author: J. J. DAVIDSON, Judge ad hoc.

text:
    MOSS v. ST. PAUL-MERCURY INDEMNITY CO. et al.
    No. 3004.
    Court of Appeal of Louisiana. First Circuit.
    June 11, 1948.

      Stafford & Pitts, of Alexandria, for appellants.
    Kibbe & Bailey, of Abbeville, for ap-pellee.
   J. J. DAVIDSON, Judge ad hoc.

This is a suit instituted by the plaintiff, Orgy V. Moss, against the defendants, Webb Barnett, and his public liability insurance carrier, St. Paul-Mercury Indemnity Company, for damages sustained by the plaintiff as a result of an accident which occurred on the paved highway between Abbeville and Lafayette, Louisiana, in the Parish of Vermilion on the morning of July 29, 1946, at approximately seven o’clock, A.M.

The defendant, Webb Barnett, at the time of the accident was the owner and operator of some four or five buses in connection with his business of transporting students of Southwestern Louisiana Institute in Lafayette, Louisana, to and from their respective homes. One of these buses was operated over a regular route which began at Delcambre, Louisiana, and ran in a westerly direction to Erath and then to Ab-beville. From Abbeville the bus proceeded in a general northerly direction on the paved State highway to Lafayette where the students were taken to Southwestern Louisiana Institute. The return trip proceeded over the same route. All of the buses which were operated by Barnett were driven by students of Southwestern Louisiana Institute who, in return for the services of actually driving the bus, were given free transportation, or the cost of the transportation was partially reduced. Plaintiff, Orgy V. Moss, was a student at Southwestern and an arrangement was made between plaintiff and the defendant, Webb Barnett, whereby the said Orgy V. Moss drove one of the buses on the daily trip from Erath to Lafayette in the morning and back to Erath in the afternoon, in return for which the' said Moss was permitted to ride on the bus free of any charge. Under a similar arrangement another student, one Lloyd Hymel, drove the same bus from Delcambre to Erath in the morning, at which point the bus was taken over by Moss who drove it on to Lafayette, and on the return trip Moss drove the bus from Lafayette to Erath where he turned the bus over to Hymel who drove it on to Delcam-bre. In return for his services, Hymel paid only one-half of the usual fare for the,ride between Del'cambre and Lafayette. The evidence shows that the regular charge for the transportation from Erath to Lafayette and return was Nine ($9.00) Dollars per month, no part of which was paid by Moss because of his services in operating the bus as pointed out above.

The defendant, Webb Barnett, and the plaintiff, Orgy V. Moss, both state that the sole and only duties which were imposed upon Moss as the result of the arrangement, was to drive the bus. (Transcript page 10 and page 17.)

On the date of the accident in question Hymel drove the bus from Delcambre to Erath at which point the plaintiff, Moss, got on the bus. Instead of taking over the driving of the bus as 'had been arranged, Moss advised Hymel that he wished to study for a test at school and requested Hymel to drive all the way for him. Hymel readily agreed to continue to drive the bus from Erath to Lafayette. Moss thereupon took a seat among the passengers and apparently proceeded to study for his test •while Hymel drove the bus. Hymel drove the bus along the highway , until he had reached a point some three or four miles West of Lafayette, where a truck had stopped on the highway with its left wheels on the paved portion of the highway and its right wheels on the dirt shoulder. At this point it appears that Hymel lost control of the bus causing the same to turn over two or three times resulting in the injury to the plaintiff which will be referred to hereinafter. It is conceded by all parties that Lloyd Hymel was guilty of negligence in the operation of the bus which was the direct and proximate cause of the accident in question.

The St. Paul-Mercury Indemnity Company carried a policy of public liability insurance on the bus of the defendant, Webb Barnett, which, under its usual provisions, also covered the driver of the bus, and anyone operating the bus with the permission of the insured. The policy has maximum limits of Ten Thousand ($10,000.00) Dollars for injuries to any one person, and specifically provides:

“This policy does not apply: * * *
“(d) Under coverages A and C to bodily injury to or death of any employee of the insured while engaged in the employment, other than domestic, of the insured, or while engaged in the operation, maintenance or repair of the automobile: *

The defendants contend that Orgy V. Moss was an employee of Webb Barnett at the time of the accident and was therefore included within the clause above set out which excludes his claim from the provisions of the policy. It is further contended by the defendants that inasmuch as Moss was an employee his right of recovery against Barnett is exclusively under the Workmen’s Compensation Laws of the State of Louisiana inasmuch as he was engaged in a hazardous occupation, and under the settled jurisprudence, he cannot recover in tort.

The plaintiff contends, on the other hand, that the exclusion clause of the policy has no application, and that he has a right to recover in tort against the defendants herein for three general reasons : First, because under the arrangement which the plaintiff had with the defendant, Barnett, the plaintiff was not an employee, but the relationship was only one of mutual assistance under which the plaintiff’s services were given to the defendant in lieu of the payment of a cash fare and, therefore, he was a passenger and not an employee; second, because of the fact that even if the relationship of employer and employee did exist as a result of the agreement between plaintiff and defendant, Barnett, the plaintiff was not acting in the course and scope of his employment at the time of the accident; and third, because of the fact that the plaintiff had not taken out a driver’s license as required by the laws of the State of Louisiana, any* attempted contract with the defendant, Barnett, for the driving of the bus was null and void, being made in violation of law, and, therefore, no relationship of employer and employee resulted.

The District Court concluded that the arrangement between the plaintiff and defendant, Barnett, was one of mutual assistance only, plaintiff’s services being given in lieu of a cash fare, and that, therefore, there was no employer-employee relationship between the parties, and the plaintiff was entitled to recover damages as a result of the negligence of Hymel who was operating the bus at the time of the accident on behalf of Barnett.

Under the second contention of the plaintiff, even if plaintiff was an employee at the time of the accident, if he was not acting in the course and scope of employment at the time, he would have the right to sue the defendant and his insurer in tort. If this be true, it is then unnecessary to decide whether the plaintiff was, in fact, an employee of the defendant, Barnett, or whether the arrangement was one of mutual assistance. Thus, assuming for the purposes of the following discussion only that plaintiff was an employee, the question presented for determination is whether or not the plaintiff was acting in the course and scope of his employment at the -time of the accident.

Some suggestion has been made that the plaintiff was also engaged in the occupation of taking up tickets, and that he was performing this service at the time of the accident. The reference to taking up tickets is rather vague and is found only in the testimony of the plaintiff himself when he stated that he picked up “one fare at the time o<n the route, but I just picked up one fare that day”. The plaintiff testifies, however, that he was employed only for the purpose of driving the bus from Erath to Lafayette and back to Erath. (Transcript Page 40.) And Webb Barnett, the defendant, testifies likewise that all that Moss had to do for his free ride was to drive the bus from Erath to Lafayette. (Transcript page 33.) The evidence clearly shows that the only duty which Moss had to perform was to drive the bus to Lafayette and from Lafayette back to Erath. He was employed to do this and nothing else. The testimony likewise shows clearly that the plaintiff never took over the operation of the bus on the morning of the accident. When he got on the bus at Erath he immediately asked Hymel to continue to drive the bus for him so that he could “study for a test”, and the evidence shows that Moss did not, in any way, supervise the driving which was being done by Hymel, but as Ilymel states, “He just asked me to drive the bus. He left it entirely in my control, and he just sat down with the passengers.” (Transcript Page 25.) It is clear, therefore, that Moss, at the time of the accident, was engaged in studying for a test which was entirely personal to him and had nothing whatever to do with his employment as the driver of the bus. Moss had completely abandoned and stepped aside from the duties which were his under his employment and was engaged in the performance of a purely personal endeavor which had no connection whatever with the operation of the bus. He was not engaged in the course of his employment at the time of the accident. Where the employee steps aside from his employer’s business to do some act of his own, not connected with his employer’s business, the relationship of employer and employee, or master and servant, is, as to that act, completely suspended, and an accident occurring at that time, resulting in injury to the employee, does not arise out of the employment so as to restrict the employee to a right of recovery mider the Workmen’s Compensation Act. Act No. 20 of 1914, as amended. Laine v. Junca, 207 La. 280, 21 So.2d 150; Como v. Union Sulphur Co., La. App., 182 So. 155; Liner v. Riverside Gravel Co., 13 La.App. 664, 127 So. 146; Gooding v. Beauregard Laundry Co., 9 La. App. 392, 120 So. 507; Piske v. Brooklyn Cooperage Co., 143 La. 455, 78 So. 734; Pierre v. Barringer, 149 La. 71, 88 So. 691; Oliphant v. Town of Lake Providence, 193 La. 675, 192 So. 95, 103.

