author: MARCUS, Justice.

text:
    STATE of Louisiana v. Lal S. ROACH, Jr.
    No. 56447.
    Supremo Court of Louisiana.
    Nov. 3, 1975.

      Samuel P. Love, Sr., Love, Rigby, De-han & Love, Shreveport, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ronald C. Martin, Dist. Atty., R. Raymond Arthur, Asst. Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

Lai S. Roach, Jr. was charged by bill of information with possession of marijuana in violation of La.R.S. 40:966(C). After trial by a judge on September 13, 1974, he was found guilty. He was sentenced to pay a fine of $500.00 and costs or in default thereof to serve six months in the parish jail. Additionally, he was sentenced to serve six months in the parish jail, all but ten days of which were suspended. On appeal, defendant relies upon five assignments of error for reversal of his conviction and sentence.

FACTS

A warrant was issued to search a house owned by Ray Buckner in Natchitoches for marijuana and hashish. On February 11, 1974, Deputy Sheriff Robert Self, accompanied by three members of the narcotics squad of the Natchitoches Parish Police Department, appeared at the residence to execute the warrant. Defendant, who was the only person present in the residence at the time, allowed them to enter. After presenting the search warrant, Deputy Self asked defendant to be seated while the premises were searched. One of the officers discovered what appeared to be marijuana seeds and gleanings in one of the rooms and showed his finding to Deputy Self. Deputy Self then asked defendant where he slept, and defendant answered, giving the location of his bedroom. Immediately after ascertaining that the marijuana had been found in defendant’s bedroom, Deputy Self placed defendant under arrest and gave him the Miranda warnings. One of the other officers, meanwhile, searching the carport in the rear of the house, discovered a paper bag of marijuana cigarettes on a motorcycle that was registered in defendant’s name.

ASSIGNMENT OF ERROR NO. 1

Defendant first contends that the trial judge erroneously overruled a motion to suppress the evidence seized pursuant to the search warrant. He alleges that the application for a search warrant failed to recite sufficient facts to establish probable cause for its issuance.

Article 162 of the Code of Criminal Procedure states in pertinent part:

A search warrant tnay issue only upon probable cause established to the satisfaction of the judge, by the affidavit of a credible person, reciting facts establishing the cause for issuance of the warrant.

In Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), also involving a search for illegal drugs, the United States Supreme Court set forth two requirements that must be met before a search warrant may issue. First, the magistrate must be informed of some of the underlying circumstances from which the informant concuded that the narcotics were where he claimed they were. Second, he must be informed of the underlying circumstances from which the affiant concluded that the informant was credible or his information was reliable.

We believe that the search warrant sub judice met the “two-pronged test” established by Aguilar. The affidavit recited that the second informant personally observed that marijuana and hashish were being sold at the specified address. In State v. Paciera, 290 So.2d 681 (La.1974), we stated that direct personal observation by the informant was a factor that supports the reliability of the information reported. The affidavit further recited that the information supplied by him had resulted in sixteen arrests during the previous five months. This factor supports the informant’s credibility. See State v. Martin, 318 So.2d 25 (La.1975); State v. Pa-ciera, supra. No requirement exists, as defendant contends, that the arrests must have resulted in convictions. The information supplied by the first informant alone did not establish probable cause, but it does serve to corroborate the statements of the second one. See State v. Boudreaux, 304 So.2d 343 (La.1974); State v. Paciera, supra.

Defendant further attacks the affidavit on the ground that it does not specifically state that the informant communicated the facts directly to the affiant. We believe that the context of the application clearly indicates that the informant reported directly to the affiant. Affidavits must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965), cited with approval in United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971). We therefore conclude that the affidavit recited sufficient facts to. show probable cause for the magistrate’s issuance of a search warrant.

In his brief on appeal, defendant urges a second ground on which the motion to suppress should have been granted. The motorcycle on which the officers found evidence of marijuana was parked in a carport, or garage, in the rear of the house that was searched. Noting that the search warrant authorizes the search of the “premises,” he argues that the officers were not authorized by the warrant to search the carport, and that the evidence seized therein was inadmissible at trial.

The motion to suppress the evidence, however, was clearly predicated on the sole ground that the search warrant was invalid because issued without a showing of probable cause in the affidavit. Defendant has raised the issue concerning the scope of the warrant for the first time on appeal.

Article 703(C) of the Code of Criminal Procedure states that on the trial of a motion to suppress evidence other than written inculpatory statements the burden of proof is on the defendant to prove the grounds of his motion. Accordingly, our scope of review should be limited to those grounds on which the motion to suppress was based.

In any event, a search warrant authorizing the search of the “premises” at a stated address must reasonably be interpreted to permit a search of the dwelling house proper, the garage, and any other outbuildings within close proximity of the house proper that one normally associates with and includes within the word “house” or “premises.” United States v. Long, 449 F.2d 288 (8th Cir. 1971), cert. denied, 405 U.S. 974, 92 S.Ct. 1206, 31 L.Ed.2d 247 (1972); Fine v. United States, 207 F.2d 324 (6th Cir. 1953), cert. denied, 346 U.S. 923, 74 S.Ct. 310, 98 L.Ed. 417 (1954); State v. Brochu, 237 A.2d 418 (Me. 1967). This assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 2

Defendant avers that his statement in reply to Deputy Self, indicating where his bedroom was located in the apartment house, should have been suppressed because at the time it was made he had not been advised- of his privilege against self-incrimination as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

Defendant is correct in his assertion that his response was highly inculpato-ry. The Louisiana jurisprudence has established that a person may be deemed to be in “constructive” possession of a controlled substance if, though not in his physical custody, it is subject to his dominion and control. State v. Knight, 298 So.2d 726 (La.1974); State v. Porter, 296 So.2d 302 (La.1974); State v. Smith, 257 La. 1109, 245 So.2d 327 (1971). The jurisprudence has also established that guilty knowledge is an essential ingredient of the crime of possession of a controlled dangerous substance. State v. Knight, supra, and cases cited therein. Hence, defendant’s admission that his bedroom was the one in which marijuana was found strongly indicated guilty knowledge and was also evidence of constructive possession.

We do not believe, however, that defendant was entitled to Miranda warnings prior to making the statement. In Miranda," the Supreme Court briefly stated its holding as follows:

[T]he prosecution may not use statements, whether exculpatory or inculpato-ry, stemming from custodial interrogation of the defendant unless it demonstrates the procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.

The Supreme Court did not define precisely the meaning of “custody” or “significant restraint.” Clearly, whenever the accused is placed under arrest, Miranda warnings must follow. There are situations falling short of a formal placing in arrest, however, in which the accused may be said to be under custody or significant restraint. See Orozco v. Texas, 394 U.S. 324, 89 S.Ct. 1095, 22 L.Ed.2d 311 (1969). Like the Court of Appeals for the Fifth Circuit, we believe that a determination of whether a defendant prior to arrest has been so deprived of his freedom to act that he must be deemed to be under custodial restraint must be made on a case-by-case basis. United States v. Carollo, 507 F.2d 50 (5th Cir. 1975); Brown v. Beto, 468 F.2d 1284 (5th Cir. 1972; United States v. Phelps, 443 F.2d 246 (5th Cir. 1971).

Unable to assess the subjective intent of an officer to hold a suspect or the subjective fear of a suspect that he was under restraint, a reviewing court must employ an objective test to determine the necessity for Miranda warnings. United States v. Hall, 421 F.2d 540 (2d Cir. 1969). An examination of the record normally discloses four factors that are particularly helpful in this task: (1) whether, prior to interrogation, probable cause existed to arrest the accused; (2) statements or actions by the police indicating an intention to hold or restrain him; (3) statements or actions by the accused indicating his reasonable belief that he is in custody; and (4) the extent to which the investigation has focused on the accused.

In the instant case, it is evident that the police did not have probable cause to arrest defendant at the time they questioned him. The officers, though aware of defendant’s presence at the house, were also aware that the house belonged to Ray Buckner, not defendant. In searching the house, the police had found marijuana in one of the rooms, but did not know which room defendant occupied, if any. As we recently held in State v. Cann, 319 So.2d 396 (La. 1975), mere presence in the area where the illegal drug is discovered or mere association with the person who does control the drug or the property where it is located, does not support a finding of possession. Thus, it was not unfil after the defendant, in response to the one question put to him by Deputy Self, indicated which bedroom was his, was there probable cause for his arrest.

Nor was there evidence in the record of statements or actions by the officers indicating that the accused was in custody or under restraint when the question was asked. According to defendant’s testimony, Deputy Self requested defendant to be seated on the sofa to read the warrant as the officers began a search of the premises for the marijuana. Nothing more was said or done by the police to defendant until they asked him the location of his room. The record is similarly devoid of any statements or actions by defendant indicating a reasonable belief that he was in custody or under significant restraint. Although the investigation had arguably begun to focus on him when the question was asked, focus alone does not trigger the necessity for Miranda warnings. Carollo, supra; Hall, supra.

We do not find, therefore, that under the facts of this case defendant was under custodial interrogation. We do find, on the other hand, that the question was asked in a period of “general on-the-scene questioning as to facts surrounding a crime” during which no Miranda warnings are required. Miranda, supra, 384 U.S. at 478, 86 S.Ct. at 1629, 16 L.Ed.2d at 725. This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 3

Deputy Self testified that, when one of the officers approached him during the search, he was carrying a substance that “appeared to be marijuana seeds.” Defendant alleges that the trial judge erred in admitting this statement because, under La.R.S. 15:463, the witness was not qualified as an expert on marijuana identification.

At the time that the witness’ statement was made, there was no effort to introduce the marijuana in evidence. The purpose of his testimony was to establish that there was probable cause for defendant’s arrest. The witness testified that he had been involved in at least five hundred arrests in which marijuana was part of the evidence seized. He also testified that he had attended several seminars for officials charged with the enforcement of drug laws. Certainly, then, he was qualified to express his opinion that a substance “appeared to be marijuana” in order to show his reason for believing that there was probable cause for an arrest.

