00 to Geagan, Jr., photostatic copy of the cashier’s check issued by the bank and made payable to him, and his check to the corporation for $42.00 are in the record. This we think is ample evidence to prove that Geagan, Jr., paid the corporation in full for the stock.

The judgment of the lower court denied Mrs. Geagan’s claim that these 60 shares of stock were issued without consideration and refused to declare the issuance of them null and void. In our opinion this judgment is correct.

Donation of 1942-1944 Bonds and 184 Shares of Stock in the Corporation

The 1942-1944 bonds, United States Savings or Defense Bonds, Series E and F, having a maturity value of $53,000.00, were purchased by the decedent in the name of his son during the existence of the second marriage, and with community funds, the issue price being $39,300.00, and were made payable to him in case of his son’s death.

On May 13, 1946, Certificate No. 5 for 184 shares of the capital stock of the corporation was issued to Geagan, Jr. At this time Geagan, Sr., surrendered his certificate for 694 shares and had another certificate issued to him for 510 shares—that is, in lieu of Certificate No. 1, two certificates were issued, one to Geagan, Sr., for 510' shares, and the other to Geagan, Jr., for 184 shares.

Geagan, Jr., claims that he is the legal and valid owner of these bonds and shares of stock for the reason that his father made valid donations to him of these particular items.

Plaintiff-appellant on the other hand contends that these donations are invalid, and that they constitute a conveyance or disposition of the community property on the part of her husband by fraud to injure her, under the provisions of Article 2404 of the Revised Civil Code.

According to the inventory in this case, the community estate is appraised at a little in excess of $73,000.00, which does not taire into consideration the indebtedness due on the common dwelling located at 2601 Calhoun Street amounting to approximately $5000.00. If these donations are valid, it can be readily seen that the husband during the marriage placed beyond the reach of his wife community property in excess of $48,-000.00 — $39,300.00 representing the purchase price of the bonds and $9200.00 the appraised value of the 184 shares of stock. This figure does not take into consideration the 1936 bonds, which we have heretofore discussed, purchased with community funds in the husband’s own name with his son as the designated beneficiary, in the sum of $7012.50. Therefore the total amount of community property disposed of is a sum in excess of $55,000.00.

These figures are given simply to show that the dispositions of community property by decedent were large in proportion to the total value of the community property as shown by the inventory filed herein. We do not mean to imply that a disposition of such proportion would, of itself, in every case, be fraudulent or injurious to the wife, or that there is any specific proportionate amount of movable community property which the husband cannot donate validly by particular title, but the disposal of such a large proportion of the community becomes important when considered with all the other facts and circumstances surrounding this particular case.

The testimony discloses that during the marriage of Mr. and Mrs. Geagan there was a great deal of marital strife, and that there was not much love existing between them. Mr. Geagan seemed to have a feeling of animosity toward his wife. Plaintiff herself testified that her husband informed her on numerous occasions that he had “fixed things” so that she would not receive any property at his death. That this was his full intent and purpose is clearly shown by the testimony of witnesses who were friends of both husband and wife. They testified that the deceased discussed his marital troubles with them on many occasions and made positive statements that he intended to deprive his wife of as much as he could and that he was going to see to it that his wife “did not get one damn cent”. This last statement was made a short time before his death, while he was seriously ill with heart trouble and fully aware' of his condition.

The wife had no knowledge of these two dispositions, amounting to over $48,000.00, until after the. death of her husband.

The husband’s animosity toward his wife is reflected by the last will and testament written by him in April, 1945, a little over a year before his death. This will provides that the testator leaves all of his property to his son, William J. Geagan, Jr., and then continues as follows: “I do not desire my wife to have the usufruct on my portion of the estate. In other words, upon my death. I want my son William Joseph Geagan, Jr. to inherit my half of the estate with the right to immediate use thereof.” The will then provides that, in the event his son shall predecease him, he leaves all of his property to his brothers and sisters, and this provision is followed by the same declaration as to usufruct and immediate use thereof.

We are convinced that plaintiff has-proved that donations of these bonds and' shares of stock were invalid, pursuant to> the last paragraph of Article 2404 of the-Civil Code, for an analysis of the testimony and evidence in this case gives us this overall picture:

Here was a man whose feelings toward; his wife were the reverse of tender, affectionate, and protective. He had a son by a previous marriage whom it appeared he-loved very much. His animosity toward his-wife was deep, bitter, and lasting. He took no pains to conceal this attitude toward his-wife, either from her or from other persons. He openly avowed to her and to-friends on many occasions that it was his-intention and plan to keep from his wife as-much of their property as possible when the-community should be dissolved at his death. Even in his will he went out of his way to make it plain that, of his share at least, he wished her to derive no profit or benefit. He ■was a shrewd, clever business man and made use of this quality to carry into effect his vindictive feeling toward his wife. He started out systematically to dispose of large sums of community funds to the prejudice of his wife, and to secure these benefits to his son. In 1936 he bought government bonds in his own name, designating his son as beneficiary. In the years. 1942-1944 he bought more government bonds, a large amount this time, and (possibly because he had become more conversant with the laws and regulations governing such-contracts with the government) this time purchased them in his son’s name, with himself designated as beneficiary. None of these transactions was known to the wife, and the son had possession of, or access to, all these bonds at the time of the father’s death. He incorporated his business, and by donating 184 shares of stock to his son and allowing him to purchase 60 additional shares he sought to assure eventual control of the corporation to his son. All these transactions were carefully prepared and carried out in legal form in order to circumvent the laws of this state and to prejudice the interests of his wife.

The judgment of the lower court, by decreeing that the 694 shares of stock in the William J. Geagan Lumber Company, Inc., issued as of July IS, 1944, to Geagan, Sr., were community property, and that plain.tiff-appellant was entitled to have transferred in her own name and right 347 shares of this stock, indirectly set aside the donation of 184 shares of stock to Geagan, Jr.

The judgment of the lower court decreed the 1942-1944 United States War or Defense Savings Bonds to belong to the community of acquets and gains which existed between Mr. and Mrs. Geagan, thus, also in effect, setting aside the donation of these bonds to Geagan, Jr.

The judgment in effect setting aside the donation of the shares of stock is correct, and the judgment with reference to the 1942-1944 bonds, in so far as it had the effect of setting aside the donation of the bonds, is also correct, but is erroneous in so far as it decrees the bonds to belong to the community of acquets and gains. With reference to these .particular bonds, however, we must, as we have previously pointed out in discussing the 1936 bonds, give full force and effect to the laws and regulations governing these obligations, and, since these bonds were issued in Gea-gan, Jr’s name, he is entitled under the laws and regulations governing them to their full ownership, but plaintiff, Mrs. Geagan, is entitled to a judgment against the heir of her husband, Geagan, Jr., individually, for a sum equal to one-half their value on the date of Geagan, Sr’s death, September 3, 1946. The value of these bonds on the date of Geagan, Sr.’s death is disclosed to be $40,315.00 by Form F.A.D. 1128 of the Federal Reserve Bank of Atlanta, which is in the record, and therefore Mrs. Geagan is entitled to judgment in her favor in the sum.of $20,157.50.

In our opinion the wife should not have to prove fraud and injury in order to set aside gratuitous dispositions of valuable movable property. In modern times, when movable property may and often does constitute the great bulk of the wealth, the husband should have no more right to dispose of movables gratuitously without the consent of his wife than he has to dispose of immovables. It appears to be a matter of sufficient importance to warrant the Legislature’s giving this provision of our law serious consideration.

