author: HAWTHORNE, Justice.

text:
    212 La. 439
    MARTIN et al. v. MAYOR & BOARD OF ALDERMEN OF TOWN OF WESTWEGO.
    Nos. 38267, 38268.
    Supreme Court of Louisiana.
    July 3, 1947.
    Rehearing Denied Nov. 10, 1947.

      Waverly A. Henning, of Gretna, for plaintiffs-appellees.
    Thomas E. Furlow, of New Orleans, for def endants-appellants.
   HAWTHORNE, Justice.

The appeals in both these cases are from judgments of the lower court granting unto plaintiffs, Edmond Martin, Jr., and Horace J. Parr, a perpetual injunction enjoining, prohibiting, and restraining defendants, the Mayor and the Board of Aldermen of the Town of Westwego, and each of them, from issuing and selling certain refunding bonds, and further enjoining the defendants, and each of them, from carrying out in any respect whatsoever the terms and provisions of resolutions adopted on October 25, 1945, which, among other things, provided for the issuance and sale of these refunding bonds.

Defendants, the Mayor and the Board of Aldermen of the Town of Westwego, purporting to act under the provisions of Article XIV, Section 14, Subsection (g), of the Louisiana Constitution, adopted a resolution dated October 25, 1945, for the issuance and sale of $223,000 refunding bonds, Series 1, dated January 1, 1946, maturing serially on September 1 of the years 1947 to 1975, both inclusive, and bearing interest at a rate to be designated in the accepted bid for the purchase of the bonds not to exceed 3 per cent per annum, the interest to be paid semiannually on March 1 and September 1. The proceeds of the sale of these bonds were to be used exclusively for the purpose of paying the principal of certain outstanding bonds, being $62,000 refunding waterworks bonds bearing interest at the rate of 5 per cent per annum, and $161,000 refunding paving bonds bearing interest at the rate of 4¾ per cent per annum.

The judgment of the lower court in the case which bears No. 38267 on the docket of this court enjoined the issuance and sale of these refunding bonds and also enjoined and restrained the defendants from carrying out the terms of the resolution in any respect whatsoever.

On the same date, October 25, 1945, the defendants, purporting to act under the same provisions of the Constitution, adopted a resolution for the issuance and sale of $27,500 refunding bonds, Series 2, dated January 1, 1946, maturing serially on September 1 of the years 1946 to 1958, both inclusive, and bearing interest at a rate to be designated in the accepted bid for the purchase of the bonds not to exceed 3 per cent per annum. The proceeds of the sale of these bonds were to be used exclusively for the purpose of paying the principal of certain outstanding bonds, being $27,500 public improvement bonds bearing interest at the rate of 5 per cent per annum. ■ ff

In the case which bears No. 38268 on the docket of this court, the lower court also rendered judgment enjoining the issuance and sale of these refunding bonds and enjoining and restraining the defendants from carrying out the terms of the resolution in any respect whatsoever.

Payment of principal and interest of the bonds to be refunded is secured by a special tax levied annually, and payment of principal and interest of the refunding bonds, if issued and sold, will also be so secured. . , .\⅛ 'i

The parties in both of these cases are the same, and the issues are identical. For brevity we shall hereafter treat them as one case and refer to the outstanding bonds which the Town of Westwego, through its constituted authorities, is seeking to readjust, unify, and refund as the “present or outstanding bonds”, and refer to the bonds which the authorities seek to issue under the resolutions of October 25, 1945, as the “refunding bonds”.

Neither the present bonds which the authorities of the town now seek to refund nor the proceedings under which they were issued contain a specific provision that they shall be callable for payment and redemption before their respective maturity dates. All of these outstanding bonds are made payable to bearer and are interest-bearing coupon bonds issued under the provisions of Article XIV, Section 14, Subsection (g), of the Constitution, and have the qualities of negotiable paper under the Law Merchant. Some of these bonds bear interest at the rate of 4¾ per cent per annum, and the others at 5 per cent per annum.

In the resolution providing for the issuance of the refunding bonds it was stated that the purpose of the refunding operations was to readjust and refund outstanding -bonds into an issue of refunding bonds bearing a lower rate of interest and thereby effect a substantial reduction in the annual taxes.

The resolution of October 25, 1945, authorizing the issuance of these refunding bonds further provided that the present or outstanding bonds were called for payment on January 2, 1946, after which date they should bear no interest, provided that, in the event that funds were not available to pay them in principal and interest on that date, they should bear interest to the date on which such funds should become available, and that the principal of the outstanding bonds was to be paid from the proceeds of the sale of the refunding bonds, and that these proceeds were to be applied exclusively for that purpose.

Pursuant to the resolution, the refund- ' ing bonds were advertised on November 4, 11, and 18, 1945, for sale on sealed bids to be received on November 27, 1945. However, according to an agreed statement of fact which we find in the record, the May- or and the Board of Aldermen did not proceed with the sale of the bonds as advertised because of impending litigation, but it was their intention to sell the bonds and issue them in conformity with said resolution if they were not restrained from doing so.

The municipal authorities, also pursuant to the resolution, called the present or outstanding bonds for payment as of January 2, 1946, by advertisement on November 4, 11, and 18, 1945.

Acting under authority of Act No. 285 of 1944, the State Bond and Tax Board on November 19, 1945, denied the application of the Town of Westwego for authority to issue and sell the refunding bonds, giving as its reasons therefor that “In view of Judge Porterie’s opinion, and the decision rendered by the United States District Court for the Western District of Louisiana (Kansas City Life Insurance Co. v. Evangeline Parish School Board [infra]) * * * in a suit involving the identical question, and in view of a memorandum from the Office of the Attorney General of the State of Louisiana * * * it is the opinion of this Board that, since no callable provision is contained in either the outstanding Bonds or in the proceedings under which these Bonds were issued, the plan of redeeming such obligations prior to their maturity is not legally authorized and enforceable”.

Plaintiffs in their petition seeking the injunction allege themselves to be owners of real property in, and taxpayers of, the Town of Westwego, and it is admitted in the agreed statement of fact that they have a legal right as such to institute this suit.

The issue before us for decision in this case arises out of the conceded fact that neither the present bonds nor the proceedings for their issuance contain a specific provision that they shall be callable for payment and redemption before their respective maturity dates.

Plaintiffs contend that all of the proceedings leading to the issuance of the refunding bonds are illegal; that, under the provisions of Article XIV, Section 14, Subsection (g), of the Constitution, the defendants herein are not authorized to issue the refunding bonds for the purpose of effecting a reduction in the interest fate by accelerating the maturity of the outstanding bonds, and that under these provisions of the Constitution defendants are not authorized to call the outstanding bonds of the town for payment before their stated maturity.

Plaintiffs’ contentions are based on the fact that the resolution authorizing the issuance of the refunding bonds called the outstanding or present bonds for payment or redemption on January 2, 1946, and provided that they should not bear interest after that date. This provision, according to plaintiffs, impairs the contract of the holders of the outstanding bonds and is unconstitutional, null, and void. They contend that the resolution deprives the holders or owners of the outstanding bonds of their right to hold them and to collect interest thereon according to their tenor, and by doing so deprives the holders of their property without due process of law, in contravention of the Fourteenth Amendment of the Constitution of the United States and Section 2 of Article I of the Constitution of Louisiana.

Defendants, on the other hand, contend that, under the express provisions of Article XIV, Section 14, Subsection (g), they are empowered and authorized to issue and sell refunding bonds and to use the proceeds of the sale thereof exclusively in paying the principal of the bonds to be refund-ed for the purpose of readjusting, refunding, extending, or unifying the whole or any part of the town’s outstanding bonds only in order to effect a reduction in the rate of interest, in the total amount of principal and interest to be paid, and in the special taxes required to be levied to pay principal and interest; that the resolution issuing the refunding bonds may legally provide for the acceleration of the maturity of the indebtedness to be refunded; that the present or outstanding bonds are subject to be refunded and are callable for payment before their respective maturity dates.

The trial judge in his written reasons for judgment stated that in his opinion the decision in the case of Kansas City Life Ins. Co. v. Evangeline Parish School Board, 58 F.Supp. 39; 43, rendered by the United States District Court for the Western District of Louisiana, covered each and every point in the instant case, and based his decision on the reasoning in that case and quoted at length therefrom. We fully agree with the statement of the trial judge, and fully approve the reasoning given by the Federal court in the cited case.

Judge Porterie, the author of the opinion in that -case, set out at the beginning of the decision the following facts:

“The Evangeline Parish School Board, as the governing authority of School District No. 1 of the Fifth Police Jury Ward of the Parish of Evangeline, State of Louisiana, on February 18, 1937, issued $55,000 in principal amount of its bonds, dated January 1, 1937, each in the denomination of $500, bearing interest at 5%, the bonds maturing serially January 1, 1938, to January 1, 1962, and the interest payable annually. Bonds Nos. 1 to 15, which matured from January 1, 1938, to January 1, 1944, and all interest coupons maturing during the same period, were paid in due course at maturity and according to their tenor, leaving bonds Nos. 16 to 110, inclusive, of the principal amount of $47,500, and all of the unpaid interest coupons thereto attached, outstanding.
“On June 20, 1944, the school board adopted its resolution providing for the refunding of said bonds, and for the issuance of $47,500 of principal amount of refunding bonds, each of the denomination of $500, bearing 3% per annum interest represented by coupons, payable semi-annually, the same principal amount as in the original issue falling due in the same years as provided for the maturities of the bonds to be refunded, and providing, further, in Section 12 of the resolution of June 20, 1944, for the sale of the refunding bonds, and call and redemption of the outstanding bonds, with payment of their principal and interest only to date fixed for redemption.”