Moreover, we fail to see how the admission of the statement was at all prejudicial to the defense. The laboratory report of the criminalist (S-5), which was introduced in evidence by stipulation of the parties, states that all of the particles seized were identified as marijuana. This assignment of error has no merit.

ASSIGNMENT OF ERROR NO. 4

Defendant urges that the trial judge erred in permitting in evidence the bag of marijuana seeds and gleanings discovered during the search. He alleges that the prosecution did not prove an unbroken chain of custody from the time the items were seized until they were admitted in evidence. As proof of the state’s “loosely organized” storing procedure, he points to Deputy Self’s admission that the key to the seized motorcycle was lost.

This argument has no substance. In State v. Dotson, 260 La. 471, 256 So.2d 594 (1971), we stated:

To admit demonstrative evidence,at a trial, the law requires that the object be identified. The.identification can be visual, that is, by testimony at the trial that the object exhibited is the one related to the case. It can also be identified by chain of custody, that is, by establishing the custody of the object from the time it was seized to the time it is offered in evidence.
The law does not require that the evidence as to custody eliminate all possibility that the object has been altered. For admission, it suffices if the custodial evidence establishes that it is more probable than not that the object is the one connected with the case. A preponderance of the evidence is sufficient, [citations omitted]
The lack of positive identification goes to the weight of the evidence, rather than to its admissibility. Ultimately, connexity of physical evidence is a factual matter for determination by the jury, [citations omitted]

See also State v. Freeman, 306 So.2d 703 (La.1975); State v. Flood, 301 So.2d 637 (La.1974); State v. Isaac, 261 La. 487, 260 So.2d 302 (1972).

In the instant case, Officer Richard Prud-homme, who accompanied Deputy Self to execute the search warrant, testified that the other officers immediately turned all the evidence over to him. He then placed it in the evidence locker in the narcotics room of the sheriff’s office. Deputy Self testified that he controlled the only set of keys to this locker. Officer Prudhomme transported the evidence to the crime lab in Shreveport the following day. He also identified his signature on the evidence transfer receipt (S-4).

The chain of custody was amply established by this testimony. Clearly, it was more probable than not that the marijuana introduced in evidence was related to the case. The trial judge properly permitted its admission in evidence. There is no merit in this assignment of error.

ASSIGNMENT OF ERROR NO. S

In the final assignment of error, defendant alleges that the trial judge committed error when he overruled his motion for a directed verdict of acquittal at the close of the state’s evidence pursuant to article 778 of the Code of Criminal Procedure. In State v. Douglas, 278 So.2d 485 (La.1973), we held that the defendant may be granted a directed verdict of acquittal only when the state has produced no evidence to prove a crime or an essential element thereof.

Defendant was charged with the violation of La.R.S. 40:966(C), which provides in pertinent part:

It is unlawful for any person knowingly or intentionally to possess a controlled dangerous substance classified in Schedule 1 . .

In the case at bar, defendant admitted to Deputy Self that the bedroom in which the marijuana was found was his. According to the “pink slip,” the motorcycle on which the bag of marijuana was found was registered in defendant’s name. Additionally, the stipulated laboratory report indicated that the substances recovered in his bedroom and on his motorcycle were marijuana. Certainly, this constituted some evidence of each element of the crime charged. Hence, the trial judge properly denied the motion for a directed verdict of acquittal. We find no merit in this assignment of error.

DECREE

For the reasons assigned, the conviction and sentence are affirmed.

      . The text of the affidavit of Deputy Self, upon which the warrant was issued, reads as follows:
      IN THE 10th Judicial COURT PARISH OP NATCHITOCHES STATE OP LOUISIANA

        APPLICATION FOR AND SWORN PROOF OF PROBABLE CAUSE FOR THE ISSUANCE OF A SEARCH WARRANT HEREIN

      PERSONALLY CAME AND APPEARED BEFORE ME, the undersigned Judge of the 10th .Tud.Dist. Court, Parish of Natchi-toches. State of Louisiana, Robert Self of the Natchitoches Parish Sheriff’s Office, who, upon being duly by me sworn, depose(s) and say(s) :
      THAT A SEARCH WARRANT SHOULD BE ISSUED FOR THE SEARCH OP 821 Third Street Natchitoches,., Louisiana A house belonging to Ray Buckner.
      FOR TIIE FOLLOWING REASONS :
      Informant #1 stated that there was a large shipment of marijuana and hashish coming into town this past week-end. This informant stated that the drugs would be for sale out of a house somewhere on Third Street, Natchitoches, Louisiana.

        Informant #2 states that there is marijuana and hashish for sale at 821 Third Street, Natchitoches, La. This informant stated that he saw these drugs and recognized them to be marijuana and hashish. This Informant has proved his reliability by supplying information that has resulted in sixteen (16) drug arrests during the past five (5) months.

      . See also U.S.Const. amend. 4; La.Const. art. 1, § 7 (1921) ; La.Const. art. 1, § 5 (1974).

      . The affidavit held defective in Aguilar, supra, recited only that the affiants “received reliable information from a credible person” and “do believe” that narcotics were for sale. In State v. Wells, 253 La. 925, 221 So.2d 50 (1969), we likewise held that a search warrant was invalid when issued pursuant to an affidavit based on mere belief or suspicion.

      . The affidavit in this case is therefore distinguishable from the one we held invalid in State v. Linkletter, 286 So.2d 321 (La.1973), where the informant’s belief was unsupported by factual statement.

      . The footnote to this passage of the opinion states: “This was what was meant in Es-cobedo when it spoke of an investigation which had focused on an accused.” This was a reference to Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), which imposed what has incorrectly been interpreted as a “focus” test on the admissibility of inculpatory statements. The full holding of Escobedo was as follows:
      We hold, therefore, that where, as here, the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogation that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied ‘the Assistance of Counsel’ in violation of the Sixth Amendment to the Constitution as ‘made obligatory upon the States by the Fourteenth Amendment,’ [citation omitted] and that no statement elicited by the police during the interrogation may be used against him at a criminal trial.
      378 U.S. at 490-91, 84 S.Ct. at 1765, 12 L.Ed.2d at 986.
      Although the investigation had arguably begun to “focus” on defendant, it is “plain that ‘focus’ alone does not trigger the need for Miranda warnings.” United States v. Hall, 421 F.2d 540, 543 (2d Cir. 1969). See also Steigler v. Anderson, 496 F.2d 793 (3d Cir.1974).. “[A]bsent custodial investigation or interrogation, the Miranda warnings are not necessarily required. This is so since, except possibly in some extremely rare case which we need not attempt to hypothesize here, absent custody the element of coercion disappears.” United States v. Carollo, 507 F.2d 50, 51 (5th Cir. 1975).

      . La.Const. art. 1, § 13 (1974) ; La.Code Crim.P. art. 218.1 (1966), added by La.Acts 1974, Ex.Sess., No. 27, § 1.

      . When the police ascertained that the marijuana had been discovered in Ms room, he was immediately placed under arrest and was given the Miranda warnings.

      . La.R.S. 15 :463 provides:
      Except as otherwise provided in this Code, the witness can testify only as to facts within his knowledge, and neither as to any recital of facts heard by him, nor as to any impression or opinion that he may have.

      . Marijuana is classified as a controlled dangerous substance in Schedule I. La.R.S. 40:964.


source: Caselaw Access Project

author: STOULIG, Judge.

license: Public Domain

text:
    Mrs. M. Victoria Brennan, widow of Arthur J. WEESER, Jr. v. PROVIDENT MUTUAL LIFE INSURANCE COMPANY.
    No. 7092.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 11, 1975.
    Rehearing Denied Dec. 9, 1975.
    Writ Refused Jan. 30, 1976.
    Dart & Dart, Henry P. Dart, III, New Orleans, for plaintiff-appellant.
    Chaffe, McCall, Phillips, Toler & Sarpy, Charles L. Chassaignac, New Orleans, for defendant-appellee.

      Before STOULIG, BOUTALL and BEER, JJ.
   STOULIG, Judge.

Plaintiff, Mrs. Victoria Weeser Fleming, as the beneficiary, has appealed a judgment dismissing her suit for the proceeds of two insurance policies on the life of her husband issued by the defendant, Provident Mutual Life Insurance Company. The insured, Arthur J. Weeser, Jr., died of coronary occlusion and coronary sclerosis on May 8, 1966. The trial judge sustained the insurer’s affirmative defense, which, in essence, was that the insured’s deliberate failure to disclose his known heart condition was a material misrepresentation that invalidated coverage.

We affirm. L.R.S. 22:619(B) requires the insurer asserting such a defense to carry the burden of proving (1) that a fact was misrepresented; (2) that this misrepresentation was material to the risk; and/or (3) that it was made with an intent to deceive. Defendant established these requisites by a preponderance of the evidence.

On June 18, 1964, Dr. Calvin Johnson, in his capacity as Provident Mutual’s physician, conducted a physical examination of Arthur J. Weeser, Jr., in connection with his application for life insurance. Part of the examination consisted of directing a series of questions to the applicant to elicit his medical history. Many of the questions, printed on one of defendant’s forms, called for an affirmative or negative response. When the questionnaire was completed, it formed a part of the insured’s application. It is a negative answer to the quoted question upon which defendant primarily rests its claim of misrepresentation:

“IS Have you ever had or been told by a physician or other practitioner that you had any of the following:
(d) Pain, pressure or any discomfort in the chest, palpitation, heart trouble, angina pectoris, coronary disorder, heart murmur, high blood pressure, swellling of legs or ankles?