Plaintiff-appellant urges that, if her claim that the 1936 and 1942-1944 bonds are community property ⅛ recognized by this court, she is entitled to one-half the value of the bonds as of the date of settlement with her. The defendant, William J. Geagan, Jr., contends, on the other hand, that, if plaintiff’s claim as to the status of the bonds is accepted, he should account only for one-half the purchase price of the bonds. Counsel for plaintiff further argues that, if we hold that the defendant, Geagan, Jr., is liable to the plaintiff for only one-half of the purchase price of the bonds, in fairness and equity he should also be charged with legal interest on one-half of the purchase price from the date of purchase to the date of settlement with the plaintiff. No authorities have been cited to support any of these contentions, and we have concluded that the equitable solution in this matter is for the defendant, William J. Geagan, Jr., to pay to Mrs. Geagan one-half of the value of the bonds, as shown by this record, on the date of Mr. Geagan’s death.

Claim for $5000.00 Salary

On July 31, 1944, the board of directors of the William J. Geagan Lumber Company, Inc., adopted a resolution fixing the salaries of its employees who were officers. In this resolution the salary of Gea-' gan, Sr., was fixed at $12,000.00 per calendar year, payable monthly in the sum of $1000.00. This resolution provided that, in the event an employee named therein did not desire to draw his salary when due, the compensation would be permitted to accumulate. The books of the corporation disclose that Geagan, Sr., its president, did not draw any compensation for the months of August through December, 1944, which fact is admitted by counsel for the corporation, and Mrs. Geagan is claiming this amount on behalf of the succession.

The record clearly indicates that the deceased was attentive to the corporation’s business, which was under his direction, control, and management, and no contention is made that he did not earn this salary or that he did not render any services to the corporation during this period of time. Counsel for the corporation rely upon one of its witnesses, a certified public accountant, who testified that, since the books of the corporation were under Gea-gan, Sr.’s control and since he did not have set up therein the debt due to him by the corporation, this constituted a forgiveness on the part of the deceased for the amount due.

We think that the resolution of the board of directors and the admission of counsel for the corporation that the deceased did not draw his salary for these particular months, in the absence of any other showing, are sufficient to show that the corporation is indebted to the community estate of the deceased for the full amount of this salary, $5000.00. The opinion of the certified public accountant is not adequate proof that Mr. Geagan forgave this indebtedness.

With reference to this claim, the lower court in its judgment decreed that the matter was not before it for determination in these proceedings and consequently denied the claim, but with full reservation of the rights of the succession to claim this salary from the corporation in proper proceedings..

Technically speaking, the trial judge may have been correct in his ruling that the question of whether this salary is due to the-estate of the decedent is not a matter before the court in these proceedings. However, in these proceedings all issues were tried in the lower court, as previously pointed out by us, with the consent of all parties as if the final account had been filed in the succession, and, since all parties concerned with this claim are before the court —that is, the corporation; Geagan, Jr., individually and as executor of the decedent’s succession, and Mrs. Geagan, surviving spouse in community — , and since evidence has been adduced by the litigants with reference to the claim, we do not think it would serve any useful purpose to deny the claim with full reservation of the rights of the estate to assert it in some other proceeding.

Further, this claim was asserted by plaintiff in her petition, and counsel for the corporation and Geagan, Jr., individually and as executor, made no objection to the insertion of the claim in these proceedings, but on the contrary, filed answers in which the claim was denied, and the matter was therefore put at issue.

The judgment of the lower court denying, this claim will have to be reversed.

$41,000.00 Claim

In the answer of Geagan, Jr., individually and as testamentary executor, he set forth that his father at the time of his marriage to plaintiff-appellant herein had accumulated an estate of approximately $41,000.00, and that in consequence of this fact the community estate of the decedent is indebted to the separate estate in this sum. In his answer to Mrs. Geagan’s appeal he contends that the judgment of the lower court is erroneous in that it failed to' recognize this claim.

The evidence in the record does not satisfactorily establish that the decedent had a separate estate valued at $41,000.00, but, assuming that this is true and that it was the only proof relied upon, we know of no law, nor have counsel cited any, to the effect that at the dissolution of the community it owes each separate estate the value of whatever property the spouse had at the time of the marriage.

For the reasons assigned, the judgment of the lower court decreeing that the United States Savings Bonds, Series B, described in the petition of Mrs. Juanita Easley Geagan in Articles VIII, IX, and X and as Items 1, 2, and 3 on Exhibit “A” attached to said petition (the 1936 bonds), are the separate property of the estate of William J. Geagan, Sr., is set aside, and it is decreed that William J. Geagan, Jr., be recognized as the full owner of these particular bonds, and that Mrs. Juanita Eas-ley Geagan have judgment against William J. Geagan, Jr., individually, in the full sum of $4,628.50, being one-half of the appraised value of these bonds as of the date ■of the death of William J. Geagan, Sr.

The judgment of the district court recognizing the community of acquets and gains which existed between plaintiff-appellant and the deceased to be the owner of United States Savings or Defense Bonds, Series E and F, described in Articles XI, XII, XIII, XIV, and XV of plaintiff’s petition .and as Items 4, 5, 6, 7, and 8 on Exhibit ■“A” attached thereto (the 1942-1944 bonds), is set aside, and it is now ordered ¡that the full ownership of these bonds be recognized as in William J. Geagan, Jr., and that Mrs. Juanita Easley Geagan have judgment against William J. Geagan, Jr., ■individually, in the full sum- of $20,157.50, being one-half of the value of these bonds .as of the date of the death of William J. •Geagan, Sr.

The judgment of the district court denying the claim against the William J. Geagan Lumber Company, Inc., for $5000.-■00 as salary due the deceased for the months of August through December, 1944, is reversed, and it is ordered that there ’be judgment in favor of the community ■estate of the deceased, and against the cor-iporation, for this amount.

It is also ordered that the claim of Mrs. Juanita Easley Geagan to the ownership of one-half ot certain immovable property purchased by the William J. Geagan Lumber Company, Inc., from the State of Louisiana on July 18, 1946, for the sum of $10,-800.00 be denied.

It is further ordered that the claim of William J. Geagan, Jr., individually and as testamentary executor, that the community estate owes the separate estate of decedent the sum of $41,000.00 be denied.

In' all other respects the judgment appealed from is affirmed.

One-half of the costs of these proceedings is to be paid by William J. Geagan, Jr., individually, and the other half by William J. Geagan Lumber Company, Inc.


source: Caselaw Access Project

author: LeBLANC, Judge. OTT Judge

license: Public Domain

text:
    MUSE v. MUSE et al.
    No. 2936.
    Court of Appeal of Louisiana. First Circuit.
    Dec. 30, 1947.
    Rehearing Denied Feb. 2,1948.
    Writ of Certiorari Granted Feb. 16,1948.

      W. F. Kline, of Clinton, for appellant.
    Richard Kilbourne, of Clinton, for ap-pellees.
   LeBLANC, Judge.

In this suit, Otis Muse, one of the 12 children, all heirs of his deceased mother, Margaret Muse, seeks to recover from his co-heirs their virile share of $2,400 which he claims is due him for services rendered his mother while she was still living, by taking care ,of a farm which she owned herself and also another farm of which she owned an undivided half and had the usufruct as widow of her deceased husband of the other half. He claims that the services he rendered extended over the period from May, 1938 to June, 1946, when his mother died and he values them at the sum of $25 per month for the whole period thus making his claim the sum of $2,400 which he prays judgment for.

Shortly after her death, his mother’s succession had been opened on the petition of all of the heirs to be recognized and placed in possession of her property. In the petition filed there was an allegation to the effect that there were no debts due by the succession and an ex parte judgment was rendered by the court recognizing them all, including the plaintiff, as heirs, and placing them in possession of the estate. We might mention here, in this connection, that the plaintiff’s name was used as one of the petitioners without his knowledge and he took no part whatever in the proceedings. There was no plea of estoppel or any other plea urged by reason of these proceedings and that is not an issue in the case.