The Kansas City Life Insurance Company, the owner and holder in due course of all the bonds which the school board proposed to refund, instituted a suit for a declaratory judgment and an injunction to prevent such calling for redemption of the bonds and interest coupons in advance of their maturity, contending that the action of the school board was in violation of the contract and the due process clauses of both the Louisiana and the United States Constitutions.

The United States district court rendered judgment declaring the proposed refunding bonds unauthorized and restraining the school board from calling its outstanding bonds and coupons for redemption in advance of their maturities.

We now proceed to quote from that opinion at length.

“These bonds held by the plaintiff were issued in 1937 and at the time of the issuance Article XIV, Section 14(g), as amended in 1934, was then and is now the organic law of the State of Louisiana. This constitutional provision authorized the refunding of the bonds issued and the sale thereof at any interest rate not exceeding six (6%) per centum per annum and the application of the proceeds therefrom to the payment of the bonds issued. Any holder of the bonds so issued, whether the original purchasers or holder in due course, was confronted with the constitutional and statutory authority under which they were issued, and that the bonds were subject to refund by the issuing authority. Just what is the nature of this refund, and under what conditions may it be exercised are the questions to be answered in this case. The resolution of February 18, 1937, set it out in the proceedings and in the bond form that such bonds were issued under and by virtue of the authority conferred by Article XIV, Section 14, of the Constitution of the State of Louisiana, as amended, and this in itself, it is contended, was notice to the holder that the bonds were subject to call and redemption by the issuing body.
* ⅜ ‡ ⅜ jjc }j<
“The amendment was enacted in 1934. That was not only in the period of the depression, but at the time of its early first shock. Taxes were a burden and difficult to collect. The Legislature had, through successive measures, postponed the payment of taxes. Lands in great areas were being adjudicated to the State for taxes. The payment of bonds in principal and interest by the various political subdivisions of the State was practically impossible, especially in Louisiana. In order to ease the burden of this indebtedness, communities throughout the whole country were extending the time for the payment of such indebtedness by means of refunding operations. At that time Article 14, Section 14(g), authorized the issuance of refunding bonds but only ‘when authorized by a vote of a majority, in number and amount, of the qualified property taxpayers thereof * * The purpose of the amendment was to simplify the procedure necessary for the issuance of refunding bonds. The object sought to be obtained was the lessening of the burden cast upon Louisiana communities by the necessity of paying off bonds as they matured. That this is so clearly appears from the requirement of the Act that the maturities be so fixed as to effect a consequent reduction in the amount of the annual taxes pledged. There was no intention on the part of the Legislature or on the part of the people to amend the provisions of Act No. 46 of 1921, Ex.Sess., so as to require that all bonds be callable. The purpose was to extend the period within which the debt must be paid.
* * * * * *
“We should analyze our ruling to see if it be susceptible of reasonable inter-" pretation and to determine if it bring about a practical situation. We believe the words ‘re-adjusting, refunding, extending or unifying the whole or any part of its outstanding bonds [issued hereunder]’ indicate by their very definitions, by their contextual meaning, and by the physical arrangement of the section of the Article, that the original bond contract in essence is not to be altered; that the principal outstanding has to remain the same, as well as the rate of interest.
“The contract herein evidenced by a bond includes (a) the promise to repay the principal of the bond on the date specified in the bond; and (b) a promise to pay interest at a specified rate on specified dates until the maturity of the bond. We conclude that when the agreement to pay interest is evidenced by coupons attached to the bond, such coupons are separate, negotiable instruments. Jones, Bonds and Bond Securities, Volume 2, Section 715, page 174; Thomson v. Lee County, 3 Wall. 327, 70 U.S. 327, 18 L.Ed. 177; Conger v. City of New Orleans, 32 La.Ann. 1250. The agreement on the part of the issuing community to pay interest and the right on the part of the bondholder to receive such interest until the maturity of the bond is a vital part of the ¡contract. The obligation to pay such interest to the maturity of the bond cannot be impaired. Const, of La., Art. 4, § 15.
"The above items of obligation form a part of the contract evidenced by the bonds unless (a) the law under which the bonds are issued provides that they must be callable for payment prior to maturity; or (b) unless the proceedings authorizing the bonds so provide; or (c) unless the bonds themselves so provide. Road District No. 1, Jefferson County v. Sellers, Attorney General, 142 Tex. 528, 180 S.W.2d 138; Cochran County v. Mann, 141 Tex. 398, 172 S.W.2d 689; Board of Commissioners of Clark County v. Woodbury, 8 Cir., 187 F. 412; School District No. 78, Linn County v. Miley, 114 Kan. 741, 220 P. 281; Sebera v. Cobb, 41 Idaho 386, 238 P. 1023; City of Memphis v. Savings Bank, 99 Tenn. 104, 42 S.W. 16; State ex rel. Enright v. Kansas City, 110 Kan. 603, 204 P. 690; State ex rel. Board of Fund Commissioners v. Smith, 339 Mo. 204, 96 S.W.2d 348; City of Spartanburg v. Leonard, 180 S.C. 491, 186 S.E. 395; Catholic Order of Foresters v. State, 67 N.D. 228, 271 N.W. 670, 109 A.L.R. 988.
“We subscribe to the theory advanced by the defendant that bond purchasers are bound to know the law of the State. We do not agree with the defendant, however, that the law of the State is that there is power in the bond-issuing authority to refund these bonds at its discretion, or, to put it from a practical viewpoint, as in this case, whenever the interest rate of the future becomes lower than the interest rate specifically written in the contract.
# * * * ⅜ ⅜
“We believe that the meaning of Article XIV, § 14(g), is that an issue of bonds when in actual default, or imminently so, by mutual- agreement, even though in the case when the right of refunding has not been stated in the bond, may be refunded. That was actually the reason why the amendment was born. That was the situation existing in 1934, the year of its birth. The holders of defaulted bonds wanted fresh paper. The practical status was that the refunding bonds could find no sale for cash and all of the refunding at that time brought about an exchange of old bonds for new bonds. The bondholder was benefited in that he had henceforth in his possession undefaulted bonds. Ozenne et al. v. Board of Com’rs of St. Landry and St. Martin Gravity Drainage Dist. No. 1 of Parishes of St. Landry and St. Martin, 183 La. 465, 164 So. 247.
⅜ ⅜ * * ⅜ ⅝
“Summarizing, the laws of the state of Louisiana contain no provision directing that bonds issued by its political subdivisions should be payable before maturity. The terms of the bond itself do not so provide, the terms of the proceedings authorizing the bond do not so stipulate and, as we have shown, the statutes and the Constitution do not so enable.
“The instant bonds have all the characteristics of negotiable instruments; if anything, the obligations of bonds are the more solemnly expressed. The commercial world has profited greatly from the brevity of content, the strictness of application, and the immutability of obligation, of our bills, notes, and cheques. We should not depart here; it was not the intent of the state to do so; the Constitution and the statutes thereunder do not so provide.”

The United States Circuit Court of Appeals for the Fifth Circuit, in affirming the judgment of the lower court in the Evangeline Parish School Board case, reported 153 F.2d 611, 612, said:

“We agree with the court below that the existence of a constitutional or statutory right to refund bonds does not necessarily imply the right to call them for payment if they are not due. The bonds here sought to be refunded were issued in compliance with the provisions of said act of 1921. They contain a solemn covenant to pay a fixed rate of interest for a definite term. The detachable coupons bear no notice of future defeasance through prior redemp-tions.
“Subsection (g) of said section 14 of the state Constitution is not subject to the interpretation here sought to be placed upon it. The mischief to be remedied and the object to be attained by the amendment of 1934 were the elimination of the necessity for an election and the simplification of procedure for the issuance of refunding bonds. It permits refunding only where the bonds to be refunded are available for cancellation either because of their voluntary surrender or by reason of their having become due.
“It was known when the act and constitutional amendment were adopted that bonds which are callable for redemption before maturity do not command a price as high as do bonds that are not callable. No optional provision for earlier maturities was inserted in the bonds in question, and the district in its sale of the bonds is presumed to have been benefited accordingly. To force the surrender of such bonds before maturity with payment of interest only to date of surrender, or to compel them to be exchanged for refunding bonds bearing a lower rate of interest, would impair the contractual obligations of the appellant in violation of the appropriate provisions of both the state and federal constitution? Const, of La. Art. 4, Sec. 15; Art. 1, Sec. 10, cl. 1, Const, of U.S. The state statutes and state constitutional provision authorizing the issuance of the bonds in question admit of no such interpretation.”

The portions of the opinions hereinabove quoted answer every pertinent contention of defendants-appellants in the instant case, and it would serve no useful purpose for us to discuss them.

For the reasons assigned, the judgments appealed from are affirmed; costs to be paid by defendants-appellants, Mayor and Board of Aldermen of the Town of West-wego, insofar as allowed by law.


source: Caselaw Access Project

author: TALIAFERRO, Judge.

license: Public Domain

text:
    KITCHINGHAM v. HUMPHRIES.
    No. 7088.
    Court of Appeal of Louisiana. Second Circuit.
    Nov. 26, 1947.
    Hudson, Potts, Bernstein & Davenport' and Fred Fudickar, Jr., all of Monroe, for appellant.
    Cameron C. Minard, of Columbia, for appellee.
   TALIAFERRO, Judge.

Plaintiff sued to recover damages inflicted upon his school bus in a collision with a bus of the defendant, and for loss of earnings resulting from deprivation of use of the bus for several months. The amounts sued for are: Expense of repairing bus $2,796.72 and loss of earnings $1,280. The case was tried below and there was judgment rejecting plaintiff’s demand. He appealed to this court.

