author: JOSEPH, A. LORET, Judge ad hoc.

text:
    GAINES v. STANDARD ACC. INS. CO.
    No. 2941.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 21, 1947.
    Rehearing Denied Dec. 30, 1947.
    Writ of Certiorari Granted Feb. 16, 1948.

      Watson, Blanche, Fridge & Wilson, of Baton Rouge, for appellant.
    Hamlet D. May, of Baton Rouge, for appellee.
   JOSEPH, A. LORET, Judge ad hoc.

This case grows out of a collision between a motorbike ridden by William Lee Gaines, a minor sometimes called Billy, and a truck owned by Milton Williams and driven by the latter’s servant Payne Fletcher. Mr. Williams does business as Louisiana Sand and Gravel Company. The collision happened at night.

Mr. Williams was protected from liability for damages for injuries to persons and property resulting from the ownership, operation or maintenance of the truck by a policy issued to him by Standard Accident Insurance Company, the defendant and appellant. Liability under the policy was limited by its terms to $5,000 for personal injuries suffered by one person and $5,000 for property damage.

Mr. Gaines sued Standard Accident Insurance Company, as the insurer of Mr. Williams, for $5,000 for the use and- benefit of his minor son William Lee Gaines for the latter’s injuries and $5,000 for himself as damages suffered by him as a result of the accident, with legal interest from judicial demand until paid. Mr. Gaines’ individual claim of $5,000 is made up of $150 damages to the motorbike, $1,-725.93 which he claimed to have expended in the treatment of Billy for Billy’s injuries, and $3,124.07 which he expected to have to expend in future treatment of Billy. He alleged that the future expenses of Billy’s future treatment would probably amount to $3,500, but his recovery against the defendant was limited to a total of $5,-000 by the policy.

The District Court rendered judgment against the defendant and in favor of Arnold Lee Gaines, individually for $1,364.94, with legal interest thereon from judicial demand until paid, and further against the defendant and in favor of the plaintiff, Arnold Lee Gaines, as administrator of his minor son’s estate, in the sum of $3,-750, with legal interest thereon from judicial demand until paid.

From that judgment the defendant prosecutes this appeal. The plaintiff has filed an answer to the appeal, in which he prays that the judgment be increased to the full amount sued for.

The facts are gone into in detail in the excellent opinion of the District Judge, the Hon. Carlos G. Spaht, which is as follows :