The record indicates this answer was false because Weeser had been apprised of and had been treated for a heart condition by Dr. Leon D. Bultman, an internist. We can only conclude that the applicant fully understood the import of this question since Dr. Bultman’s medical notes of May 15, 1955, reflect that Weeser stated that he had been rated because of a heart murmur. The doctor explained “rated” referred to an insurance company rating. Even plaintiff concedes her husband had been advised by a doctor he had a heart condition prior to filling out this application; therefore it is impossible to conclude anything other than the insured knew of his heart condition and did intentionally conceal this information from his insurer.

Had this question been answered truthfully, Dr. Frank Mansure, defendant’s medical director, testified the policy would not have been issued because Dr. Bultman would have been consulted for further information and his records would have disclosed angina coupled with labile hypertension. Mansure rated him as a bad risk on whom his company would not care to issue a life policy, had it known his full medical history.

Defendant points out the applicant failed to disclose an aortagram had been performed on him in 1963. Because the test is unrelated to the heart condition (according to the preponderance of medical testimony) and because it was negative, we do not find this constituted the withholding of a fact that would materially affect the insurer’s risk.

Defendant’s case rests on the application form completed by Dr. Johnson, who admits he has no independent recollection of his examination of Mr. Weeser made some 10 years previously.

Plaintiff points out several errors in the medical section of the application form that she claims discredits its evidentiary value. To illustrate: Question 10 on the form asks if the applicant had any surgical operations and the answer appearing is “No”, while the answer to question 11 asking if the applicant has been in a hospital for treatment lists four surgical procedures he underwent. And again, question 15(g) inquiring, inter alia, whether the applicant had a hernia answered in the negative, and yet one of the surgical procedures listed in answer 11 is a hernioplasty. Also, Dr. Johnson erroneously noted Mr. Weeser had a hysterectomy performed and in the section captioned “Additional Explanatory Remarks” noted it was for benign bleeding. Both entries were scratched through and initialed by Dr. Johnson. He explained that what probably happened is that he mistakenly made the entry for Mrs. Wees-er on her husband’s form. She too had applied for insurance and was examined that same day by Dr. Johnson. Her application, introduced in evidence, recites she had a hysterectomy for benign bleeding.

The errors in this application admitted by Dr. Johnson are clerical and apparent on the fact of the document. The negative answers to the questions about surgery and the hernia are countered by positive information on the form itself. These are insufficient to render the document of no probative value. See Radosta v. Prudential Insurance Company of America, 163 So.2d 177 (La.App. 4th Cir. 1964). We assign great weight to the trial judge’s evaluation of Dr. Johnson’s testimony explaining the clerical discrepancies on the form. Dr. Johnson is a pivotal witness. Had the trial judge concluded he was careless, inaccurate and/or evasive, he obviously would have reached an opposite result, even though we have no written reasons to state this positively.

In summary we conclude Arthur J. Weeser, Jr., failed to disclose a material fact, i. e. that he had been treated for heart disease prior to applying for insurance; that had this fact been reported to the insurer, no policy would have been issued; and that, knowing this, the decedent intended to withhold this information in order to obtain coverage.

For these reasons the judgment appealed from is affirmed.

Affirmed.

      . Plaintiff remarried after this suit was filed.

      . The death certificate gives these as the causes of death.

      . “In any application for life or health and accident insurance made in writing by the insured, all statements therein made by the insured shall, in the absence of fraud, be deemed representations and not warranties. The falsity of any such statement shall not bar the right to recovery under the contract unless such false statement was made with actual intent to deceive or unless it materially affected either the acceptance of the risk or the hazard assumed by the insurer.” (Eta-phasis added.)
      See also Gay v. United Benefit Life Insurance Company, 233 La. 226, 96 So.2d 497 (1957).

        . Radosta v. Prudential Insurance Company of America, 163 So.2d 177 (La.App. 4th Cir. 1964), discusses the obvious need to determine “intent” of the applicant from surrounding circumstances since direct proof cannot be adduced.

      . Appellant complains, “ * * * No reasons whatsoever, either written or oral, were given for the judgment. * * * ” If appellant wanted reasons assigned, he could have asked the trial judge to “ * * * give in writing its findings of fact and reasons for judgment.” C.C.P. art. 1917.


author: LEMMON, Judge. SAMUEL, Judge

text:
    Janice F. RUSSO v. Lemie J. GUILLORY, Jr., et al.
    No. 7080.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 11, 1975.
    Rehearing Denied Dec. 9, 1975.
    Writ Refused Jan. 30, 1976.

      Thomas L. Giraud, New Orleans, and C. Verderame, Metairie, for plaintiff-appellee.
    Reuter & Reuter, Arthur C. Reuter, Jr., New Orleans, for defendants-appellants.
    Before SAMUEL, LEMMON and MORIAL, JJ.
   LEMMON, Judge.

In this vehicular accident case defendants have appealed from a judgment rendered after trial on the merits, questioning both liability and quantum.

I

The late rainy afternoon collision occurred on U. S. Highway 51 in St. John the Baptist Parish, just south of the Pass Manchac bridge. At that point the undivided north-south highway consisted of two lanes. Just prior to the accident, both plaintiff’s car and defendants’ 38-foot trailer-tractor unit were traveling south. To their left as they descended the raised bridge were a number of business establishments. The descending portion of the bridge measured about 400 to 550 feet in length from the crest to grade level.

The truck driver testified: He was traveling at 30 miles per hour across the bridge. When he was about halfway down the bridge, he detected in his left side rear-view mirror that the trailer was beginning to move slowly into the northbound lane. Fearing the trailer would jackknife, he immediately applied the hand brake to lock the wheels of the trailer and slow it down, and then shifted down one gear to gain power to pull the tractor away from the trailer, after which he was 25 to 30 feet from the bottom of the bridge. The hand brake failed to lock the trailer wheels, and when the trailer’s left side hit the abutment at the base of the bridge, he headed the tractor (which had never left the proper lane of travel) toward the right shoulder of the road. The unit thereafter slid sideways down the highway until the front of the tractor struck the side of a parked truck, located at the right or west shoulder about 40 to 50 feet from the base of the bridge.

Other witnesses established that just as (or just before) the truck came to rest perpendicularly across the highway, plaintiff’s car (which had been following the truck unit) struck the rear corner of the trailer and plunged into a ditch adjacent to the east shoulder of the highway. The point of impact was in the northbound lane. Defendants’ unit at rest blocked the entire southbound lane and approximately half of the northbound lane.

Plaintiff’s version of the occurrence was: When she was approximately halfway down the bridge traveling at about 40 miles per hour, she noticed the truck trailer (at least two or three car lengths ahead) moving to the left. She then rested her foot on the brake, since the truck appeared to be pulling off toward the left shoulder where a restaurant (known to her to be a popular truck stop) was located. She first realized something was wrong when she saw the cab of the truck start back to the right across the highway, at which time she was near the base of the bridge. She immediately applied her brakes and swung her car to the left, but the right side of her car struck the right rear corner of the truck trailer and then continued into the ditch.

Two witnesses, with different perspectives from inside and outside of business places at the foot of the bridge, testified that they looked up immediately when they heard brakes screeching and saw the truck 50 to 100 feet (the other estimate was 80 or 90 feet) up the bridge. One stated that the tractor struck the opposite abutment at the foot of the bridge, while the other stated that the trailer just missed the abutment when it came around.

Defendants’ Liability

Citing language in Barret v. Caddo Transfer and Warehouse Co., Inc., 165 La. 1075, 116 So. 563 (1928), that “skidding may occur without fault . . . under circumstances not necessarily implying negligence”, defendants argue that the doctrine of res ipsa loquitur does not apply in cases involving skidding and that plaintiff failed to prove any specific negligence.

In Boudreaux v. American Ins. Co., 262 La. 721, 264 So.2d 621 (1972), the Supreme Court demystified the doctrine of res ipsa loquitur and held that a plaintiff’s evidence (direct or circumstantial) in any negligence case entitles him to judgment when the evidence taken as a whole shows the defendant’s negligence as the most plausible or likely cause of the damages.

A motorist’s duty of reasonable care includes the duty to keep his vehicle under control. In the present case plaintiff proved that the defendant driver failed to keep his truck under control, and the defendants introduced no evidence to explain the cause of his failure of control. The evidence taken as a whole thus shows the most likely cause of the accident was defendant driver’s breach of his duty to maintain control. We therefore conclude that defendants are liable for plaintiff’s damage unless her contributory negligence bars her recovery.

Contributory Negligence

Referring to defendant driver’s testimony that he traveled 250 to 300 feet from the first sign of trouble until his collision with the parked truck, defendants contend that the truck’s sliding down the bridge for that distance should have immediately alerted plaintiff to the emergency situation and that plaintiff had sufficient time thereafter to avoid the accident if she had braked immediately rather than resting her foot on the brake and ignoring the signs of danger until it was too late.

Contributory negligence is conduct on the part of the plaintiff which falls below the standard to which he should conform for his own protection, the standard being that of a reasonable man under like circumstances. Smolinski v. Taulli, La., 276 So.2d 286 (1973). In measuring plaintiff’s behavior in the present case, we are faced with somewhat conflicting versions of the occurrence. Defendants, choosing the most favorable facts as to time and distance, urge that plaintiff should have been alerted to the emergency situation immediately and had as much as 300 feet within which to react and bring her car to a stop without striking the truck. However, the trial judge apparently rejected defendants’ version of the occurrence, as re-urged on appellate review. Furthermore, neither the defendant driver nor the witnesses testified that the truck unit slid down the bridge sideways, but rather that the sliding began when the cab veered to the right after reaching the bottom of the bridge.

Under plaintiff’s version, apparently accepted as credible by the trial judge, she was traveling at 59 feet per second, lifted her foot from the accelerator (thereby decelerating slightly) and placed it on the brake when she saw the trailer moving to the left, and applied the brakes and veered to the left immediately upon the first definite indication of trouble when the cab suddenly veered back to the right. This behavior meets the standard of conduct for a reasonable person under like circumstances, as viewed from plaintiff’s vantage point. We conclude that defendants failed to prove plaintiff was contributorily negligent.

