text:
    Carney SHELMIRE v. Lindsey L. LINTON et al. D. R. LINTON, Jr., et al. v. Richard E. DOWNEY et al. Ludella Jiles GAINES et al. v. D. R. LINTON, Jr., et al.
    Nos. 11089-11091.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 1977.
    Rehearings Denied March 21, 1977.

      William R. Doran, Jr., Baton Rouge, of counsel for plaintiffs-appellees in Nos. 11089 and 11090.
    Walton J. Barnes, Baton Rouge, of counsel for plaintiffs-appellants Gaines, and others.
    Samuel Dickens, Baton Rouge, of counsel for Lindsey L. Linton & Dewey R. Linton, Jr., appellants.
    Anthony J. Clesi, Jr., Baton Rouge, of counsel for defendants Downey and State Farm Mutual Auto. Ins. Co., appellants.
    Before, LANDRY, COLE and CLAIBORNE, JJ.
   COLE, Judge.

These three consolidated cases arise from an automobile collision involving a 1974 Chevrolet pick-up truck driven by Richard E. Downey and a 1966 Ford automobile operated by Lindsey L. Linton. The accident occurred on Louisiana Highway 67 (Plank Road) in East Baton Rouge Parish on December 15, 1973, at approximately 8:30 P.M. The facts surrounding the accident are succinctly set forth by the trial judge as follows:

“ * * * Prior to the accident, Dow-ney was proceeding in a southerly direction down Plank Road at a speed consistent with the 60 mile per hour speed limit then prevailing. About the same time, Lindsey Linton, who was operating a car owned by his father, made a [right] turn from Rolling Acres Drive onto Plank Road when the Downey vehicle was still several hundred yards north of Rolling Acres Drive. It appears that Linton accelerated his vehicle for a short distance when he was struck from the rear by Downey’s pickup truck. As a result of the impact from the collision, Linton’s automobile was propelled across the western shoulder of th'e road, through a ditch and up into a cemetery where it finally collided with two burial vaults upon which the vehicle came to rest. The force of the collision apparently broke asunder the vaults exposing the remains of the decedents resting therein.”

In Suit No. 11,089 entitled “Carney Shelmire v. Lindsey L. Linton and Richard E. Downey,” the plaintiff sues the drivers of the vehicles involved in the accident for the cost of replacement of the burial vault of his father ($450.00) and for his mental anguish resulting from the exposure and rein-terment of the body ($1,000.00). At the commencement of trial it was stipulated that plaintiff was the proper party to bring the action for damages to the vault. The trial judge in the above-numbered suit granted judgment in favor of the plaintiff and against both defendants in solido, for $1,200.00, representing $450.00 for the replacement of the vault and $750.00 for damages for mental anguish. Both defendants appeal. Plaintiff answers, seeking an increase of $250.00 in the amount awarded for mental anguish. We affirm.

In Suit No. 11,091 entitled “Ludella Jiles Gaines, Leola Jiles Shelmire, Jessie C. Jiles, Allen Jiles and Riley Jiles, Jr., v. D. R. Linton, Jr., and Lindsey L. Linton,” the above-listed plaintiffs sued for the cost of restoration of their mother’s burial site ($1,493.40) and for mental injuries arising from the destruction of the grave ($5,000.00 for each child). The defendants named in this suit were Lindsey Linton, the driver of one of the vehicles, and his father, D. R. Linton, Jr. The trial judge granted judgment against Lindsey Linton and in favor of Leoia Jiles Shelmire for $750.00 for mental anguish, and in favor of Jessie Jiles for $250.00 for mental anguish. The trial judge did not award any amount for damage to or restoration of the burial site, as the plaintiffs failed to prove any loss resulting therefrom. Ludella Jiles Gaines predeceased the filing of the suit and a peremptory exception of prescription was maintained as to the substitution of her survivors as parties plaintiff. The claims of Allen Jiles and Riley Jiles, Jr., were correctly .dismissed because of the failure of these parties to present any probative evidence as to their mental anguish. They did not appear at trial. Judgment was further rendered dismissing all claims against D. R. Linton, Jr., since Lindsey Linton was eighteen years old at the time of the accident. Leola Jiles Shelmire and Jessie Jiles appeal, seeking an increase in the amount awarded. Allen Jiles and Riley Jiles, Jr., appeal the adverse judgment. The defendant also appeals the decision, denying any liability. We affirm.