It is obvious that this court is without jurisdiction of this appeal, because under Section 10 of Article VII of the Constitution, suits wherein more than Two Thousand ($2,000) Dollars are involved, exclusive of interest, “except in suits for damages for physical injuries to, or for the death of a person, or for other damages sustained by such person or his heirs or legal representatives, arising out of the same circumstances,” shall be appealable to the Supreme Court. This suit, primarily, is a direct action to recover damages to property.

Therefore, for the above reasons, in keeping with Act No. 19 of 1912, this appeal is hereby tranferred to the Supreme Court of the State of Louisiana, to be there heard and determined as if originally appealed to that court; and the appellant herein is given sixty (60) days within which to file transcript of the record in the Supreme Court, in keeping with the rules thereof; and failing- to do so within said period, the appeal shall be conclusively deemed to have been abandoned.

KENNON, J., absent.


text:
    DEPARTMENT OF HIGHWAYS v. WALL.
    No. 7037.
    Court of Appeal of Louisiana. Second Circuit.
    Nov. 26, 1947.
    Arthur B. Hammond, of Baton Rouge, D. Ross Banister, of Monroe, and Joseph A. Loret, of Baton Rouge, for appellant.
    Clarence D. Wall, in pro. per.
   TALIAFERRO, Judge.

Plaintiff appealed from judgment rendered pursuant to the verdict of a jury of freeholders that fixed the market value of a small area of land, owned by the defendant, right of way over which was sought by plaintiff by expropriation for highway purposes.

Defendant did not answer the petition, therefore, no special pleas or defenses were tendered. He represented himself during trial and has not provided this court with briefs. The sole question for determination is the value of the land sought to be condemned.

We are unable to decide from the record the exact value defendant places on the small parcel of land, but, apparently, he is satisfied with the value as fixed by the jury, same being Two Hundred Twenty-Five ($225) Dollars. On the other hand, appellant complains strenuously of this valúation, taking the position that it is excessive and not warranted by the testimony. It contends that the value of the land should be fixed at between Twenty-Five ($25) Dollars and One Hundred ($100) Dollars.

The area of the land in controversy is .86 of an acre. It lies between two nearly parallel arcs and is adjacent to the right of way of the existent state highway route No. 489 that runs from Farmerville in Union Parish to Monroe in Ouachita Parish. The land is necessary to plaintiffs plan and purpose to widen and re-align said highway at that point. It is a part of a larger tract owned by defendant and is. not improved, but, with adjacent lands, is being used for pasture purposes. It is rough, slopes from the line of the present highway, is traversed by a branch and is subject to overflow from a nearby bayou. Potentially, its value for farming purposes is meager.

Plaintiff introduced five witnesses who testified concerning the. value of the .86 acre tract. Two realtors of many years’ experience, who live in the City of Monroe, and who, not long prior to the trial, inspected the land, appraised it at Eighty-Six ($86) Dollars. A farmer who owns fifty acres miles from the land, valued it at One Hundred ($100) Dollars. An owner of rural and city property, living in West Monroe, Louisiana, appraised it at from Twenty-Five ($25) Dollars to Thirty ($30) Dollars. An attorney of the City of Monroe, who owns lands three miles from the ..86 acre tract, valued it at Fifty-Five ($55) Dollars. Defendant offered no testimonial proof touching the question of value. He did not himself testify on that issue. He did introduce in evidence some deeds wherein small tracts of improved real estate, not a great distance from the .86 acre tract, were sold, but these are not in the record. If in the record, they would have little or no weight in determining the value of the land in question.

The average of the values fixed by said five witnesses is Seventy-One and 40/100 ($71.40) Dollars. There certainly is no testimony whatever in the record to warrant the valuation fixed by the jury. AH things considered, we are of the opinion -.that the valuation fixed by the two experienced realtors is fair and should be accepted as determinative of the question. Anent fixation of value of land expropriated for public purposes, Articles Nos. 2627 and 2628 of the Revised Civil Code read:

“If the owner of a thing necessary for the general use, refuses to. yield it, or demands an exorbitant price, he may be divested of the property..by the authority of law.
“In all cases, a fair price should be given to the owner for the thing of which he is dispossessed.”

Fair value means market value.

See also: Louisville & N. R. Company v. R. E. E. DeMontluzin Company, Inc., 166 La. 211, 116 So. 854; Louisiana Highway Commission v. Paciera, 205 La. 784, 18 So. 2d 193; Louisiana Highway Commission v. Israel, 205 La. 669, 17 So.2d 914; State v. Barbe, 209 La. 185, 24 So.2d 372.

The reason for referring to a jury of freeholders the question of the value of real estate taken for public purposes is well known to all; and in a case where the proof submitted on the issue of value is conflicting, the jury’s fixation of value should not he disturbed unless it is manifestly erroneous. But, in no event is the jury warranted in ignoring the testimony introduced in the case and substituting therefor their own private ideas or opinions on the issue of value. See State v. Barbe, supra. Evidently, that is what happened in this case. We are forced, in view of the uncontradicted testimony, to disagree with the jury’s verdict and to reduce it materially. •

It has been frequently held by the Supreme Court and Courts of Appeal of this state, and laid down as fundamental rule of law and equity, that “courts will protect the public from extortionate demands and they also will guard the legitimate interests of property owners.” And, in Louisiana Highway Commission v. Merchant, La.App., 174 So. 696, this court, as disclosed from Section 2 of the syllabus, held:

“Courts have inherent power to review jury’s award of damages for property taken for public purposes, and to correct obvious errors made by jury.”

See also: Louisiana Highway Commission v. Hancy, La.App., 158 So. 243.

Therefore, for the reasons herein assigned, the judgment appealed from is amended by reducing the amount thereof to Eighty-Six ($86) Dollars, and, as thus amended, the judgment is affirmed. Defendant is cast for the costs incurred in this court but all other costs are assessed against plaintiff.

KENNON J., not participating.


text:
    McCURDY v. CITY CAB CO. et al.
    No. 7139.
    Court of Appeal of Louisiana. Second Circuit.
    Nov. 26, 1947.
    Matthew C. Redmond, of Monroe, for appellant.
    Theus, Grisham, Davis & Leigh, of Monroe, for appellees.
   TALIAFERRO, Judge.

This is a tort action in which the plaintiff seeks damages of City Cab Company of Monroe, Louisiana, C. W. Boyce, owner thereof, and John Sullivan, its employee, sustained by him as the result of an allegedly unprovoked assault and battery committed upon him by the said Sullivan.

Plaintiff alleged that at about the hour of 10:15 P.M. on October 17, 1946, he walked into the office of the cab company on Harrison Street in said city and sought to engage a taxi to carry him to his home; that he was informed by someone in the office that there was not then a taxi available, but that one would be very soon; that as he stepped backward through the office door and was still talking to the man in the office (afterwa-rds identified as Sullivan), he was struck so violently on the back of his head by an unknown person he fell to the ground semi-conscious; that while in this position the man in the office (Sullivan) came out and kicked him about the chest; that he was so seriously injured from said kicking he is now permanently disabled to work, etc.

Defendants, in defense of the action against them, allege that on the day and hour stated by plaintiff, he, from the opposite side of the street, approached the company’s office in a boisterous, profane and hostile manner, and without cause or provocation, cursed Sullivan, who was then in charge of the office, and while threatening him with bodily harm, attempted to enter therein; that Sullivan, who suffers serious physical deficiencies, repelled plaintiff by placing his right foot against his chest and pushing him from the office; that plaintiff, then being under the influence of intoxicating liquor, fell to the ground and was somewhat, though not seriously injured; that immediately thereafter, to plaintiff's knowledge, the police department of the city was called and he hastily left the scene.

Defendants specifically plead that plaintiff was the aggressor in the difficulty and for this reason is without right to recover herein. In the alternative, they plead that should it be found and held that Sullivan is to any extent liable to plaintiff for the injuries he sustained, in that event, defendant Boyce is not responsible to him since the acts of said Sullivan were beyond and not in the scope of the duties of his employment and were not performed in furtherance of nor to protect his employer’s interest.

At the conclusion of trial below, the court immediately rendered judgment rejecting plaintiff’s demand and dismissing his suit.' He prosecutes appeal to this court.

At the inception of the trial, counsel for Boyce objected to the introduction of any evidence insofar as concerned Boyce for the reason that the petition did not disclose" a cause or right of action against him. The objection was overruled and the testimony, it was ruled, would be admitted subject to the objection. In this court, on behalf of defendant Boyce, exceptions of no cause and no right of action were filed and are briefly urged upon our attention.

We are of the opinion that the exceptions are well founded. Plaintiff does not allege that when kicked by Sullivan he was acting within the scope of his duties as employee, nor in furtherance of his employer’s business. He does allege that at the time, Sullivan “had charge of the City Cab Company and was the agent and employee of C. W. Boyee.” Simply because one is the employee of another and while so employed, on his own account, engages in a difficulty with a third person, even when on the employer’s premises, does not render the employer liable for the consequences of the unlawful act of the employee. In this case, according to the allegations of the petition, after plaintiff was 'knocked down, Sullivan without any provocation, simply left the office and voluntarily assaulted him. Plaintiff does not al-lege that the lick to his head was delivered by an agent or employee of the company nor that -there was any relation or connection between this blow and the battery committed upon him by Sullivan. However, as we fully agree with the trial court’s decision on the merits, sustaining of the exceptions can have no material bearing- on the final outcome of the case.

There are two main issues in this case. The first is: Who was the aggressor in the difficulty out of which plaintiff sustained injury? and second: If Sullivan was not the aggressor, did he employ more force than was necessary, under the circumstances, to protect himself against plaintiff carrying into effect the threats made by him?