“This is a suit by the plaintiff, Arnold Lee Gaines, individually for medical, hospital and other expenses, and as administrator of the estate of his minor son, William Lee Gaines, (Billy), sixteen (Í6) years of age, for personal injuries to said minor son resulting from an accident on the 25th of October, 1946. The accident occurred when a gravel truck owned by Milton Williams, d/b/a Louisiana Sand and Gravel Company, and being operated at the time by Payne Fletcher, his employee, in the course of his employment, collided with the motor bike on which plaintiff's minor son was riding, at the intersection of Plank Road and Winbourne Avenue in the Third Ward of this parish and state.
“The accident occurred around 11:00 P. M., while Billy was returning home, on his motor bike after having attended a high school football game in the LSU stadium. He was traveling northward on the said Plank Road. This road is one of the main arteries of travel between the heavily populated area north of the City of Baton Rouge and the City of Baton Rouge. The road runs slightly northeastward and southwestward but for the purpose of this opinion the road will be described as running north and south. This road is made of a paved slab approximately eighteen (18) feet wide with a black strip running alongside the pavement on each side approximately four (4) feet in width; there is a gravel and dirt shoulder on each side of this black top strip extending to an open ditch on each side of the road and a four (4) foot paved sidewalk on the shoulder just to the east of this open ditch. Winbourne Avenue runs east and west and is a black top road the black top portion being approximately 15 feet in width.
“Billy was very seriously injured in this accident and was still in the hospital at the time of the trial five months after the accident. Plaintiff contends that Billy was proceeding in a northerly direction on his motor bike and at the speed of approximately twenty to twenty five miles an hour, on his right hand side of the road, with the headlight on his motor bike brightly burning, and that the truck driver made a sudden left turn striking his son, just as he was passing the mouth or intersection of Winbourne Avenue. Defendant, on the other hand, contends that the truck driver was not negligent because he stopped before making this left turn, gave the proper band signal and while keeping a proper look-out, made the turn into Winbourne Avenue as he had a right to do.1 He further contends that the truck driver had completed his turn before the collision occurred and that the plaintiff’s son was traveling northward not on the paved slab of the Plank Road but on the sidewalk which runs along the road on the shoulder approximately twenty two (22) feet eastward and parallel to the paved slab of the road. Defendant, in the alternative, contends that even if the truck driver was negligent then Billy himself was guilty of such contributory negligence as will make it impossible for the plaintiff to recover.
“After listening to the witnesses, viewing the scene of the accident and studying the exhibits this Court has concluded the accident happened as follows:
“That Billy was proceeding northward on the paved slab of the Plank Road near the eastern edge thereof, or on his right hand side of the road, at a speed of approximately twenty to twenty five miles an hour, following rather closely behind another automobile proceeding in the same direction. Fletcher, the truck driver, was, just before the accident, proceeding southward on the Plank Road, and he made a left turn into Winbourne Avenue after the car just ahead of Billy passed the intersection. After he started making his turn and shortly after the front end of his truck cleared the pavement, he struck the motor bike on the left side of the left half of his bumper and left fender and headlight. That Billy realized the truck was coming towards him was going to strike him only shortly before the collision occurred and he turned to his right to avoid the accident and thus was on the shoulder east of the pavement when struck by the left side of the said bumper and headlight of the said truck.
“The Court believes that both the testimony of the witnesses and the physical facts point to this conclusion. Fletcher testified that he stopped and waited for traffic to clear before making this left turn and that after a car passed he started making his left turn. He further testified that another car was coming behind this car approximately a block away. Billy also testified that he was following behind another car which preceded him across the mouth of this intersection. It is evident that the reason Fletcher did not see Billy on his motor bike was that he was watching the cars, their lights were much brighter and more visible than that of a motor bike would be, and furthermore, since the motor bike was following this car on the right hand side of the pavement, it would not be visible to Fletcher until the car reached the point close to the intersection, and probably not clearly discernable because of the bright headlights of the approaching car until the car had actually reached the intersection. Fletcher was anxious to make this left turn quickly to avoid the on-coming traffic, so naturally he would make the turn as quickly as possible. After the accident the truck stopped at an angle the back end just clearing the paved slab of the Plank Road with the front end just west of the west line of the extension of the sidewalk, which as heretofore described parallels the Plank Road at a distance of twenty-two (22) feet east of the said paved slab on the road. Billy lay five (5) or six (6) feet in front of the truck in the center of Winbourne Avenue and his motorbike was a little north of him and approximately the same distance from the truck. All of this appears clear from the testimony of Fletcher himself, and further from the bloodstains on the pavement, shown by the pictures, as well as the testimony of the other witnesses. Fletcher testified that he was going eight (8) to ten (10) miles an hour when he saw Billy right in front of his truck and realized that an impending accident was going to occur. Pie then took his foot off the accelerator and applied the brakes. He believes that all of this took a very short time and that after he saw the accident, released his foot from the accelerator, applied the brakes and stopped the truck, his truck traveled only a distance of three (3) to four (4) feet. Pie may be perfectly sincere in this belief, but the Court knows from personal experience as well as observation, and a study of tables prepared by insurance companies to show the distance required to bring vehicles to a stop under certain speeds that this is not possible.
“These tables indicate that under ideal conditions an automobile may be stopped in five (5) feet after the application of the br,alces where the car is traveling at a speed of ten (10) miles an hour. These tables further show that where the driver is suddenly confronted with an emergency, as was Fletcher in this case, that there is a factor known as the Complex Reaction Time. This is the time required for the driver to realize the situation, make a decision and then apply the pressure of the brakes. The time required by various drivers varies considerably all 'the way from ½ a second to 4 or 5 seconds. The average time for an ordinary person is from ll/i to 2 seconds. A vehicle traveling 10 miles per hour is traveling 14.6 ft. per second, thus in this case if Fletcher was considerably above the average it would take him at least a second and he would have traveled 14.6 ft. before he applied the brakes and 5 ft. thereafter or a total of approximately 20 ft.
“Billy and his motorbike were struck with considerable force as is shown by the considerable damage to the motor bike and the truck and the serious physical injuries to Billy himself. If he had been riding on the sidewalk and had been struck with this force he would have ended up several feet east of the sidewalk and the front end of the truck would have certainly traveled beyond the line of the sidewalk. As heretofore shown, the pictures as well as the testimony of Fletcher himself indicate that the front end of the truck stopped before passing the line of the sidewalk and that Billy and his motorbike were only five (5) or six (6) feet in front of the truck, thus, very close to the line of the sidewalk which is four (4) feet in width. These physical facts as well as the testimony of the witnesses eliminate from the mind of this Court all doubt as to where Billy was traveling just before he was struck by the truck. He testified positively that he was on the paved slab, and Fletcher did not testify to the contrary, so the record is barren of either testimony or physical facts that would indicate that he was riding on the sidewalk. The Court has reached this conclusion despite the argument of defendant’s able counsel. The fact that it was the left hand side of the bumper which struck the motorbike merely indicates that the truck was .-at an angle in the intersection when it struck it. This is further indicated by the fact that if the truck had not been at an angle, the bike going at twenty (20) to twenty-five (25) miles an hour would not have stopped where it did in the middle of Winbourne Avenue, but would have either struck it a glancing blow and gone on northward, or hit the side of the truck. That the truck was making a turn by cutting across and at an angle is further clearly shown by defendant’s exhibit ‘d-b-4’.
“Having reached this conclusion the Court is of the opinion that Fletcher is guilty of negligence under the statutory law and the jurisprudence of this state. He failed to keep a proper lookout and to see what he should have seen, and further cut the corner.
“Act 286 of 1938, Section 3, Rule 9(a) Dart’s Statutes, 5214, makes it the duty of one making a left turn on highways of this state to yield the right of way to approaching traffic in either direction and not to make the turn unless the way is clear. I quote the following:
“ ‘The driver of any vehicle on the public roads, highways and bridges of the State shall ascertain, before turning around upon any such' road, highway or bridge, that there is no traffic, vehicular or pedestrian, approaching from either direction which will be unduly or unnecessarily delayed and shall yield the right-of-way to such approaching traffic and shall not attempt to make a turn unless and until the said way is clear.’
“In constructing the above statute the appellate courts of this state have held that anyone making a left turn must exercise a high degree of caution before making a left turn. In the event that he collides with traffic in either direction while attempting to make a left turn he is guilty of negligence. Adams v. Golson [La.App.], 171 So. 403; Michiels v. Oser [19 La.App. 24], 139 So. 497; Lane v. Bourgeois [La.App.], 28 So.2d 91; McDonald v. Zurich General Accident & Ins. Co. [La.App.], 25 So.2d 923; Dudley v. Surles [La.App.], 11 So.2d 70; Hero v. Toye Brothers Yellow Cab Co. [La.App.], 19 So.2d 887; Murray v. Kaufman [La.App.], 22 So.2d 750.
“The Court is further of the opinion that Billy was not guilty of any contributory negligence.
“Defendant contends that the headlight on the motor bike was not burning. However, Billy testified positively that the headlight was burning and it was shown by other witnesses that the headlight was burning when Billy was en route to and when he left the First Presbyterian Church on North Boulevard in the City of Baton Rouge. This is where he left his motorbike while in attendance at the game and is possibly two to two and a half miles from the point.of the collision. The record is barren of any testimony contradicting the testimony of Billy or the others who testified that the light was burning on Billy’s trip to the City of Baton Rouge and when he left the City of Baton Rouge shortly before the accident. Billy was proceeding on his right hand side of the road at a lawful rate of speed. It is true that he did not see this truck until shortly before it struck him. He did, however, notice traffic approaching from the opposite direction, as would any person proceeding up the highway where traffic was heavy in the opposite direction. He had a right to assume that if the driver of the truck was going to turn at that point he would allow him to proceed across the intersection before turning. In other words, the fact that he did not see the truck parked there does not indicate any negligence having any relationship towards the proximate cause of the accident, because even if he had seen the truck was stopped there and had seen the driver with his hand extended, he would still have had the right to assume that the driver was going to obey the law and allow him to proceed across. The cause of this accident was, in this Court’s opinion, caused entirely by the negligence of the operator of the truck in failing to see Billy and waiting for him to pass before turning. Counsel for both parties have devoted considerable discussion as to whether or not the truck driver stopped before making the left turn. The driver says that he did stop and wait for traffic. A Mr. Martin, witness for the plaintiff, testified that ,he was following the truck and that the truck did not stop. In this Court’s opinion it is not material whether or not the truck driver stopped. The cause of the accident was his failure to comply with the express statutory law quoted above which requires the operator of a vehicle wishing to make a turn to ascertain before doing so that such turn will not impede or unduly delay traffic in either direction. Furthermore, as seen by the decisions of the appellate courts of this state, one making a left hand turn is required to exercise a high degree of skill and care to ascertain that such turn can be made safely.
“On the question of quantum the record indicates that Billy was very seriously injured and at the time of the trial five months after the accident was still confined to the hospital and not even able to sit up in bed. His ultimate recovery is still unknown. It is shown that he sustained a compound comminuted fracture of the left femur about two (2) inches above the knee joint, a compound fracture of the left tibia, a fracture of the left fibula, a cerebral concussion, multiple lacerations of the scalp, severe lacerations of the left foot on which the skin was practically evulsed, as well as severe shock. The attending physician estimated that from the date of the trial, if every thing went well, he would be able to walk in some four to nine months and it would be a year thereafter before he attained full efficiency in walking. Billy has been to the operating room approximately ten times at the time of the trial and it is anticipated that he will be required to submit to two or more additional operations. He has undoubtedly suffered a great deal and will continue to suffer for a considerable period. The amount of permanent disability is not known at this time, but with such severe injury there is likelihood of some permanent disability even though Billy is a young man and was in good health prior to the injury.
“The medical and hospital expenses amounted at the time of the trial to approximately $4,000.00. Based on the testimony of the attending physician, the Court believes that there will be ' approximately another $1,000.00 for medical and hospital expenses.
“The plaintiff contends that although the policy of insurance issued herein by defendant contains a provision limiting liability to $5,000.00 to one person for ‘bodily injury liability’ that it also contains a provision for $10,000.00 for one accident where more than one person is damaged, thus plaintiff contends that he is entitled to judgment for $5,000.00 in his capacity as administrator of his minor son’s estate for the bodily injuries suffered by his son, and he is entitled individually to a judgment for $5,000.00 to cover the medical and hospital expenses resulting from the accident. To sustain his contention in this regard he cites the case of Miller v. Commercial Standard Insurance Company et al. [La.App.], 13 So.2d 740. This case was decided by the Court of Appeals of this Circuit and would be persuasive and controlling were it not for a decision on the point by the Supreme Court of Louisiana handed down in the case of In re Employers’ Liability Assurance Corporation, Ltd. [180 La. 406], 156 So. 447, 451. In this case the Supreme Court of Louisiana had before it the interpretation of a liability policy very much like the one before the Court in the present case. After considering the matter thoroughly the Court decided that the meaning of the policy was to limit the liability of the insurance company with respect to the damages resulting to bodily injury or death of one person to the sum of $10,000.00 that amount being analogous to the amount of $5,000.00 in the present policy. The following is quoted from that opinion:
“‘Item 5(a) of the declarations is simply this: “Legal Liability for Bodily Injuries or Death Limit, One Person Ten thousand dollars ($10,000) Limit, One Accident Twenty thousand dollars ($20,000).”
“ ‘Substituting the word “damages” for “injuries,” in the expression “as respects injuries,” the language of the policy is paraphrased thus: The corporation’s liability as respects damages resulting from bodily injuries or death of one person shall in no event exceed $10,000; and, subject to that limitation for damages resulting from the bodily injuries or death of one person, the total liability on account of any one accident causing bodily injuries or death to more than one person shall not exceed $20,000. In other words, it is only in the case of “one accident causing bodily injuries or death to more than one person” that the limit of the insurer’s liability is increased from $10,000 to $20,000. It is not in the event that more than one person suffers damages, but it is in the event that more than one person suffers “bodily injuries or death,” that the limit of the insurer’s liability is increased two fold, “on account of any one accident causing bodily injuries or death to more than one person.” The language of the policy leaves no doubt about that. The judgment appealed from, therefore, is correct in discharging the Employers’ Liability Assurance Corporation from further liability beyond the $10,000 and interest, which the corporation has deposited in court.’
“The Court believes that if it were not for the policy limitations an award of $12,000.00 to $15,000.00 would be proper to compensate Billy for the injuries and pain, suffering and probable permanent disability. Thus, adding this to the amount of medical land hospital expenses there would be a total liability of $20,000.00. Dividing the $5,000.00 between Billy and his father should be on a pro rata basis of ½ to the father individually and ¾ as administrator of his minor son’s estate.
“Accordingly, judgment will be signed in favor of the plaintiff, Arnold Lee Gaines, and against the defendant, Standard Accident Insurance Company, individually in the sum of $1,364.94, which is made up of $1,250.00 plus the property damage to the motorbike of $114.94, with legal interest thereon from judicial demand until paid, plus all costs of this suit, and further, in favor of the plaintiff, Arnold Lee Gaines, and against the defendant, Standard Accident Insurance Company, as administrator of his minor son’s estate in the sum of $3,750.00.”