The demand is one for a sum which places the matter in dispute beyond the jurisdiction of this court but as the district judge rendered judgment in favor of the plaintiff for the sum of $750 with which plaintiff is apparently satisfied since he has not answered the appeal, we are of the opinion that the original demand was inflated and as that is a matter which this court can take judicial cognizance of, we will entertain jurisdiction of the appeal and decide the question at issue.

The defense is a denial that plaintiff is entitled to recover anything whatever as, it is alleged in the answer, he was more dependent upon his mother for support than she was upon him and that all that he did was merely menial labor on the farm for which he was amply recompensed by the support given him at his mother’s home during his entire life time and especially after the death of his father.

As stated however, after trial of the case, the district judge rendered judgment in favor of the plaintiff and the defendants have taken this appeal.

Prior to filing the answer the defendants had filed an exception of no right or cause of action and one of them, Florence Gibson, had additionally filed an exception to the jurisdiction of the district court ra-tionae personae. A minute entry of April 29, 1947 shows that one of the exceptions, at least, if not both, was referred to the merits. If only one was, we presume it was the exception of no right or cause of action. If the exception to the jurisdiction of the court was not disposed of in that manner it seems to have been abandoned. There is no testimony in the record to indicate that any one of the defendants did not reside within the jurisdiction of the district court of East Feliciana Parish, and we believe that all parties are properly before the court.

The exception of no right or cause of action seems to be based on two propositions of law, the first being one that is embodied in art. 229 of the Civil Code to the effect that “children are bound to maintain their father and mother and other ascendants, who are in need;” and the second being found in art. 1759 of the Code which prescribes that “no suit will lie to recover what has been paid or given in compliance with a natural obligation.”

A further proposition of law which presents itself in the case, as we view it, is the one considered by this court in the case of Succession of Berthelot, La.App., 24 So.2d 185, to the effect that services rendered by a son or a daughter in the way of nursing and attention to the physical needs of their parents are presumed to be gratuitous and that they will not be reimbursed for such services unless it is shown that there was a promise made by the deceased parent to recompense, which promise may arise either from an expression of intention on the part of the decedent or by some testamentary disposition he may have made.

The proof offered by the plaintiff in this case with regard to the services he rendered shows that he is claiming on a quantum meruit and there is no proof whatever tending to show any intention on the part of his deceased mother or any promise by her to recompense him. The proof adduced by his own testimony, as well as by that of some of his co-heirs and some other witnesses, is disputed by the defendants and their witnesses. Evidently the trial judge found that he had produced the preponderance of the testimony to support his claim and it would seem that he overruled the point of law raised by the defendants on their exceptions to the effect that under art. 229 of the Civil Code children are bound to maintain their parents who are in need and also the other point to the effect that it was a natural obligation on plaintiff’s part to render this service and that no suit could lie for recovery.

The other point of law that services rendered by children are presumed to be gratuitous and that such presumption has to be rebutted by proof of a promise to pay was evidently not considered as it is not mentioned anywhere in the record. We think it is important and that it must have some consideration on our part in view of our decision in the case of the Succession of Berthelot, supra.

Since there is no proof whatever about a promise to pay on the part of plaintiff’s mother for the services plaintiff claims to have rendered her it is necessary for us to decide in the first place whether services such as he claims to be compensated for are presumed to be gratuitous.

In the Berthelot case we cited in support of the proposition of law that is stated, the case of Farrar v. Johnson, 172 La. 30, 133 So. 352, 353, in which the Supreme Court stated the law as follows: “It is always a presumption, when such services are rendered by a son or daughter to the parent, that the services are gratuitous; and the law will not allow compensation in such cases without proof of a promise or express intention on that part of the parent to pay for the services.” In the Berthelot case we held that there appeared from the testimony, an intention on the part of the parent to pay and we accordingly affirmed a judgment of the lower court which had permitted a daughter to recover for services rendered to her father.

In again considering the case of Farrar v. Johnson, which stated the law as quoted we find the statement followed by the citation of six cases. The first is the Succession of Ploton, 36 La.Ann. 211. The claim there was presented by a commission merchant doing business in New Orleans for services rendered to the deceased who resided in the Parish of Terrebonne. The claimant seems to have been acting under a mandate given him by the decedent and that seems' to have been the only relation between them. The principle of law regarding gratuity of services was correctly applied in that case because art. 2991 of the Civil Code specifically provides that “the procuration is gratuitous unless there has been a contrary agreement.”

The second case cited is Estate of Littell 50 La.Ann. 299, 23 So. 314, which we find involved a claim of a doctor for services rendered to the decedent against whose estate he had presented a bill for a large amount and which was rejected because it was shown that he had been recompensed by various benefactions of the deceased during her lifetime.

The next case cited is Succession of Oubre, 1.9 La. 516, 33 So. 583 in which the claim for reimbursement for services rendered to the deceased was made by one of his brothers. Apparently it was rejected on the ground that it had every appearance of being stale and was obviously an afterthought on the part of the claimant.

Next we come to the case of Succession of Daste, 125 La. 657, 658, 51 So. 677, 679, 29 L.R.A.,N.S., 297 in which the court was dealing with the claim of a foster daughter against the succession of her foster father. The opinion in that case states that “the opponent (who was the claimant), as the foster daughter, owed some duty to the deceased. We are not certain that the services were such as would justify a judgment in her favor.” Referring then to Wood on “Master & Servant”, evidently a common law authority, the court, for the first time, as far as we have been able to ascertain, seems to have given consideration to the proposition of law that services rendered to near relatives such as a father, grandfather, brother and other relatives cannot be recompensed in the absence of an express contract or circumstances equivalent thereto and that the law will not imply a promise to pay for them. Two Vermont cases are cited in which it was held that an adopted daughter, after becoming of age, could not recover for services without an express agreement to establish a promise to pay therefor. It is also stated that there was something to the same effect held in a Missouri case, a Pennsylvania case and a New York case. The court stated that “the French authorities also give effect to the ties of kindness as giving rise to services gratuitously rendered.” But no French authority is cited, nor is there any reference to any Louisiana decision.

The next case is that of Latour v. Guillory, 134 La. 332, 64 So. 130 in which the syllabus on the point with which we are concerned and which reflects the decision of the court reads as follows: “The claim of a son-in-law against one of seven children for alimony furnished to the father will be denied when it appears that the father had enjoyed the usufruct of the estate by common consent, and no call had been made on the plaintiff for a contribution.” It is rather significant that in that case the court states that “where there are a number of children, the obligation to maintain the father is solidary. The richest is not obliged to contribute more than the others to the discharge of the common debt.”

The last case cited is that of the Succession of Brand, 162 La. 880, 111 So. 267 which had to do again with the case of a claimant who was a foster child and not a child by blood of the deceased; so that case also does not decide the important question as to whether the services of a son or daughter by blood carries the same presumption as was stated in the Farrar case on which we relied in the Berthelot case.

Could it be then that this presumption of gratuity of services rendered by children to a parent in need is one which arises out of the provisions of art. 229 of the Civil Code itself, under which children “are bound to maintain their father and mother and other ascendents, who are in need”? We have underscored the words “who are in need” because it seems that those are the important words of the Article and which bind children to the obligation of supporting their parents who are in such-circumstances, for naturally parents who are not in need do not have to be maintained by their children. That would be the only condition, we think, under which a presumption might be created that children who render such services and who are called upon to perform them by the terms of the Article cannot recover for the value of such services as they may have rendered.