In Suit No. 11,090 entitled “D. R. Linton, Jr., and Lindsey L. Linton v. Richard E. Downey, Clark B. McKey and State Farm Mutual Automobile Insurance Company," the plaintiffs sued for damages to the automobile and for personal injuries to the driver. The trial court rendered judgment in favor of the defendants, dismissing plaintiffs’ suit. The plaintiffs appeal. We affirm.

The most serious issue on appeal concerns a factual dispute and its resulting effect upon the question of the culpability of the drivers involved in the accident. According to Downey’s testimony, as he approached the Linton vehicle to within approximately three car lengths, he noticed a flash of flame and smoke sweep from under the hood over the windshield. Subsequently, he claims the car suddenly decreased its speed and weaved erratically to the right and then to the left. He asserts that as he swerved to the left to avoid hitting the Linton vehicle, it simultaneously veered in front of his vehicle causing him to strike it.

Linton, on the other hand, claims that his car did not sustain a mechanical breakdown causing him to suddenly decrease his speed or lose control of his car. To the contrary, he claims that he had no problem with the car but was struck from behind by Dow-ney’s vehicle. He claims that the collision propelled him into the cemetery, at which point his automobile caught fire.

Faced with the conflicting testimony of the drivers the trial court relied heavily upon the testimony of the investigating police officer to find that the Linton vehicle sustained a breakdown before the impact causing Linton to lose control. The officer testified that at the scene of the accident the contemporaneous statements of Linton coincided with the version of facts asserted by Downey. To further support this rendition of the facts, the police officer testified that the point of impact was partially across the center line.

The resolution of the factual dispute depends substantially upon the credibility of the witnesses; therefore, we attach much weight to the trial judge’s findings of fact. After a careful review of the entire record, we have determined that the facts as found by the trial judge are correct.

Based upon the facts as found by the trial judge, it is next necessary to review the question of the negligence of the drivers of the vehicles. The “duty-risk” method for determining when actionable negligence exists has been developed and explained by a series of cases most recently culminating with Shelton v. Aetna Casualty and Surety Company, 334 So.2d 406 (La.1976). See the exhaustive list of authorities cited therein. Consequently, although we adhere to the law pronounced therein, we see no need to reiterate those principles here.

First, the allegedly negligent conduct of Linton is the failure to control his vehicle, as evidenced by the sudden decrease in his rate of speed, made without warning, and the erratic movement of his car to the right and then back to the left, partially over the center line. The duty to control his vehicle, breached by Linton’s action as explained above, certainly is designed to protect against the risk of being hit from the rear by even a careless or inattentive driver. Further, this duty is established to protect innocent third parties who may be damaged as a consequence of the negligent conduct.

Even if Linton seeks to extricate himself from liability by claiming that the cause of the accident was not any negligent conduct on his part, but rather a mechanical failure in his vehicle, he has failed to carry the heavy burden of the owner-operator of the vehicle of proving that he had no advance notice of the defect and that he used ordinary care to prevent such mechanical failure. Simon v. Ford Motor Company, 282 So.2d 126 (La.1973); Daniels v. Soileau, 311 So.2d 638 (La.App. 3rd Cir. 1975). We note that although title to the vehicle was in the name of D. R. Linton, Jr., father of the operator, Lindsey L. Linton, this situation existed apparently because the son was not of age at the time of purchase. It is clear from the record that the son was the regular user of the vehicle and chargeable with the maintenance thereof. Any failure on his part to use ordinary care to prevent mechanical malfunction is likewise negligent conduct.

Next, Downey’s liability results from the breach of his duty to follow preceding vehicles at a safe distance. Downey testified that the Linton vehicle turned onto Plank Road a safe distance ahead. He further testified that it was not until his vehicle was within three car lengths of the Linton vehicle and he noticed its difficulty that he then reduced his speed by taking his foot off the accelerator. We agree with the trial court’s finding:

“ * * * It is significant, in the Court’s opinion, that he did not reduce the speed of his vehicle until after he observed the Linton car was in some sort of difficulty. From his testimony, it appears that he probably was still maintaining his earlier speed of 55 to 60 miles per hour by the time he had approached within three car lengths behind the preceding vehicle. By any safe measure of stopping distance, he had allowed himself an inadequate distance in which to maintain proper control over his vehicle. * * * ”

The fact that Downey was perhaps confronted with a sudden emergency does not relieve him from liability, as suggested, because the duty to maintain a safe distance behind a preceding vehicle is designed to allow adequate braking time, thereby protecting against the risk that one might be confronted with such an emergency. While this duty may not be designed to protect someone whose own negligence is a contributing cause of the accident, as asserted by Downey, it certainly is designed to protect innocent third party bystanders from the risk of any damage caused by an automobile propelled as a consequence of collision. Therefore, we conclude that the duty breached by Downey was designed to protect innocent third parties against the particular risk involved in this accident.