Inasmuch as the plaintiff was not acting in the course and scope of his employment at the time of the accident, and the accident and injury did not arise out of his employment, nor was it in any way connected therewith, it is our opinion that he has a right of action against the defendant, Webb Barnett, in tort. The exclusion under the insurance policy above quoted expressly provides that an employee is ex-eluded “while engaged in the employment”, and it is clear that the exclusion does not defeat the right in Moss to recover against the defendant, St. Paul'-Mercury Indemnity Company, for injuries received while not engaged in the employment.

Thus even assuming the position most favorable to the defense, that plaintiff was in fact an employee of defendant, Barnett, he would still have a right to sue for the damages he sustained. It is therefore unnecessary to decide, and we do not express any opinion, as to the question of the employment vel non of plaintiff by defendant Barnett.

In view of the conclusion which we have reached, it is likewise unnecessary to discuss the third contention of the plaintiff to the effect that the contract of employment would be null and void because he did not have a driver’s license as required by the laws of the State of Louisiana, and that, therefore, he would be entitled to sue the defendant in tort even though an attempt had been made to make a contract of employment. We express no opinion with reference to this contention, as it is not necessary to the decision of this case.

Damages.

According to the evidence in this case tlie plaintiff suffered a comminuted fracture of the head of the radius of his left arm, as a result of which his arm was kept in a cast for a period of about three weeks, and an operation was subsequently performed in December of 1946. The doctor’s report (Exhibit T-3) shows a present partial permanent disability of fifteen to twenty per cent of “the value of the arm”. The arm is a little smaller than the right arm but full pronation and supination of the forearm are present, although there is occasional pain in the forearm. The plaintiff is a college student attending school under the government program, and has apparently lost no earnings. He has continued his education... Plaintiff was in the school of agriculture at Southwestern Louisiana Institute, and at t¡he time was “waiting to get in the veterinary school”. (Transcript Page 38). He is apparently still attending school and still preparing himself for his future life, and for an occupation which he can perform without difficulty as a result of his injury. The plaintiff apparently suffered considerably as a result of the accident. No useful purpose would result from a review of authorities on the question of quantum, as the particular circumstances of each case must determine the amount of the award. The District Judge awarded damages in the sum of Ninety-Five Hundred ($9500.00) Dollars in addition to the actual expenses which we believe is, under the circumstances here presented, excessive. An award of Four Thousand ($4,000.00) Dollars to plaintiff for his loss, pain and suffering is in our opinion adequate.

The judgment of the District Court is therefore amended so as to reduce the damages to plaintiff to the sum of Four Thousand ($4,000.00) Dollars in addition to which plaintiff is awarded Three Hundred Six and 70/100 ($306.70) Dollars for medical expenses incurred, and as amended the judgment of the District Court is affirmed.

ELLIS, J., absent; J. J. DAVIDSON, Judge ad hoc.


source: Caselaw Access Project

author: REGAN, Judge.

license: Public Domain

text:
    AUCOIN et ux. v. NEW YORK CASUALTY CO.
    No. 18702.
    Court of Appeal of Louisiana. Orleans.
    June 18, 1948.

      C. A. Blanchard, of Donaldsonville, and Julius C. Pearlstine, of New Orleans, for appellants.
    Gordon Boswell, of New Orleans, for appellee.
   REGAN, Judge.

The plaintiffs, Mr. and Mrs. William G. Aucoin, brought this suit against the New York Casualty Company, the insurer of the Hotel Monteleone, for damages for personal injuries received by Mrs. Aucoin while a guest of the Hotel. They allege that on August IS, 1944, at 10:30 P.M., Mrs. Aucoin was caught between the moving panel and stationary jamb of the revolving door at the entrance of the Hotel, due to the negligence of the hotel management in failing to keep the revolving door in proper condition and repair. The plaintiffs claim $538.-31 for medical expenses, hotel charges and traveling expenses and $6,000.00 for pain, sufffcring and permanent injury to Mrs. Aucion’s right arm.

The defendant filed an exception of no cause of action which was overruled. It then answered reserving its exception and denying any negligence on the part of the management or employees of the Hotel Monteleone.

There was judgment below dismissing plaintiff’s suit and they have appealed.

Considering the exception of no right or cause of action filed herein on behalf of the defendant, we are of the opinion that the trial court was correct in overruling this exception for the reason that the plaintiffs’ petition does state a cause and a right of action.

The petition recites that Mrs. Aucoin stepped between two of the panels or compartments of the stationary door and caused the door to start revolving by a gentle shove against the panel in front of her and, because of the shove given by plaintiff or some other unknown person, the pressure caused a violent jerk of the door and it was accelerated with such rapidity that the panel directly behind struck Mrs. Aucoin in the back and threw her to the floor; However, on the witness stand, Mrs. Aucoin and her granddaughter testified that Mrs. Aucoin, who was sixty-seven years of age, and her seventeen year old granddaughter, walked through the lobby towards the entrance with the intention of passing through the revolving doorway and on to the sidewalk of Royal Street; that they could see perfectly because the lobby and entrance thereto was well lighted; that the door had not been stationary as Mrs. Aucoin alleged in her petition, but, on the contrary, was revolving because of other persons having used it and, accordingly, Mrs. Aucoin and her granddaughter, who preceded her, paused before entering the door; that the granddaughter tlien walked through the revolving door without mishap and that Mrs. Aucoin then stepped into the revolving door and was immediately struck by the moving panel to her rear and squeezed between its outer edge and the stationary door jamb.

The petition further alleges that defendant is liable for the accident and resulting injuries in that, it was due to the negligence of the hotel in having 1st, a revolving door which did not afford a safe means of ingress and egress; 2nd, in its failure to keep the axle upon which the door revolved in proper condition, which permitted the door to revolve with greater rapidity than was safe and, 3rd, in failing to keep the rubber flaps, necessary for the retarded operation of the door, in proper condition.

Defendant answered and specifically urged that the accident and resulting injuries were caused by the joint mishandling of the door by plaintiff and another person,' who was then attempting to enter the hotel, and defendant denied that there was any defect in the door or 1 negligence on the part of the hotel management.

The revolving door in question was installed in 1936 and is a “Van Kamel Type”. It consists of a perpendicular steel axis or verticle shaft and four panels or wings of heavy plate glass set in steel frames, with a rubber strip on the outside edge of each panel. The whole revolves on ball bearings at the top and - bottom of the shaft. A governor, or adaptor, at the top end of the shaft automatically retards the door when persons going through manually shove it beyond a speed consistent with ordinary and prudent use.

Plaintiffs contend that the rubber flanges on the outer edge of each panel are there particularly to retard and control the speed of the door by coming in contact with the side of the door and by forming a compression of the air imprisoned therein. On the other hand, the defendant contends that these rubber strips merely act as weather stripping.

Mrs. Aucoin testified that the rubber strips did not perform their intended function of retarding the speed of the revolving door for they were “worn out, flabby, brittle and frayed”. This assertion was denied by the defendant. Mrs. Aucoin and her granddaughter both testified that they had observed the worn out condition of the strips throughout the many years they had lodged at the hotel, for several days on each occasion, and at least one-half dozen times a year, and they had observed that the alleged vice or defect had always been in the mechanism of the door, although they had passed through this revolving door without accident on many occasions; they further testified that three days after the accident the management of the hotel replaced the rubber strips. This assertion was also denied by the defendant.

A careful reading of the evidence has convinced us that the speed, with which this door operates, is regulated by a govern- or or adaptor at the top end of the perpendicular steel shaft, which automatically retards the door when persons going through manually shove it beyond a speed consistent with ordinary use, and that irrespective of their condition, the rubber strips referred to, could not appreciably retard or decelerate the speed of the revolving door, for they do not slide against the stationary plate glass frame of the doorway and create traction within the cylinder in which the door revolves, but merely contact the fouf intermittent sections of the frame and close the narrow space between the periphery of the revolving panels and the stationary plate glass enclosure. In substance, we conclude that they are weather strips and do not decelerate the revolutions of the door within the cylinder.