II

After the February 29, 1972 accident, plaintiff received stitches and other treatment at a nearby hospital and was then taken home. The next morning she consulted Dr. Ignatius Tedesco, a general surgeon who was her longtime family physician. His examination revealed considerable limitation of neck motion, tenderness and spasm in the trapezius muscle, brachial plexus and occipital nerve pain on palpation, lacerations of the neck and knees, and multiple hematomas of the hip, thigh, calf and buttocks. X-rays were reported as normal. He diagnosed cervical strain and prescribed diathermy, traction, medication and absolute bed rest for ten days.

Plaintiff returned to work as a school teacher after nine days.

Dr. Tedesco’s staff administered diathermy, traction and B-12 injections (to provide nutrition to the sheath of the nerves) daily, and he examined plaintiff weekly through the first part of June. During this time plaintiff complained of constant pain and during one period had even immobilized her left arm to minimize the pain.

The same pattern of treatment was thereafter followed with less frequency, and decided improvement was accomplished by mid-August. Plaintiff continued improving, and when she exhibited minimal symptoms on November 16, 1972, the doctor discharged her. She testified that she was still having moderate, infrequent pain at the time.

In April, 1973 plaintiff returned to Dr. Tedesco, complaining of a recurrence of severe symptoms in the neck, arms and shoulders. He found marked cervical spasm and began her on the same regimen of treatment previously used. In June and July plaintiff attended a geology seminar in Colorado and participated in outdoor activities, and she required medical attention on three occasions. She returned to Dr. Tedesco’s care in August and continued until the time of trial in March, 1974.

In a January, 1974 neurological consultation, which Dr. Tedesco had recommended because of plaintiff’s persistent sympto-matology, Dr. Donald Richardson found tenderness on palpation of the neck, discomfort at extremes of neck motion, a decrease in size of the left tricep and deltoid muscles and arm circumference, and a slight narrowing of the disc space at C-5, revealed by X-rays. He testified that the disc narrowing indicated atrophy of the disc cartilage, which can be caused by trauma and which would manifest itself six months or more after the injury. Because of these findings and the history, and because plaintiff’s complaints were consistent with this type of injury, the doctor related plaintiff’s present complaints to the automobile accident. He had not examined previous X-rays, but he stated a prognosis that if the disc space was narrowing, it would probably continue to do so and further degeneration would occur. He did not recommend surgery at the time, but his findings warranted continued medical care indefinitely. He also recommended periodic X-rays, since progressive degeneration often requires surgical correction after long periods of persistent, intermittent neck pain.

Plaintiff also had been examined at defendants’ request by a neurosurgeon in October, 1973. Dr. Richard Levy found only slight limitation of neck motion and slight tenderness over the cervical spine. He reviewed X-rays taken on that date and concurred in the radiologist’s report that the “vertebra appear normal in contour, structure and dimensions and the disc spaces of average height.”

At time of trial plaintiff complained of neck and shoulder pain, with frequent headaches. She was using heat treatments and medication for relaxing muscles.

After reviewing the evidence, we conclude that the medical testimony, although conflicting, supports the trial court’s apparent finding that plaintiff was still suffering cervical pain at the time of trial and that this suffering was caused by the accident two years earlier. We further conclude that the award of $9,000.00 for pain and suffering is not an abuse of the “much discretion” vested in the trial judge by C. C. art. 1934(3).

Furthermore, we believe that plaintiff has proved by the requisite preponderance of evidence that persistent, intermittent episodes of pain will continue and require future medical care and treatment. While no specific cost or duration was suggested in Dr. Richardson’s testimony, we find the awards of $1,500.00 for future medical expenses and $2,000.00 for future pain and suffering to be reasonable in view of plaintiff’s age (26 years at time of trial), the severity, frequency and duration of her past problems, and the established likelihood of continuance into the future.

Defendants’ other complaint as to the amount of the judgment relates to the awards of $10,000.00 for a neck scar and $2,000,00 for scars on both legs. The trial judge described the neck scar resulting from the puncture wound as “an inch or so long” and “better than an eighth of an inch wide”, with a visible sign of a suture in the middle and redness around the scar a half inch on each side. Plaintiff testified that she adjusted her hair style and dress in an attempt to cover the disfigurement. Additionally, there was a star-shaped scar below the left kneecap and five small scars in various places on the right knee.

While the awards appear generous, especially in relation to the award for pain and suffering, we cannot say that the awards to this unmarried young lady constitute an abuse of the trial judge’s “much discretion”.

Plaintiff concedes a mathematical error of $1,000.00 in the computation of the award.

Accordingly, the judgment is amended to reduce the award by $1,000.00. As amended, the judgment is affirmed.

SAMUEL, J., concurs and assigns reasons.

SAMUEL, Judge

(concurring).

At the request of the defendants, plaintiff was present in this court on the day of argument and the panel observed the neck scar in suit. Although containing a slight depression because of its width, the scar is small and well healed. Cosmetically, and the cosmetic effect is the sole basis for the award for this item, it detracts very little. Accordingly, I am of the opinion that the amount awarded for the scar on the neck is excessive to the extent that it constitutes an abuse of the discretion afforded the trial court by Civil Code Article 1934(3). However, the record regarding all of the injuries, residuals, pain and suffering satisfies me that the total award of $24,500, although higher than I would have awarded originally, is not so excessive as to constitute an abuse of the trial court’s discretion.

Therefore, I respectfully concur.


author: STOULIG, Judge. BEER, Judge

text:
    Mrs. Lynden Howell CLAY v. Louis H. CLAY, Jr.
    No. 7075.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 11, 1975.
    Rehearing Denied Dec. 9, 1975.

      Frank J. D’Amico, George H. Jones, New Orleans, for plaintiff-appellant.
    Greenberg & Dallam, Roger I. Dallam, Gretna, for defendant-appellee.
    Before STOULIG, BOUTALL and BEER, JJ.
   STOULIG, Judge.

Plaintiff, Mrs. Lynden Howell Clay, has appealed a judgment that maintained “exceptions of no cause of action and res judicata” and dismissed her divorce action against Louis H. Clay, Jr. In so doing, the trial court accorded full faith and credit to a Nevada judgment of divorce obtained by Louis Clay before plaintiff instituted this suit against him.

The issue raised by this appeal is whether Mrs. Clay may now collaterally attack the validity of the Nevada judgment after having appointed an attorney “or any substitute named by you as my attorney” to appear for her and represent her in these proceedings. It is contended her signature was obtained through the “fraud and bad faith of appellee,” thus the mandate is invalid.

Appellant submits these circumstances prove fraud: In May 1973 Mr. Clay moved from the matrimonial domicile and never returned. In July 1973 Mrs. Clay retained an attorney to represent her in the separation. Her husband was also represented by an attorney who was discharged prior to the retaining of present counsel. Between mid-July and early August, a certified public accountant who was a close friend of both litigants, drafted three separate proposals for a community property settlement. Each time, Mrs. Clay’s attorney conferred with him to suggest changes. It appears from the record that at these early stages the only issue under consideration was the property settlement and both counsel worked through the accountant as an intermediary, rather than discussing this matter directly.

When no agreement had been reached by August 6, 1973, Mr. Clay that day signed a letter prepared by CPA addressed to his own attorney, advising him that he was withdrawing all prior offers of property settlement. The reason assigned for this action is that Clay’s proposals had been more than reasonable, but he concluded, “ * * * Mrs. Clay will never be satisfied respecting any settlement other than that determined by a legal division of the net community marital estate.” Then he directed :

“As a result, I must regretfully withdraw my proposals to date and would request that you inform Mrs. Clay through her counsel, accordingly.” (Emphasis added.)

This document indicated copies were sent to Mrs. Clay, her attorney and the accountant. However, according to the accountant’s testimony a copy of this letter was immediately hand delivered to Mrs. Clay and a copy was mailed to her counsel.

Upon its receipt, Mrs. Clay contacted the accountant, unaware he had written the letter for her husband and asked that he persuade her husband to reinstate the third proposal for settlement of property rights. He suggested this could only be done if she would withdraw her objection to her husband’s plan to obtain a Nevada divorce. Ostensibly acting on the request of the appellant, he went with Mr. Clay to his attorney’s office on the following day with the expectation of completing the interim property settlement on the same day. However, Mr. Clay’s attorney expressed concern that Mrs. Clay was being rushed into signing the agreement and at his insistence the signing was postponed until August 10. Part of the package was that Mrs. Clay would sign a power of attorney appointing an agent in Nevada to appear for her and represent her in the Nevada divorce. On August 10, 1973, Mrs. Clay, accompanied by the accountant, appeared at the office of Mr. Clay’s attorney and executed the agreement drafted by her husband’s lawyer. At that same time she signed the disputed mandate which subsequently was the basis for her vicarious submission to the jurisdiction of a Nevada divorce court. She testified she expected someone to notify her local attorney and was surprised when he did not appear. Conversely, the accountant insists appellant expressly rejected having counsel present at this meeting. Mr. Clay’s attorney apparently expected Mrs. Clay’s lawyer to appear and-inquired after him. The documents were finally signed by Mrs. Clay and no one contacted her attorney to determine whether he was aware of and/or approved of these transactions.

He was only informed of his client’s action after the fact and he immediately telephoned the accountant and Mr. Clay’s attorney to protest the unethical action. In response, defendant’s attorney sent this letter of August 15, which said in part:

“The manner of the execution of the agreement was not my choosing, and I extend to you my sincere apology for any impropriety on my part. It was not intended, and I am truly sorry that it happened the way it did.”

A copy of the interim property settlement was enclosed but counsel did not receive a copy of the power of attorney. However, the agreement indicates Mrs. Clay executed the disputed mandate contemporaneously with the signing of the agreement and clearly states the import of her signature. The divorce was granted September 24, 1975 and nothing was done by Mrs. Clay’s attorney to rescind the power of attorney.