Plaintiff’s testimony substantially supports the material allegations of his petition. He did not attempt to identify the person he says struck him on the head, nor did he assign any reason for the attack upon him. This question may easily be dismissed from further consideration as the record, in our opinion, clearly establishes that he was not struck on the head by anyone. We think it obvious that the abrasions found by the doctor on plaintiff’s head were caused from striking it against the sidewalk.

Plaintiff’s testimony is, to a material extent, corroborated by that of a man named Marvin Gibson, a fellow workman. Gibson testified that he was on the opposite side of the street, fifty feet distant, when his attention was attracted toward the office by a “tussle” there; that at the time plaintiff was on the ground on his knees and hands trying to arise, “and a man stepped out of the cab door and kicked him”. In the courtroom, Gibson identified Sullivan as being the man who, he says, did the kicking. He testified that there was another man in the office at the time and one outside, and that there were taxis about the premises. This testimony flatly contradicts that of plaintiff who says there were no taxis there at the time and no one in the office or about the premises save Sullivan. In other respects, some minor and some material, the testimony of these two men is at variance. We seriously doubt that Gibson was present and saw or heard any part .of the trouble. Not one of the several persons present saw him there. We believe that plaintiff went to the place, not to hire a taxi, but to create trouble.

The record makes it clear that plaintiff 'had been imbibing very freely of strong •drink the evening of the altercation between him and Sullivan. He was at the time intoxicated and his friend, Gibson, admits that he, too, had taken on a few drinks that evening.

The overwhelming preponderance •of the testimony is against plaintiff’s version of the facts out of which this suit .arose, and supports defendant’s version thereof. Plaintiff’s version of these facts does not make sense. It is almost wholly ■unreasonable and contrary to human expe■rience. He voluntarily testified that some two months prior to the date of the trouble with Sullivan, he was driven to his home in a taxi and the driver undertook to charge 'him double fare. Strange as it may seem, lie did not know the name of the driver nor .could he recall the name of the company for whom he worked. Some argument en.sued from the effort to collect the double ■fare and, we infer, plaintiff took umbrage .at the driyer’s conduct. With a rankling •resentment in his heart, and his stomach .charged with strong liquor, he evidently ■decided to go forth and even up scores with •taxi companies in general, beginning with that of the defendant, Boyce. Just before he reached defendant’s office he was heard to say that he was “going to clean out this joint’’.

Several witnesses, including Sullivan, testified that they observed plaintiff while •coming in the direction of defendant’s office, but on the opposite side of the street,, .and that when he was opposite the office he began cursing loudly and threw his hat .out into the street. After crossing the •street he approached one of defendant’s taxi drivers, named Carl L. Stevens, and •asked him who was in the office. He was told that Mr. Sullivan was in charge, to which h@ loudly replied: .“Well, he is a no-good S O— B-, ain’t he ?”

Defendant’s office and waiting room are within the body of an old street car. It is parallel to the sidewalk and its floor is not over eighteen inches above it. We are not convinced that plaintiff got entirely into the small space used as an office, but are certain he intended to go in while cursing and abusing Sullivan and acting exceedingly hostile toward him. He was prevented from getting in only by Sullivan’s quick action. Had plaintiff been standing in the office Sullivan’s foot could not have contacted his breast.

Sullivan testified, and he is abundantly corroborated, that he heard plaintiff cursing him before he reached the office door; that as he got to the door he told plaintiff to go away or he would call the police; that he got up to call the police, taking hold of the telephone receiver, when plaintiff declared: “Oh, I will just come in there and snatch your head off”; that plaintiff came to the door with his right hand in his pocket and at this juncture he was shoved backward and away from the door by the force of Sullivan’s foot and leg. He fell to the sidewalk, but quickly attained a sitting position thereon and remained there until he heard the call for the police.

The law applicable to cases of this kind is no longer in doubt; on the contrary, it is well established by the jurisprudence of the state.

We had occasion to discuss at length and pass on the legal question involved in this case, in Sheppard v. Causey, La.App., 8 So.2d 86, 94. The applicable rule of law was therein expressed in the following language, to-wit: “The settled jurisprudence of this State is to the effect that one who provokes a difficulty with another cannot recover damages for injuries inflicted upon him as a result thereof even though the conduct of the one who inflicts the injuries was not justified in law.”

An array of cases is cited in the opinion to support the quoted rule.

Sullivan’s back is broken and his left leg and side are partially paralyzed. He is fifty years old. Plaintiff is forty-six years of age and is a strong, vigorous man. Sullivan testified that he believed from plaintiff’s words and acts that he intended to “work me over”, and he lost no time in acting to prevent this being done. The conclusion he sttddenly formed as to plaintiff’s intentions is well supported by the preponderance of the testimony in the case. Surely, under the circumstances, plaintiff was the aggressor. He brought on the difficulty. The force used to frustrate his unwarranted and unlawful intentions was not excessive.

For the reasons herein stated, the judgment appealed from is affirmed at plaintiff’s cost.

KENNON, J., not participating.


author: OTT, Judge.

text:
    WELSH v. GULF STATES UTILITIES CO. DUNN et al. v. SAME.
    No. 2937.
    Court of Appeal of Louisiana. First Circuit.
    Nov. 21, 1947.
    Brumfield & Hebert, of Baton Rouge, and W. T. Bennett, of Clinton, for appellants.
    Taylor, Porter, Brooks & Fuller, of Baton Rouge, for appellee.
   OTT, Judge.

The two above entitled suits were consolidated for the purpose of trial but separate judgments were entered in each case. The plaintiffs in one suit are the widow and heirs of James Dunn who was electrocuted on September 7, 1941, while assisting the plaintiff in the other suit, Charley Dawson Welsh, in drilling a well on the premises occupied by Welsh some four or five miles from the City limits of Baton Rouge. Welsh had leased the property from Tony Roppolo, and the defendant Utilities Company, under permission from Roppolo, had erected a high powered line across this property, which line runs along Essen Road. This power line consisted of three wires; the top wire is called the primary wire, carrying 2,300 or 2,400 volts; the middle wire, known as the neutral or ground wire, carries no electrical current except to the ground, and the bottom wire carries a low voltage of 120 volts. At the point of the accident, the top wire was 28½ feet from the ground, the center wire a little more than 25 feet from the ground, and the bottom or secondary wire was about 23½ feet from the ground.

On Sunday morning, September 7, 1941, the deceased Dunn offered his services to Welsh in drilling this shallow well. There were several other men present, all of whom were negroes except Roppolo. Welsh built a frame in the form of a tripod 8 or 10 feet high with a cross board through which the well pipe was run in order to hold it in place. They were using a bit or auger with which the well was being bored. This auger was attached to a drill stem or iron pipe, the combined length of the auger and pipe being some 31 or 32 feet. The lower part of the pipe was 2 inches in diameter, and the upper part was 1 ½ inches in diameter. The well was located at an off-set of 8 or 10 feet from a point directly under the power line. As the well was ■drilled, it was necessary to pull out the auger from the hole in the ground and remove the mud and dirt from the bit. A board was placed near the hole for the purpose of resting the auger on it while the auger was being cleaned. It was during one of these operations that Dunn was electrocuted and Welsh received a severe electric shock.

The auger and pipe attached to it had been pulled out of the hole and placed on the board near the well for cleaning. Welsh and Dunn raised the auger with their hands about one foot from the ground in order to place it back in the hole, and for some reason the top of the pipe came in contact with the high powered wire, resulting in the electrocution of Dunn who died almost immediately after the current penetrated his body. Welsh received at the same time a shock but not of sufficient force to prove fatal.

The widow and heirs of Dunn brought this suit to recover damages on account of his death, the widow claiming $25,100 and each of his four children claiming $8,000. Welsh brought a suit claiming damages for personal injuries in the total sum of $12,500. The trial judge dismissed the suit of the plaintiffs in both cases, and they have appealed.

The negligence charged to the defendant company is that it failed to insulate this high powered wire, failed to post proper warning signs of danger, and constructed ■the power line too close to the house in which Welsh lived, and did not sufficiently clear the line of trees. The defendant company denied any negligence and alleged that its power line was constructed in a proper manner and according to regulations. In the alternative, defendant pleaded contributory negligence on the part of Dunn and Welsh.

■ There seems to be little dispute as to the facts. It is conceded that the high voltage ■wire was not insulated. It is the principal contention of the plaintiffs that the failure to insulate this high voltage wire constituted negligence. In fact this is about the only ground of negligence under which the plaintiffs could hope to hold the defendant liable. The evidence shows there were no trees or obstructions at the point of the accident which could have had anything to do with the accident. The defendant company had a right of way across the Roppolo property, and the line was constructed under a permit.

There were several houses — estimated all the way from 10 to 30 — within the neighborhood of the Roppolo property. Several electrical experts testified in the case, one of them being Dr. C. W. Ricker, the head of the Electrical Engineering Department of Tulane University, and who has no connection with the defendant company. It appears from the testimony of the experts that it is not customary to insulate high voltage wires, except to protect them from cross wires or other- objects within close range. Reference was made to the National Electrical Code gotten out by the Bureau of Standards of the National Government in which safety rules as to the construction and maintenance of electric lines are provided for. Copies of these regulations are in the record. These regulations provide that an electric line carrying a voltage of 750 to 15,000 volts must clear the ground by at least 15 feet, and there is no provision requiring the wires carrying such voltage to be insulated.

It is clear from the evidence that the accident occurred when the top of the pipe which these two men were handling slanted or leaned over from a vertical position while the pipe was being lifted and the top of the pipe came in contact with the high voltage wire. While there was some effort made to show that the pipe was drawn to the wire, or that the highly charged current jumped over a space and contacted the pipe, in our opinion, the facts show that the top of this pipé fell over or leaned over and came in contact with the high powered wire.