The negligent acts of both Linton and Downey were causes in fact of the accident, in that, but for either party’s negligent conduct, the accident would not have happened.

The next serious issue meriting discussion by this Court concerns assertions that the amounts awarded for mental anguish resulting from the destruction of the burial vaults and exposure of the bodies were inadequate. The trial judge awarded $750.00 each to the parties who testified that they viewed the destroyed burial vaults and the remains of their respective parents and were upset by the experience. Two hundred and fifty dollars was awarded to the descendant who testified that he knew of the accident but did not view the remains. While we consider these amounts to be low, given the nature of the damages, we are not inclined to increase the awards, because of the great discretion accorded the trial judge in such matters. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976), and the authorities cited therein.

Accordingly, for the reasons expressed herein, we affirm the judgments of the trial court in Suit Nos. 11,089, 11,090 and 11,091. The costs of these proceedings are to be assessed one-third to appellant, Richard E. Downey; one-third to appellants, D. R. Linton, Jr., and Lindsey L. Linton; and one-third to appellants, Leola Jiles Shelmire, Jessie C. Jiles, Allen Jiles and Riley Jiles, Jr.

AFFIRMED.


source: Caselaw Access Project

author: COLE, Judge.

license: Public Domain

text:
    Willis A. PICOU v. TERREBONNE PARISH SHERIFF’S OFFICE, Through its Sheriff, Charlton P. ROZANDS.
    No. 11106.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 1977.
    Rehearing Denied March 21, 1977.
    Writ Refused May 11, 1977.

      Duval, Arceneaux, Lewis & Funderburk by Stanwood R. Duval, Jr., Houma, for plaintiff and appellant.
    Durrett, Hardin, Hunter, Dameron & Fritchie by L. Michael Cooper, Baton Rouge, for defendant and appellee.
    Before LANDRY, C. J., and COLE and CLAIBORNE, JJ.
   COLE, Judge.

Plaintiff, Willis A. Picou, appeals a judgment of the trial court rejecting his claim of damages arising from the alleged use of excessive force by defendants’ employee, R. 0. Carpenter. Defendants-appellees in this suit are the Terrebonne Parish Sheriff’s Office and Charlton P. Rozands, Sheriff. However, as admitted by counsel for appellant in argument before this Court, the proper party defendant is the Sheriff himself, his office being only titularly involved. The issue presented by this appeal is as follows: Did Sheriff’s Deputy, R. 0. Carpenter, in the performance of his duties, use unreasonable and excessive force upon the plaintiff, thereby making his employer liable to the plaintiff for the damages which resulted?

The record discloses that on March 31, 1974, plaintiff had been engaged in a card game at the Brown Derby Bar beginning at approximately 2:00 A.M. At approximately 9:00 A.M. on the same morning, Mrs. Kermit Muse (known at that time as Lea Porter) entered the bar where the plaintiff had been playing cards. Mrs. Muse’s expressed reason for being there was to locate a former boyfriend who allegedly had her car. Plaintiff met Mrs. Muse and after several drinks agreed to chauffeur her in an attempt to locate her automobile. During the entire day of Sunday, March 31, 1974, the plaintiff and Mrs. Muse visited numerous bars and drove past several more, during which period they had by their own admission a substantial amount to drink and nothing to eat. At approximately 8:00 P.M. the pair arrived at the Roadrunner Inn.

After getting to the Roadrunner, Mrs. Muse returned to her apartment and put a loaded gun in her purse. Her roommate, Cheryl Robichaux (then Vannerson), attempted to dissuade her from taking the gun. Mrs. Robichaux was concerned because of what she perceived to be Mrs. Muse’s depressed and intoxicated condition at the time. Being unsuccessful, Mrs. Robi-chaux went to the Roadrunner Inn, arriving there before Mrs. Muse, and warned Mrs. Gladys Mitchell, the manager of the bar, that Mrs. Muse was coming with the gun. Consequently, Mrs. Mitchell called the Sheriff’s Department in order to prevent any trouble.