In the light of this evidence, we find an element of coercion in Mrs. Clay’s execution of the property settlement and power of attorney. We note that Mr. Clay is a major client of the accountant and it is to his financial interest to keep the good will of appellee. Under this circumstance, it was highly improper for the accountant to act as intermediary between the Clays particularly (1) when he drafted the letter that prompted Mrs. Clay’s call and (2) when he was aware she was represented by an attorney. The next aspect of this case suggesting undue influence is the rapidity with which the accountant and Mr. Clay pressed for the execution of the agreement. It deprived appellant of the opportunity to give an informed consent, particularly when she was permitted to sign without the knowledge or approval of her own attorney. Appellee suggests Mrs. Clay, a college graduate who had six months’ experience as a legal secretary, was fully capable of understanding her actions. We cannot agree.

The record suggests Mrs. Clay may have been prompted to sign this agreement on the theory she would receive a larger property settlement. The letter drafted by the accountant stated this was the case. Before she was asked to sign, it was the obligation of Mr. Clay’s counsel to clarify the question of Mrs. Clay’s representation. It was important for her to compare her position in a Louisiana, as opposed to a Nevada, court before she could give an informed consent. We do not think her brief position as a legal secretary would qualify her to understand her options.

However, it is also clear Mrs. Clay’s attorney became fully aware of her actions approximately six weeks before the power of attorney was utilized. He testified he did nothing to revoke the mandate nor did Mrs. Clay. Appellant discharged this attorney in October 1973. The record does not explain what conferences or exchanges there were between Mrs. Clay and her then attorney during late August and September while Mr. Clay was establishing residence in Nevada. We only know there was sufficient time to revoke the power of attorney or take other steps to contest the Nevada divorce, should Mrs. Clay have so desired. She knew her husband was in Nevada for the purpose of securing a divorce and she even sent her children to visit with him there. Therefore, we find even if the mandate was signed under questionable circumstances, it was ratified by her inaction after her attorney had become aware of its execution.

If Mrs. Clay cannot prove fraud in obtaining the mandate, she cannot now collaterally attack the Nevada judgment. Even if she could prove the rendering court lacked jurisdiction for some reason, she is precluded from asserting this claim in a collateral attack if she entered an appearance, participated vicariously in the original proceeding or waived her right to do so. Had it been established Mrs. Clay was fraudulently induced to forego what defense could have been presented, this would constitute extrinsic fraud and she could opt to nullify the judgment in Nevada or collaterally attack it in Louisiana.

The courts of this state have recognized and permitted collateral attacks on foreign judgments procured by extrinsic fraud. This principle is explicitly set forth in West v. Lawrence, 297 So.2d 443, 445 (La.App. 3d Cir. 1974), wherein the court stated:

“Lawrence attacks the validity of the judgment on the grounds that it was obtained through misrepresentation and deceit. Louisiana courts have recognized that extrinsic fraud (such fraud as would prevent prosecution of an effective defense or would prevent an adversary trial of the issues) may be asserted as a bar to recognition of the foreign judgment, while intrinsic fraud (such fraud as would simply amount to an affirmative defense to the original cause of action) would not serve as a defense to the recognition of a foreign judgment. Lee v. Carroll, 146 So.2d 242 (La.App. 3 Cir. 1962).

This distinction between extrinsic and intrinsic fraud is in accord with the interpretation placed on it in the Nevada courts. See Colby v. Colby, 78 Nev. 150, 369 P.2d 1019 (1962).

The burden of undermining the judgment of a sister state rests heavily on the assailant. In this case Mrs. Clay’s failure to explain her inaction after her attorney became aware of her signing the power of attorney is a fatal flaw in her case. We must hold she failed to carry the burden of proof to establish she was deprived of her defense by extrinsic fraud.

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

Affirmed.

BEER, J., dissents with written reasons.

BEER, Judge

(dissenting).

I respectfully dissent.

I agree with the majority’s finding that there were elements of coercion in Mrs. Clay’s execution of the property settlement and power of attorney. This finding, in my opinion, shifted the burden to appellee, Mr. Clay, to prove that the documents (particularly the power of attorney) were later ratified. I do not agree that a showing of Mrs. Clay’s “inaction” after her then attorney was made aware of the execution of the documents is sufficient proof of ratification.

The majority acknowledges the “questionable circumstances” under which the signing took place. I do not feel that this cloud can, in the circumstances of this case, be removed by “inaction” alone.

I take no issue with the obvious fact that “quickie” divorces can be obtained in Nevada. But I do feel strongly that there should be strict adherence to all existent requirements when this procedure is followed. In this case Mrs. Clay was, for all intents and purposes, duped into signing the letter to “Herman M. Adams, or nominee” and the record contains no satisfactory affirmative proof of any subsequent action sufficient to erase this original stigma.

’ Thus, I conclude that Mrs. Clay was unrepresented in the Nevada proceeding which is, therefore, null and without binding effect.

Accordingly, I respectfully dissent being of the view that the judgment appealed from should be reversed and the exceptions overruled.

      . The appropriate plea is estoppel. For a judgment to be res judicata C.C. art. 2286 provides : “ * * * the thing demanded must be the same; the demand must be founded on the same cause of action; the demand must be between the same parties, and formed by them against each other in the same quality.” There are cases in which Louisiana courts have treated the plea of estoppel as an exception, but more properly, it should be raised as an affirmative defense. See C.C.P. art. 927, Comment (c).

      . U.N.Const. Art. 4, § 1 (the Full Faith and Credit Clause) requires judgments rendered in one jurisdiction be accorded the same faith and credit in sister states as they have in the state of the original forum.

      .
      “New Orleans Louisiana
      August 10 1973
      TO : HERMAN M. ADAMS, or nominee
      Attorney at Law
      Las Vegas, Nevada
      Dear Sir:
      I understand that my husband contemplates filing an action for divorce against me through MICHAEL L. HINES, Attorney-at-Law, Las Vegas, Nevada, in the near future.
      I hereby constitute and appoint you or any substitute named by you as my attorney to enter my appearance and rexiresent me in said action at any time after the complaint is filed to the same extent as if I were personally present and you may consent to an immediate trial thereof without notifying me.”

      . The instrument in part provides :
      “The parties hereto are married to one another but are presently living separate and apart. CLAY intends to dissolve the marriage between the parties hereto by obtaining a divorce in the State of Nevada, and to this end HOWELL will execute a Power of Attorney contemporaneously with the signing of this agreement wherein she will appoint Herman M. Adams, Attorney at Law, to enter her appearance in a Nevada Court and to represent her in the divorce action filed by CLAY in said court.”

        . Johnson v. Muelberger, 340 U.S. 581, 71 S.Ct. 474, 95 L.Ed. 552 (1951), and Boudreaux v. Welch, 249 La. 983, 192 So.2d 356 (1966), and cases cited in these decisions.

        . Colby v. Colby, 78 Nev. 150, 369 P.2d 1019 (1962), stands for the principle that extrinsic fraud can serve as a basis for an action in nullity.

      . Liebendorfer v. Gayle, 217 So.2d 37 (La.App. 3d Cir. 1968).

      . Berry v. Berry, 307 So.2d 821 (La.App. 3d Cir. 1975).

      . The record is not as clear as one would hope it would be on this issue. The attorney saw a copy of the property settlement document (which does refer to the power of attorney) but did not, apparently, see the power of attorney document.


author: MILLER, Judge. CULPEPPER, Judge

text:
    Clifford J. RYDER, Plaintiff-Appellee, v. Narcisse LACOUR, Defendant-Appellant.
    No. 5114.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 2, 1975.
    Rehearing Denied Nov. 13, 1975.
    Writ Refused Jan. 9, 1976.

      Thistlethwaite & Thistlethwaite by Hugh William Thistlethwaite, Jr., Opelousas, for defendant-appellant.
    Sandoz, Sandoz & Schiff by Gerald H. Schiff, Opelousas, Pavy & Boudreaux by Albert J. Boudreaux, Opelousas, for plaintiff-appellee.
    Before HOOD, CULPEPPER, and MILLER, JJ.
   MILLER, Judge.

In this petitory action, defendant Nar-cisse Lacour appeals the judgment recognizing plaintiff Clifford J. Ryder’s ownership of the disputed 7.15 acre tract. We affirm.

The issues relate to burden of proof and title.

Plaintiff Ryder claims ownership by purchase and a chain of title to the heirs of the Boagni estate, who themselves acquired by judgment of possession in 1932. Plaintiff alleged defendant was not in possession. Defendant Lacour claims the disputed tract is included in his title or alternatively he acquired the disputed tract by acquisitive prescription of ten and thirty years. Defendant claims to be in possession of the disputed tract.

The trial court held neither party established possession during the year prior to trial and plaintiff established better title.

BURDEN OF PROOF

LSA-C.C.P. art. 3653 provides that possession is the factor which determines plaintiff’s burden of proof, but that article does not define possession. Possession requires not only detention but also the intent to possess as owner. Planiol, Civil Law Treatise § 2263f, (Louisiana State Law Institute Translation). Therefore, the possession required to put the harsh burden on plaintiff of making out his title, is the same possession required to initiate the possessory action or to establish acquisitive prescription. LSA-C.C.P. art. 3660. The possession must have lasted for at least one year and the nature of the corporeal possession is governed by the use for which the immovable is intended. Gore v. Ronaldson, 200 So.2d 46 (La.App. 1 Cir. 1967); Clayton v. Langston, 311 So.2d 74 (La.App. 3 Cir. 1975).

Defendant alleges he established possession of the tract by cutting grass, grazing cattle and repairing fences. It is important to note that defendant is seeking to establish initial possession by these acts. His claim to title is rejected for reasons assigned hereinafter, so CORPOREAL, not constructive or continuance of civil possession is at issue.