We approve and adopt that opinion in full except the part about the tables prepared by insurance companies to show the distance required to bring vehicles to a stop under certain speeds and under particular circumstances.

We do not think these tables should have been considered by the District Judge without having been offered in evidence with proof of their accuracy.

In deciding a case a Court should not consider a scientific or technical work, treatise or table which has not been admitted in evidence in the case. Such a work, treatise or table should not be admitted in evidence without proof of its accuracy. An instance of the use by the Courts of such a table which had been offered in evidence with proof of its accuracy is found in Hafner Mfg. Co. v. Lieber Lumber & Shingle Co., 127 La. 348, 358, 53 So. 646.

However, if the District Judge had not considered those tables we do not believe he would have arrived at any different conclusion from what he did. Certainly, we do not upon a consideration of the evidence as analyzed by him.

Without considering the tables, it is a matter of common knowledge of which he could have, and we do, take judicial notice that when the driver of a motor vehicle is confronted with a sudden emergency some period of time is necessary for him to realize the situation, make a decision and then apply the brakes to his vehicle.

To the District Judge’s reasons we add the following reasons of our own for affirming the judgment.

The accident happened while the truck driver, Payne Fletcher, was making a left turn with the truck. A left turn is a very hazardous maneuver. McDonald v. Zurich General Acc. & Liability Ins. Co., La.App., 2 Cir., 25 So.2d 923, 926; Lane v. Bourgeois, La.App., 1 Cir., 28 So. 2d 91, 95. While left turns cannot well be prohibited, as to do so would interfere too greatly with the free movement of motor vehicles, still ordinary prudence requires a very high degree of care and caution in making them. So, before attempting to make a left turn it is the duty of the driver of a motor vehicle to make sure, as well as he can, that he can make the left turn without danger of an accident. Hubert v. Robichaux, 1 Cir., 8 La.App. 789, 791; Sandoz v. Beridon, La.App., 150 So. 26, 27; Parker v. Employers’ Casualty Company, La.App., 2 Cir., 152 So. 373, 374; Monroe Hardware Co. v. Monroe Transfer & Warehouse Co., La.App., 2 Cir., 167 So. 498, 503, 504; Vernon v. Gillham, La.App., 2 Cir., 179 So. 476, 480; Fields v. Owens, La.App., 2 Cir., 186 So. 849, 852; Duke v. Adkins, La.App., 2 Cir., 2 So.2d 526, 528; Woodruff v. Stewart, La.App., 2 Cir., 6 So.2d 796, 798; Dudley v. Surles, La.App., 2 Cir., 11 So.2d 70, 72, 73; Seale v. Stephens, La.App., 1 Cir., 24 So.2d 651, 653; Lane v. Bourgeois, La.App., 1 Cir., 28 So.2d 91, 95, supra; Home Ins. Co. v. Warren, La.App., 1 Cir., 29 So.2d 551, 552; Deffez v. Stephens, La.App., 1 Cir., 30 So. 2d 154, 156.

Consequently, when a motorist while making a left hand turn is involved in a collision, it is natural to assume that he must not have been exercising that degree of care and caution which he should have exercised, or the collision would not have happened. So, when a motor vehicle, while engaged in the maneuver of making a left turn, is involved in a collision, there is a presumption that the collision was caused by negligence of its driver.

The evidence shows that Payne Fletcher was engaged in such a maneuver when the collision involved herein happened. The presumption, arising from the fact that he was making a left turn, is that the collision was caused by his negligence. The defendant has not rebutted that presumption.

Counsel for the plaintiff has made a very ingenious argument that judgment can be rendered in favor of Billy for $5,-000 for his personal injuries and in favor of Mr. Gaines for another $5,000 for his damages, most of which consists of the cost to him of treating Billy for his injuries, even though liability is by the terms of the policy limited to $5,000 for bodily injury to one person and $5,000 for damage to property. The ingenuity consists in an attempt to demonstrate that the cost to Mr. Gaines of treating Billy for his injuries ⅛ a property damage.

In the case of In re Employers’ Liability Assur. Corporation, 180 La. 406, 156 So. 447, 450, 451, where the policy under consideration was one with a limitation of $10,000 for bodily injury to one person and $20,000 for bodily injuries of several persons in one accident and the injured person was a .minor, the Supreme Court held that there could not be a recovery of $10,-000 for the minor for her injuries and an additional amount for her father for what he had expended in the treatment of those injuries, but that the total recovery was limited to $10,000.

Counsel seeks to get around the latter decision of the Supreme Court by arguing that Mr. Gaines’ claim for the expenses incurred and to be incurred by him in the treatment of Billy for his injuries is not a claim for damages for bodily injuries but a claim for damages to Mr. Gaines’ property. The argument made is very ingenious, but we do not think it sound. If Billy had been of age and had paid his own expenses for his treatment, those expenses would have been a part of the damages suffered by him as a result of his bodily injuries, and his claim for reimbursement of those expenses would have been a claim for damages because of his bodily injuries. The mere fact that his father rather than himself incurred and will incur the liability for the expenses because of his minority cannot convert, the claim for their reimbursement from a claim for damages for Billy’s bodily injuries into a claim for property damage. A claim for reimbursement of expenses paid or incurred in treating a person for bodily injuries is, in our opinion, a claim for damages for his bodily injuries whether those expenses be incurred or paid by him or by someone else, such as his parent or spouse.

For the above reasons the judgment appealed from is correct on the record as it stands.

However, after the case was argued in this Court the defendant, appellant, filed a motion for the remand of the case to the District Court on the ground of newly discovered evidence. The evidence the defendant claims to have discovered is the testimony of one J. L. Campbell, and the defendant annexes to his motion a photostat of a statement by Campbell showing what his testimony would be. According to the photostat that statement is as follows :

“Baton Rouge, La.
“Oct. 9, 1947
“Statement of J. L. Campbell, age 55 of 3129 Winbourne Ave. Baton Rouge La.
“I am in the trucking business hauling dirt. I have only one truck.
“On Oct. 25, 1946 about 10:30 P.M. I left my home, which is on the north side of Winbourne and fifth house from Plank Road. I was going to tell a negro truck driver to come to work for me the next morning. I was driving my 1941 Ford Coach.
“About 75 feet before reaching Plank Road I saw a cargo north on Plank Road and then a truck headed south on Plank Road turned into Winbourne to go east. Just as the truck was making the turn I saw a motorbike, going north on Plank Road and on the sidewalk come out from behind the pile of concrete block and in front of the truck and the truck and motorbike collided. The truck appeared to be in about the center of Winbourne and the front' bumper about halfway the sidewalk.
“I was between 50-75 feet from Plank Road when it happen. The truck was coming in slow and it stopped right where it and the motorbike hit.
“I did not think there was anything to the accident and I was in a hurry to get to the negro as I knew he had planned on going to Port Hudson the next morning. I continued on down my right side of the street and by the truck and went on to town. I had to get off onto the shoulder of the road and the ditch on the east side of Plank Road was partially filled and only one wheel went down in it and I turned and went on South on Plank Road to the negro’s house. His name is Percy Smith. I know where he lives but do not know the name of the street or number of the house.
“I was gone about an hour before I returned and there were no cars or trucks at Winbourne and Plank Road. When I reached home my son told me there had been an accident at Winbourne and Plank Road. I told him I had seen it but did not know who it was. My son told me it was Louisiana Sand and Gravel Co. truck. He did not say who was- driving it.
“I knew Captain Williams ran the Louisiana Sand & Gravel o.
“Several weeks ago I was in Red Griffin’s shop and we were talking and he said he was scared every time one of his trucks left out until it got back as he was afraid it might have an accident like Cap. Williams had. I then told Red I saw the accident he had reference to. Several days later I saw Cap. Williams and he ask me about it and I told him I did see it. He then ask me if I would go see the lawyer with him and I did today.
“It was a fair night at the time of the accident and pavement was dry.
“The reason I had not said any thing before about this was that I did not want to become involved and would not be in it now if Red had not said something about it.
“My headlights were in good condition and the truck had good lights too.
“I went to the scene of the accident this morning with Cap. Williams and told him just what I saw.
“I have dictated and had read to me the three pages of this statement and same is true to the best of my knowledge.
(Sgd.) “J. L. Campbell.”