There were several other types of revolving doors discussed in the lower court, the revolutions of which may be retarded by the rubber strips, but we are convinced that the governor or adaptor automatically checks and retards the revolving speed of the door situated in the Royal Street entrance of the Hotel Monteleone and, this, is so, irrespective of the good state of repair, presence or absence, of the rubber strips, which are not a mechanical adjunct used in the retardation of the revolutions of this door, but serve merely as weather strips.

The defendant elicited from Mrs. Aucoin the following information which establishes in our minds her negligence:

“Q. Was the door moving when you stepped in ? A. Yes, it was, and I believed I could make it.
“Q. It was moving and moving pretty fast and you thought you could make it — is that right? A. That’s right.”

It is well settled in our jurisprudence that while the owner or operator of a hotel should provide reasonable safe ways of ingress and egress for those legally therein, he is not an insurer of his guests and is not charged with furnishing perfect or foolproof ways of ingress and egress. De Latour v. Roosevelt Hotel, La.App., 1 So. 2d 353.

Our learned brother below “listened attentively to the argument of counsel and the evidence” and concluded that the revolving door was not defective in any respect and that the accident was caused by and resulted solely from plaintiff voluntarily stepping within the radius of the revolving door, which she had observed and which she knew or had reason to believe was revolving rapidly, but not at such a speed that made it precarious for one to go through it in a reasonably prudent manner.

This is manifestly a case which involves the application of the well known doctrine that the finding of the trial court will not be disturbed or reversed where only questions of fact are involved, unless that finding is obviously erroneous, consequently, and

For the reasons assigned the judgment appealed from is affirmed.

Affirmed.


author: DORÉ, Judge.

text:
    GAUTHIER v. LOVAS.
    No. 3001.
    Court of Appeal of Louisiana. First Circuit.
    May 26, 1948.

      Voorhies & Labbe, of Lafayette, for appellant.
    Guidry & Willis, of St. Martinville, for appellee. -
   DORÉ, Judge.

This is a petitory action. Plaintiff claims a strip of land in the Parish, of St. Martin, in and near the corporate limits of the Town of St. Martinville, having a front of approximately 155 feet on the paved highway leading from St. Martinville to Parks, by a depth between irregular lines, up to the Southern Pacific Railroad right of way, the rear line thereof measuring approximately 134 feet. Plaintiff alleges that the said tract of land is bounded north by the center line of the Sproule Canal, also known as the Government Canal, on the east by the said highway, on the south by property of defendant and other property of plaintiff and on the west by said Southern Pacific Railroad right of way.

In order to facilitate the description of the property and a proper understanding of the issues of this case, the following sketch is appropriate, the property being subdivided into three portions, namely, .A. B. and C.

The plaintiff bases his claim to the entire tract on the record title, which record title he sets forth in his petition. In addition thereto and in aid thereof, he also pleaded the prescription of ten years acquirendi causa.

In his answer, the defendant disclaimed any title to the western portion “C”. He claims the eastern portions “B” and “A”, by record title. “B” plus “A” is a strip measuring 155 feet front on the highway by a depth of about two arpents. Broken up, “B”'measures 98 feet front, and “A” is approximately 57 feet front. Further pleading, defendant denies that the plaintiff has a record title to the property. Pleading in the alternative, he avers that by virtue of his deed of acquisition in 1919, and his possession thereunder, he should be decreed to be the owner of the front strip up to the south line of the bank of the canal under the prescription of ten years acquirendi causa. Pie further pleads the prescription, acquirendi causa, of thirty years as to portion “B”.

After trial, the lower court, for written reasons assigned, held that the plaintiff had made out his title to the whole of the property. But he maintained defendant’s plea of prescription of ten years to portion “B”, overruled the plea as to portion “A”, thus awarding portion “B” to defendant and portion “A” to plaintiff, portion “C” having passed out of the case by defendant’s disclaimer.

Plaintiff appealed. In this court defendant answered plaintiff’s appeal, contending that the trial judge erred in holding that plaintiff had proven his title to the two portions in contest, in failing to maintain the plea of prescription of ten years in its entirety and in failing to pass on the plea of prescription of thirty years. He also filed a plea of prescription of ten years hased on his deed executed in 1919 and covering the entire strip in controversy up to the center of the canal.

Both plaintiff and defendant deraign their title to a common author, Jacob H. Sterken. In 1886, Sterken owned a large tract of land, including the property involved, described as follows: “First: A tract of land, situated lying and being in the Parish of St. Martin, in this State, at about two miles from the Town of St. Martinville, near the right bank of Bayou Teche and formerly belonging to the Heirs of Fontenette, the said tract of land is composed of two parcels one of which having Six arpents front on the Public Road bordering the rear line of the property of S. V. Martin by a depth of Thirty three arpents, and the other having a front of Six arpents on Bayou Teche by a depth of Forty arpents, which said two parcels of land are bounded North by the plantation formerly belonging to Charles Olivier Duclogel, and hereinafter described and South by lands now or formerly belonging to C. M. Olivier. Together with all the buildings and improvements on the said lands, and all the rights, ways, privileges and servitudes thereunto belonging or in anywise appertaining.”

On January 15, 1888, Sterken sold to George Lovas a tract of land described as follows: “A certain tract of land situated in the Parish of St. Martin, measuring one arpent front on the public road leading from St. Martinville to Breaux Bridge next to Bayou Teche, by two arpents in depth, bounded on the north by the embankment of the canal, known as the Sproulis Canal, east by the said public road leading from St. Martinville to Breaux Bridge and south and west by the lands of the vendor.”

Thereafter, on May 17, 1888, Sterken sold to Frank M. Welch the following described property: A certain tract of land, situated in the Parish of St. Martin, near the Town of St. Martinville, containing seven hundred and twenty arpents and ten hundredths of an arpent, designated & included within the letters A, B, C, D, E, H, G, & F, as per plat of survey made by S. V. Martin, Surveyor, dated May 15th, A. D., 1888, and hereto annexed for reference; which said tract is bounded North by land of Miss Laperle Bienvenu, South by a lane separating the same from the land of widow C. M. Olivier & others, East by public road leading from St. Mar-tinville to Breaux ' Bridge and West by public road laid out at forty arpents from the Bayou Teche. There is a certain small tract of two superficial arpents, designated & included, as per aforesaid plat, within the letters E, H. G. F, which has already-been sold by present vendor to Mr. George Lovas and is, therefore not comprised in the present sale; together with the land presently sold all buildings, improvements, fences, etc. thereon being and thereto appertaining, excepting however the sugar mill and bricks of the old sugar house, which are not sold by these presents. The above described land forms a part of a larger tract of land purchased by present vendor from Mr. John Langles, per act passed before Charles G. Andry, a Notary Public of the City of New Orleans, dated December 18th, A. D. 1886, and duly recorded in the Recorder’s Office of this Parish, in Book of Conveyances No. 43, folios, 12, 13, 14 & 15 and under No. 18801.”

The plat referred to being as follows:

The plaintiff claims, through mesne conveyances, the property in contest as being a part of the property acquired by Welch and lying immediately south of the canal.

The settled jurisprudence of this State is that a plaintiff in a petitory action, in order to recover, must rely on the strength of his own title and not on the weakness of that of his opponent. In order to maintain his suit, he bears the burden of proving title in himself. The title of the defendant is not at issue until plaintiff has proved an apparently valid title in himself. From this rule it follows necessarily that, when he claims title to a certain described tract or portion of land or lot of ground, he must show that his title covers the identical lot in controversy.

It is the contention of defendant that since the plat attached to the Welch deed locates the Lovas property as being

immediately south and along- the canal, that Sterken did not convey to Welch any property between Lovas’ property and the center of the canal, thus causing a missing link in plaintiff’s chain of title. In examining the plat, we observe that it is not a plat as generally made by a survey- or, in that there are no dimensions given nor are the dimensions of the canal shown on the map, nor any embankment with dimensions given, as referred to in the Lovas deed. Yet the Lovas deed specifically calls for an embankment abutting the canal. The deed specifically states that the plat of survey is annexed for reference, therefore not constituting a part of the deed. The description of the property then controls. Evidence was admissible to show the exact location of the Lovas property.