Defendant himself testified repeatedly that when he first occupied his property and subsequently purchased the interest of his mother and co-heirs he did nothing with the disputed tract. He never farmed it (Tr. 152, 157) and didn’t use it (Tr. 158, 168, 176). Some time beginning eight or nine years ago, defendant cut the grass several times (Tr. 158) and once saved the hay (Tr. 157). There is no evidence the tract was especially good or only good for hay. No evidence or testimony indicates the tract has been used for hay before or since. While these acts were not inappropriate use of the land in its then existing condition, they do not establish corporeal possession.

Defendant makes a strong claim that he enclosed the property with fences. The eighty year old Lacour, his wife and daughter testified he repaired fences and (in 1970 or 71) took down one section of fence separating his 40 arpent tract from the disputed tract to create access to his remaining property. Testimony describing the state of the fences at relevant times and places varied a great deal, but all parties agreed to two things. The property had been fenced on its four sides long before 1930. The gap or gate connecting the disputed tract to plaintiff’s other properties remained in operation until 1970 or 71 when defendant stretched a wire across the gap, long after ownership came into dispute. Relevant here is the fact that after Lacour allegedly reworked the fences, plaintiff granted a three year grazing lease to a neighbor which included the disputed tract. The neighbor grazed his cattle there and paid Ryder $45 or $50 as rental for this and the adjacent tract. Tr. 230-1. When Lacour was specifically questioned about this use of the property without his permission, his response was “maybe so” (Tr. 159). There is no manifest error in the trial court’s credibility determination and his rejection of Lacour’s testimony that he enjoyed continuous and exclusive use of the tract.

Further, Lacour’s acts are not seriously inconsistent with usage of the tract at the sufferance of plaintiff’s ancestors in title (Tr. 122). Therefore, defendant is not in possession in the sense required by LSA-C.C.P. art. 3653 to put on plaintiff the harsh burden of “making out” his title.

We note the long history of this dispute. Both parties testified to negotiations to settle the title dispute as long as fourteen years ago. Lacour testified he wanted “to get my piece of land back.” Tr. 160. Car-riere corroborated Lacour’s statement that he had disputed plaintiff’s earlier ancestor’s title. Tr. 214. During the many years of this title dispute, intermittent acts attempting possession have occurred on both sides. As a matter of policy, it would be unwise to allow the last corporeal act to radically alter the parties’ situation. This would encourage physical confrontations and elevate self help to a status never enjoyed in a civilian jurisdiction.

Both the character of the alleged acts of possession of plaintiff’s ancestor in title and plaintiff’s subsequent acts amply support the trial judge’s determination that defendant was not in possession.

PLAINTIFF’S TITLE

To succeed in the petitory action, plaintiff must establish his title to the property in question. The disputed tract lies within the boundaries set forth in the July 13, 1967 deed by which he acquired properties from S & E Realty Corporation. In August of 1958 S & E acquired the disputed tract from Danel-Ryder Inc. That corporation acquired it from James Dejean in October, 1957 and in 1948 Dejean acquired the disputed tract in a separate act from heirs of the Boagni estate. The Boagni heirs acquired it through judgment of possession describing the north boundary of this property as the south boundary of land belonging to defendant’s ancestor.

Defendant attacks this chain of title in two ways. First, he contends the sale from the Boagni heirs is null since the estate had been seized and sold by executory process prior to Dejean’s purchase. Secondly, even if plaintiff established title, he did not establish title beyond 1932. Defendant Lacour contends plaintiff’s action must fail in that plaintiff failed to establish title “good against the world.”

The trial judge held the description in the mortgage foreclosure and sale (of the Boagni estate) did not affect the disputed tract. We agree. The property description in the foreclosure begins by reciting the boundaries of adjoining estates, but specifically designates the acreage conveyed in terms of quarter section lines. The descriptive call pertinent to this dispute limits the seizure and conveyance to the southeast quarter of the southeast quarter of section 22. The tract in dispute is a narrow strip adjacent to and north of that line. The disputed tract was not involved in the foreclosure sale because the quarter section line is recited as the north boundary of the seized property.

A specific boundary is preferred rather than a general description or a recitation of the number of acres. Beugnot v. New Orleans Land Company, 139 La. 687, 71 So. 947 (1916); Lafayette Parish Police Jury v. Perroncel, 212 So.2d 152 (La.App. 3 Cir. 1968). There is no manifest error in the trial court’s holding that Ryder has established a better title than that of Lacour.

Lacour’s second contention is that plaintiff is required to go beyond record title to prove title “good against the world.”

Since Lacour alleged both title to and possession of the disputed tract and was found to be without either, the present problem is distinguished from that considered by this court in Deselle v. Bonnette, 251 So.2d 68 (La.App. 3 Cir. 1971), approved in Pure Oil Company v. Skinner, 294 So.2d 797 (La.1974).

On the issue of plaintiff’s burden of proof in the petitory action, those cases considered the effect of defendant’s complete lack of title to support his possession. Despite the implication in the Official Revision Note for art. 3653, that this circumstance might affect the burden of proof and some prior jurisprudence to the same effect, the Supreme Court and this court held defendant’s lack of title did not affect the burden imposed by C.C.P. art. 3653. Possession is the controlling factor. La-cour is not in possession. Therefore in this case, plaintiff is only required to prove better title.

DEFENDANT’S TITLE

Defendant asserts he has record title through a deed to his father, a subsequent judgment of possession, and his purchase of the interests of his mother and co-heirs. That title contained 40 arpents, more or less, bounded by properties owned by named neighbors to the north, east, south, and west.

The additional acreage made up by the disputed tract would increase defendant’s tract by some 16% which is a substantial amount for the small deviation contemplated by “more or less.”

Although defendant testified that he considered the disputed tract to be part of his 40 arpents, there is a plat of survey made at his request showing the disputed tract to be a separate tract. Tr. 36, 58. Furthermore, the servitude granted by defendant Lacour to Shell Pipe Line Corporation in 1942 separately describes the disputed tract — there as 7 acres.

Defendant has not seriously argued to us that he has record title to the disputéd tract.

PRESCRIPTION

Having held Lacour’s title to 40 ar-pents does not include the disputed tract, and noting defendant alleges no other act translative of title, there can be no acquisitive prescription of ten years on his part.

The claim of thirty years acquisitive prescription is defeated by defendant’s own testimony. He testified that when he acquired his 40 arpents, the disputed tract was being farmed for Dejean. He cannot benefit from the alleged earlier possession on the part of his father because of this interruption to which defendant himself testified (Tr. 176). Lacour testified at Tr. 152, 153, 157, that he did not farm or do other acts appropriate to possession. In response to a direct question, Lacour admitted he had done nothing during the twenty-five years he claimed possession prior to 1970 or ’71 when he took down part of the fence between his 40 arpent tract and the disputed tract.

For thirty year prescription, possession must be corporeal at its inception. Chamberlain v. Abadie, 48 La.Ann. 587, 19 So. 574 (1896); Ree Corp. v. Shaffer, 261 La. 502, 260 So.2d 307 (1972). By defendant’s own testimony, the only acts which might constitute corporeal possession commenced some eight or nine years ago. Tr. 158, 160. Finally, we note the unrefut-ed testimony that plaintiff’s ancestors in title leased the disputed tract for farming and received a share of the crops. All this was subsequent to the alleged acts of possession by defendant’s ancestor in title.

In conclusion, Ryder and his ancestors in title, Danel and Dejean, maintained possession of the disputed tract from 1948 until 1970 or ’71 when Lacour tore down part of the north fence and stretched a wire across the gap in the west fence. Other than making these fence alterations, Lacour did not exercise acts of possession of the disputed tract — at least there is no manifest error in the trial court’s finding that he did not. Plaintiff has shown a descriptive title to the tract in dispute going back beyond 1930. Defendant has shown no title. This satisfies plaintiff’s burden under C.C.P. art. 3653 to prove better title to the property in dispute.

The trial court judgment is affirmed at appellant’s costs.

Affirmed.

CULPEPPER, J., dissents and assigns written reasons.

CULPEPPER, Judge

(dissenting).

I am of the opinion the evidence shows clearly that the defendant Lacour was in possession of the 7-acre tract of land at the time plaintiff filed this petitory action.

A most important fact, not mentioned in the majority opinion, is that this suit was filed on July 18, 1973. The threshold question is whether the defendant had been in possession for at least one year prior to that date.

The majority opinion correctly states the applicable rule of law. The plaintiff in a petitory action against a defendant in possession has the burden to “make out his title”. LSA-C.C.P. Article 3653. Our Supreme Court has construed this to mean that the plaintiff must prove either that he has a perfect record title, good against the world, without regard to the title of the defendant in possession, or that plaintiff has acquired ownership by acquisitive prescription. Pure Oil Company v. Skinner, La., 294 So.2d 797 (1974).

If the defendant in the present case is in possession, then there is no -question that the plaintiff has failed in his burden of proof. Plaintiff’s recorded title goes back only to 1948, when James Dejean acquired the property from the Boagni heirs. It is also clear from the record that plaintiff has failed to prove ownership by the acquisitive prescriptions of either 10 or 30 years.

The majority opinion correctly states that the 7-acre tract in question had been fenced on its four sides long before defendant Lacour acquired his 40 acres from his mother and coheirs of his father in 1942. Defendant Lacour testified he understood the 7 acres was included within the approximately 40 acres which he acquired. He had the property surveyed in 1945. A copy of this survey, filed in the record, shows the fences which existed on all four sides.

It is conceded by both the plaintiff and defendant that beginning at the time when Dejean acquired his deed from the Boagni estate in 1948, there has been a dispute as to the ownership of the property. Both sides testified as to acts of possession which occurred since 1948. Plaintiff makes much of the evidence that shortly after Dejean purchased from the Boagnis, one of his tenants farmed a portion of the 7 acres for two years. Lacour says that he knew about this, but that during the second year he told the tenant that he owned the land and thereafter no attempt has been made by anyone to cultivate the land again.