That seems to be the import of the decision in the case of Succession of Guidry, 40 La.Ann. 671, 4 So. 893, 895, where the court stated: “There can be no doubt that Mrs. Guidry, being in penurious circumstances, her son was bound in law and in conscience, to provide for her, as well in health as in sickness; for it is written, that children are bound to maintain their father and mother and other ascendants who are in need. Rev. Civil Code, art. 229; Code Nap. art. 205.” In that case services had been rendered by an only son to his mother and after holding that he was not entitled to recover for the reason that he had simply “paid a debt imposed upon him by law,” the court nevertheless added that “the case would be different if, instead of being the only child, the son had had brothers or sisters, for in that case, as each and all would have been bound to provide entirely, as it were, in solido, for the wants and necessities of the mother, the child performing his obligation would have had recourse against the other issue for contribution. He could, had the mother died solvent, have made good his claim against their share in the succession, but such is not the case here. Mrs. Guidry has died insolvent, leaving property burdened for much more than it realized, and which is the common pledge of her creditors.” The court in that case refers to several French Commentators who wrote on the subject of the obligation of a child to his parent to support its holding that the child in the case it had under consideration, and who was an only child, could not recover the value of the services rendered by him to a penurious mother, from her insolvent succession, on the ground that by rendering such services he had only paid a debt which the law imposed on him as a child. But we cannot overlook the fact that the court also stated the hypothetical case in which he could recover if there were other children and the parent’s estate would be solvent. In that event, it is stated, he would have his recourse against the other issue for contribution.

The hypothetical case stated is exactly the situation which is presented before us in this case and what the plaintiff is seeking to do is precisely what the court stated he could do. As one of 12 children he is endeavoring to obtain recourse against the other 11 for their virile share of the value of the services rendered by him to his mother who, far from being in penurious circumstances was the owner of 15 acres of land in her own right and the undivided half owner and usufructuary of 120 acres more, all of which was unincumbered when she died.

There is an older case which holds the very thing that the court stated would have made a difference in the Guidry case if there had been more than one child who rendered services to the parent. That is the case of Estate of Marie Ann Olivier, 18 La.Ann. 594. One of the sons of the deceased, who had been appointed administrator of her estate, claimed the sum of $266.74 for having furnished his mother with certain provisions, for several years before she died. The lower court had rejected the claim on the ground that it had not been sufficiently proved. The Supreme Court however reversed the judgment of the trial court stating that, considering the relation which must naturally have existed between a mother and a son, it was of the opinion that the proof was sufficient and that the claim should have been allowed.

Granting therefore that there is, in certain cases, a presumption of gratuity of services rendered by a child to its parents which can only be overcome by proof of an intention or an agreement of some sort on the part of the parent to pay, under the authority of the last two cases cited, we do not think that the presumption arises in this case and therefore proof of such intention or agreement is not necessary. It remains then for us to decide whether plaintiff has supported his claim by sufficient and satisfactory proof.

This we are inclined to believe he did. Besides his own testimony we find that of one of his sisters and also that of a disinterested witness that he did render the services claimed by him and although it may be that the proof is rather indefinite about the exact number of years they were rendered, we would say that for the last two years of his mother’s life, at least, when she was paralyzed, he did attend to her personal wants and to the running of her farm. There is not much contradictory proof except by one or two of his co-heirs, one of whom especially said that she helped also to support her mother. But the most that she did wa6 to bring her a few extra things from New Orleans, where she lived, two or three times a year. Otherwise it was attempted to show that the plaintiff is simple and weak-minded and therefore incapable of performing the services he claimed to have rendered. We believe however that although he may not have been as bright as some of his co-heirs the proof is clear that he was able to do hard manual work and this is what he claims he did, that is he plowed the field, hoed the grass, cut wood, cultivated the crops and in a general way tended to his mother’s farm turning over all the proceeds to her.

The amount he claims of $25 per month appears to be reasonable and we are not disposed to hold that the trial judge was wrong when he fixed the time he was entitled to recover for, at thirty months, which of course makes the sum of $750, the amount of the judgment rendered in his favor.

Judgment affirmed at the cost of the defendants, appellants herein.

OTT Judge

(dissenting).

I agree with the reasoning in the majority opinion which holds that the services rendered by a son or daughter to a parent should not be presumed to be gratuitous, except in those cases where the parent is in need, however, I feel that we are bound to follow the holding of the Supreme Court in the case of Farrar v. Johnson, 172 La. 30, 133 So. 352, and which ruling we followed in the recent case of Succession of Berthelot, La.App., 24 So.2d 185. Therefore, it is my opinion that the plaintiff in this case was required to allege and prove some promise, express or implied, on the part of the deceased to compensate the services. Having failed to make such allegation and proof, plaintiff is not entitled to recover any compensation for the services rendered.

I therefore respectfully dissent.


author: LeBLANC, Judge.

text:
    Succession of DUGAS.
    No. 2966.
    Court of Appeal of Louisiana. First Circuit.
    Dec. 30, 1947.
    Rehearing Denied Feb. 2, 1948.
    Writ of Certiorari Granted March 22, 1948.

      C. Arthur Provost, of New Iberia, for appellant.
    O. J. Mestayer, of New Iberia, for ap-pellee.
   LeBLANC, Judge.

Erazie Dugas, a femme sole, died intestate at her residence in Iberia Parish on April 10, 1943, leaving an estate consisting solely of a tract of land which was appraised at the sum of $1,200. She left no forced heirs and was survived by two sisters and several nephews.

Her succession was opened at the instance of one of the surviving sisters, Cecile Du-gas, who asked to be appointed adminstra-trix of the estate. An inventory of the property belonging to the succession was duly made and letters of administration were issued, without opposition.

After she had qualified, the administra-trix petitioned the court for a sale of the property in order to realize sufficient cash with which to pay the debts due by the succession. She listed debts amounting to the sum of $95.32 for funeral expenses of the decedent and a balance of $4,291 which she claimed herself for caring for her sister for the period from March 1, 1926 to April 10, 1943, at $1 per day, making a total sum of $6,416 and also the sum of $170 for taxes paid by her on the property and for maintaining the same. Credits amounting to the sum of $2,125 were given, leaving the balance of $4,291 as- stated.

After advertisement and formal compliance with all other provisions of law, the property was sold and brought the sum of $1,500. The administratrix then, filed a final account showing, in addition to the debts already listed, law charges amounting to the sum of $212 and the balance of $1,-192.68 remaining from the $1,500 cash she credited herself with on the balance she claimed to be due her. An opposition to the account was filed by Mrs. Amelie Dugas, wife of J. Ademar Breaux, one of the surviving sisters, who appeared in court by way of an exception of vagueness which was overruled. She then opposed the account on the further ground that the balance claimed by the administratrix was not due and owing by the succession and in the alternative plead the prescriptions of one, two, three, five and ten years.

After trial the lower court dismissed the opposition and rendered judgment in favor of the administratrix, claimant, in the sum of $1,916.25. It appearing that she had died since the trial of the opposition and that her estate was under administration, the judgment was in favor of the administrator, Demás Dugas.

In disposing of the pleas of prescription, the trial judge, in his written reasons for judgment, divided the claim in two parts, one for services rendered in caring for the personal needs of the deceased which he estimated were worth 25⅜ per day and the other for boarding and lodging which he fixed at 50{⅞ per day. In as much as he held that the claim for personal services prescribed by one year he limited it to 365 days preceding the decedent’s death at 25⅜ per day. This amounted to the sum of $91.25. The claim for boarding and lodging, he held, prescribed by ten years, and accordingly he limited it to 3,650 days at 50^ per day, or the sum of $1,825. These two amounts more than absorbed the balance of the funds remaining after the payment of funeral expenses and law charges and of course there was nothing remaining for distribution among the heirs. The opponent took this appeal from the judgment rendered against her.

The exception of vagueness is called to our attention by counsel representing the appellant but as the matters complained of all seem to have been made clear by the facts presented on the trial of the opposition we don’t see any necessity in saying more than that if there was any merit to it, it has served its purpose and has passed out of existence.

The principal point now urged before this court is to the effect that services of the nature of those rendered by a close relative such as those for which remuneration is claimed herein are presumed to be gratuitous and cannot be recovered in the absence of proof of an agreement in some form on the part of the deceased to whom they were rendered, to pay.