We do not think the case should be remanded.

In the first place, the statement which Campbell makes and the circumstances under which he now indicates a willingness to testify are not calculated to be very impressive. The case had been argued and submitted on appeal before he indicated that he knew something about the accident. He made the statement on October 9, 1947, and says in the statement that he was talking to the man in the shop “several weeks ago.” We dot not know what he means by several weeks, and there is no explanation as to why he did not make the statement “several weeks” before October 9th. It does not appear when the man Red Griffins told Williams that Campbell had seen the accident. Campbell states that “several days later” (that is after he told Red about seeing the accident) he saw Williams and he asked him about it, and Williams asked him if he would go and see the lawyer, which he did.

In the second place, the statement of Campbell sounds rather unreasonable to us. He says he passed right by the accident where the evidence shows the Gaines boy was lying on the ground and his motorbike was lying north of the center of the street, yet this man says he passed by on the north side of the street and did not think there was much of an accident. He did not stop, even though a boy was lying on the street seriously injured, and Campbell had to almost pull his car in the ditch to get around the injured boy and his motorbike. If he was so oblivious to the condition existing right by his side as he passed, We hardly see how he could have told whether or not the boy was on the sidewalk or on the street when he was SO to 75 feet away..

In the third place and as pointed, out in the opposition to the remand by counsel for plaintiff, it is strange that neither Fletcher who was. driving the Williams truck nor any of the the other witnesses who saw the accident ever saw Campbell pass in a car right'by the scene of the accident just after it occurred and almost in the path of the truck which Fletcher was driving. ' ■'

And in the fourth place in his statement Campbell said “I saw a motorbike, going north on Plank Road and on the 'sidewalk come out from behind the pile of concrete blocks,” and this would be an impossibility in view of Campbell’s saying that he was then east of the Plank Road and the showing by the evidence that the pile of concrete blocks was west of the sidewalk. If the motorbike was on the sidewalk, it and Campbell would have been on the same side of the pile, and Campbell could riot have seen the motorbike come out from behind the pile.

The evidence is almost conclusive to the effect that the truck of defendant stopped with its front west of the sidewalk. The west side of the sidewalk is 18 feet from the east side of the pavement on the Plank Road, and the decided preponderance of the evidence is to the effect that the rear end of the truck was near the edge of the pavement, not over 2 feet from it at most. The truck is about 14 feet in length, and it is therefore impossible for the truck to have struck the boy on the sidewalk even though the truck was stopped at once. The boy was lying from S to 10 feet in front of the truck, and the evidence shows that he was near the east edge of the sidewalk, and consequently the front of the truck must have been west of the sidewalk when it stopped.

Under Article 906 of the Code of Practice an appellate court should remand a case when the evidence is so unsatisfactory and indefinite as to make it impossible for the court to pass on the case. The court will remand the case if the circumstances indicate that other evidence .may be produced to clarify the questions involved. But where the court is in possession of sufficient evidence to decide the case, and the evidence sought to be introduced on a remand could not change the result, there is no occasion for remanding the case. Houghton v. Hall, 177 La. 237, 148 So. 37, 43, 44. Lawsuits must come to an end, and it seems to us that a remand of the case under the showing made by the defendant ’ is not justified. Counsel for plaintiff has indicated that if a remand of the case is had, he has a witness who will be produced to show that Campbell is blind in one eye and near sighted in the other. If the case were remanded, he should be permitted to prove this if he can, and thus there would be an endless chain set in motion.

Therefore, the motion to remand is hereby overruled and the judgment appealed from is hereby affirmed, the defendant to pay all costs in both courts.

DORE, J., recused.


source: Caselaw Access Project

author: LE BLANC, Judge.

license: Public Domain

text:
    RICKS et al. v. LOUISIANA MILK COMMISSION.
    No. 2943.
    Court of Appeal of Louisiana. First Circuit.
    Nov. 21, 1947.
    Rehearing Denied Dec. 30, 1947.
    K. K. Kennedy, of Baton Rouge, for plaintiffs.
    Fred S. LeBlanc, Atty. Gen., W. C. Per-rault, Asst. Atty. Gen., and Robt. R. Reid, Asst. Atty. Gen., for defendant.
   LE BLANC, Judge.

On October 11, 1946, the Governor of Louisiana, acting as he was authorized to do, by virtue of the provisions of Act No. 192 of 1946 which had created the Louisiana Milk Commission, appointed as members, Charles M. Rhodes, Thomas J. Jen-niskens, J. Wayland Smith, H. L. Guth, and C. R. Wilson. With other appointees, the Commission met on December 18, 1946, for the purpose of organization. At that meeting the members caused warrants to be issued to themselves in order to defray per diem allowances and mileage expenses and these were paid from out of the appropriation made by the Legislature for the Louisiana Milk Commission by the general appropriation Act of 1946,. being Act No. 66 of that year. The plaintiffs in this case who are residents, taxpayers and dairy farmers of the Parish of Tangipahoa, claiming that the Commissioners just named did not have the proper qualifications to serve as members on the Commission, instituted this suit seeking an injunction to restrain them from taking part in any further meetings of the commission and also to enjoin the Director of Finance of the State of Louisiana, James S. Reiley, from issuing any warrants or vouchers or other orders for withdrawal of funds from the State Treasury in their favor.

The grounds on which the qualifications of these appointed members are challenged are the following: Charles M. Rhodes, on the ground that he was appointed from the First Congressional District of Louisiana under the provisions of the act, when in fact he was not a resident of that Congressional District and besides was not engaged in the actual production of milk nor was he a distributor as he was engaged in the milk business only to the extent that he was an officer and manager of the Cloverland Dairy Products of- New Orleans, a corporation, and therefore he could not serve as an individual on the commission; Thomas J. Jenniskens on the ground that he was not actually engaged in the production of milk- and moreover that he had failed to qualify by not taking 'the* necessary oath of office when his commission was issued to him; J. Wayland Smith and H. L. Guth, on the ground that they were not engaged in the actual production of milk as contemplated under the statute creating the commission and C. R. Wilson, on the same ground and in addition that he also was not individually engaged in the milk business at all as he was the manager of the Blue Ribbon Dairy of Alexandria, Louisiana, whose business is owned and controlled by the corporation known as the Louisiana Ice and Utilities Company, Inc.

All the defendants filed exceptions of no right or cause of action which were overruled by the trial judge. The exceptions are not urged either in argument or in brief before this court and therefore do not have to be considered.

The defense to the rule for injunction is-based on the ground that all of these appointees were qualified to -serve as commissioners under the act, each having the necessary qualifications prescribed under their respective appointments. After trial of the rule for injunction the district judge, in a written opinion, dismissed the same, and refused to grant the injunction. Counsel for the, plaintiffs served notice at the time that he would apply for writs to the Supreme Court but later abandoned this procedure and filed a supplemental petition which does not seem to have added more to the issues that had been presented in the pleadings before. The defendants then put the case at issue on the merits and the matter was submitted to the trial judge on the testimony which had been taken on trial of the rule.for injunction. The trial judge again wrote a lengthy opinion in which he held that the appointee Rhodes could not serve on the commission in as much as he had been appointed a commissioner from a Congressional District of which he was not a resident, that the appointee Smith was ineligible because he was not engaged in the actual production of milk as required under the statute and that Wilson who had been appointed as a producer of milk could not serve because he was not engaged in the actual production of milk, his only connection with the production end having been as manager of the Blue Ribbon Dairy which, at the time of his appointment, no longer owned a dairy and had ceased operations as a producer of milk. He refused to recognize his appointment as a distributor of milk in place of Rhodes whose appointment as such he had voided, as he had been urged to do, for two reasons: First, he held that even though he might well have served as a distributor as an official or representative of the Louisiana Ice and Utilities Co., Inc., his relationship to that corporation had not been shown and second, as the Governor had specifically appointed him as a producer, clearly it was not his intention to have him serve as a distributor of milk. He upheld the appointments of Jenniskens and Guth and rendered judgment accordingly. From that judgment plaintiffs have appealed maintaining that all of these appointees are disqualified and have been shown so to be under the testimony adduced in the record.