While at the Roadrunner Inn, plaintiff was sitting at a table talking to several people, including Gladys Mitchell. Plaintiff did not notice that Mrs. Muse had left. He first learned of her departure when he received a telephone call from her asking him if he would pay for a cab for her to return to the bar. Subsequently, Mrs. Mitchell informed him that Mrs. Muse’s roommate had said that Mrs. Muse was returning with a gun. Mrs. Mitchell then told a friend sitting at the same table with the plaintiff that she ought to leave because there might be trouble. As the group at the table disbanded, plaintiff went to the bar and sat on a stool beside Mrs. Robichaux, whom he had met during the day in his exploits with Mrs. Muse.

Two Sheriff’s Deputies arrived at the Roadrunner in response to Mrs. Mitchell’s request and were greeted by her outside. She informed them of the situation. One deputy, Eugene Callahan, Jr., was uniformed; the other deputy, R. 0. Carpenter, was bearded and dressed in khaki pants and a sweat shirt. Mrs. Muse arrived shortly thereafter by cab. As she approached the entrance to the bar, Deputy Callahan asked to see her purse. She responded with obscenities and ran past him into the bar. The two deputies and Mrs. Mitchell followed her to the bar. As Mrs. Muse entered the bar, plaintiff gave her his seat and moved to her left. Deputy Callahan again approached Mrs. Muse requesting to see her purse. At this time an intoxicated patron distracted Deputy Callahan in an apparent effort to interfere. Mrs. Muse and Mrs. Robichaux then engaged in a scuffle over the purse, pulling it back and forth between them. The plain clothed deputy, R. 0. Carpenter, who was standing behind the two women, reached in and grabbed the purse, simultaneously flashing his badge. Mrs. Muse was placed under arrest for carrying a concealed weapon and escorted from the bar bodily by Carpenter and Callahan, because she refused to leave voluntarily. During her arrest Mrs. Muse struggled and resisted, while shouting antagonistic, inciteful, and obscene remarks to the crowd. Although plaintiff was standing next to Mrs. Muse during all of this commotion in the bar, he claims that he saw nothing because he was ordering a drink.

The deputies took Mrs. Muse outside and leaned her over the car in order to restrain her so that they might put handcuffs on her. The plaintiff then went outside and saw Mrs. Muse and Carpenter struggling over the car. Plaintiff’s testimony is unclear as to whether he also saw a uniformed deputy at this time. The major factual dispute in this suit concerns the subsequent conduct of the plaintiff. The plaintiff claims he merely approached Carpenter and said, “You don’t have to hurt her,” and that Carpenter grabbed him and ran him into the brick wall of the bar. However, by plaintiff’s own admission, Carpenter never struck or kicked him at any time. Garpen-ter and Callahan claim, on the other hand, that the plaintiff jumped on Carpenter’s back, was pushed away, and then jumped on Carpenter’s back again. At this point, Carpenter claims he struggled with plaintiff, finally grabbing him by the back of the pants and shirt and shoving him against the door. He claims that he then wrestled plaintiff to the ground, at which point Callahan sprayed him with Mace to stop his continued resistance.

The use of force when necessary to effect an arrest is a legitimate police function, whether such force is directed against the person arrested or one interfering with the arrest. See Castriotta v. Cronvich, 277 So.2d 744 (La.App. 4th Cir. 1973); Taylor v. City of Baton Rouge, 233 So.2d 325, at 330 (La.App. 1st Cir. 1970). However, the use of unreasonable or excessive force renders the officer and his employer liable for injuries which may result. See Cheatham v. Lee, 277 So.2d 513 (La.App. 1st Cir. 1973); and Taylor v. City of Baton Rouge, supra.

The unreasonableness or excessiveness of the force used, as in all cases of battery, is dependent upon the totality of the facts and circumstances in the particular case. The reasonableness of the force exerted must be evaluated from the viewpoint of a reasonable man in the position of the officers at the time of the incident. We note in this connection the highly charged and volatile nature of the incident. The arrested patron had a loaded gun in her purse. She was highly intoxicated and violently resisted her arrest. At least one other bar patron had previously tried to interfere with the uniformed deputy in the bar. The deputies were called to the situation by the distressed bar manager, upon information received from Mrs. Muse’s distraught roommate.