The services rendered in this case were to a sister who was deaf, dumb and also blind for the greater part of the seventeen years during which she was taken care of by the claimant. There was another sister and also a brother but according to the claimant they did not want to take care of their afflicted sister, so she carried the whole burden herself, although it does not appear that she was in a better position than the others to do so. She does not contend that there ever was an agreement or promise by her deceased sister to recompense her and she presents her claim strictly on a quantum meruit.

The principle of law invoked on behalf of the appellant regarding a presumption of gratuity relates to a situation where there is a mandate between a principal and an agent or attorney-in-fact. The Civil Code, art. 2991 specifically provides that “the pro-curation is gratuitous unless there has been a contrary agreement.” In several cases it has been held from the facts adduced that services rendered by one relative to another are performed under a mandate and in those cases the law as stated was applied. Elkins’ Heirs v. Elkins’ Executor, 11 La. 224, 225, cited by counsel for appellant, is such a case. But that was not the condition under which the services were rendered in this case. They were of the same nature as those rendered by the claimant in the case of Muse v. Muse, La.App., 33 So.2d 128, this day decided by this court. In that case the question at issue here was discussed at some length and it was held that the presumption did not apply in the case of a son who rendered services to his mother where it appeared that there were eleven other children and no reason shown why others as well as the claimant could not have rendered some of those services. The case of Latour v. Guillory, 134 La. 332, 64 So. 130, 133 in which the court stated that where there are several children, such an obligation is soli-dary and “the richest is not obliged to contribute more than the others to the discharge of the common debt” was cited, as also the cases of Succession of Guidry, 40 La.Ann. 671, 4 So. 893 and Estate of Marie Ann Olivier, 18 La.Ann. 594. We don’t see why the same rule should not apply in the case of brothers and sisters. Where one of them is afflicted as was the decedent in this case and there are more than one of the others who can render the services required, the obligation should not fall on the shoulders orf only one of them. If the others let one. discharge it alone that one should have recourse against the estate of the decedent if the estate is shown to be solvent.

The trial judge, we believe, has fixed the value of the services rendered at a reasonable figure and as even at a lesser amount there wouldn’t be sufficient cash remaining on hand to pay the claim in full, we find it unnecessary to go into further detail on that point.

Judgment affirmed at the costs of the opponent, appellant herein.

OTT, J., dissents for the reasons assigned in the case of Muse v. Muse, La.App., 33 So.2d 128 this day handed down.


author: OTT, Judge.

text:
    TRAHAN v. LANTIER. COMEAUX v. SAME.
    No. 2964.
    Court of Appeal of Louisiana. First Circuit.
    Dec. 30, 1947.
    Welton P. Mouton, of Lafayette, for appellant.
    Voorhies & Labbe, of Lafayette, for ap-pellee.
   OTT, Judge.

The cause of action of the plaintiffs in the above two suits arose out of an accident which occurred on September 21, 1946, on a graveled state highway between Ossum and Scott, in Lafayette Parish. The plaintiff, Placide Comeaux, was driving a car owned by the other plaintiff, Murphy Trahan, which car had been loaned to him by Trahan. Comeaux was driving in a southerly direction on said graveled highway when a truck driven by the defendant, Lantier, coming from a side road from a westerly direction collided with the car driven by Comeaux.

Comeaux received personal injuries in the collision and sued for damages in the sum of $1,000, made up of $750 for physical pain and suffering, $200 for loss of wages and $50 for medical expenses. The other plaintiff, Trahan, sued for damages to his automobile in the sum of $477.76. The trial judge awarded a judgment in favor of plaintiff Comeaux in the sum of $643, and in favor of the other plaintiff, Trahan, in the sum of $377.76. The defendant has appealed from both judgments.

The two cases were consolidated for the purpose of trial hut separate judgments were entered in each case.

Practically the same charges of negligence are made against defendant in both cases. The following quotation from the petition of Comeaux will serve to show the negligence charged to the defendant:

“That on said date at approximately the hour of 5 P.M. the petitioner was proceeding in a southerly direction on Route 161 between Ossun and Scott, Louisiana, in the Parish of Lafayette, Louisiana, and he was traveling on his extreme right hand side, on the westerly side of said road at a reasonable rate of speed. That as your petitioner approached a side road which ends at said Route 161 referred to above, he noticed the automobile being driven by Leon Lantier coming out of the said side road and traveling in an easterly direction. That your petitioner immediately veered to the left in an easterly direction and did everything in his power to avoid colliding with the said automobile driven by Leon Lantier but that notwithstanding his diligence the automobile so driven by Leon Lantier ran into the right rear wheel of the car being driven by petitioner.

“That the said Leon Lantier was on said occasion driving his automobile without being on the proper lookout, in a reckless and negligent manner. That particularly he was negligent in that he did not look for approaching traffic or did not see what he should have seen had he been careful, and that he did not observe the right-of-way that petitioner enjoyed.”

An exception of vagueness was filed by the defendant in both cases which resulted in a stipulation being made in each case to meet certain requirements raised by the exception. The defendant also filed an exception of no cause or right of action in both cases, but no specific action was taken on these exceptions. However, as the trial judge rendered a judgment in favor of plaintiffs, this action had the effect of overruling these exceptions.

A reconventional demand for a small amount was filed by the defendant on account of damage to his truck, but no reference was made to this demand in the judgment. It must therefore be assumed that this demand was rejected, and the demand is now abandoned.

The exception of no cause of action is re-urged in this court and is based on the allegation in the petitions wherein it is alleged that Comeaux noticed the automobile being driven by the defendant coming out of the side road, and it is claimed that Comeaux is shown to have been guilty of contributory negligence because the petition alleges that the defendant had gotten out of the side road and had therefore preempted the intersection; that Comeaux should have taken the necessary precautions to avoid or go around defendant’s truck. We do not think the allegations in the petition could be construed to mean that the defendant had come out of the side road and had entered the main highway on which Comeaux was traveling when he first saw defendant’s truck. The evident meaning of the allegation referred to is that Comeaux saw defendant’s car “approaching” as he himself approached and entered the intersection. In any event, the petition does not show affirmatively that Comeaux was guilty of negligence. Whether or not he was guilty of contributory negligence depends on the facts as they were developed in the case. In any event if Comeaux was guilty of any contributory negligence, such negligence could not be attributed to the other plaintiff, Trahan, as it is not claimed that Comeaux was in the employ of Trahan or on a mission for him at the time of the accident.

The contention of the defendant is that he had entered the main highway from this side road and had turned to his right when his truck was struck by the car driven by Comeaux on its left front fender and bumper. The defendant claims that Come-aux, in attempting to pass his truck, pulled his car to the right, and the right rear, part of the Come aux car struck the front fender of defendant’s truck, and caught the left part of the bumper and pulled it toward the front. The defendant charges Come-aux with driving at an excessive speed, failing to keep a proper lookout and being in an intoxicated condition.

Without going into a detailed discussion of the evidence we think that a decided preponderance of the evidence shows that Comeaux was not intoxicated, or under the influence of liquor. He was driving on a graveled state highway at about 35 miles per hour as he approached the side road. The side road does not cross the state highway but only enters it from a westerly direction. It cannot be said that a speed of 35 miles per hour was excessive.

The accident happened either at the south end of the intersection or slightly beyond it. This indicates clearly that the defendant did not enter the intersection first. The car driven by Comeaux was struck on its right rear wheel and fender by the left front fender and bumper of defendant’s truck. This also indicates that Comeaux was across the intersection when his car was struck by the truck on its rear side. It is 'true that Comeaux’s car 'went some 60 feet or more after the collision and stopped in a ditch on the right hand side of th'e highway. He says that he was in' the act of putting on his brakes when his car was struck on its rear side. It is reasonable to suppose that the lick on the rear right side of the car driven by Come-aux would throw the rear of the car to the left, causing the car to pull to the right.