On March 12, 1890, Welch sold the ■ property under the same description as he acquired it to Stanislaus Dabadie. On April 7, 1890, Stanislaus Dabadie then sold the portion of the land lying south of the center of the canal, the eastern 80 arpent portion thereof to Mrs. Hanna Newmaster, wife of John Henry Stecker, and the remaining western portion to John Henry Stecker. To the latter sale, there is a plat of survey, with measurements, showing the property transferred, and the location of the Lovas property. On this plat, there is shown a strip of land lying between the center of the canal and the northern boundary of the Lovas property. We feel therefore that since this plat contains measurements and was an actual survey, it has greater weight than the one annexed to the Welch act of acquisition.

Plaintiff deraigns his title to the vendees of Mrs. Hanna Newmaster Stecker.

Suffice it to say that the lower court was of the opinion that the plaintiff had borne the burden of proof and after a thorough review of the several sales and the annexed plats, we see no reversible error.

Having come to the conclusion that plaintiff has proven a record title to the disputed portions “B and A”, the remaining discussion will be on the question of prescription.

George Lovas having died, on December 23, 1919, his heirs conveyed to the defendant the following described property: “That certain lot of ground situated in the corporate limits of the Town of St. Martin-ville, Saint Martin Parish, State of Louisiana, and measuring one (1) arpent front on the Road or continuation of Lewis Street and bounded North by the Government Canal; South by lands of Mrs. Sil-lan formerly; East by said Lewis Street and West by land of Mrs. Sillan formally. See Book 43 folio 476 No. 19267 of Conveyances. Vendors own the said property as per judgment rendered in the Estate of George Lovas, certified copy of which judgment is recorded in Book 85 folio 74 under No. 41553 of Conveyances of St. Martin Parish, Louisiana.” Note: Reference to Book 43, folio 476, No. 19267, is the recordation of the deed of Sterken to George Lovas and the reference to the recordation of the judgment shows that the property therein described is the same as acquired by George Lovas.

In order to acquire property by the prescription of ten years, four conditions must concur: “1. Good faith on the part of the possessor. 2. A title which shall be legal, and sufficient to transfer the property. 3. Possession during the time required by law, which possession must be accompanied by the incidents hereinafter required. 4. And finally an object which may be acquired by prescription.” Civil Code, Article 3479.

Good faith possessor is defined as “He who has just reason to believe himself the master of the thing which he possesses, although he may not be in fact; as happens to him who buys a thing which he supposes to belong to the person selling it to him, but which, in fact, belongs to another.” Revised Civil Code, Article 3451.

“He is a bona fide possessor who possesses as owner by virtue of an act sufficient in terms to transfer property, the defects of which he was ignorant of. He ceases to be a bona fide possessor from the moment these defects are made known to him, or are declared to him by a suit instituted for the recovery of the thing by the owner.” Civil Code, Article 503.

"Good faith is always presumed in matters of prescription; and he who alleges bad faith in the possessor, must prove it” Civil Code, Article 3481.

“It is sufficient if the possession has commenced in good faith; and if the possession should afterwards be held in bad faith, that shall not prevent the prescription.” Civil Code, Article 3482.

“To be able to acquire by the species of prescription mentioned in this paragraph, a legal and transferable title of ownership in the possessor is necessary; this is what is called in law a just title.” Civil Code, Article 3483.

The term just title, in the cases of prescription, is “a title which the possessor may have received from any person whom he honestly believed to be the real owner, provided the title were such as to transfer the ownership of the property.” Civil Code, Article 3484.

“And in this case, by the phrase transfer of the ownership of the property, we understand not such a title, as shall have really transferred the ownership of the property, but a title which by its nature, would have been sufficient to transfer the ownership of the property, provided it had been derived from the real owners, such as a sale, exchange, legacy or donation.” Civil Code, Article 3485.

“To enable one to plead the prescription treated of in this paragraph, it is necessary that the possession be distinguished by the following incidents: 1. That the possessor shall have held the thing in fact and in right, as owner * * *. 2. That the possession have been continuous and uninterrupted, peaceable, public and unequivocal * * *.” Civil Code, Article 3487.

As to the conditions required under Civil Code, Article 3479, supra, it certainly •can be said that the object in dispute is subject to acquisition by prescription and that the title of defendant, his deed of acquisition from the heirs of George Lovas, is legal and sufficient to transfer the property. We are only concerned with conditions 1 & 3 of the said article. With reference thereto, we find the following facts as sufficiently established.

The testimony introduced by plaintiff is to the effect that the Lovas tract was a tract measuring 1 arpent on the highway by a depth of 2 arpents, which 2 arpents tract was fenced in on all four sides; that the fence on the north side had always been approximately 4 feet north of the store building located at the northeast corner of said Lovas. tract; that the area lying between this north fence and the canal had always remained open, together with the adjoining area on the west up to the railroad track. In other words, the plaintiff and his witnesses, with one exception, maintain that the only fences existing with reference to this disputed area were the fence running from the highway along the Lovas tract (4 feet north of the store building) for a distance of 2 arpents, and then proceeding across the property of plaintiff to the railroad track on the west, and thence along the railroad track to the Canal, and the other fence proceeding from the Lovas tract in a northerly direction along the highway to the canal.

On the other hand, the defense testimony is to the effect that in addition to the fences testified to by plaintiff and his witnesses, with the exception of one witness, is that the fence on the east side along the highway to the canal was joined at the corner thereof by another fence which followed the canal on its south side for 2 arpents going west and thence south to the northwest corner of the tract measuring 1 by 2 arpents; that this situation existed as far back as 1923 and that the Lovases had always used this additional area between the fenoe immediately north of the store up to the canal as their property; that there had been a gate from the 1x2 ar-pent tract leading into this additional property for all these years.

It is further testified that this old fence through the years deteriorated, but that signs thereof were still preceptible in 1938, at which time the defendant'herein reconstructed the fences, re-enclosing this additional area. One of plaintiff’s own witnesses, Eugene Theriot, states that he lived on the Lovas’ property in 1931 and that at that time there was a fence “that ran along the highway, then ran west in a zigzag manner along the canal to the back of Tom’s (defendant Lovas’) property that went on and hit the fence that had that gate I referred to” (Meaning the fence 4 feet north of the store building). In other words, his testimony corroborated the testimony of the defense witness as to the fence running along the canal in a westerly direction and then running south to the northwest corner of the enclosed 1 by 2 arpent tract.

From the above, it may be noted that there is a conflict of evidence between the plaintiff and defendant and their respective witnesses as to the existence of any fences enclosing portion “B” on the north and west sides, and that such fences were in existence for a period of more than ten years prior to the bringing of this suit. Defendant has the burden of proof. In solving this conflict of evidence and in reaching a conclusion that the defendant had borne the burden of proof, the trial judge states: “But our burden is considerably lightened and a decision on this point becomes quite apparent when we consider the fact that along the line where the fence exists today and where plaintiff’s witnesses claim no fence existed, there is a tree of considerable size containing old fence wire embedded to about the middle of its trunk. . The conclusion is irresistible that many years ago, perhaps several times ten years there was a fence where defendant and his witnesses claim there was, and that, therefore, the failure of plaintiff’s witnesses to have noted this fence was due perhaps to an oversight, lack of memory or perhaps that the fence was temporarily down. It is not necessary that fences remain continuously in good order to constitute an enclosure, upon which to base the prescription of ten years. See Ranger Land Co., Inc., v. Story, La.App., 1 So. 2d 410”.

An embankment is “an artificial bank or mound of earth.” (Webster) ; it is “a protecting or supporting bank.” (Funk & Wagnalls). The deed providing for the right of way or servitude of the canal was executed on December 8, 1858, and provides for a width of 61 feet at its widest point. As stated before, we do not find any evidence in the record as to how the excavated earth in the digging of this canal was dissipated or scattered and whether it was dissipated only on one side of the canal or whether it was thereafter scattered. Plaintiff, and defendant, in oral argument and in brief, alternately speak of the mound of dirt removed from the canal as an embankment or as the levee. A levee is an artificial mound of earth intended exclusively as a protection from overflow; every levee is, therefore, an embankment, but every embankment is not a levee. From 1858 until 1888 is a space of thirty years. In that space of time, the original dirt removed from the canal may have been so scattered so as to amount to a slight rise of the bank of the canal. It is reasonable to presume that George Lov-as took possession of portion “B” and enclosed it. In fact, the evidence preponderates that when defendant took possession under his deed, he went into possession as far as the fence on the bank of the canal and had had open possession of said portion “B” for a period of more than ten years. We therefore find no error in the conclusion of the trial judge.