The statute in question is entitled “An act to create the Louisiana Milk Commission and granting to same the power to regulate the buying or receiving of milk or cream on the basis of butterfat contents thereof, regulating testing, sampling and weighing of same, to require licenses for testing milk or cream, to adopt rules and regulations to regulate methods of testing, sampling or weighing of milk or cream and providing penalties for the violation of this Act.” The first section of the Act provides for the creation of the Milk Commission which by the terms of that Section is to be composed of the following: “Commissioner of Agriculture and Immigration; the head of the Dairy Department at Louisiana State University and Agricultural and Mechanical College; and nine members to be appointed by the Governor, one from each of the Congressional Districts of the State, seven (7) of these members are to be men engaged in the actual production of milk, and one (1) a distributor of milk, and one member to be appointed at large, who must be engaged in the actual production of milk.” With regard to the appointments which are attacked in this proceeding we are interested only in those members who were appointed by the Governor and the direct question at issue is whether seven of these men who were appointed from the Congressional Districts are men engaged in the actual production of milk and whether the one appointed at large is also thus engaged. The other of the nine has to be a distributor of milk.

The appointment of Charles M. Rhodes as a distributor of milk which had been attacked on two grounds, one of which only was sustained by the trial judge, i-s no longer at issue as it seems to be conceded that his appointment from the First Congressional District cannot stand in view of the fact tht he is a resident of the Second Congressional District. The trial judge held that otherwise he might have served as a distributor of milk even though in his capacity as such he was merely an official of a corporation. It is unnecessary to discuss this phase of his lack of qualifications for, as we have just stated it is conceded by the defendants that he is ineligible on the other ground on which his appointment was vitiated.

With regard to Thomas J. Jennis-kens who was appointed as a producer from the Second Congressional District, the testimony shows that this appointee failed to qualify by not taking the oath prescribed for' public officials when he received his first commission from the Governor. It is not disputed that he did hot take the oath and that he at that time was not qualified to serve. He attended the meeting of December 18, 1946, under that first commission and even though legally he would have had no right to take part in the meeting, his status was not questioned at that time and it may be that for the purposes of that meeting and the action taken by him he may have been considered a defacto officer. Immediately thereafter it was discovered that he had not taken the oath and a new commission was issued by the Governor under which he qualified at once by taking the necessary oath. That, in our opinion, had the effect of making him a de jure member from the time he so qualified. At the time of the trial of this case he was so qualified and we do not see how his appointment could now be set aside on that ground.

With regard to the other ground of attack against his appointment as well as against that of H. L. Guth as a member from the Seventh Congressional District, we cannot agree with the contention of counsel for plaintiffs that these men are not engaged, and were not engaged at the time suit was filed, in the actual production of milk.

It is not disputed that Jenniskens is the owner of a herd of cows and that he operated, in his own individual name, the dairy at Hope Haven in the Parish of Jefferson. Hope Plaven is an orphanage conducted under the auspices of the Archdiocese of the Roman Catholic Church of New Orleans. For a time the herd of dairy cattle was owned by the Archdiocese and Mr. Jenniskens was merely the manager of the dairy. However a considerable length of time before his appointment on the Commission, he bought the herd and owned it personally. He then entered into a contract of lease with the Archdiocese of New Orleans for the barn and other property used in connection with the dairy. He milks this herd of cattle and sells the milk to customers by volume.

The appointee Guth is also shown to be the owner of a herd of cows which he owned at the time of his appointment and when the case was tried it was shown that he was actually milking 146 head. He also sold the milk to customers in his vicinity and some as far as the city of Monroe, all by volume.

One of the contentions made against these gentlemen is that whilst they sold milk and might be said to be engaged in the actual production of milk they still did not qualify because they did not sell their milk “on the basis of butterfat content.” We are unable to follow counsel for plaintiffs in that contention for the reason that whilst the statute was enacted for the purpose of creating a milk commission and of granting to that commission the power “to regulate the buying or receiving of milk or cream on the basis of butterfat content,” yet, as shown by Section 1 of the Act prescribing the qualifications of members who are to serve on the commission, that has absolutely nothing to do with their qualifications. All that is required of them is that “[they] be men engaged in the actual production” of milk, as far as eight of them are concerned and' the other has to be a distributor of milk. It is true that if they become members of the commission charged with the duty of carrying out the provisions of the act, they have the power to regulate the buying or receiving of milk or cream on the basis of butterfat content, still it is not necessary that in their respective businesses as men engaged in the actual production of milk that they sell their milk on that basis. In other words it is not intended by the wording of the act for a member of the commission to be able to regulate the buying or receiving of milk on a basis of a butterfat content that he operate his business of selling milk on that same basis. (All italics ours.) This commission is appointed for the purpose of supervising and regulating the buying of milk, of establishing certain methods of testing and sampling and weighing the same, of requiring licenses for such purposes, and in fact, to act in an administrative and advisory capacity for the milk industry of the state and the qualifications which they must possess are not that exacting that one who sells his milk by volume rather than on a basis of butterfat content, cannot serve as a member.

Counsel for plaintiffs produced as a witness, Mr. M. M. Truxillo, administrator of certain federal orders issued by the Secretary of Agriculture regulating the handling of milk in the New Orleans area in the State of Louisiana, in order to have him define the term producer as applied by the United States Department of Agriculture, in the particular regulation he has charge of. The term was defined by the witness as follows: “A producer is a person who in conformity with the applicable health regulations for milk for consumption as milk in the marketing area produces milk which is received at a city or country plant.” In interpreting that definition the witness stated: “As I understand it, a person who produces milk which moves through a pasteurization plant, you want to know whether that person would be a producer under this regulation. He would be a producer.” Asked further if he would be a producer whether he sold milk by butter fat content or retail, he answers: “That is right. I should explain that to you. In the New Orleans area quite a bit of milk is sold to handlers by producers on the basis of volume only.” Instead of fortifying the contention of counsel for plaintiffs therefore, it would seem to us that this testimony had just the opposite effect.

There were introduced in the evidence also several bulletins of the United States Department of Agriculture containing various definitions of the term producer but if any federal government bulletin is to be given particular consideration in reaching a proper definition it should be Bulletin No. 220 of the United States Public Health Service which by the very terms of Act No. 192 of 1946, the statute we are interpreting, is acknowledged as the standard milk regulation. See Section 11 of that Act. In the bulletin referred to, a milk producer is defined as being “any person who owns or controls one or more cows, a part of all of the milk or milk products from which is sold or offered for sale.” There is nothing there to suggest that the milk or its products is to be sold on the basis of butter fat content.

We fully agree with the district judge therefore as far as the appointees Jennis-kens and Guth are concerned, they are qualified to act as members on the Commission.

We come now to attack made on the appointment of C. R. Wilson. Mr. Wilson himself did not testify in the case but we find the evidence to be that he does not own a dairy individually and that his connection with the milk industry was restricted to that of manager of the Blue Ribbon Dairy at Alexandria which is owned by the Louisiana Ice and Utilities Co., Inc. The trial judge in discussing the qualifications of the appointee, Rhodes, seems to have been of the opinion that the fact that he acted merely in the capacity of the executive officer of a corporation did not of itself disqualify him. We are inclined to disagree with him on this proposition as it is an undisputed point in the law of corporations that the corporation itself is a separate and distinct entity from individuals who compose it. It may be true, as stated by him, that the greater part of the distribution of milk in Louisiana today is done by large corporations but still that does not have any effect on the wording of the statute with which we are concerned and which provides that those members appointed by the Governor “are to be men engaged in the actual production of milk” as far as eight of them are concerned and one has to be a distributor of milk. We cannot read into the law that a representative of a corporation engaged in the distribution of milk is a man so engaged. For that reason we find that we cannot give any consideration to the argument of counsel for the defendants that in view of the disqualifications of the appointee, Rhodes, who had been appointed as a distributor, the appointment of Wilson even though he be disqualified as a producer, could be upheld as that of a distributor in Rhodes’ place.