Comeaux was driving on a main highway and the defendant was approaching on a side road. Comeaux had the right of way, and he had a right to assume that the truck approaching from the side road would stop before entering the main highway. The defendant admits that he did not see Comeaux coming on the main highway, although the evidence shows that he could have seen him coming for a distance of a hundred feet. Comeaux was within defendant’s view as defendant approached the highway, and it was his duty to stop or slow down in order to permit Comeaux to pass.

In our opinion, the proximate cause of the accident was the negligence of the defendant in driving his truck out of the side road into the highway in front of the oncoming car-driven by Comeaux, without looking and taking the necessary precautions to accord Coméaux the right of way. If there was any negligence on the part of Comeaux in failing to see the defendant before he reached the intersection, such negligence was not a proximate cause of the accident for the reason that had Come-aux seen the truck approaching on the side road as he approached it, he no doubt would have assumed, and would have had a right to assume, that the driver of the truck would not come out into the highway in front of him without looking and without making any effort to' get out of the way.

We find no manifest error in the findings of the trial judge either on the question of liability or on the amount of damages awarded each plaintiff. In awarding the plaintiff Comeaux damages in the total sum of $643, the trial court stated:

“This plaintiff, Placide Comeaux, was injured and he suffered some physical pains. He was cut two inches on the scalp from which blood, flowed fairly freely; he sustained bruises, mutliple cuts from hand to elbow, injured shoulder, swollen hand, requiring him to keep his arm in a sling for two weeks, and which produced inability to work for thirty days. The sum of Four Hundred and Fifty (450.00) Dollars seems a reasonable reward.
“Another item of damage which is referred to as loss of wages, is the amount of One Hundred, Sixty (160.00) Dollars, because he suffered the loss of wages which he had to pay the help which he hired to take his place. This amount was expended in employing two negroes for fifteen days at $4.00 per day each; one negro for three days at $4.00 per day and one negro for seven days at $4.00 per day. The court approves this item.
“The other item of damages is the sum of Thirty-three (33.00) Dollars paid to Dr. Kahn which is likewise approved.”

The trial judge awarded plaintiff Trahan the sum of $377.76, based on damage to his car in the sum of $322.76, plus the loss of its use in the sum of $50. This makes a total of $372.76 instead of $377.76. This is evidently an error and the judgment will be amended accordingly. Separate decrees will be entered in each case.


text:
    Murphy TRAHAN v. Leon LANTIER.
    No. 2964.
    Court of Appeals of Louisiana. First Circuit.
    Dec. 30, 1947.
    Welton P. Mouton, of Lafayette, for appellant.
    Voorhies & Labbe, of Lafayette, for ap-pellee.
   OTT, Judge.

For the reasons assigned in the opinion in the consolidated cases of Murphy Trahan v. Leon Lantier and Placide Comeaux v. Leon Lantier, La.App. 33 So.2d 136, this day handed down, it is ordered that the judgment in the above entitled cause be amended by reducing the award from $377.-76 to the sum of $372.76, and as thus amended, the judgment is affirmed at the cost of defendant in both courts.


text:
    Placide COMEAUX v. Leon LANTIER.
    No. 2963.
    Court of Appeal of Louisiana. First Circuit.
    Dec. 30, 1947.
    Welton P. Mouton, of Lafayette, for appellant.
    Voorhies & Labbe, of Lafayette, for ap-pellee.
   OTT, Judge.

For the reasons assigned in the opinion in the consolidated cases of Murphy Trahan v. Leon Lantier and Placide Comeaux v. Leon Lantier, La.App., 33 So.2d 136, this day handed down, the judgment in the above entitled cause is hereby affirmed at the cost of defendant in both courts.


author: DORE, Judge.

text:
    HUTCHINSON v. TEXAS & N. O. R. CO.
    No. 2965.
    Court of Appeal of Louisiana. First Circuit.
    Dec. 30, 1947.

      J. Minos Simon, of Lafayette, for appellant.
    Davidson & Davidson, of Lafayette, for appellee.
   DORE, Judge.

On May 15, 1946, at approximately 9:00 a. m., James Plutchinson, the petitioner herein, was travelling in an easterly direction' on a road running parallel with the defendant railroad about one-half mile east of the Town of Duson, in the Parish of Lafayette. At that point there is a sharp turn to the south'to another road running north and south, which intersects the aforesaid railroad. Petitioner negotiated this turn to the south, and as he approached the railroad tracks he failed to perceive an approaching freight train of defendant, before he was within a few feet (some 10 or 12 feet) from said tracks. He thereupon applied his brakes, but could not prevent the front wheels of his car from going over the north rail of said tracks. In desperation he apparently tried to place his automobile in reverse gear, but in doing so, killed his motor, and he thereupon jumped out of his car and ran, and just as he had gotten away from the scene the freight train' collided with his automobile and completely demolished it. It is shown that at the time of the accident, it was raining and that visibility was very poor.

Petitioner alleges that prior to making the turn to the south, he had been travelling at about 25 miles per hour, and that after making the turn, he slowed down to about 15 miles per hour; that in order to reach the crossing he had to cross a narrow bridge, which necessitated his slowing down and that at the intersection the view to the east and west was obstructed by the crossing stop signs, telegraph poles and weeds and bushes; that no warning signal was given by the approaching train and that it was impossible to see the train approaching until arriving at a point some 10 or 12 feet from the tracks; that prior to arriving at that point, he looked on both sides in an attempt to see whether a train was approaching, but did not see any signs thereof until his attention was drawn by the bright headlights of the train within a few feet (10 or 12 feet) of the tracks, at which time he applied his brakes as aforesaid.

He attributes the accident to the gross negligence of the defendant railroad and its employees in failing to provide a safe crossing and in failing to give a signal of the approaching train, considering the surrounding circumstances, especially in failing to blow a signal 300 yards from the crossing, contending that no signal whatsoever was given until after he found himself upon the trade, at which time some few blasts of the whistle were blown. He contends that he was absolutely free of any negligence since he was driving in a prudent and careful manner at a reasonable rate of speed, and was keeping a proper lookout. In the alternative, if the court should find that he was guilty of negligence, he contends that the defendant should be held liable for the accident on the theory that the railroad employees had the last clear chance of avoiding the accident and failed to do so because they were not keeping a proper lookout.

The defendant filed an exception of no cause or right of action, which was overruled, and thereafter filed an answer in which the material allegations of the plain?’s petition are denied, and in which it expressly averred that the crossing in lestion was in good condition and properly aintained and that the regulation crossing tiistle signal was sounded by the engine said train when the engine was approx-íately 400 feet from the crossing and that e engine bell was ringing continually om the time said engine was approximate-400 feet west of the crossing; that all le and proper signals were given of the id crossing-to warn oncoming traffic and at the headlights of the engine were burn-g and that the train was equipped with all oper equipment for proper operation. The fendant further alleges that the train nsisted of 23 loaded freight cars and that e engineer and fireman had no way of ticipating that the driver of the plain-f's automobile, on approaching the cro-s-ig, would disregard the law and ordinary in'ciples of safety, and'would fail to stop fore crossing the said tracks; that when lintiff’s car was seen on the tracks the gineer immediately sounded several arp stop signals and applied the brakes mediately, but was unable to stop until ter colliding with plaintiff’s automobile, efendant therefore contends that the acci-nt was caused by the gross negligence of lintiff (a) in failing to stop, look or ten for approaching trains; (b) in failing maintain a proper lookout; (c) in iving at an excessive rate of speed under e circumstances; (d) in failing to have 3 car under proper control; (e) in fail-g to heed the signal warnings of the preaching train; (f) in failing to use asonable care in approaching the crossing required by the weather conditions; (g) failing to see the approaching train', lich was plainly visible long before the lintiff drove on the tracks; and, (h) in iving on the tracks, or in such proximity ereof, that he could not stop so as to oid coming on the tracks.