Plaintiff challenges the good faith of the defendant, the first requirement of Civil Code, Article 3479, supra. He contends that defendant was familiar with this property all of his life, at least from 1910, and that he knew or should have known that the northern boundary of the property he had purchased was a fence about four feet north of his present store running from the highway in a western direction to the railroad right of way. He contends that defendant admitted that he considered his property as being bounded on the north by the embankment of the canal at the time of his purchase in ■ 1919. From a careful reading of his testimony and taking the testimony as a whole, we do not agree with plaintiff’s contention that defendant admitted that the extent of his purchase was up to the fence four feet north of his present store building. He was not questioned with reference to the fence as being his northern boundary and we have no testimony as to where the toe of the 'embankment was located either in 1888 or in 1919.

The plaintiff further challenges the good faith of the defendant on the ground that in 1938, by notarial act, the defendant purchased from Albert L. Durand, the entire tract in contest, thus showing conclusively that, in 1938 defendant did not believe himself to be the owner of any portion of the property.

The good faith of a purchaser is always to be presumed and the one who challenges it bears the burden of proof. Furthermore, the good faith required is at the time of purchase. In order to become a possessor in bad faith thereafter, defendant must have actual notice of a demand made by a party claiming title by the filing of a suit, and he only becomes a possessor in bad faith from such filing of the suit. Conceding for the mere sake of argument that defendant became a possessor in bad faith in 1939 by his purchase from Durand of the property in question, we are of the opinion that defendant had been in open physical possession of portion “B” for more than ten years prior to that acquisition. In no way can it be said that he acknowledged the title to be in plaintiff. In so far as this deed is concerned as between the plaintiff and defendant, it is a matter “res inter alios acta.”

Under the facts in this case, we are, like the trial judge, of the conclusion that plaintiff has failed to show that defendant was not a possessor in good faith.

In regard to Portion “A”, the evidence is conclusive that defendant only took possession of this portion in 1938, when he purchased the said portion from Durand. He built his fences enclosing the said portion in 1938 or 1939. Although defendant’s title calls for property up to the canal, and although defendant contends that possession of a part is possession of the whole, yet as previously stated, defendant only took physical possession up to the northern fence or the whole of tract “B”. He cannot c.fjjm any property beyond that fence.

We see no necessity to consider defendant’s plea of prescription of thirty years.

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

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


author: McBRIDE, Judge.

text:
    YOUNG v. NEW ORLEANS PUBLIC SERVICE, Inc., et al.
    No. 18864.
    Court of Appeal of Louisiana. Orleans.
    June 7, 1948.

      M. E. Culligan, Jr., o'f New Orleans, for plaintiff and appellant.
    Alvin R. Christovich and William W. Ogden, both of New Orleans, for New Orleans Public Service, Inc., and John La-rocca, defendants and appellees.
    P. M. Flanagan and Gerald S. Quinlan, both of New Orleans, for Gertrude Perez, defendant and appellee.
   McBRIDE, Judge.

Plaintiff brought this suit against New Orleans Public Service, Inc., John Larocca, its employee, and Gertrude Perez, who was allegedly the operator of a Chevrolet automobile which collided with a bus of the public service company at the intersection of Banks and Galvez Streets in New Orleans, on January 21, 1945.

Plaintiff was a passenger sitting in the center of the bus on the right side. She claims that both the bus and the automobile were being negligently operated, and that as a result of the collision she sustained personal injuries and incurred certain expenses amounting in the aggregate to $790 for which she prays judgment in solido against all defendants.

The public service company and Larocca admitted that plaintiff was a passenger in the bus, but they disclaim any negligence on their part, and allege that the collision was caused solely through the fault and negligence of the operator of the automobile, in the following respects: That the automobile was being driven at an excessive rate of speed out Banks Street and failed to stop for the traffic stop sign at Galvez Street; that its driver paid not the slightest attention to the oncoming bus and ran into its right rear side as it proceeded over Banks Street. The other defendant, Gertrude Perez, filed what amounts to a general denial of the allegations of the petition.

The matter was tried in the Civil District Court for the Parish of Orleans, and there was judgment dismissing plaintiff’s suit as against the New Orleans Public Service, Inc., and John Larocca. The demands against Gertrude Perez were dismissed as of nonsuit. From this adverse judgment plaintiff has appealed.

Banks arid Galvez Streets intersect. The Chevrolet was being driven out Banks in the direction of the lake on the left-hand side of the street; the bus was moving on Calvez towards Canal Street. The collision occurred just as the bus entered the intersection and the Chevrolet hit it near its right rear end. As a result of the impact plaintiff was injured.

Plaintiff insists that the collision was a consequence of joint negligence on the part of the operators of both vehicles. Our appreciation of the testimony, however, is that the accident was occasioned solely and only because of the negligence of the Chevrolet’s driver, in at least two respects: (I) That the car was being driven at forty miles an hour, which is in excess of the speed permitted at the locale of the accident by Ordinance No. 13,702, C. C. S., which regulates traffic on the city streets, and (2) in failing to obey the stop sign at the intersection. The bus had stopped at the signal light on Tulane Avenue and Galvez Street, and after a favorable light change it was driven across Tulane on toward Canal Street. About one hundred feet before reaching Banks, the operator noticed the Chevrolet automobile coming out that street, and he placed it at about three hundred feet away when he first observed it. The bus continued onward and the operator next saw the automobile when, it was about fifty feet before reaching Galvez Street, and he judged its speed to be forty miles an hour. The operator stated that he knew there was a stop sign at the intersection warning traffic proceeding on Banks to come to a stop before attempting to cross Galvez, but at the time he noticed the automobile when it was fifty feet away from hiiii, he realized that it would not be able to make the stop at the corner, and that a collision was imminent. In an endeavor to avoid being struck by the Chevrolet, the operator of the bus accelerated it and swerved to his left, but notwithstanding this maneuver the • collision occurred.

Under the above state of facts, we fail to see how the bus driver was at fault, as he knew of the stop sign at the corner, and it cannot be said -that he should have anticipated that the Chevrolet’s driver would flagrantly ignore the stop sign. He had the right to presume that the oncoming Chevrolet would obey the sign. Upton v. Bell Cabs, Inc., La.App., 154 So. 359.

Tina Tarkington, who testified as a defense witness, claims that she was driving the Chevrolet, and that it was moving at about fifteen miles an hour; that just before reaching the intersection she applied the brakes, but they failed to hold and the car crashed into the bus. Her testimony regarding the speed of the Chevrolet is not impressive.

There is question as to the identity of the driver of the Chevrolet. The'petition, in article 3, specifically charges that it was being driven by Gertrude Perez, who is one of the defendants, and the answer of this defendant admits the collision but denies the remaining allegations of article 3.

Plaintiff produced no evidence as to who was driving the Chevrolet, and the only witnesses who testified as to that detail were the occupants of the automobile. There were three persons riding in the Chevrolet, namely: Gertrude Perez, Tina Tarkington and Sam Lorber. The bus operator testified that when he reached the Chevrolet after the accident, Tina Tarkington was sitting behind the wheel, with Gertrude Perez next to her, and on the far side of the front seat “the man,” evidently meaning Sam. Lorber, was sitting. The three occupants of the Chevrolet were unanimous 'in stating that it had been driven by Tina Tarkington, who was not in possession of a license permitting her to drive an automobile. Police officers were summoned after the collision, but before they arrived the occupants of the car changed places and Gertrude Perez assumed a position under the steering wheel. When the officers arrived Gertrude Perez, in order to shield Tina Tarkington from a possible criminal prosecution, represented to them that she had been the driver of the car, and their report concerning the accident contained that statement. These officers were not produced as witnesses, but by agreement o'f counsel it was stipulated that had they been present their testimony would have been to the effect that Gertrude Perez made the statement to them that she, Gertrude Perez, had been driving the car.

Plaintiff’s counsel, both in brief and orally, argues that Gertrude Perez, because of her statement to the police officers that she had been the driver of the Chevrolet, is equitably estopped from repudiating this statement which she had represented as being the truth. In support of that contention counsel cites certain passages from Corpus Juris Secundum, and also several cases from this and other jurisdictions, which we deem inapposite here. He advances the theory that plaintiff was induced by the Perez woman’s statements not to file suit against any other party, and that in fact she could not have done so, because she relied upon, and had the right to rely upon, the statements, and possessed no other means of ascertaining the identity of the Chevrolet’s driver.