Lastly we come to the attack on the appointment of J. Wayland Smith. This appointee it seems at one time owned a herd of cattle but at the time of his appointment his herd had been reduced by sickness and death among his cattle to a few heifers which were not yet in the milking stage. He testified that he was rebuilding his herd and that although he was not milking any cows at the time, some of these heifers had even then been freshened and as soon as they would be producers he was going to resume his business of selling milk as he had done before his herd was destroyed.

Speaking in a broad sense it might reasonably be stated that under the particular circumstances of his case, Mr. Smith was a producer of milk but in view of the wording of the statute which is specific and which provides that seven of the members appointed by the Governor “are to be men engaged in the actual production of milk” which we take to mean they must be so engaged at the time of their appointment, we find no alternative but to follow the language used and the intention expressed and hold with the district judge that the appointee was not qualified and has no right to serve as a member on the Commission.

For the reason stated, the judgment appealed from is hereby affirmed.


author: JANVIER, Judge.

text:
    YURATICH v. PLAQUEMINES PARISH DEMOCRATIC EXECUTIVE COMMITTEE et al.
    No. 18878.
    Court of Appeal of Louisiana. Orleans.
    Nov. 15, 1947.

      Sam Monk Zelden, of New Orleans, for plaintiff-appellee.
    Leander H. Perez, of New Orleans, and Bruce Nunez, of Arabi, for defendants-appellants.
   JANVIER, Judge.

This contest involves the right of Joseph Yuratich to participate as a candidate for the Democratic nomination for Police Juror of the Tenth Ward of the Parish of Plaque-mines in the Democratic Primary Election to be held on January 20, 1948.

Yuratich, within the time fixed for the filing of applications to become a candidate for the party nomination for the said office, filed his declaration of candidacy with the Plaquemines Parish Democratic Executive Committee.

Section 28 of Act No. 46 of 1940, as amended by Act No. 351 of 1946, § 4, provides that anyone who has filed application to become a candidate, or any other qualified elector may object to the candidacy of any other person who has attempted to become a candidate, provided the contestant file objections in writing, setting forth in detail the reasons on which the objections are based. Within the time provided by law, Vincent Jaspriza filed with the said Plaque-mines Parish Democratic Executive Committee written objections to the candidacy of Yuratich, setting forth that the said Yuratich had not complied with the requirements in two particulars: First, in that he had not deposited the proper amount, and second (as set forth in the objection), “ * * * he does not own in his own right, nor does his wife own in her own right, property of assessed value of at least $250.00, as required by law and resolution of the Democratic State Central Committee of Louisiana.” Within the time required by law, the said contestee, Yuratich, filed answer with the said committee, reading as follows:

“My declaration of candidacy was filed in accordance with Act 46 of 1940, as amended, and more particularly, in accordance with Section 32 thereof, which gives directions as to the sums to be paid upon declaration of candidacy.”

The said committee, after hearing, maintained the objections to the candidacy of Yuratich, holding that he was disqualified as a candidate for the democratic nomination of the office which he sought, Police Juror, Tenth Ward, Plaquemines Parish, for the reason that he had not deposited the proper amount when he filed his declaration of intention to become a candidate, and for the reason that at that time there was not on the assessment rolls of the Parish of Plaquemines property either in his name or in the name of his wife of the assessed value of $250.

Accordingly, on October 29, 1947, Yur-atich filed his petition in the Twenty-fifth Judicial District Court for the Parish of Plaquemines setting forth the above facts and praying that the said Plaquemines Parish Democratic Executive Committee and the said contestant, Jaspriza, be cited to appear and answer and that, in due course, he have judgment overruling the objections to his candidacy and declaring him to be a duly qualified candidate for the position which he sought.

After a trial, there was judgment in the District Court in favor of Yuratich, ordering that the Plaquemines Parish Democratic Executive Committee certify to the Secretary of State the name of the said Yura-tich as a candidate for the office of Police Juror. From this judgment, Jaspriza, the contestant, and the Plaquemines Parish Democratic Executive Committee have appealed devolutively and suspensively to this Court.

It is shown in the record, and it does not seem to be disputed, that neither the con-testee, Yuratich, nor his wife has any property at all on the assessment rolls of the Parish of Plaquemines, and since there is then no controversy over the facts on which this objection is based, we shall consider it first before approaching the question of whether the candidate made the proper deposit when he filed his declaration of intention to become a candidate.

The question presented by this contention is simply this: May a political party require, as a condition precedent to becoming a candidate for party nomination for the position of Police Juror, that the person desiring to so become a candidate own in his own name, or that his wife own, property of the assessed value of $250, and if so, must the said person meet this requirement at the time of filing his declaration of intention ?

The contestee maintains that the political party may make no such requirement; that it has riot done so in this case; and as an alternative contention, the contestee maintains that if there is such -a requirement, compliance may not be demanded until the time at which the person who desires to be a candidate, having been elected, attempts to take office.

The contestant and the parish committee, on the other hand, assert that the political party, through its proper committee, may impose any reasonable conditions affecting anyone desiring to become a candidate for the party nomination; that the requirement that one who offers himself as a candidate for the position of Police Juror must own property of an assessed value of at least $250, or his wife must own such property, is a reasonable requirement; that such requirement may be legally imposed on all persons desiring to offer . themselves as candidates for such office, and that anyone so desiring to enter the primary must be so qualified at the time of filing his declaration of intention.

The authority granted to the Legislature to make laws governing such primary elections is found in Article 8, section 4, of the State Constitution, which reads as follows:

“The Legislature shall enact laws to secure fairness in party primary elections, conventions, or other methods of naming party candidates. No person shall vote at any primary election or in any convention or other political assembly held for the purpose of nominating any candidate for public office, unless he is at the time a registered voter, and have such other and additional qualifications as may be prescribed by the party of which candidates for public offices are to be nominated. * * * ”

In section 27 of Act No. 46 of 1940, as amended by Act No. 351 of 1946, .the Legislature set forth the qualifications which are required of voters and candidates in party primaries. This section reads as follows:

“The qualifications of voters and candidates in primary elections, held under this Act, shall be the same as now required by the Constitution and election- laws of this State for voters at general elections and the further qualifications prescribed by the State Central Committee of the respective political parties coming under the provisions of this Act.”

With particular reference to the special qualification which is required by law of Police Jurors, we quote the pertinent part of Act No. 94 of 1894 as follows:

* * * The members of the police juries of the several parishes throughout the State, hereafter to be elected, shall possess the,same qualifications as members of the House of Representatives and also the following additional qualifications:
“They snail be able to read and write and shall, each, own in his own right or whose wife shall own in her own right property of an assessed value of at least two hundred, and fifty dollars in the parish for which they may be elected.”

1 When the Democratic State Central Committee met in Baton Rouge on October 7, 1947, it provided by resolution, duly adopted, for the qualifications which would be required of all persons who might desire to offer themselves as candidates in the party primary to be held on January 20, 1948, and among those qualifications is found the following :

“Each candidate shall be eligible under the special qualifications (if any) prescribed by the Constitution and laws for the office for which he is a candidate.”

The contestant -and the parish committee point to that resolution and maintain that under it anyone desiring to become a candidate must, at the time he files his declaration of intention, be able to show that he possesses all the qualifications which, by law, he must have should he be elected and attempt to take office. The contestee, on the other hand, as we have said, is positive that the article of the Constitution and section 27 of the Primary Election Law, both of which we have quoted, have reference only to qualifications of voters and do not give to the party committee any right to impose special requirements on those intending to become candidates in party primaries. The contestee also contends that Act No. 94 of 1894, which provides that a Pblice Juror or his wife must own a certain amount of property in assessed value, need be complied with only when the person attempts to take office and may not be imposed by the committee as a requirement for running for the nomination!

As we read the statute and the Constitution, we think that they give to the political party, which can act only through its committee, the right to establish such reasonable conditions as the said party, through its committee, may see fit to impose, and that persons who desire its nomination must comply with those requirements. The act (section 27) specifically gives to the committee the right to prescribe “further qualifications” than those required by “the Constitution and election laws.”

Counsel for the contestee say that this right to require “further qualifications” should be held to be limited to such requirements as may be necessary to maintain White Supremacy in Louisiana and should not be held to include the right to make a qualification which might exclude such persons as may not be able to own property.