For these reasons they allege that the ntributory negligence of the plaintiff bars 3 recovery and his suit should be dis-ssed at his costs.

After hearing the case, the trial judge, r written reasons assigned, found that e plaintiff was guilty of negligence which is the proximate cause of the accident, and therefore rendered judgment dismissing his suit at his costs. Plaintiff has appealed.

The only eyewitness to the accident, aside from the train crew, was the plaintiff himself, who testified in accordance with the allegations of his" petition set forth hereinabove. He admits that the weather rendered visibility very poor and that as he negotiated the turn to cross the tracks, he drove at a rate of 15 miles per hour and did not attempt to stop until he was within some 10 or 12 feet of the tracks; that at that time he noticed the approachr ing train because of its bright headlights, and he thereupon applied his brakes, but the front wheels of his car went over the north rail before he could stop; that at that time the train blew several blasts and he thereupon attempted to put his car in reverse gear, and failing to do so, jumped out of the car and ran away. He testifies that he never heard any warning signals whatsoever until after the car had gone over the rail and that because of the presence at the crossing of the stop sign, a line of telegraph poles, weeds and bushes, the train could not be seen until he arrived within some 10 or 12 feet of the tracks. He states that his car windows were up, but that the window on his right hand side, from which the train was approaching, had a broken place in it some 6 inches square at the top and next to the windshield. Plaintiff admits that he was well acquainted with this crossing, having travelled it many times before.

In corroboration of his testimony as to the lack of visibility at the crossing,- and as to the failure of the train to give signals as required by law, the plaintiff introduced several witnesses who reside near the tracks and near the scene of the accident. These witnesses all bore out plaintiff’s contentions with reference to the condition of the crossing and also testified that they failed to hear any signals, except a few blasts, referred to by plaintiff, immediately prior to the collision. On the other hand, the engineer, fireman, and another employee of the train testified that the whistle crossing signal was given at the proper place, some 300 yards from the crossing, and that the bell was rung continually from that point, in addition' to the blasts referred to by plaintiff. They testified also that the headlights of the train were burning and that immediately upon observing the plaintiff’s car on the tracks, the brakes were applied, but the train could not be stopped in time to avoid the collision.

The trial judge, in his written opinion, states that he was impressed by the positive testimony of these railroad employees, and with their demeanor and straightforward manner in contrast to the negative testimony of the plaintiff 'and his witnesses-in so far'as the warning signals are concerned. He ■ concluded that the warning signals were given and that the train crew took every precaution possible in the usual and customary manner in order to warn traffic of the train as it neared the grade crossing, and that if plaintiff had heeded the signals, he would have slowed down and stopped before reaching the tracks. In commenting on the negative testimony of plaintiff’s witnesses, who reside near the tracks, Judge Fruge very aptly quoted from the case of Handy v. New Orleans Public Service, 10 La.App. 72, 120 So. 271, 272, as follows: “People not engaged in the operation of trains but living near crossings over which fast trains daily pass, become so accustomed to the whistling, and the ringing of the bell, that ordinarily, unless purposely listening, they pay no attention to such things and do not consciously hear them.”

Under these facts, the trial judge concluded that the decided preponderance of the testimony disproves the charges of negligence to the train-crewmen. We .fully agree with him.

In passing on the factual issues raised by defendant, the lower court said : “The statutory law of Louisiana places a definite obligation on the driver of a vehicle when approaching a railroad crossing: Act No. 286 of 1938, Sec. 3, Rule 17 (a), Dart Statutes, § 5222: “It shall be the duty and obligation of every person owning, driving, operating, or causing or permitting a vehicle to be so driven or operated, when approaching a grade crossing of a public street, road or highway with any steam, electric, street, interurban or other railroad or tramway, operated upon fixed rails oi permanent track, to, upon his- own responsibility bring such vehicle to a full and complete stop at such a place, in such a manner and for a sufficient period of time tc enable the driver or operator thereof t< observe the approach of trains or car; thereon, by looking up and down said trad in both directions and by listening therefor and before proceeding thereon or there over. In the event it is impossible so to do then such persons shall proceed only witl the greatest caution and at their peril.”

Act No. 12 of 1924, Sec. 3, Dart Stat utes, § 8138: “It shall be unlawful for an; person to drive or propel any automobile o automobile truck' or other motor drive: vehicle upon any railroad track at a public highway or municipal street intersectin; such railroad at grade crossing withou first stopping at a distance of not less thai ten feet nor more than fifty feet from th< nearest track and looking for train ; * * * In the trial of all actions to recover per sonal injury or property damages sustain» by any driver of such motor driven vehicle by collision of said vehicle and train i: which action it may appear that the sal driver may have violated any of the pro visions of this act, the question of. whethe or not the said violation was the sole o proximate cause of the accident and injur shall be for the jury to determine regard less of the penalizing feature of this ad The violation of this act shall not affec recovery for damages and the question o negligence or the violation of this act sha be left to the jury; and the contributor negligence statutes of Louisiana shall ap ply to these cases as in other cases of neg ligence.” (Acts 1924, No. 12, § 3.).

Illinois Central R. Co. v. Leichner, 5 Cir 1927, 19 F.2d 118, 120. The Court said “Controlling Louisiana decisions show tha the law of that state exacts from the drive of an automobile who approaches a railroa crossing, where the view along the track from a direction from which a train ma come is obstructed, the duty to stop, lool and listen before driving upon the crossing or so near thereto as to be endangered by passing train; that the greater the diff culty of seeing or hearing a train as b approaches the crossing, the greater th caution the law imposes upon him to use his senses of sight or hearing, one or both, when and where a reasonable and practicable use thereof would enable him to learn of the presence or absence of danger at the crossing; and that, though the operator of the railroad is chargeable with negligence which was a proximate cause of any injury to the traveler at the crossing, a right to recover damages for that injury is barred if the traveler’s negligent failure to do all that care and prudence would indicate to avoid injury was a proximate contributing cause of the injury sustained. Perrin v. New Orleans Terminal Co., 140 La. 818, 74 So. 160; Tucker v. Illinois Central R. Co., 141 La. 1096, 76 So. 212; Callery v. Morgan’s Louisiana, etc., Co. 139 La. 763, 72 So. 222; Leopold v. Texas & P. R. Co., 144 La. 1000, 81 So. 602.”

Perrin v. New Orleans Terminal Co., 140 La. 818, 74 So. 160, 161. The Court said:

“Even if the weeds had obstructed plaintiff’s view, as he claims, his duty to stop, look, and listen was the more incumbent upon him. We say in Blackwell v. Railroad Co., 47 La.Ann. [268], 270, 16 So. [818], 819, 49 Am.St.Rep. 371:

“ ‘These obstructions, while they are not to be lost sight of in considering the question of responsibility, certainly should have suggested caution to travelers about crossing the tracks.’

“And in Barnhill v. Railway Co., 109 La. 43, 33 So. 63, we say:

“ ‘The greater the difficulty of seeing and hearing the train as he approaches the crossing, the greater caution the law imposes upon the traveler.’
“ ‘The traveler, however, is rigidly required to do all that care and prudence would dictate to avoid injury, and the greater the danger the greater the care that must be exercised to avoid it, as where, because of physical infirmities, darkness, snow, fog, the inclemency of the weather, buildings, or other obstructions and hindrances it is more than usually difficult to see or hear, greater precaution must be taken to avoid injury than would otherwise be necessary.’ ”

Louisiana & Arkansas R. Co. v. Jackson, 5 Cir., 1938, 95 F.2d 369, 372. “When we come to that, we think it perfectly plain that as to the driver of the car, defendant should-have had an instructed verdict; for, on a dark and foggy morning, with the windows of his car all tightly closed, he drove recklessly onto defendant’s tracks, without stopping as he was by law required

* * * to do, while because of the shut windows of the car, and the fog and rain and dark, he could neither hear nor see the signals evidencing the approach of the train. Baltimore & O. R. Co. v. Goodman, 275 U.S. 66, 48 S.Ct. 24, 72 L.Ed. 167, 56 A.L.R. 645; as interpreted and approved in Pokora v. Wabash R. Co., 292 U.S. 98, 54 S.Ct. 580, 78 L.Ed. 1149, 91 A.L.R. 1049; Northern Pacific Co. v. Bacon, 9 Cir., 91 F.2d 173; Great Northern R. Co. v. Taulbee, 9 Cir., 92 F.2d 20; Brown v. Southern R. Co. 5 Cir., 61 F.2d 399.”