We cannot agree with counsel. A careful reading of article 3 of the petition and the answer thereto of Gertrude Perez discloses that this defendant unequivocally denied the allegation that she had been the driver of the car.

There are several reasons why the doctrine of estoppel cannot be successfully urged by plaintiff in this case. The plea of estoppel was only raised by plaintiff in brief and in argument, and in order to be effective such plea should have been specially made. Our brothers of the First Circuit, in the case of Ribundo v. Kemp, 12 La.App. 512, 126 So. 577, 578, had under consideration a case somewhat similar to the one we now consider. In that case the owner of a motor truck sued the alleged owner of an automobile for damages sustained in a collision between the two vehicles. The automobile was attached and held to satisfy plaintiff’s claim for damages under C. P. art. 240, which authorizes attachment against nonresident debtors. The defendant, Kemp, appeared by counsel and bonded the attachment, and further appeared through counsel and answered denying that she was the owner of the car. Plaintiff contended that defendant was estopped by her acts and pleadings from urging such defense, and that she must be regarded as the owner of the automobile and responsible for the negligent manner in which it had been driven. The court, in denying the plea, said:

“In order to have urged estoppel against Miss Kemp on account of her acts and pleading, plaintiff following her answer should have filed a plea of estoppel against her. The record contains no plea of es-toppel. It is not sufficient to merely urge in argument that she is estopped.
“In Heirs of Wood v. Nicholls, 33 La. Ann. 744, the court said: ‘The defendant, urging that plaintiffs cannot assail the legality of the sale because they have ratified it, should have specially pleaded the
estoppel and cannot set it up under the general issue. Such defense is analogous to that of payment, release, novation, etc., and must be specially pleaded.’ Thomas v. Blair, 111 La. 678, 35 So. 811, and Hebert v. Champagne, 144 La. 659, 81 So. 217, are to the same effect. Not only that, but when defendant tendered parol evidence under her answer, that she was not the owner nor the driver, nor responsible for the driving, it was received without objection.”

Moreover, estoppel is not favored by the laws of Louisiana and should not be maintained except in clear cases, and in order to justify its application the plea must be made certain to every extent and is not to be sustained on argument or by inference. Penny v. Gross & Janes, La. App., 25 So.2d 318; McDonald v. Shreveport Mut. Bldg. Ass’n, 178 La. 645, 152 So. 318; Plornor v. McDonald, 52 La.Ann. 396, 27 So. 91.

The doctrine of estoppel has been said to be somewhat of a “superlaw,” arbitrary and penal in nature and character, and it should be applied with great care and caution in each case. 31 C.J.S., Estoppel, § 63, page 250. It is not a cause of action and cannot give or create one, its purpose being to preserve one already acquired. 31 C.J.S., Estoppel, § 63, page 251.

Those to whom the representations were directed, and whose conduct they were intended to and did influence, are the persons who may take advantage of the plea. 31 C.J.S., Estoppel, § 63, page 249. Estoppel cannot be invoked unless the person pleading it relied upon, or had the right to rely upon, the representations or conduct of the person sought to be es-topped. 31 C.J.S., Estoppel, § 67, page 267.

In a case such as the instant one, involving an action in tort, we cannot see where the defendant, Perez, owed the duty to the plaintiff of not making an untruthful statement to the police officers whose duty it was to report the accident. The doctrine of estoppel, even if it had been properly pleaded, could not, we think, apply here, for under the circumstances of this case none of the parties involved in the accident were relieved of the care of making an investigation and ascertaining the facts materially necessary to the successful prosecution of a suit in tort. There was no contractual relationship between Gertrude Perez and the plaintiff, and it certainly cannot be said that the statements of the former induced plaintiff not to sue the actual owner of the automobile, as we know of no right which plaintiff had under the law to warrant her supine reliance upon them.

We fail to find error in the judgment appealed from, and for the above reasons it is affirmed.

Affirmed.


author: J. CLEVELAND FRUGE, Judge ad hoc. LE BLANC, Judge

text:
    LAWRENCE et al. v. JOSEPH.
    No. 3005.
    Court of Appeal of Louisiana. First Circuit.
    June 11, 1948.

      C. A. Blanchard, of Donaldsonville, for appellants.
    J. A. Menuet, Jr., of Napoleonville, for appellee.
   J. CLEVELAND FRUGE, Judge ad hoc.

This is a petitory action in which plaintiffs, Ethel Lawrence and Arthur Lawrence, seek to be decreed the owners, and, as such, entitled to the full possession of the following property:

“The undivided fifth part of a certain lot or parcel of ground in the Parish of Assumption, on the left bank of Bayou Lafourche, on the lower line of Valance Plantation and formerly forming part thereof, commencing at a distance of about twenty arpents from said Bayou and measuring about five arpents front on a public road or lower line of said Valance Plantation, twenty five feet width donated by vendor, to use of the public and all inhabitants along the same, by a depth of one arpent less with width of the road, bounded in the rear by property of Thcodulc Bourg, on side towards Bayou Lafourche by lot of Moses Henderson sold to Abraham Dickerson on the 12th day of February 1879, on the side towards the woods by lot sold to Anthony Jackson on the 22nd day of May, 1944, together with the buildings and improvements thereon and all rights' thereunto appertaining.”

They allege that they acquired the said property by an authentic act of sale passed on Sept. 12, 1945, which said act of sale was duly recorded in conveyance records of the Parish of Assumption on Sept. 18, 1945, from Clarence Henderson et als; that the said Clarence Henderson et als acquired the said property as the sole heirs of Virginia Nixon, who died intestate in the Parish of Assumption during the year 1942-1943; that Virginia Nixon acquired the said property by an authentic act of sale under date of May 22, 1933, which act of sale was duly recorded in the conveyance records of the Parish of Assumption, from June Robinson; that June Robinson acquired the said property by an authentic act of sale under date of April 8, 1903, which said act of sale was duly recorded in the conveyance records of the Parish of Assumption, from Phillip Gains. They further allege that their authors in title have been in the actual, physical and uninterrupted corporeal possession of the said property for a period of more than thirty years, and have inhabited, lived on, cultivated and fenced in the said property for said period of time.

For answer, defendant, for lack of information, denies all of plaintiff’s allegations. In further answer, she alleges that Phillip Gains acquired the said property by authentic act of sale, dated January 20, 1903, which act of sale 'was duly recorded in the conveyance records of the Parish of Assumption; that Phillip Gains was twice married, first to Georgiana Williams, on or about June 3, 1878; that she, defendant, is an issue of said marriage; that after the death of Georgiana Williams, her mother, said Phillip Gains, married June Robinson on or about April 13, 1893; that there were no issues of this marriage; that the acquisition of Gains on January 20, 1903, was one during the existence of the community between himself and June Robinson; that the act of sale of April 8, 1903, was a sale from husband to wife during their marriage, therefore it was null, void and of no effect. She further avers that upon the death of Phillip Gains, he not having disposed of his interest in the said property the’ same became a part of his succession which was inherited by her along with her brothers and sisters, as his child and heir; that she has not sold or otherwise disposed of her undivided .interest in the said property. She further incorporates in her answer an exception of no right of action for the reason that as she is the owner of an undivided interest in the said property she cannot be divested of her lawful possession by means of a petitory action.

Prior to trial, plaintiffs filed pleas of ten and thirty years prescription, acquirendi causa, against the claim of ownership asserted by defendant.

The trial judge, for written reasons assigned, overruled plaintiffs’ pleas of ten and thirty years prescription and sustained defendant’s exception of no right of action, and dismissed plaintiffs’ suit. Plaintiffs have appealed.

The plaintiffs have fully proven their title by acts authentic in form as set out in their petition. It is admitted that they are purchasers in good faith, having purchased on the faith of the public records of the Parish of Assumption. It was also admitted that June Robinson died during the year 1943, and that Phillip Gains died about the year 1910.

It is the contention of the defendant that the sale executed on April 8, 1903, from Phillip Gains to June Robinson is a nullity for the reason that, they being husband and wife, such a sale is not permitted under our law.