The defendant Lacour testified that eight or nine years ago, after the failure of attempts to settle this dispute with the plaintiff Ryder and his ancestors in title, the defendant took affirmative action to establish his possession of the 7-acre strip. He says he closed up the gap in the fence on the west and adjacent to plaintiff’s property by putting fence wire across it. At the same time, defendant removed about the west half of the fence along the north side of the 7-acre strip, thereby opening up the strip to access from the remainder of defendant’s property.

Defendant Lacour and his wife and daughter all testified that after closing up the gap leading to plaintiff’s property and removing the west half of the fence on the side next to defendant’s property, the defendant maintained the fence, grazed his cattle, clipped the pasture and cut hay on the 7 acres. In addition, defendant testified that he was on the property almost daily to see after his cattle.

There is no evidence to contradict this positive testimony by defendant Lacour that he maintained the fence enclosing the 7 acres as part of his farm for eight or nine years prior to the date this suit was filed. Most importantly, the plaintiff Ryder himself corroborates this evidence as to defendant’s possession. Ryder admits that during the last ten years he has been on the 7 acres only about six times and then to go dove hunting, that on these occasions he went over the fence which had been placed across the gap on the west end of the property, and on leaving he went back over this fence. Furthermore, Ryder admits that he knew the gap on the west end had been closed off and that the fence along the north side had been removed. Yet he took action to assert his rights to the property until he filed this suit, which was several years later. Because of its importance in this case, I quote the following from the testimony of Ryder himself:

“Q. When was the last time that you went on the property ?
A. Last year, first part of ’73.
Q. Now this time when you went on the property you did have to climb the fence, didn’t you ?
A. Yes.
Q. Well when the north fence was taken down you didn’t take any action to put it up ?
A. I did not.
Q. You didn’t try to see who had taken it down ?
A. No, I did not.
Q. Then you intended to leave it open?
A. I was waiting on a decision to find out whether I owned it or Mr. Nar-cisse.
Q. So you knew that he had taken down the fence ?
A. I did not say he took it down.
Q. You don’t know who took it down?
A. That’s correct.
Q. How long ago did you lease that seven acres for the cattle to go on to Mr. Brown?
A. That’s been about four years ago to last year.
Q. Now when the fence was put up on the west blocking you off from the rest of the property that you are claiming, you did nothing about that ■ either ?
A. No, I did not.
Q. And how often in the last three years have you been on your property, the property that you are claiming ? This seven acres ?
A. Oh, maybe a half a dozen times.
Q. And you have only been on it for hunting ?
A. That’s correct.
Q. And then you go back over the fence and leave?
A. That’s correct.
Q. In this half a dozen times you don’t know if Narcisse Lacour had been on the property ?
A. Not when I was there.
Q. But you have only been there say six times in the last ten years ?
A. That’s right.”

I fail to see how the testimony of the defendant and his wife and daughter, as admitted and corroborated by the plaintiff Ryder himself, can leave any question that more than one year before this suit was filed Lacour fenced in this 7 acres as part of his farm and that he corporeally possessed it as owner.

The majority opinion makes much of Ryder’s testimony that he leased the 7 acres, along with another 17-acre tract, west of defendant’s land, to a Mr. Brown, who owned some property on the east end of the 7-acre tract in question. Ryder testified under direct examination that he had leased the property to Brown and that Brown had used the 7 acres as a passageway for his cattle to reach the 17 acres on the west end of the 7-acre tract. However, Ryder did not testify that he ever saw Brown’s cattle on the 7 acres. In view of his testimony quoted above, that he had only been on the property six times during the last ten years, and then for the purpose of hunting doves, it is apparent that Ryder’s statement that Brown’s cattle had crossed on the property is pure hearsay. It is very difficult to believe that Brown’s cattle could have crossed on this 7-acre tract in view of the testimony of all of the witnesses, including the plaintiff himself, that the property was enclosed by fences as part of defendant’s farm. How could Brown’s cattle have gone through these fences ? It is also most important to note that Brown did not testify in this case. If plaintiff relies so heavily on Brown’s alleged use of the property, why did not he call him as a witness ?

The majority opinion states that when Lacour was questioned about the possibility that some of Brown’s cattle had been on the 7-acre strip during the last few years, he answered “maybe so”. The complete testimony is as follows:

“Q. Do you know Mr. Stanley Brown?
A. Stanley Brown? Yes.
Q. Did he ever graze any cattle on that land?
A. Not as I know.
Q. He may have though ?
A. Yeah, maybe so, I don’t know. (Emphasis supplied)
Q. Are those fences still around that land?
A. Oh yes sir. That fence around that, yes sir.
Q. All the way along the north boundary of the seven acre tract ?
A. Yes sir.
Q. Separating your bigger piece of property where you live, your home from the seven acres ?
A. No, no, it’s not divided, you see all that is in one now. Part of it is all in one.
Q. What part?
A. Well the west side of it is all in one course I have gates to open to let my cattles go in there.”

The majority implies that this is an admission on the part of Lacour that Brown’s cattle used the property without defendant’s objection. Viewed in context, it seems clear to me that this 80-year old defendant testified Brown’s cattle may have on some occasion broken through the fence and gone onto the property without Lacour’s knowledge. What farmer would swear that his neighbor’s cattle had never jumped the fence and come on his land? The quoted testimony as a whole shows clearly that if one of Brown’s cows ever was on the property, Lacour did not know it. Certainly, the testimony cannot be construed to mean defendant knew Brown’s cattle were on the property, yet he made no objection.

The majority opinion concludes with the following statement:

“In conclusion, Ryder and his ancestors in title, Danel and Dejean, maintained possession of the disputed tract from 1948 until 1970 or ’71 when Lacour tore down part of the north fence and stretched a wire across the gap in the west fence. Other than making these fence alterations, Lacour did not exercise acts of possession of the disputed tract — at least there is no manifest error in the trial court’s finding that he did not.”

Of course, this being a petitory action, the plaintiff Ryder cannot contend that he was in possession on the date suit was filed. Even assuming that plaintiff or his ancestors in title at one time had possession, plaintiff admits, by filing this petitory action, that he lost this possession. I think the evidence shows clearly that possession was lost by plaintiff when defendant closed the gap in the fence on the west end of the property and tore down part of the north fence, thereby enclosing the 7 acres with the remainder of defendant’s farm. The majority opinion says this happened in 1970 or 1971, instead of nine or ten years ago. Even admitting that defendant did not enclose the 7 acres as part of his farm until 1970 or 1971, this was more than a year before this suit was filed in 1973.

Accepting as correct the facts stated in the above quoted portion of the majority opinion, it is my view that as a matter of law these acts of possession by Lacour are sufficient. The majority opinion admits that more than a year before this suit was filed Lacour closed up the gap in the west fence and tore down part of the north fence, thereby enclosing the 7 acres with the remainder of defendant’s farm, where he lived and raised cattle. I think, as a matter of law, if a person claiming to be the owner encloses a tract of land with a fence, which makes the tract a part of the remainder of his farm, and thereby excludes others from use of the tract, this alone constitutes corporeal possession. As I view it, the majority opinion stands for the proposition that such acts of possession are not sufficient. The majority would require that a person pass over every part of the land, as by cultivation. For this type of property, I think it is sufficient to enclose it with a fence, making it a part of the rest of the farm, and to claim it as owner.

For the reasons assigned, I dissent.

In my original dissenting opinion, I assumed the applicable rule of law in this case is so well recognized that I did not cite authorities. The rule is clearly stated in the landmark case of Hill v. Richey, 221 La. 402, 59 So.2d 434 (1952). The issue there was whether the plaintiff had the requisite possession to bring the possessory action. After stating that the nature of the possession required for the possessory action is the same as that for the acquisitive prescription of 30 years, the court then discussed the required possession with particular reference to the nature and effect of enclosures.

The court stated:

“We recognize also that under the jurisprudence a person claiming by possession alone and without title is required to show an adverse possession by enclosures, and that his claim will not extend beyond such enclosures. But, when this jurisprudence is considered with the articles of the Code announcing the law applicable to such cases, we do not think that a strict interpretation should be given to the word 'enclosures’.
"[9] We are supported in this view by the interpretation given by this court in the case of Leader Realty Co. v. Taylor, 147 La. 256, 84 So. 648, 651, to the word ‘boundaries’ as used in Article 3437 of the Civil Code dealing with possession. That article provides: ‘It is not necessary, however, that a person wishing to take possession of an estate should pass over every part of it; it is sufficient if he enters on and occupies a part of the land, provided it be with the intention of possessing all that is included within the boundaries.’ In that case this court said that ‘ * * * The word “boundaries,” in that article, means the limits or marks of inclosure if the possession be without title, or the boundaries or limits stated in the title deed if the possession be under a title. * * * ’ (Italics ours.)
í|í * * ‡
“What the court means by ‘enclosures’, as that term is used in the numerous cases found in the jurisprudence, is that the land actually, physically, and corporeally possessed by one as owner must be established with certainty, whether by natural or by artificial marks; that is, that they must be sufficient to give definite notice to the public and all the world of the character and extent of the possession, to identify fully the property possessed, and to fix with certainty the boundaries or limits thereof.”

Other cases, which have applied to the situation where possession is without title the rule of Article 3437 that corporeal possession of a part constitutes corporeal possession of the whole of the land within enclosures, are Continental Land & Fur Company v. Lacoste, 192 La. 561, 188 So. 700 (1939); Long v. Chailan, 196 La. 380, 199 So. 222 (1940); Labarre v. Rateau, 210 La. 34, 26 So.2d 279 (1946); Gaudet v. Lawes, 197 So.2d 723 (La.App. 1st Cir. 1967); Robertson v. Morgan, 116 So.2d 141 (La.App. 1st Cir. 1959) ; Winn v. Calhoun, 94 So.2d 545 (La.App. 2d Cir. 1957), and Peters v. Crawford, 185 So. 716 (La.App. 2d Cir. 1939).