“It is clear to this Court that in view of the above authorities applied to the facts in this case that plaintiff is precluded from recovering any damages because of his own negligence.”

We cannot see wherein the trial judge committed any error in his finding that plaintiff was guilty of negligence, and with reference to the last clear chance doctrine invoked by plaintiff, we believe that the testimony, especially that of the engineer, preponderates to the effect that the train was in good condition, and that all parts thereof, including the brakes, were properly operating. It is shown that the train stopped at Crowley before the accident, and had slowed down in Rayne and in Du'son, and that at these times the brakes worked properly. It is further shown that the train was traveling at about 40 miles an hour and that it consisted of 23 loaded cars, and that the automobile was first sighted on the tracks at a distance of only 3 or 4 car lengths, and it seems obvious under these circumstances, that the train could not be stopped in time to avoid the collision. We therefore are of the opinion that the last clear chance doctrine cannot be applied herein.

Questions of fact only are involved in this case. After a careful reading of the record we have no hesitancy in concluding that the lower court correctly resolved the same and applied the pertinent law thereto.

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


text:
    MICHEL v. MARYLAND CASUALTY CO.
    No. 2971.
    Court of Appeal of Louisiana. First Circuit.
    Dec. 30, 1947.
    Rehearing Denied Feb. 2, 1948.
    Writ of Certiorari Denied March 22,1948.
    C. A. Blanchard, of Donaldsonville, for appellant.
    White & Remson, of New Orleans, for appellee.
   OTT, Judge.

Plaintiff alleges in his petition that he was injured on June 11, 1945, while working for the Texas Company, and he was paid compensation at the rate of $20 per week for a period of 31 weeks; that during the latter part of December, 1945, he attempted to resume his employment, but on account of pain in his foot he was not able to continue his work. The plaintiff then makes the following allegations in paragraphs 9-13 of his petition:

“That your petitioner was then given a ninety day leave of absence, which continued until the 13th day of April, 1946, during which said time, your petitioner was assigned to light work, that is clerking in a store.
“That on the 18th day of April, 1946, your petitioner was instructed to appear before Dr. Frank Bronstrom, M. D. at 3445 Prytania St. New Orleans, La. for further medical examination and treatment; that your petitioner did so appear; that his expenses thereto and the fees and charges of the said doctor were paid by the said defendant.
“That the defendant company on the 9th day of May, 1946, furnished your petitioner with a copy of the report of the said doctor, and advised your petitioner that the representatives of the said company would come and interview your petitioner with a view of making an adjustment of petitioner’s compensation.
“That the matter was not then adjusted; that during the month of March, 1947, the said defendant company again endeavored to get your petitioner to discharge them, and offered your petitioner a small sum for a release, which your petitioner refused.
“That on the 18th day of April, 1946, the said company through their sail doctor and agent admitted that your petitioner’s disability amounted to 15%; that however your petitioner was not paid the compensation due him.”

The prayer of plaintiffs petition is for a judgment against the defendant as the insurance carrier of his employer for compensation for partial permanent disability at the rate of $7.20 per week for a period of 400 weeks (less the 31 weeks for which he was paid compensation), beginning April 18, 1946.

The defendant filed a plea of one year prescription or peremption against plaintiff’s claim, and an exception of no cause or right of action. An exception of vagueness was also filed by the defendant, but on an admission being made that the last compensation payment was made on January 16, 1946, this exception was overruled.

When the plea of prescription and the exception of no cause or right of action came on for hearing, the trial judge entered an order requiring the plaintiff to show the nature of his employment (as to time, place, employer, wages, etc.) which he claims interrupted prescription, as his petition did not clearly indicate these facts. It was ordered that unless this information was given within two weeks, the plea of prescription would be sustained. On the failure of plaintiff to furnish the required information, a judgment was rendered and signed sustaining the plea of prescription and dismissing plaintiff’s suit as in case of nonsuit. From this judgment of dismissal, plaintiff has appealed.

The only question before us is whether or not the plea of one year prescription or peremption was properly sustained. For the purpose of determining this question, the allegations of the petition must be taken as true. Arnold v. Solvay Process Co., 207 La. 8, 20 So.2d 407. As it is admitted that the last compensation payment was made on January 16, 1946, and as this suit was not filed until April 8, 1947, more than a year elapsed from the date of the last payment of compensation and the filing of the suit. The applicable part of Section 31 of the Compensation Law, Act No. 29 of 1914, as amended, Act No. 29 of 1934, § 1, Dart’s Stat. § 4420, reads as follows: “In case of personal injury (including death resulting therefrom) all claims for payment shall be forever barred unless within one year after the accident or death the parties shall have agreed upon the payment to be made under this act or unless within one year after the accident proceedings have been begun as provided in Sections 17 and 18 of this Act. Where, however, such payments have been made in any case, said limitations shall not take effect until the expiration of one year from the time of making the last payment.”

Under the plain provision of the law quoted above, plaintiff’s claim became barred one year after the last payment on January 16, 1946, or on January 16, 1947. Plaintiff relies on the above quoted part of his petition to show that the running of the one year prescription was interrupted after the last payment of compensation was, made. Let us analyze these allegations and see if there are any facts therein stated which would interrupt the prescription.

In the first quoted paragraph of the petition plaintiff alleges that he was given a ninety day leave of absence which continued to April 13, 1946, during which time he was assigned to light work, clerking in a store. He does not say whether or not his employer assigned him to clerking in a store and paid him wages up to April 13, 1946. This was evidently what the trial judge wanted him to show and which plaintiff refused to show. However, if his petition could be construed to allege as a fact that his employer assigned him to this lighter job and paid him wages therefor up to April 13, 1946, under the holding of the Supreme Court in the case of Arnold v. Solvay Process Co., supra, prescription was not interrupted during this period. In any event, there is no reason why plaintiff should not have furnished the information on this point which the trial judge ordered him to furnish.

The next two quoted paragraphs in plaintiff’s petition refer to a medical examination made of him on the instructions of defendant and the report of the examination in April and May 1946, and the payment by defendant of all expenses in connection with the medical examination. These allegations do not show any interruption of prescription. The furnishing of medical services and payment therefor by the employer does not -constitute an -admission of liability for compensation under the law. Kinder v. Lake Charles Harbor and Terminal Dist. et al., La.App., 31 So.2d 498; Subsection 5 of Section 18 of Act No. 20 of 1914, as amended, Act No. 85 of 1926, § 1, Dart’s Stat. § 4408.

The last two quoted paragraphs of plaintiff’s petition do nothing more than allege that the defendant in March, 1947, offered plaintiff a small sum in settlement of his claim, which offer he.refused; that the employer,- through its doctor, admitted that plaintiff’s disability amounted to 15 per cent in April, 1946. But these alleged facts did not relieve plaintiff from taking some action within the year’s prescription period to have his claim adjudicated. The fact remains that plaintiff took no action from the date the last payment was made to him until more than a year had elapsed from this last payment, and under the plain and mandatory provisions of the law, his claim was barred when he filed his suit.

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