An examination of the Act clearly shows that the said act is one authentic in form. In the act the vendor is declared to be “Phillip Gaines, a resident of the Parish of Assumption who declared, that he does by these presents, grant, bargain, sell, etc.” unto “Mistress June Robinson a resident of the Parish of Assumption who buys with her own separate paraphernal funds, etc.” the property in contest. The consideration in the deed is stated as the “price and sum of One Hundred Dollars cash which the said purchaser has well iand truly paid, etc.” The marital status of the vendor and vendee is not given. There are no apparent defects in the sale, it being perfect in form. Thusly, defendant had to rely on parol evidence to show that the said vendor and vendee were husband and wife. Plaintiff promptly objected to the introduction of any parol evidence to show that the vendor and vendee were husband and wife. Evidently, the trial court overruled the objection in that he allowed and considered parol evidence to show that the vendor and vendee were husband and wife. We think he should have sustained the objection. But granting for sake of argument that the evidence would be admissible, there is no proof in this record of the marriage. Proof of the stub of an application for license alone is not proof that the marriage actually took place. There is no testimony by anyone present at the marriage ceremony nor of anyone who knew of its existence.

In the case of Broussard v. Broussard, 45 La.Ann. 1085, 13 So. 699, 700, the supreme court said: “It is settled in this court, by a jurisprudence too inveterate to admit of question, that, 'Whatever the secret equities between a vendor and vendee, the former (in our case the heir of the former) cannot claim them against a subsequent purchaser in good faith. Having placed on the public records the title on the faith of which such purchaser acquired, the vendor (his heirs as well) must bear the consequences of having presented the vendee’s rights in a false aspect.’ ”

In the case of Breaux v. Royer, 129 La. 894, 57 So. 164, 38 L.R.A.,N.S., 982 (Syllabus by the court), it was held: “1. In the absence of allegations that the execution of an authentic act of sale of immovable property was induced by error, misrepresentation, or fraud, parol evidence, to show that a contract of mortgage was intended, is properly excluded.” “2. One who, upon faith in the public records, purchases real estate, the recorded title to which stands in the name of his vendor, is entitled to be protected in his purchase against any claims or equities arising out of the previously existing relations between his vendor and the latter’s author or other persons.” (Italics ours.) See case of Chachere v. Superior Oil Co., 192 La. 193, 187 So. 321.

In the case of Bordelon v. Gumbel, 118 La. 645, 43 So. 264, a case wherein the property of the wife had been transferred to the husband in violation of a prohibitory law, innocent third persons dealing- with the property on the faith of the public records were held to be protected.

The conveyance records are the only things to which one dealing with real estate or any real right ever needs to look under repeated decisions of the Supreme Court.

The act is authentic in form and is full proof of its recitals therein contained. Civil Code Article 2236. The attack made upon the act is a hidden defect, violating a prohibitory law, and not shown on its face. It is now well settled, in so far as against a bona fide purchaser for value who acted on the faith of a recorded title, that parol evidence is inadmissible to show hidden defects or secret equities existing between the parties to the act.

It is now the well established jurisprudence that the settled public policy of the State that protects innocent third persons acquiring real estate on the faith of recorded titles is paramount to that which merely protects individuals against acts done in violation of a prohibitory law.

Under that settled jurisprudence, supra, we are of the opinion that the judgment appealed from is erroneous and should be reversed, and judgment should be rendered in favor of plaintiffs in accordance with the prayer of their petition.

For reasons assigned, the judgment of the District Court is reversed and set aside and accordingly let there be judgment in favor of the plaintiffs, Ethel Lawrence and Arthur Lawrence and against the defendant, Ida Joseph, recognizing plaintiffs to be the true and lawful owners of the property described in Article I of plaintiffs’ petition, and hereinabove described and as such to the full possession thereof, and the defendant, Ida Joseph, is hereby ordered to deliver possession of said property to s-aid plaintiffs and that all costs be taxed to defendant.

LE BLANC, Judge

(concurring).

I concur on the ground that there is a lack of sufficient proof of the marriage between Philip Gaines and June Robinson which forms the basis of the attack made on the title to the property involved in this controversy.

ELLIS, J., absent.


author: JANVIER, Judge.

text:
    ATCHLEY v. TOYE BROS. YELLOW CAB CO.
    No. 18730.
    Court of Appeal of Louisiana. Orleans.
    June 7, 1948.

      Frank S. Norman, James Everett Brown, Louis M. Jones and Russell J. Schonekas, all of New Orleans, for plaintiff-appellant.
    Jack Marx and Arthur L. Ballin, both of New Orleans, for defendant-appellee.
   JANVIER, Judge.

At about 10:30 o’clock on the night of Sleptiember 18, 1945, plaintiff, Edward Atchley, was struck by a taxicab of the defendant partnership, Toye Bros. Yellow Cab Company, and sustained rather severe physical injuries.

Alleging that the accident had been caused by negligence on the part of the driver of the taxicab and that he himself was in no way at fault, Atchley brought this suit in the Civil District Court for the Parish of Orleans praying for judgment for $8,153.02 against thjci said partnership. Though the allegation is made that the partnership is composed of Frank E. Toye, George A. Toye, Joseph Toye, and Paul W. Toye, judgment was not prayed for against the individual members. However, the individual members, together with the partnership filed exceptions and an answer.

They denied that there was any negligence on the part of their employee, averred that the accident had been caused entirely by negligence of Atchley himself in stepping from the neutral ground into the street, directly in front of the taxicab, when there was not sufficient time or space for it to be brought to a stop, and averred that, in the alternative that it appear that there was any negligence on the part of their employee, the proximate cause of the accident was the contributory negligence of plaintiff himself “in jay walking and attempting to cross Tulane Avenue at a point outside of the pedestrian lane,” and “in creating a sudden emergency by coming from a place of safety directly into the path of moving traffic on the lower roadway of Tulane Avenue, without first ascertaining whether there was traffic approaching, especially in view of the fact that the cab was plainly discernable with its headlights in operation.”

There was judgment dismissing plaintiff’s suit, and he has appealed.

The accident occurred as Atchley was attempting to cross Tulane Avenue from the upper to the lower side at or near the corner of Loyola Avenue. The vicinity in which the accident occurred may be described as follows: Tulane Avenue is a double driveway thoroughfare, in the center of which there is a raised neutral ground. Along the neutral ground in this particular block there are two street car tracks. On the lower side of Tulane Avenue there is a very short block, on the west end of which is a bus terminal depot. On the east end of this block Loyola Avenue crosses Tulane Avenue, and the Tulane Belt street cars, in their route from the business section of the City, pass up Loyola Avenue to Tulane Avenue and turn right or west on to the neutral ground of Tulane Avenue. In that block the neutral ground is curtailed at the Loyola Avenue end, so that it does not extend all the way to a line which would form the extension of the curb line of Loyola Avenue; that end of the neutral ground being set back about thirty or thirty-five feet from the said extension of the curb line of Loyola Avenue.

Atchley had arrived at the bus station a short time before the accident, and it was his purpose to cross Tulane Avenue and walk along the sidewalk of Loyola Avenue to a street car stop so that he might board a Tulane Belt car and go to Broad Street and there transfer to a Gentilly bus. He had crossed the upper roadway of Tulane Avenue and had also crossed the neutral ground, but he was struck by the taxicab while attempting to cross the lower roadway. It is his contention that the taxicab had been driven up Loyola Avenue at a speed of thirty to thirty-five miles an hour, had turned suddenly to its right into Tulane Avenue, and had struck him while he was several feet away from the neutral ground and when there was no longer an opportunity for him to step back out of the way of the cab or to continue to the sidewalk.

It is the contention of the defendant, on the other hand, that the cab had not gone up Loyola Avenue to Tulane Avenue, but had gone out Rampart Street several blocks to the east of Loyola Avenue and had turned into Tulane Avenue from Rampart Street, and had thus been on Tulane Avenue for several blocks and for some time before Atchley was struck, and, that the taxicab was in plain view of Atchley, when he negligently stepped from the neutral ground directly into its path after it was too late for the operator of the cab to bring it to a stop, or to swerve it to the right in an effort to avoid striking him.

The only persons who claim that they actually saw the occurrence are Edward Atchley, the plaintiff, Robert Bache, the op-eator of the taxicab, and Sidney Songy, an employee of another taxicab company, who says that he was on the sidewalk on the upper side of Tulane Avenue near the entrance of the bus station, and that he was looking directly toward the taxicab when it turned from Loyola Avenue into Tulane Avenue.

Atchley admits that he knows very little about the occurrence; that he did not see the taxicab at all and does not know from which direction it came, although he says that before stepping into the street, he looked in both directions and saw no vehicle which was sufficiently close to preyent his crossing in safety.