We see nothing in our history, nor in the wording of the Constitution, nor of the statute in question which requires that we hold that the right of the party to make other qualifications of those desiring to enter its primaries must be limited to such qualifications as relate to race, etc. We can only hold that where a statute gives a party committee the right to impose such other requirements as it may see fit to prescribe, the committee is given the right to impose any reasonable conditions.

Of course, we read into the statute the word “reasonable”, because it is obvious that no committee could arbitrarily impose a condition with which the ordinary citizen could not possibly comply. Thus, if a committee should require that a prospective candidate should own an unreasonably large amount of property, such a requirement would be beyond the power of the committee. But here there can be no contention that the requirement that the prospective candidate or his wife must own property of an assessed value of $250.00 is unreasonable, in view of the fact that that identical requirement is found in the statute which provides that, if elected, the person elected can not take office unless he has complied with that requirement.

We think then that the Democratic State Central Committee was within its legal right in providing that one who might desire to enter its primary as a candidate for its nomination should “be eligible under the special qualifications (if any) prescribed by the Constitution and laws for the office for which he is a candidate.”

We pass then to the contention of the contestee that he need not be called upon to show that he could comply with this property requirement at the time he filed his declaration of intention to enter the primary ; that that requirement can not be imposed upon him until, if he should be elected, he presents himself to take over the office.

Counsel say that this is in truth a requirement of law and not of the committee; that this law, Act No. 94 of 1894, applies only to the eligibility of the person to take office at the time he attempts to do so, and does not in any way contemplate that he must be able to comply with the requirement of this statute when he attempts to enter the primary. And they say that this was held by our Brothers of the First Circuit in Migeot v. Barrilleaux, La.App., 166 So. 157. In that case the contestee had already been nominated in the party primary for the office of Justice of the Peace. At the time of his declaration of intention, he was not a freeholder. The Court found that the Constitution provides that no one may be a Justice of the Peace unless he be a freeholder, but it found that the primary law did not require that in order to become a candidate such person must be a freeholder, and the Court also found that it did appear from the record in that case that any such requirement had been prescribed by the Democratic State Central Committee when it set forth the provisions under which persons might enter that particular primary. The Court, therefore, held that since neither the law nor the Democratic party had made any such qualification a condition precedent to enter into the primary, the con-testee could not be disqualified because he had not, at that time, complied with the constitutional requirement that he be a freeholder. The Court said that, in the absence of such requirement, the qualification made by the Constitution need be shown to have been complied with only at the time at which the duly elected person might present himself to take office.

That case, therefore, affords little help in the present controversy. Later decisions, however, of that same Court plainly express the view that where a political party imposes legal requirements as a condition precedent to entering into a primary, those requirements must be complied with at the time of filing the declaration to enter the primary, and that it will not do to say that the person who desires to enter may do so and it will be sufficient, if he is elected, to then take the necessary steps to make himself eligible.

In State ex rel. Tanner v. Duncan, La.App., 10 So.2d 507, 511, that Court (First Circuit) discussed the conclusion that it had reached in Migeot v. Barrilleaux, supra, and very plainly said that it had reached Shat conclusion ■ because the objections raised had not related to the qualifications to enter the primary — no such requirement that the applicant be a freeholder having been made by the party committee.

In this latter Duncan case, the Court said 'that the Democratic State Central Committee “indirectly prescribed the property assessment qualification as one of its own affecting the right of a candidate for nomination by that party for election to the office of Parish School Board member.” And the Court, therefore, said that since the requirement had been imposed by the committee as a condition which must be complied with by anyone desiring to enter the primary, “consequently any objection raised on the ground that it is lacking, is one which would have to be presented before the committee before the primary election which has been called by it is held and under the procedure as outlined in section 28 of the primary law, Act No. 46 of 1940.”

Still later, in Courtney v. Singleton, La.App., 27 So.2d 448, 451, that Court further clarified its views saying:

“In Migeot v. Barrilleaux, La.App., 166 So. 157, the contest was over the nomination in a primary election of a candidate for the office of Justice of the Peace based on the ground that he did not possess the necessary qualification as a free holder and that he was unable to read and write the English language correctly, all as required by Art. VII, Sec. 47 of the Constitution of this State. In that case it did not appear that the Committee having charge and control over the primary election involved had ever prescribed property or literacy qualifications as some of its own regarding candidates for the office of Justice of the Peace and consequently we held that the lack of either was a matter which may have affected his eligibility to the office he sought but not his right to enter the primary, and therefore it could not be made the issue of a contest before the Committee under Section 28 of Act 46 of 1940, In the Tanner case, the Committee itself undertook to prescribe, even if indirectly, property assessment as one of its qualifications for candidacy for Member of the School Board and that is why it was held that an objection for lack of such qualification had to be made before and passed on by the Committee before an appeal could be made to the Courts.
“In the present case the lack of qualification complained of is one that is specifically prescribed by the Committee and so much more is that the reason why objection should have been timely presented to the Committee so that it could be heard and decided in that forum before being presented to the Court."

The Supreme Court, in Smith v. Parish Democratic Executive Committee, 164 La. 981, 115 So. 54, 55, set forth the question which was involved in that case in the following language:

* * * Must a candidate at a primary election be registered as a voter, and must he have declared his affiliation with the party holding the election, 'at the time he gives notice of his candidacy to the committee, or at any rate, before the expiration of the term allowed by law for giving such notices? Or on the other hand, will it suffice if he registers and declares his party affiliation after that term has expired, but before the committee has acted on a pending protest against his candidacy ?”

Here is the Supreme Court’s answer to that question :

“The intent of the law, as we understand the language which it uses, is to require that the qualification of a candidate shall be complete at the time he files his application, or, at any rate, before the expiration of the time for filing applications. Accordingly we must hold that the plaintiff not having timely registered and declared his party affiliation was not duly qualified to be a candidate, and that the decision of the committee and of the district court was right.”

We followed this ruling in Borne v. Parish Democratic Executive Committee, La.App., 192 So. 124.

Counsel for the contestee argue that there is no sound reason for a requirement that such qualification as a person must have in order to take office must be possessed when he decides to run for the office. We cannot agree. It must be remembered that a political party is a voluntary association of individuals, organized for the purpose of furthering particular political or economic beliefs, and that, as such, it should have the right, within legal and otherwise reasonable limits, to make rules and regulations for the purpose of making certain that it selects as its nominees, for the various offices the best available persons who are qualified for the position and who, if elected, will not be disqualified for failure to comply with legal requirements. It would be dangerous indeed to hold that such a party should not be permitted to insist that before anyone attempts to secure its nomination to run in a general election for any particular office, it could not make certain that this person is eligible and could successfully meet any attack on his eligibility should an attack be made by any rival party or parties.

An additional argument is made on behalf of the contestee to the effect that there is no sound reason to require that the property qualification be met at the time of attempted entry into the primary, and this argument is that the only reason why the property requirement is made is that the person who is elected to the office may be able to meet any financial responsibility which may be imposed upon him by non-feasance or malfeasance in office. In other words, say counsel, it is in the nature of a bond to guarantee the faithful performance of his duties. We do not think that this is in any sense the reason for the requirement. We think that the requirement was placed in our statutes in order to make certain that persons who run for a position, such as Police Juror, should be shown to be persons of some substance and responsibility.

Our conclusion is that the Democratic State Central Committee had the legal right to require that as a condition precedent any person desiring to enter the primary as a candidate for nomination should have the legal qualifications which he would be required to have in order to take office. We conclude that the resolutions adopted by the committee can not be interpreted otherwise than as a requirement that one who offers himself as a candidate for the position of Police Juror must be able to show himself qualified in accordance with Act No. 94 of 1894. And we further conclude that since the requirement, <was legal and was made by the committee as a condition precedent to entering into the party primary, the committee correctly held that compliance therewith should have been shown as of the time ,of the declaration of intention to enter the primary.

It becomes unnecessary for us to consider the other ground on which the attack on the contestee is based.

It is ordered, adjudged and decreed that the judgment of the District Court be annulled and set aside, and that the. ruling of the Plaquemines Parish Democratic Executive Committee holding that Joseph Yura-tich did not qualify according to law be and it is reinstated, and therefore^ it is further ordered, adjudged and decreed' that Joseph Yuratich be and he is declared to be ineligible to become a candidate for the Democratic nomination for the office of member of the Police Jury for the Tenth Ward of the Parish of Plaquemines; ap-pellee to pay all costs.