Counsel for plaintiffs rely very largely on the case of Hebert v. Lake Charles Ice, Light and Waterworks Company Ltd., 111 La. 522, 35 So. 731, 64 L.R.A. 101, 100 Am.St.Rep. 505, in support of the claim that it was the duty of the defendant to insulate the high voltage wire. There is a statement in the opinion in that case to the effect that it is the duty of a light company carrying electricity by over head wires strung along the streets of a city to keep its wires insulated in order to guard against the effect of objects coming in contact with the wires, yet the holding in that case must be restricted to the facts presented. The defendant in that case had failed to insulate its wires where a telephone wire was built directly above and across the electric wire, the injury in that case was caused by reason of the breaking and the falling of the telephone wire against the electric wire which was not insulated. The deceased came in contact with the electric wire which had fallen to the ground.

An electric company is under the ■duty of insulating its high voltage wires where they cross or are likely to come in contact with other wires and other •objects which may transmit the current to points and places at which it may be reasonably apprehended that persons may come in contact with the current. The place at which the men were drilling the well in this case was in a yard near a residence, and the electric company could not have reasonably anticipated that these men would raise a pipe or other object over 28 feet from the ground and thus come in contact with this wire.

The case of Bujol et ux. v. Gulf States Utilities Company, La.App., 147 So. 545, •decided by this court in 1933, was very similar to the situation in the present case. In that case a young man was assisting in •connecting a water pipe line along the highway then under construction within the corporate limits of the town of Jennings, the high powered wire running through an .abandoned rice field enclosed within a barbed wire fence. Young Bujol was helping raise a water pipe over 22 feet long in •order to shake the rust out of it before laying it in the ground along side the highway. He was standing on the top or the side of a dam just inside the barbed wire fence and almost directly under the power line. The deceased and his helpers were standing the pipe on end to clear it of rust when the top end of the pipe came in contact with the high voltage wire and resulted in the electrocution of young Bujol. Among the charges of negligence leveled against the electric company in that case were its failure to insulate the high powered wire and its failure to give propel warning.

This court found that no negligence was shown on the part of the defendant in that case because of its failure to insulate its wires or post warning signs. The only difference in that case and the present case is the fact that in the cited case the accident occurred along the side of a highway and inside an abandoned rice field, while in the present case the accident occurred along a road in a suburban area and inside the yard of a private residence.

The case of Webb v. Louisiana Power & Light Company, La.App, 199 So. 451, 453, decided by the Second Circuit in 1940, is even more pertinent to the present case and is decisive of the issues here involved. Webb was electrocuted while pulling the pipe from a well in his yard. Several joints of pipe had been pulled from the well when the deceased and the men helping him lost control of the pipe and it fell against a high-tension wire running parallel with the yard fence and a gravel road, the wire being a little over 24 feet from the ground and 18 or 19 feet from the well from which the pipe was being drawn.

After stating the law as it relates to the duty of an electric company to protect its high powered lines, the court said in the Webb case:

“The Bureau of Standards of the United States Department of Commerce, as is disclosed by the evidence adduced in the instant case, provides safety rules for the installation and maintenance of electrical supply and communication lines. These rules permit the employment of uninsulated wires, such as are involved herein; but require that they have a minimum vertical clearance above the ground of 15 feet where they cross over spaces on ways accessible to pedestrians only. As before shown, defendant’s line affords a vertical clearance above ground of more than 24 feet, or 9 feet in excess of the stated minimum ; hence there was no violation by defendant of the Federal government’s safety requirements.
“It appears to us that defendant fulfilled all legal duties imposed on it. Although the wires in question were not insulated, there was a compliance with the other alternative, namely, the placing of them beyond the danger line of contact with human beings. While engaged in the ordinary course of their affairs, pedestrians would experience no harm from them. Defendant could not have reasonably anticipated that decedent would withdraw from the ground connected well pipe of length, here more than 30 feet, that would make contact with the transmission line. On the contrary, it could have reasonably expected that in the event of the pulling of the pipe from the well, a disassembling of it, joint by joint, would be the course pursued.”

As we have reached the conclusion that the defendant company was guilty of no negligence, there is no occasion to discuss the pleas of contributory negligence in these cases.

For the reasons assigned, separate decrees will be entered in these cases affirming the judgments appealed from.


text:
    Charley Dawson WELSH v. GULF STATES UTILITIES CO.
    No. 2937.
    Court of Appeal of Louisiana. First Circuit.
    Nov. 21, 1947.

    Brumfield & Hebert, of Baton Rouge, and W. T. Bennett, of Clinton, for appellant.
    Taylor, Porter, Brooks & Fuller, of Baton Rouge, for appellee.
   OTT, Judge.

For the reasons assigned in the opinion in the'consolidated cases of Welsh v. Gulf States Utilities Company and Dunn et al. v. Gulf States Utilities Company, La.App., 32 So.2d 723, this day handed down, the judgment appealed from in the above entitled cause is hereby affirmed.


text:
    Bessie Mae DUNN et al. v. GULF STATES UTILITIES CO.
    No. 2938.
    Court of Appeal of Louisiana. First Circuit.
    Nov. 21, 1947.
    Brumfield & Hebert, of Baton Rouge, and W. T. Bennett, of Clinton, for appellant.
    Taylor, Porter, Brooks & Fuller, of Baton Rouge, for appellee.
   OTT, Judge.

For the reasons assigned in the opinion' in the consolidated cases of Welsh v. Gulf States Utilities Company and Dunn et al. v. Gulf States Utilities Company, La.App., 32 So.2d 723 this day handed down, the judgment appealed from in the above entitled case is hereby affirmed.


text:
    JOINER v. GAFFORD.
    No. 7107.
    Court of Appeal of Louisiana. Second Circuit.
    Oct. 31, 1947.

    Rehearing Denied Nov. 26,1947.
    Love & Bailey, of Shreveport, for appellant.
    Browne, Browne & Bodenheimer, of Shreveport, for appellee.
   TALIAFERRO, Judge.

Plaintiff seeks judgment against defendant for $265.05, of which amount $15.05 represents the price of lumber sold and delivered and $250 represents the price charged for converting into molding a goodly quantity of pine and gum lumber furnished by the defendant. It is alleged that it required one hundred hours to do the processing and that a charge of $2.50 per hour was made therefor.

By amended petition, filed in response to an order of court sustaining a plea of vagueness, plaintiff alleged that the charge of $2.50 per hour was based upon a tacit agreement between him and defendant. But, in the alternative, he pleads that should it be held that there was no tacit agreement on the subject, he is entitled to recover on quantum meruit the amount for which he sued. He further avers that the charge was reasonable and in accordance with charges for like services then being rendered by millwrights and others engaged in like business in the City of Shreveport. After amicable demand on and refusal by defendant to pay the amount for which he was sued, the plaintiff caused to be registered a lien against the building in which the lumber was incorporated. Recognition and enforcement of this Hen is prayed for.

Defendant admits owing the item of $15.05 and at the beginning of trial tendered the same with interest and accrued court costs to plaintiff. The tender was refused. Further liability is denied by defendant. He also admits that he did engage plaintiff to convert into molding a quantity of gum and pine lumber which he furnished. He avers that the work done by plaintiff was not at all satisfactory and that in order to put the lumber in a condition so that it could be utilized for the purpose desired, the very condition plaintiff obligated himself to accomplish, it was necessary that the molding be re-processed, which was done at a cost to defendant of $143.

Answering further, defendant alleges that if plaintiff is entitled to recovery of any amount on his alternative demand, it should be limited to $1.25 per hour for not over 40 hours; that the work was not done in a craftsmanlike manner; that the claim of 100 hours to do the work and the charge of $2.50 per hour therefor, are both excessive and exorbitant. Defendant prays that plaintiff be required to accept the tender and that the inscription of the lien against his property be ordered canceled; and in all other respects, that plaintiff’s demand be rejected.

There was judgment for plaintiff for $122. Nothing is said therein about the lien. Only defendant appealed. Plaintiff has not answered the appeal, and, therefore, the judgment cannot be amended in his favor.

Obviously, the lower court charged plaintiff with the amount ($143) necessarily expended by defendant to re-mill the gum lumber. As to the pine molding, defendant admits it was in satisfactory condition. The controversy revolves around the gum molding.

The record does not fix the number of hours required to convert the pine lumber into molding. Plaintiff’s testimony and that of his workman, in chief, is to the effect that it required at least 100 hours to do all the work. He was unable to produce respectable record of the exact number of hours employed to finish the work. One of defendant’s witnesses corroborated plaintiff’s contention on this issue. He said that about 100 hours would be required to run all the lumber through molding machines. Other witnesses were of a different opinion. On this issue the trial judge found for plaintiff. There is no manifest error in this ruling.

There was no agreement between the parties as to the price to be charged for the work. Therefore, this question also became quite controversial. The testimony is conflicting as to what the hourly charge should have been, but, taking the record as a whole, we are again disposed to agree with the lower court’s finding on this issue. Defendant admits that, he paid one workman $2.50 per hour for 40 hours to re-work some of the gum.

It is definitely established that the gum molding was in an unsatisfactory condition when delivered by plaintiff to defendant. The molding was desired for use in a building being constructed by defendant, who insisted upon it being finished interiorly in a first class manner. Plaintiff was positively informed concerning defendant’s wishes in this connection and agreed to meet his desires f.ully.