The statements of Songy and Bache cannot 'be reconciled. Although Bache says that he turned into Tulane Avenue at Rampart Street several blocks before reaching Loyola Avenue and then proceeded out Tulane Avenue, Songy states that he saw the taxicab turn into Tulane Avenue from Loyola Avenue only a few feet before it struck Atchley, and after Atchley had proceeded some distance into the roadway of Tulane Avenue.

During the course of the trial it developed that Songy, several years earlier, had had a rather serious criminal charge made against him in the United States District Court and had pleaded guilty. It was also shown that Judge Viosca, before whom this case was tried, had been the United States Attorney when Songy had pleaded guilty in the United States District Court, and it appeared, too, that Judge Viosca placed little or no credence in the testimony of Songy given in the case at bar. Because of this rather unusual situation, counsel for plaintiff argue at length that we should not reject the testimony of Songy, but should give it just as much weight as we would give to that of any other witness. In their brief they say that the evidence concerning the plea of guilty in the criminal charge in the United States District Court should not have been admitted, and they add: “Had this District Court Judge not had a personal knowledge of the witness prior to the trial of this case, this evidence would not be in the record today. It should be likewise evident that in spite of every sincere effort he might make, the District Court Judge could not consider the testimony of this witness as he would have considered the testimony of a stranger. In apparently disregarding the testimony of Songy because of the latter’s violation of a federal statute while he was acting as the U. S. Attorney, this District Court Judge committed reversible error.”'

We are unable to say from the record that the District Judge’s reason for not believing Songy was 'based on his previous' knowledge that the witness had pleaded guilty in the other court, and even if it be conceded arguendo that under such circumstances a district judge should give full-credence to the statements of such a witness, we are convinced from the record that the witness Songy is entirely unworthy of belief, and this for many reasons. He says, for instance, that Bache turned the corner to his right at a speed of thirty or thirty-five miles an hour without the slightest reduction in speed. This would have been practically impossible, as it appears from the record and from the photographs-which are in the record that the two streets-meet at a sharp right angle, so that the taxicab would have had to turn a sharp-right angle and enter a rather narrow roadway at a speed of thirty or thirty-five miles an hour. Furthermore, in order to prove negligence on the part of Bache, Songy said that he was looking at Bache and that he, Bache, in driving the taxicab was “looking on the lefthand side instead of the right.” When asked what he meant by this, he said: “Towards the river.” When we realize that the headlights of the taxicab were burning and were shining directly towards Songy, we conclude that it was absolutely impossible for him to have seen the driver of the taxicab and to have noticed that he was looking to his left and not to his right.

Songy says, too, that as soon as he saw the accident he crossed the street from the bus station and remained at the scene for some time, and that the police arrived and made an investigation, but did not talk to him so he did not talk to them or give them his name. He makes this statement in explanation of the fact that the police did not secure his name as a witness. Neither Bache nor any one else remembers having seen Songy at the scene of the accident.

It also appears from the testimony of Songy himself that at that time there was considerable “friction” between the taxicab company for which he then worked and the Yellow Cab Company.

For these and other reasons appearing in the record, we find ourselves unable to believe that Songy’s statement gives a correct picture of the occurrence.

In spite of the fact that Atchley says he was knocked unconscious and did not recover consciousness until some time later after he had reached the hospital, the record shows that as a matter of fact the police and others talked to him at the scene of the accident and obtained from him considerable information concerning himself.

He says that all that he knows about the accident is that he looked carefully and saw no taxicab coming and that after pausing on the edge of the neutral ground and looking in Tulane Avenue towards the river or east, he stepped into the street. He said: “I stepped down off this walk into the street and started across. Just how many steps I had taken I don’t know, and I did not know anything after that.”

And he added: “Whether I took two or three steps I don’t know.”

Bache is positive that his cab had been on Tulane Avenue since it turned into that avenue at Rampart Street, and that as he approached Loyola Avenue he was driving slowly. He gives two reasons for his slow speed: first, that he knew that at that corner the Tulane Belt cars come up Loyola Avenue and turn into Tulane Avenue across the roadway on which his taxicab was being driven and that, therefore, there was danger that a street car might emerge, and second, that he intended to go to the bus station and, therefore, to cross the neutral ground of Tulane Avenue to his left at the next corner which, because of the short-distance away.

Bache says that he saw Atchley, that he looked in the direction of the taxicab and stopped as he reached the edge of the neutral ground and that he, therefore, felt that Atchley had stopped to let the cab go by, but that just before the cab reached him, he stepped into the street and was struck.

That the speed of the taxicab could not have been great is evidenced by the fact that, although the brakes were applied in the emergency, it went only a very few feet after they were applied and stopped with practically no skid marks.

We conclude that Atchley paused or hesitated as he reached the curb of the neutral ground and that he looked into the direction from which the taxicab was approaching, and that as the taxicab, at a reasonable speed, reached a point almost opposite where he was standing, he stepped into the roadway and after only one or two steps was struck.

The facts as we find them do not bring the case within the doctrine announced in Rottman v. Beverly, 183 La. 947, 165 So. 153, or within the doctrine of Jackson v. Cook, La.App., 176 So. 622. In Rottman v. Beverly the plaintiff was seen in time for the driver of the car to have stopped, and in Jackson v. Cook the plaintiff should have been seen in time. Here the plaintiff was seen in time but he gave every indication of having seen the approaching taxicab and of his intention to let it go by.

This accident apparently resulted from one of those mental lapses from which all of us at times suffer. It is not unusual for the operator of an automobile o.r street car to see a pedestrian approaching the path on which the vehicle is being operated and giving1 evidence that he, the pedestrian, is aware of the approach of the vehicle and that he intends to stop to let it go by. Under such circumstances it is not negligence for the operator to continue on his course, as he is warranted in the assumption that the pedestrian sees the vehicle and intends to stop and let it go by or, having stopped, will remain stationary until it has passed.

As we said in Fontenot v. Freudenstein, La.App., 199 So. 677, 680, “ * * * Often, in crossing a street, a pedestrian, seeing a car approaching and "about to pass in front of him, continues on his course until within a few feet of the path of the car and then stops to allow it to go by.”

The same thought is expressed in rather picturesque language of a witness, a motorman, who, in Tauzier v. Landwehr, La. App., 6 So.2d 772, said: "' * * * After I passed Aubry Street, I noticed a man standing on the neutral ground, which almost every day a person will stand on the neutral ground or sidewalk or anyways along the street, and if they see a car coming they will wait until you pass to walk over afterwards, which I thought this man would do.’

Almost an indentical situation was found in the case of Mrs. Lucy Hopkins Lagrand, widow of Lagrand v. Fortune A. Dugan, La.App., 196 So. 564, 566, in which the defendant, an automobile driver, was held not to have been negligent in failing to anticipate that a pedestrian crossing the neutral ground would step into the street. Referring to the pedestrian, we said: “ * * * The fact that he was on the neutral ground conveyed no intimation of his intention to cross the roadway and we are of opinion that Dugan was justified in believing that Blachess would wait there until his car had passed.”

The situation is quite different from that which is presented where there is something about the appearance or condition of the pedestrian to indicate that he is unaware of the danger, or where the operator of the vehicle is given no indication that the pedestrian is aware of the danger. But we see no reason to hold such a driver negligent where, as here, the pedestrian, looking towards the vehicle and pausing before stepping into the street, indicates not only that he is aware of the danger, but that he will remain stationary and permit the vehicle to pass.

There is considerable disagreement over the question of whether Atchley was crossing at a regular pedestrian crossing, or at a point some twenty or thirty feet nearer the center of the block. We think that the evdence to the effect that he was not on the regular pedestrian lane slightly preponderates, and we believe that in all probability he had taken a diagonal route from the bus station towards the downtown lake corner of Tulane and Loyola Avenues and that, therefore, as he stepped into the street, he was several feet west of the regular crossing; in other words, several feet nearer the center of the block. But we do not see that this is of any great importance. The question of whether a pedestrian is crossing a street at a proper point is interesting only if the driver of the vehicle, which ultimately strikes him, is unaware of his presence and contends that he had no reason to expect a pedestrian at such an unsual place. But where the pedestrian is clearly seen by the operator of the vehicle, as here, it is of little importance that he, the pedestrian, may have been crossing at some point other than the regular pedestrian path. The important thing here is that the operator of the cab saw Atchley and was justified in believing that Atchley saw the cab and had stopped to let it go by.

We find no negligence in the driver of the taxicab.

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

Affirmed.