Reversed.


text:
    FRANCIS v. PLAQUEMINES PARISH DEMOCRATIC EXECUTIVE COMMITTEE et al.
    No. 18880.
    Court of Appeal of Louisiana. Orleans.
    Nov. 15, 1947.

      Severn T. Darden, George Piazza, Du-four Bayle, and Sidney de Armas, all of New Orleans, for plaintiff-appellee.
    Leander H. Perez, of New Orleans, and Bruce Nunez, of Arabi, for defendants-appellants.
   JANVIER, Judge.

The facts of this case and the legal questions presented are identical with those which we considered in Yuratich v. Plaquemines Parish Democratic Executive Committee et al., 32 So.2d 647, with the sole exception that in this case, Owen D. Francis, the contestee, is shown to have owned property of the assessed value of $200. It is shown that'he had purchased the said property for $500 on October 8, 1946. Unfortunately for Francis, however, the Act of 1894, No. 94, provides that a Police Juror must own property of an “assessed value” of $250, and this does not give us, nor any other Court, nor any other Committee the right to hold that the purchase price and not the assessed value should be considered in determining the eligibility of a candidate. The law specifically requires that the assessed value of such property be at least $250, and the Democratic State Central Committee as we have held in the Yuratich case, made the same requirement. We do not see that any distinction can be based on this fact.

For the reasons given in the Yuratich case, it is ordered, adjudged and decreed that the judgment of the District Court be annulled and set aside, and that the ruling of the Plaquemines Parish Democratic Executive Committee, holding that Owen D. Francis did not qualify according to law, be and it is reinstated, and therefore, it is further ordered, adjudged and decreed that Owen D. Francis be and he is declared to be ineligible to become a candidate for the Democratic nomination for the office of member of the Police Jury for the Tenth Ward for the Parish of Plaquemines; ap-pellee to pay all costs.

Reversed.


text:
    Bozo Martin FRANICEVICH, Plaintiff and Appellee, v. PLAQUEMINES PARISH DEMOCRATIC EXECUTIVE COMMITTEE et al., Defendants and Appellants.
    No. 18879.
    Court of Appeal of Louisiana. Orleans.
    Nov. 15, 1947.
    Sam Monk Zelden, of New Orleans, for plaintiff-appellee.
    Leander H. Perez, of New Orleans, and Bruce Nunez, of Arabi, for defendants-appellants.
   JANVIER, Judge.

The facts of this case and the legal questions presented are identical with those which we considered in Yuratich v. Plaquemines Parish Democratic Executive Committee et al., 32 So.2d 647, with the sole exception that in this case Bozo Martin Franicevich, the contestee, desired to be a candidate for the Democratic nomination for the position of Police Juror for the Fourth Ward instead of the Tenth Ward.

For the reasons given in the Yuratich case, it is ordered, adjudged and decreed that the judgment of the District Court be annulled and set aside, and that the ruling of the Plaquemines Parish Democratic Executive Committee, holding that Bozo Martin Franicevich did not qualify according to law, be and it is reinstated, and therefore, it is further ordered, adjudged and decreed that Bozo Martin Franicevich be and he is declared to be ineligible to become a candidate for the Democratic nomination for the office of member of the Police Jury for the Fourth Ward of the Parish of Plaque-mines; appellee to pay all costs.

Reversed.


author: HARDY, Judge.

text:
    HUTCHINSON v. STINSON.
    No. 7061.
    Court of Appeal of Louisiana. Second Circuit.
    Nov. 26, 1947.
    Wayne Stovall, of Jonesboro, for appellant.
    W. T. Holloway, of Jonesboro, for ap-pellee.
   HARDY, Judge.

This is an action in slander of title in which plaintiff alleged the actual, physical and undisturbed possession as owner of a certain described tract of land in Jackson Parish, Louisiana, set forth specific acts of slander of said property by defendant, and prayed for judgment decreeing said slander and further judgment ordering the defendant to disclaim title to the property or to assert such rights as he might have, all .with reservation of plaintiff’s rights to sue for damages.

Defendant answered, asserting "ownership of an undivided one-half interest in the property described, based upon the alleged community ownership by -defendant and his divorced spouse, and praying for judgment accordingly.

After trial there was judgment in favor of plaintiff recognizing him as ownér of the property, maintaining • and confirming his title therein, rejecting the claims of title on behalf of the defendant, and reserving plaintiff’s rights-to sue for damages arising from the slander. From this judgment defendant has appealed.

Pleas of estoppel and prescription were interposed by plaintiff, but we find no record of any action by th'e lower Court with respect "to these pleas.

By properly executed and recorded deed of conveyance of date January 25, 1929, Mrs. Iva Lee Stinson, then married to the defendant, J. T. Stinson, purchased, from J. H. Hadwin, a tract of land described as being- — ■

“The NWy4 of NEJi, Section 11, Tp. 14 N R. 4 West, containing 40.acres, more or less, in Jackson Parish, Louisiana,”

The above described instrument contained the following stipulation:

“It is expréssly agreed and "understood between the parties to this deed, that the money, as a purchase- price for the above described property, is the separate and paraphernal funds of -Mrs. Iva Lee :Stinson and that this -property herein purchased is to be and remain her separate and para-phernal property.”

By deed of date Jantiary 7, 1943, Mrs. Iva Lee Stinson, then divorced -from defendant, J. T. Stinson, conveyed1 the identical property to Otis H. Hutchinson, plaintiff herein, subject to a reservation of one-half of the mineral-rights.

At the time of the purchase by plaintiff his vendor, Mrs. Stinson, and the defendant had been legally divorced for more than ten years. Some time following the sale by Mrs. Stinson to plaintiff this defendant brought suit alleging the community nature of the property and seeking the cancellation of the deed to Hutchinson. The action was coupled with a claim for damages for the value of timber cut by one Corley, who was also made party to the suit. On an exception of no cause or right of action the suit was dismissed as to Hutchinson, whereupon he instituted this action.

Having asserted the community nature of the property involved herein, as the basis of his claim of title, the burden was clearly upon defendant to successfully attack the recital embodied in the deed by which the property was acquired in the name of his then spouse as a part of her separate and paraphernal estate, paid for out of her separate funds. The defendant has completely and utterly failed to discharge this burden.

The, evidence clearly preponderates in favor of the validity, of the recital in the deed which has been expressly set forth above. The testimony of Mrs. Stinson is convincing, not only as to her possession of the money paid in consideration of the purchase of the property, but as to the separate and paraphernal nature thereof. The witness established the sources of her earnings prior to marriage and her possession of cash monies in excess of the consideration actually paid for the property. Further than this she satisfactorily testified as to the circumstances surrounding the transaction in question, which testimony was, at least in part, corroborated by her sister and daughter.

As against this testimony the defendant, Stinson, attempted to prove that the funds used by his wife for the purchase of the property represented a portion of a sum paid by him in settlement of a claim for alimony which had been asserted by his wife in a previous separation proceeding. In our opinion defendant failed in this attempt, which was more than successfully controverted by the testimony of Mrs. Stin-son, who established that she had returned this amount to the defendant after they had affected a reconciliation.

On the whole the record does not show that defendant ever supplied his wife during marriage with any funds aside from certain small amounts in connection with household expenses, and it is obvious that the only sources of funds which could possibly have been used by Mrs. Stinson in payment of the consideration of the property purchased were her separate and para-phernal earnings and savings.

We are impressed with exhibits in the record, acknowledgedly in the handwriting of this defendant, comprising four letters, three of which were directed to Mrs. Stin-son and one to her sister, Mrs. Brown, all written in the fall of 1946, at or about the time of the institution of this action. These letters, obviously designed to influence Mrs. Stinson to testify on behalf of this defendant, are in themselves strongly persuasive against the good faith of the claims asserted by the writer.

In view of what we regard as the established facts on the merits of this matter, we deem it unnecessary to pass upon the pleas of estoppel and prescription with the exception of the comment, in passing, that the judicial recital of this defendant in the divorce proceedings between himself and his wife to the effect that, there was no property acquired under the community of acquets and gains resulting from the marriage, which fact was made the basis of the plea of estoppel, and the consideration of the further fact that this defendant was not heard to assert any interest in the property during the period of more than ten years following the divorce are circumstances which argue most eloquently against the claims as to the community nature of the property.

For the reasons assigned the judgment appealed from is affirmed at appellant’s cost.

KENNON, J., absent.