Plaintiff contends that the gum lumber was green and wet, hence a finish of the character demanded by defendant could not be had. The record does not clearly sustain this position. However, if the lumber was in that condition, plaintiff should have so informed defendant and not have proceeded with the work until all had been re-milled. He had every reason to believe that defendant would not accept the lumber in the condition about which there is no disagreement. In addition to this, plaintiff’s workman saw all the lumber and selected most of it before transferring it from the lumber yard to plaintiff’s place of business. He made no objection to its condition.

The outlay made by defendant to render usable the gum molding was necessary. Before he did this he called upon plaintiff to re-work it in order to bring it up to required conditions, but plaintiff refused to do so. He was thereafter clearly in default; and in such circumstances, defendant was obviously within his rights when he made necessary expenditures to accomplish that which plaintiff was obligated to do and had failed.

Testifying in rebuttal, plaintiff and his workman stated that it required 98 hours to process the pine lumber alone. This shift in position was manifestly resorted to in the hope of sustaining the demand without reference to a charge for processing the gum lumber; in other words, in practical effect, it implies that no amount had been sued for for processing the gum lumber. This position is palpably in conflict with the contention and position of plaintiff throughout the trial until defendant had closed. The position is untenable and the testimony in support of it should not be given the effect desired of it.

For the reasons herein assigned, the judgment appealed from is affirmed with costs.

KENNON,'J!, absent.


text:
    HARRELL et ux. v. GOODWIN et al.
    No. 7106.
    Court of Appeal of Louisiana. Second Circuit.
    Oct. 31, 1947.
    Rehearing Denied Nov. 26, 1947.
    Love & Bailey, of Shreveport, for appellant.
    Irion & Switzer, of Shreveport, for ap-pellee.
   TALIAFERRO, Judge.

This suit grew out of a collision between two passenger cars at the intersection of Creswell and Gladstone Streets, in the City of Shreveport, Louisiana, at the hour of 9:45 p. m., October 24, 1946. One of the cars, a two-door Chevrolet, was being driven by the defendant, who was going south on Creswell Street. The other car, a Buick, was being driven westerly on Gladstone Street by Mrs. Clementine Harrell,, wife of Fletcher E. Harrell, its owner.

By ordinance of the City, traffic on Cres-well Street enjoys right of way over that: from intersecting streets, such as Gladstone, and speed limit for passenger cars thereon has likewise been fixed at 35 miles per hour.

Mrs. Harrell was making a trip that car-, ried her beyond Creswell Street, hence her-interest in crossing the intersection at the-, time she did. She sustained serious physical injuries from the collision and her car-was badly damaged. She sued the defend-, ant and the Globe Indemnity Company, carrier of public liability insurance on his car,, for damages resulting from the injuries she-suffered, and Mr. Harrell sued for the cost, of repairing his car and for expenses in- ■ curred in treating his wife’s injuries.

The petitioners allege that Mrs. Harrells brought her car to a stop when she arrived ⅛ at the intersection and looked for traffic in both directions on' Creswell Street. She saw none to her left (south) but did observe defendant’s car approaching from her right about one-half block distant; that it appeared to her that defendant was traveling at a reasonable rate of speed; that so believing, she concluded she had ample time to cross over the intersection and gain the west side thereof before defendant reached it; and she attempted to do so; that when she was beyond the center of the intersection her car was violently rammed on its right side by the car of the defendant; that when she had reached the middle of the intersection, for the first time she realized that defendant was driving at an unlawful speed, 45 or 50 miles per hour, and she then accelerated her speed in the hope of averting the impending collision.

The accident is accredited to the negligence of the defendant in the following respects, to wit:

1. Failure to exercise the last clear chance;

2. Failure to maintain a proper lookout for others using said streets, including Mrs. Harrell.

It will be observed that defendant’s speed is not specifically mentioned as constituting negligence on his part.

Defendants deny liability to any extent to either of the plaintiffs for the damages resulting from the accident, and they plead that it happened solely from the negligence and carelessness of Mrs. Harrell, in that:

1. She failed to stop her car before entering Creswell Street, in violation of ordinance of the City of Shreveport, which required her to do so;

2. She failed to recognize and observe defendant’s superior right of way;

3. She failed to keep her car under control, and

4. She entered upon the intersection immediately in front of defendant’s car at a time when she saw or should have seen that he was within 15 feet thereof.

In the alternative, employing the above alleged acts of negligence as a predicate therefor, defendants specially plead the contributory negligence of Mrs. Harrell in defense of this action.

The demands of plaintiffs were rejected at their cost, and they appealed to this court

This court within recent years has been called upon to decide many cases arising in the City of Shreveport' wherein the facts are similar to those appearing herein. With few exceptions the litigant who was on the right of way street when the accident occurred, was absolved from fault as a or the proximate cause of the accident. Of course, the peculiar facts of each case have to be weighed and considered in the effort to do justice as between the parties.

Legal principles governing cases in which the facts appear to be as we find them herein are well settled and have often been applied.

It was Mrs. Harrell’s obvious, as well as legal duty, to have brought her car to a stop when she arrived at the west side of the intersection and then to have carefully surveyed the situation to ascertain traffic conditions both to her right and to her left on Creswell Street. She says she did this, and there is no evidence to contradict what she says. She observed defendant’s car, which she thought was then near the center of the block to her right, and believing that it was going at -a moderate rate of speed, concluded that she had ample time to negotiate the intersection and make a left turn thereon before it got there. She admits that after she started her car forward she did not keep her eye on the oncoming car of the defendant. Lights of both cars were burning brightly but the weather was cloudy.

Mrs. Harrell was possibly in error in one' or two material respects. Defendant could have been nearer to her than she estimated, and he could have been traveling faster' than she thought. If he was nearer to her than she thought and was not driving at an illegal rate of speed, clearly the blame for' the collision should be fastened upon her. If she was correct in her estimate of the" distance defendant was from her when she' entered the intersection, but he was driving' at a rate of speed in excess of that fixed-by the city ordinance, and, for this reason,reached the intersection more quickly than had he been going at a lawful speed, then-the blame for the collision would rest upon-him. His negligence in this respect would be the proximate cause of the collision.

If defendant saw or by exercise of reasonable care could have seen Mrs. Harrell’s car as it entered the intersection, in time, by the exercise of prompt action, to have averted colliding with it, notwithstanding her negligence, the responsibility for the collision would fall upon him. Under this state of facts he would have had the last clear chance to avoid the collision.

Defendant admits that he did not see the Harrell car until it appeared in front of him some 10 or 15 fifteen feet away. It was then too late to do anything to avoid running into it, but he did apply his brakes as quickly as possible. His failure to see the car at stop' may be attributed to two causes :• its lights were focusing directly west across Creswell Street and a number of fairly large oak trees line the curb on the east side of Creswell above Gladstone. But, if defendant had seen the car at stop, what would have been his thoughts and reactions ? Surely, he would have instantly concluded that its driver had seen the lights of his car and in deference to law and his right of way would not attempt to cross the intersection until he had done so. In view of this, we do not believe that the failure of defendant to observe the Harrell car before it was driven across his lane of traffic, should have a controlling influence upon the determination of the case.

Defendant, immediately prior to the accident, drove out of Forest Street (parallel to and north of Gladstone) into Creswell Street. The distance between the two intersecting streets is 225 feet. Defendant, of necessity, had to travel slowly from Forest into Creswell, then malee a left turn in order to gain the west of the street. Necessarily, in doing this the momentum of his car was materially reduced. He is certain he had not attained a speed in excess of 30 miles per hour when the collision occurred. In view of the short distance he had covered from Forest Street a speed not greater than this would be expected. However, had he been going at 35 miles per hour, the situation would be the same. He had the legal right to travel at this speed and to assume that traffic from the intersecting streets would respect his superior right.

It has often been held by the appellate courts of this state, especially by this court, that a motorist on a less favored street but discharges half the duty imposed upon him by law when, in deference thereto, he stops his car prior to undertaking to cross an intersection. He is required to go further than this. The rule is clearly stated in Arline et al. v. Alexander et al, La.App., 2d 710-712. We said therein: “ * * * To stop before entering a right-of-way street but discharges half the duty imposed upon a motorist. This action must be followed by careful observance of traffic conditions on the right-of-way street and no entry thereon made unless conditions clearly warrant it To fail to see what may be seen in such circumstances on casual inspection amounts to gross negligence, and loss or injury arising from such failure falls upon the guilty person or persons. * * * ” See also Owens v. Tisdale, La.App., 153 So. 564.

Mrs. .Harrell’s case does not fall within the doctrine embodied within the above quotation. Accepting her testimony that she stopped before entering the intersection, she failed to exercise the care and caution that the exigencies of the situation demanded of her. She erroneously concluded that it was safe for her to cross to the opposite side of the street, and, regardless of her good faith in this respect, she is not excused from the consequences that flowed from her error.

We are not convinced that defendant was to any extent negligent, but, conceding that he was, it clearly appears that Mrs. Harrell’s negligence, in the respects set out by defendant’s answer, was a contributing factor to the accident and of such character as to bar recovery by plaintiffs.

If defendant was driving at not more than 30 miles per hour, as he says, he was covering 44 feet per second. If Mrs. Harrell was correct in her belief that defendant was one-half block away when she stopped at the intersection and saw his car, it required only three seconds for him to get to the intersection. It obviously required this much time for Mrs. Harrell to put her car in low gear and traverse the intersection, as she did, to its west side.

Plaintiff in supplemental brief at length discusses and urges the applicability of the doctrine of the last clear chance to the facts of the case. We do not agree with this contention. The facts, as herein related, are opposed to this position.