I do not agree with the factual conclusion of the majority that the defendant Lacour did not enclose the disputed 7 acres with a fence until 1970 or 1971. Nevertheless, even accepting as true the majority’s conclusion of fact, it is clear that under the above stated rule of law the defendant had possession of the disputed tract for more than a year prior to the time this suit was filed in 1973.

For purposes of clarity, I am attaching a copy of the plat filed in the record, showing the approximately 7 acres in dispute. It is not disputed that Lacour had a fence all around the 39.72 acres of land to which he has record title, and where he has his residence and cultivated field. Even under the majority finding of fact, in 1970 or 1971 Lacour tore down that part of the north fence of the 7 acres indicated by the line “A-Y” as shown on the attached plat, and he closed up the “GAP” shown in the west fence of the 7 acres, thereby enclosing the 7 acres within a fence which extends all the way around the 7 acres and the 39.72 acres where defendant lives.

Under the rule stated above, that where possession is without title, possession of part constitutes possession of the whole of the property within enclosures, it is clear that defendant’s corporeal possession of the property on which he lives constitutes possession of the entire 7 acres which is now enclosed by his fence. It appears to me that the majority decision is in direct conflict with this established rule.

For the reasons stated, I am of the opinion that a rehearing should be granted.


author: BAILES, Judge Pro Tern. PER CURIAM:

text:
    In the Matter of the Successions of Mrs. Emma Robinson FREEMAN and Freddie Freeman.
    No. 10387.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 18, 1975.
    Rehearing Denied Nov. 24, 1975.
    Writ Refused Jan. 14, 1976.
    J. D. DeBlieux, Baton Rouge, for appellant.
    F. Louis Gonzales, Baton Rouge, for ap-pellee.
    Before LANDRY and BLANCHE, JJ„ and BAILES, J. Pro Tern.
   BAILES, Judge Pro Tern.

This is an appeal by Lillie Mae Robinson (claimant) from the judgment of the trial court rendered on her claim for services rendered to decedents, Emma Robinson Freeman and her husband, Freddie Freeman, and the reconventional demand of the administrator.

The judgment appealed awarded appellant, on the basis of quantum meruit, compensation for her services to Freddie Freeman at the rate of $20 per month for a period of 16 months which elapsed between the death of his wife, Emma, and his death, for a total sum of $320. The trial court also recognized the reconventional claim of the administrator against appellant for certain furniture removed by her from the Freeman residence and awarded judgment against her in the amount of $20.

The administrator neither appealed nor answered the appeal, therefore the judgment of the trial court is definitive in its rejection of a portion of the reconven-tional demands of the administrator. Our consideration herein is restricted to the correctness vel non of the judgment of the trial court as appealed by claimant.

The facts are relatively simple. Mrs. Emma Freeman died intestate in March, 1969, and was survived by her husband and some collateral heirs. Freddie Freeman died on August 8, 1970, leaving no known heirs. For sometime prior to her death, Mrs. Freeman had been in poor health and had been cared for entirely by her sister, the claimant, who nursed and bathed her sister, gave her medicine, and several days each week performed various household duties, including cleaning, washing and cooking. After the death of her sister, the claimant continued to provide the same household services for her brother-in-law, Freddie Freeman, who was also in failing health. These services which claimant provided for Freddie Freeman continued from March, 1969, until his death in August, 1970. As his condition became progressively worse, he was hospitalized from time to time.

During the period of time the claimant was looking after the physical needs of decedent, Freddie Freeman, the latter stated to the claimant and several of his acquaintances that it was his intention to leave his home to her in compensation for all that she had done both for him and his deceased wife. In furtherance of this desire and to accomplish the fact, Freeman attempted to make an olographic will which clearly set forth this intention, however, he failed to sign the instrument and it was not admitted to probate. After the death of Freeman, the claimant moved in and resided in the Freeman residence. Subsequently, Percy Robinson, the brother of both Mrs. Freeman and the claimant, caused the necessary proceedings to be instituted for opening both of the successions of the decedents. After qualifying as administrator of these successions, Percy Robinson instituted eviction proceedings against the claimant and caused her to be removed from the premises. Within 12 months of the death of Freddie Freeman, the claimant made formal written proof of her claim against the succession in the form of an affidavit. (See: LSA-C.C.P. Article 324S). In her affidavit, appellant made claim for $5,000 as remuneration for the services rendered to decedent.

The trial court found that the services performed by the claimant for her sister, Emma, was a gratuity for which she had no claim for reimbursement. It was also shown that during the time the claimant was providing for the physical needs of the decedents she was performing limited housekeeping services for a welfare recipient which occupied her about three hours per week for which she was paid $20 per month. In view of this finding, the trial court reasoned that the appellant, in quantum meruit, was entitled to be awarded the sum of $20 per month for the services rendered Freddie Freeman during the period of 16 months. Thus, the trial court awarded the appellant judgment in the amount of $320. The trial court also found, on the reconventional demand of the administrator, that the claimant had removed certain furniture from the Freeman residence which, according to the detailed descriptive list of succession property, had a value of $20. Judgment in the amount of $20 was awarded the administrator for this furniture,

In passing, we note that decedent, Freddie Freeman, inherited his wife’s undivided one-half interest in the community property under the provisions of LSA-C.C. Article 91S, as the wife died leaving no descendant, and her father and mother predeceased her. Further, it appears that Freddie Freeman left no known heirs and that the residue of his succession will pass to the State of Louisiana under LSA-C.C. Article 929.

The evidence establishes and the record is replete with testimony of the extent of sevices rendered by claimant. She would arrive at the home on occasions at six o’clock a. m., and remain for several hours doing those tasks noted above. She, in effect, performed the physical work of a housekeeper. It is evident that she made the Freemans’ life more comfortable and that Freddie Freeman was grateful to appellant for what she had done and attempted to compensate her by giving her his home.

Not only did he state this intention to several of the witnesses who so testified at the trial, but we are also satisfied that he positively expressed those sentiments in writing when he attempted to make an olographic will which he failed to sign. That writing was properly identified by the claimant, and the administrator who also benefited by its terms offered no substantial evidence to refute that identification. While that document was correctly excluded from probate due to the defect previously' noted, we think it should have been admitted for the limited purpose of showing the intent of the deceased as to the compensation to be made for the services rendered to him and his wife by the claimant. Succession of Gesselly, 216 La. 731, 44 So.2d 838 (1950). We view it accordingly.

In Gesselly, the Supreme Court of this state had before it a contested claim against the estate of a deceased person. There the court dealt inter alia, with the question of when remuneration in such circumstances is to be on a quantum meruit basis or by the giving of a specific amount or thing. The court concluded that where an agreement is reached between the claimant and the decedent as to the value of the services rendered, or where a definite amount has been placed by the decedent on those services, that such amount or value should be paid and the necessity of a quantum meruit evaluation does not arise. An award based on quantum meruit will be necessary only when no agreement is reached by the parties or no value is ever placed by the decedent on the services rendered. There the court said at page 841:

“It was submitted that in the instant case there was an agreement for a lump sum — $2500.00—and since the defendant had, according to the testimony of disinterested witnesses, placed this evaluation on the services rendered by her nephew, the question of quantum meruit does not enter. That would enter only if the value of the services had not been fixed. In neither of the cases of White v. Succession of Candebat [210 La. 995, 29 So.2d 39] nor the Succession of Dugas [215 La. 13, 39 So.2d 750] cited supra (the two most recent decisions of this Court involving claims brought under Article 2277 of the R.C.C.) did the deceased indicate, by parol or otherwise, the value placed by her on the services for which remuneration was subsequently claimed. Hence, the court was compelled to value their worth. However, in the present case, the amount is definitely fixed by agreement. There is no need for fixing the quantum of compensation for services by the court. * *

Also see Succession of Joublanc (1941) 199 La. 250, 5 So.2d 762.

Here, as in Gesselly, we find no need for a quantum meruit determination of the amount the claimant is entitled to receive. The intention of the deceased recipient of the services and his evaluation of the services have been sufficiently proven. Therefore, in accordance with the intentions of Freddie Freeman, the appellant will receive an amount equal to the value of the house and lot, including the furniture, as shown by the detailed descriptive list of succession assets which is the amount of $3520. In view of this finding there is no basis for an award of $20 in favor of the administrator for furniture removed by claimant from the Freeman residence.

Accordingly, there is judgment herein in favor of Lillie Mae Robinson, appellant, and against Percy Robinson, administrator of the Succession of Freddie Freeman, in the amount of $3520, together with legal interest thereon from date of judicial demand until paid, and the award of $20 in favor of the administrator and against the appellant is reversed. All court costs are to be paid by the succession.

Reversed in part, amended, and as amended, affirmed.

PER CURIAM:

Appellee-administrator, Percy Robinson, in his application for rehearing herein has pointed out to us our error in stating that he neither appealed nor answered the appeal. We acknowledge our error. The answer to the appeal was erroneously filed with the briefs in this case, and therefore was not placed in the suit record. In appellee’s original brief filed prior to argument he made no mention of the answer to the appeal nor did counsel in oral argument make any reference thereto. Thus, we were not aware of the filing of the answer to the appeal.

Therein appellee is seeking to have judgment against Lillie Mae Robinson for rent on the Freeman residence in which she lived for 33 months at the rate of $75.00 per month, or the sum of $2475.00. We find the administrator is not entitled to an award for such rent. Any such award against Lillie Mae Robinson would defeat the declared intention and purpose of the decedent, Freddie Freeman, to remunerate her for the services she rendered to him during his lifetime.

Rehearing denied.