By invoking the doctrine of the last clear chance against his adversary a litigant admits himself to have been negligent in the incident allegedly giving rise to the facts that render said doctrine applicable; and after taking this position, unless it be clearly shown that same is tenable under the established facts of the case, the proponent finds himself without any basis to escape the consequences of his own admitted negligence.

For the reasons herein assigned, the judgment appealed from is affirmed with costs.

KENNON, J., absent.


author: McBRIDE, Judge.

text:
    MAHNE v. STEELE.
    No. 18734.
    Court of Appeal of Louisiana. Orleans.
    Dec. 1, 1947.
    Rehearing Denied Jan. 12, 1948.
    J. J. Jackson, of New Orleans, for plaintiff and appellee.
    Gabb & Lange, of New Orleans, for defendant and appellant.
   McBRIDE, Judge.

Katie Mahne, on January 15, 1946, at about 4:30 o’clock in the afternoon, was struck by an automobile owned and operated by William J. Steele, of Lacombe, Louisiana, at the corner of Camp and St. Joseph Streets, in the City .of New Orleans, and was severely injured.

She brings suit against Steele claiming damages for her physical and mental pain and suffering, loss of earnings, hospital and physician bills, and for the costs of mechanical appliances. She alleges that she had been walking along the sidewalk on the river side of Camp Street in an uptown direction, and that when she reached the intersection of St. Joseph Street the semaphore traffic signal light showed green; that she stepped from the curb on the downtown side of St. Joseph Street to cross the street, and that she had nearly completed the crossing when she was run into by defendant’s automobile, which had been traveling in the direction of downtown on Camp Street and made a right hand turn into St. Joseph Street. She charges that defendant was negligent and that the accident was caused by his failure to maintain a proper lookout, in failing to respect her right of way, in operating his machine with disregard for the rights of pedestrians, in failing to have his vehicle under proper control, and in having failed to see her.

The defendant answered denying negligence, and alleged that the accident was caused through the fault and carelessness of plaintiff. It is alleged in the answer that plaintiff was not walking in an uptown direction, but was walking in the opposite direction, or toward downtown, and that just as Steele had completed the turn from Camp Street plaintiff negligently stepped from the curb on the uptown side of St. Joseph Street directly into the front right fender of the automobile. In the alternative, defendant pleads that plaintiff was guilty of contributory negligence such as to bar a recovery.

The Board of Administrators of the Charity Hospital of Louisiana in New Orleans intervened under the provision of Act No. 289 of 1938, § 4, alleging that Katie Mahne had been furnished with hospitalization, medicines, x-rays, etc., in the treatment of her injuries, and that there is due intervenor the sum of $436.50 for said services. Intervenor’s prayer was for judgment in its favor and against both plaintiff and defendant, in solido; for the amount of its claim.

The matter was tried on its merits- in the district court and there was judgment in favor of plaintiff and against defendant for the sum of $1,783.50, and judgment in favor of the Board of Administrators of the hospital, and against plaintiff, for the sum of $436.50, together with ten per cent attorney’s fees. Defendant has appealed.

Besides the testimony of plaintiff and defendant, the only other witness who testified respecting the accident was Frank Osborne. The testimony of plaintiff and defendant is irreconcilable. Plaintiff testified that she had almost completed her crossing from the downtown side to the upper side of St. Joseph Street, and that she was just a short distance (which she estimated at about three feet) from the uptown curb when defendant’s automobile made the right hand turn into St. Joseph Street, its front bumper striking her and knocking her to the ground. She testified that she did not see the automobile and that she had no warning or knowledge of its approach. On the other hand, defendant testified that he had been driving his automobile down Camp Street in the direction of Canal Street (Camp Street being a one-way street for vehicular traffic moving in that direction), and that he intended to turn right into St. Joseph Street in order to proceed in the direction of the Mississippi River; that when he reached the intersection the traffic semaphore light showed red for traffic travelling on Camp Street, and that he stopped behind another car which was immediately in front of him, in order to await the favorable green light which would permit his making the right hand turn; that after a few seconds, the light changed from red to green and the car in front of him started off; that he thereupon turned into St. Joseph Street, and just as he had about negotiated the turn Katie Mahne stepped from the uptown curb of St. Joseph Street and walked into the right front fender of his automobile. He further stated that the accident occurred during a heavy downpour of rain and that plaintiff was carrying an open umbrella, that he had no notice or knowledge of her presence until “the umbrella went up in the.air” as a result of her contact with the automobile. The evidence shows that defendant stopped almost immediately, and with the assistance of another person placed plaintiff into his automobile and took her to the Charity Hospital. He then called at one of the police stations and made a report of the accident. He emphatically denies that plaintiff was crossing the street as she, testified, and insists that he did not see her in the intersection.

Frank Osborne, who appeared for plaintiff, testified that he had been driving his truck on St. Joseph Street in the direction of the lake, and that when he reached Camp Street the signal light showed red for traffic travelling on St. Joseph Street; that he stopped his truck to await the change ■of the light, that there were two or three •cars directly in front of him which were also waiting for the light signal to change. He stated that he was looking at the light; that ■defendant’s automobile turned the corner and he saw “an umbrella jump in the air,” and defendant stopped almost immediately. Osborne stated that he did not see any pedestrian cross St. Joseph Street from the downtown side to the upper side.

If the accident occurred in the manner described by plaintiff, the defendant must have been guil-ty of negligence; if it happened according to defendant’s version, plaintiff should recover nothing.

The facts show that Katie Mahne is employed as a cigar maker at an establishment on Girod and So. Peters Streets, and that she works until 0 o’clock, p. m., each day. She testified that she resides at 1404 Clio Street, and that after leaving her place of employment it is her custom to walk back Girod Street to Camp Street, and then to proceed on the river side of Camp Street to Clio Street, and that during this journey it is necessary to make a crossing from the downtown side to the upper side of St. Joseph Street. She further testified that on the day of the accident she pursued this route, as she had done for the past eleven years.

A careful study of the evidence as a whole leads us to the conclusion that plaintiff’s testimony should prevail. To reach 1404 Clio Street from her place of employment plaintiff, if she had taken her usual route, would of necessity have required the crossing from the downtown side to the uptown side of St. Joseph Street, and there is no reason shown why, especially in the heavy rain which was falling at the time, she would have crossed in the opposite direction.

The testimony of Frank Osborne is not very helpful. This witness was sitting in the cab of his truck, parked behind two or three other vehicles, awaiting the change of the signal light. He testified that he kept his eyes focused on the light. While it is true he states that he saw no pedestrian cross St. Joseph Street, we believe this witness paid more attention to watching the light than to looking for pedestrians. Furthermore, it would seem that he was not located at a particularly good point of vantage.

Both plaintiff and Osborne testified that there were several automobiles parked on the uptown side of St. Joseph Street, and a line of cars on the opposite side waiting for a favorable light signal, and that these two lines of vehicles formed a narrow lane through which defendant would be required to travel after making the turn. It is not unreasonable to suppose that Steele, in turning into this narrow lane, had his attention affixed to it, and that he did not see plaintiff in the street.

Defendant’s counsel insists that if plaintiff had been walking in an uptown direction her right leg would have received the blow from the automobile. He strenuously argues that all of the injuries suffered by her were to the left leg, and that this circumstance would bear out the defendant’s version that she was not walking as she stated, in an uptown direction, but rather as defendant testified, in the opposite direction.

The fact that the injuries were sustained to plaintiff’s left leg is not sufficient to warrant a conclusion that she was moving in a downtown direction. After contact with the automobile, she fell to the pavement, and it is most likely that the injuries occurred from the impact with the ground. Defendant testified that his car was “just creeping along,” and that when he saw the umbrella go into the air he immediately stopped. If this be so, .the blow from the automobile would seem not to have been sufficient to cause the serious injuries which plaintiff sustained, and we think, under the circumstances, that her injuries were caused from her fall rather than from the force of the blow by the automobile.

With the sharp conflict existing in the testimony of the parties, great weight must be given to the appraisal placed upon it by the trial court. He had the opportunity of observing the demeanor of the witnesses and hearing them testify, and was in a better position than we are to res.olve the question of veracity. Under the familiar rule of law the findings of the lower court as to facts should not be disturbed, unless there appears manifest error, and we fail to notice any.

The driver of an automobile, upon approaching an intersecting street with the intention of turning into it, ■ should yield the right of way to a pedestrian who is crossing the intersection and is in the line of travel which the driver intends to follow, or is in such proximity thereto that if he continues he will reach the same in advance of the automobile. We conceive it to be the duty of an automobile driver, before turning into an intersecting street, to keep a sharp lookout for pedestrians and other traffic, so as to avoid striking them. Defendant was imprudent and guilty of negligence in having failed to see plaintiff and in not taking precaution to avoid injuring her. Plaintiff having been in the street had the right to continue across the roadway, and the automobile should have yielded to the rights of the pedestrian. Ordinance No. 13,702, Commission Council Series, of the City of New Orleans, Art. 4, Sec. 3(c), provides:

“When both a pedestrian and a vehicle face a ‘GO’ signal and the pedestrian starts across the roadway in the direction permitted, and the vehicle proceeds to turn to either the right or left, overtaking such pedestrian, the vehicle shall yield to the pedestrian.”

The Supreme Court, in the case of Jackson v. Cook, 189 La. 860, 181 So. 195, 197, said that the well recognized and settled rule is:

“ * * * that the duty of those in charge of motor cars and engines to look ahead and observe never ceases; that what they can see they must see and in legal contemplation they do see; that their failure to see what they could have seen by the exercise of due diligence does not absolve them from liability.”

The Court also said, in Rottman v. Beverly, 183 La. 947, 165 So. 153, 156:

“ * * * The first duty of those who operate engines or motor vehicles is to keep a sharp lookout ahead to discover the presence of those who might be in danger. ⅜ * *»

And we said, in Jones v. American Mut. Liability Ins. Co., La.App., 189 So. 169, 172:

“We readily recognize that it is the duty of a motorist to be constantly vigilant and observe the presence of anything which is at or near the path of his travel.”

There is no dispute regarding the claim of the Charity Plospital, as counsel for both plaintiff and defendant stipulated that its bill is correct.

'Plaintiff offered in evidence a certified copy of the record of Charity Hospital, and under the provisions of Act No. 90 of 1938, § 1, such record makes prima facie proof of its contents. It shows that plaintiff was admitted on the day of the accident, and that her injuries were diagnosed as a plateau fracture of the left tibia, a fracture of the medial malleolus of the left ankle, and a scalp laceration, which plaintiff testified required six sutures. She remained in the hospital for three weeks, then went to the Convalescent Home until April 12, 1946. A cast extending to the thigh was placed on her left leg and was not removed until the above date. After being relieved of the cast, she was supplied with a metal brace, which she wore for nearly six months. From time to time she made visits to the out-clinic, and was not discharged until November 14, 1946. Plaintiff testified that she could not return to her employment until November 18, 1946.

The judgment appealed from awarded plaintiff the sum of $1,783.50. The un-contradicted evidence is that she expended $33.50 for the brace, and lost nearly ten months salary at the rate of $25 per week. However, she claimed only $500 for loss of earnings, and it is evident that the lower court, in addition to allowing the expenditure for the brace and the loss of wages, allowed $1,250 for her physical injuries. Defendant contends that the amount allowed her is excessive, but we do not think so. Plaintiff’s injuries were serious, and the allowance of $1,250 can not be considered excessive.

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

Affirmed.


author: FOURNET, Justice.

text:
    212 La. 457
    TUCKER et al. v. EDWARDS et al.
    No. 38598.
    Supreme Court of Louisiana.
    Nov. 10, 1947.
    J. H. Inman, of Baton Rouge, for rela-tors.
    Ponder & Ponder, of Amite, C. Paul Phelps, of Ponchatoula, Bolivar E. Kemp, Jr. and Carroll Buck, both of Amite, for appellees.
   FOURNET, Justice.

The basic complaint of the relators —that the trial judge failed or refused to sign a judgment in the above entitled matter — presents nothing for our consideration since the issues raised thereby became moot upon the trial judge’s compliance with this court’s order to either sign the judgment or show cause why he should not do so. Counsel for the relators concedes this but contends the court costs advanced by the relators to obtain the relief prayed for should be taxed against the trial judge inasmuch as it was his failure to perform a ministerial duty that compelled them to apply for this writ.

We, know of no rule of law, and counsel for relators has cited none, that would justify the taxing of the costs incident to obtaining this writ against the trial judge because of his actions when the case was- prose'cuted before him. However, the relators having prayed for general and equitable relief, we think, when the entire record is considered, the interest of justice requires that the costs expended in this court be taxed against the party finally cast in the case.

For the reasons assigned, the costs incurred in this court in connection with, securing this writ are to await the final determination of this matter on the merits and they are then to be taxed against the party cast.


author: McCALEB, Justice.

text:
    212 La. 459
    TRAHAN v. BREAUX et al.
    No. 38621.
    Supreme Court of Louisiana.
    Nov. 10, 1947.

      J. Minos Simon, of Lafayette, for plaintiff-appellant.
    Welton P. Mouton, of Lafayette, for defendants-appellees-Movers.
   McCALEB, Justice.

Plaintiff demands $10,000 damages for his alleged false arrest by the defendants. His suit was dismissed in the lower court on exceptions of prematurity and of no right or cause of action which were based on the ground that he had failed to allege that the criminal charge, for which the arrest was made, had been dismissed or the proceedings otherwise terminated.

Plaintiff appealed to this court from the judgment sustaining the exceptions. After the transcript was lodged here, the defendants moved to remand the case to the lower court in order to have that court determine whether the issues in the case have become moot by ,reason of plaintiff’s conviction of the misdemeanor which formed the basis of the alleged false arrest.

We are unable to consider the motion to remand as we find that we are without jurisdiction of the appeal. An examination, of the petition discloses that ■ the damages claimed are highly inflated and that plaintiff could not possibly expect to obtain a judgment exceeding $2,000, which is the minimum jurisdiction of this court in cases of this kind under section 10 Article VII of the Constitution.

The arrest alleged in the petition is professed to have been false because the defendant officers made it without a warrant for a misdemeanor committed out of their presence. For this asserted illegal act, plaintiff seeks to recover $5,000 for embarrassment, humiliation and mental anguish and $5,000 for the mental anguish, shock, embarrassment and humiliation suffered by his wife, in whose presence the arrest occurred. The damages sustained by plaintiff’s wife cannot be .considered as part of his claim. Those damages are her separate property and are recoverable by her alone under Article 2402 of the Civil Code.

With respect to the claim of $5,000 for plaintiff’s mental anguish, embarrassment and humiliation, it is manifest that he would not be entitled to more than nominal damages for the alleged technical legal invasion- of his rights. There is no charge of undue physical violence by the officers or any. allegation of special damage resulting from the tortious act. In the absence of such allegations, an award of more than a nominal amount would be improper.

The jurisprudence is firmly established that plaintiff’s allegations as to the amount of damages sustained by him will not control in determining the appellate jurisdiction of this court where the nature of the case is such that an award in plaintiff’s favor could not exceed our minimum jurisdiction. Bright v. Thompson, 38 La.Ann. 801; Lea v. C. A. Orleans, 46 La.Ann. 1444, 16 So. 456; Nick v. Bensberg, 123 La. 351, 48 So. 986; Bloomfield v. Thompson, 133 La. 209, 62 So. 634 and Walsh v. Bush, 206 La. 303, 19 So.2d 144.

It is therefore ordered that this case be transferred to the Court of Appeal, First Circuit, the transfer to be made within 30 days after this decree has become final, otherwise, the appeal is to be dismissed. The plaintiff is to pay the costs of appeal to this court and the costs of transferring the case to the Court of Appeal.


author: PONDER, Justice.

text:
    212 La. 463
    STATE ex rel. MORRISON v. MORRISON et al.
    No. 38664.
    Supreme Court of Louisiana.
    Nov. 10, 1947.
    Wood & Wood, of Leesville, for plaintiff-.appellant.
    J. R. Ferguson, of Leesville, for defend.ants-appellees.
   PONDER, Justice.

The relatrix, Mrs. -Addie K. Morrison, brought these habeas corpus proceedings in ■the lower court seeking to obtain the custody of her minor child, Clarence Lee Morrison, three years of age, .from her husband, Eddard L. Morrison,, and the child’s paternal grandfather, Isaac C. Morrison, who now have possession of the child. Upon •trial of the proceedings, the lower court gave judgment vacating and setting aside the writ and awarding the custody of the , child to its father, one of the respondents herein. The relatrix has come to us on appeal. .

There is now pending in the lower court a suit brought by the relatrix against her husband for separation on the ground of cruel treatment, wherein she asks for custody of the child. It appears that relatrix separated from her husband on June 4, 1947 and instituted these habeas corpus proceedings two days thereafter. The. relatrix is now residing with her mother. The testimony shows that relatrix is a woman. of good moral character and that the child would be properly cared for by her at her mother’s home. There is testimony in the record to the effect that the respondent and his father struck the relatrix several times on June 1st before the separation took place on June 4th. The relatrix’s suit for separation is principally based on these purported acts of cruelty on the part, of the husband. We find some testimony in the record to the effect that the relatrix left the matrimonial domicile on several occasions taking the child with her. On some of these occasions, she spent two or thrée days with relatives and, on one or two of such occasions, she spent the entire day in the woods with the child without any food. There is testimony also in the record that the relatrix had on numerous occasions become angry, refused to cook meals and had abused her husband and neighbors without any provocation. However, there is considerable testimony in the record controverting these facts. We will not go into a detailed analysis of the testimony in view of the fact that a separation suit is now pending and the facts pertinent to it should not be prejudged. However, taking the testimony as a whole, we are convinced that the relatrix has not abused or neglected the child at any time.

From our appreciation of the brief filed and the argument advanced by counsel for the respondents, there is no attack made on the moral character of the relatrix, or the fitness of the home of relatrix’s mother.

Counsel for the respondents takes the position that the relatrix abandoned her child when she left the matrimonial domicile on June 4th. The relatrix’s explanation of why she did not take the child was to the effect that she was afraid to take the child with her because of statements made to her by her husband on prior occasions that he would “beat her up” if she should take the child from the matrimonial domicile. On the next day after she left the matrimonial domicile, she endeavored to legally obtain the custody of the child and these proceedings were instituted only two days after she left the domicile. We find no merit in the contention that she had abandoned the child.

Counsel for the respondents further contends that, because of her absenting herself from the matrimonial domicile and taking the child on the occasions afore mentioned and the other acts testified as afore mentioned, the relatrix is not entitled to the custody of the child. There is considerable testimony in the record refuting these purported acts of the relatrix as pointed out above. The testimony as a whole does not support these contentions.

We recently reviewed the jurisprudence of this State and affirmed the rule that the mother is always given preference to the custody of a child of tender age unless she is shown to be morally unfit or incapable of properly caring for the child. Willis v. Willis, 209 La. 205, 24 So.2d 378.

For the reasons assigned, the judgment of the lower court is reversed and set aside; the custody of the minor, Clarence Lee Morrison, is awarded to his mother, Mrs. Addie K. Morrison. The writ is reinstated and made peremptory. All costs to be borne by the respondents.