It would serve no useful purpose to discuss the testimony of the various parties in an attempt to reconcile the conflicting versions of the events. The determination of the facts in this case rests upon an evaluation of the credibility of the witnesses. Working against the plaintiff’s credibility is not only his intoxicated state at the time of the incident, but also numerous convictions over a long period of time for disorderly conduct arising from barroom incidents. The trial judge obviously accepted the defendants’ version of the events and, therefore, determined that the use of force was justified and not excessive. After a careful review of the record, we do not find that this result was manifestly erroneous.

In asserting that the force used by the officers was unreasonable and excessive, plaintiff relies primarily upon the seriousness of the resulting injury. The plaintiff suffered from three bulging discs in the cervical region, requiring surgery to remove the discs and fuse the spine. While the nature of the injury has relevance to the factual question of the amount of force exerted, it is not determinative of the question of whether under the circumstances the force used was reasonable or excessive and, therefore, tortious. Further, the injury does not even prove that a significant amount of force was exerted against the plaintiff. For example, in this case it is clear from the medical evidence that plaintiff’s neck problem pre-existed the trauma and was a degenerative condition. The incident in question merely aggravated the pre-existing condition.

While a tortfeasor will be liable for all of the direct result of his tortious act, including aggravation of pre-existing conditions, the nature of the injury does not determine that the act of the defendant is, in fact, tortious. In this case the seriousness of the injury resulted not only from the force exerted but from the pre-existing condition. Therefore, it does not support the contention that excessive force was necessarily used. Reasonable force may result in serious injuries in situations where the circumstances require that great amounts of force be exerted or in situations where the plaintiff’s pre-existing condition, makes him especially susceptible to injuries.

Plaintiff also relies on the great disparity in size between him and the defendant officer to prove that the force used was excessive. Size differential is a factor in determining whether the force exerted was more than was reasonably necessary. Yet, it is only one factor to be considered in light of all of the circumstances as viewed from the officer’s perspective in determining how much force is reasonable and necessary. Examples of other factors of importance to be noted are the state of mind of the assailant, the surrounding atmosphere at the scene, the seriousness of the consequences should the officer be unsuccessful in restraining the assailant, and the possibility of interference from others. The record discloses that a crowd had gathered at the scene, another party had attempted to interfere, the parties involved were intoxicated, and a loaded gun was involved.

Plaintiff also places emphasis on the contention that he never saw the uniformed deputy, that Carpenter never identified himself to plaintiff as a deputy, and that he did not know Mrs. Muse was being arrested. Not only is testimony to this effect suspect considering all of the evidence, but under the facts and circumstances of this case Deputy Carpenter owed no duty to plaintiff to identify himself. It was self-evident to even the most casual observer that he was helping a uniformed officer effect an arrest. The reasonableness of an officer’s conduct is not measured from the viewpoint of the victim but from that of a reasonable man in the officer’s position.

For the foregoing reasons, we affirm the judgment of the trial court. The costs of these proceedings are assessed to the plaintiff-appellant.

AFFIRMED.


author: CLAIBORNE, Judge.

text:
    Claudette Landry MUSSO (Dixon) v. Anthony Jerril MUSSO.
    No. 11094.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 1977.
    E. Pete Adams, Brian L. Williams, Baton Rouge, of counsel for plaintiff Claudette Landry Musso (Dixon) appellee.
    Charles S. McCowan, Jr., Baton Rouge, of counsel for defendant Anthony Jerril Musso appellant.
    Before LANDRY, COLE and CLAIBORNE, JJ.
   CLAIBORNE, Judge.

This is an appeal from a judgment on a rule increasing child support. We affirm. (Defendant in rule has acquiesced in other matters adjudicated, and they are not now before us.)

Since 1967 the question of child support herein has been litigated several times on rules to increase or decrease the amount. In 1967 a judgment of separation was rendered including an award for the support of 5 children in the amount of $75 per week in addition to which the defendant was ordered to continue payment of a monthly house note in the amount of $115 and a monthly car note in the amount of $100. In 1968 a judgment of divorce reduced the support payments to $60 weekly, plus the same house note and car note.

In 1970 the amount was fixed at $70 weekly. In 1971 the court refused to increase or decrease the amount.

On July 5, 1972, the Family Court reduced child support to the sum of $45 per week for 3 children. The present rule to increase that amount has resulted in a judgment of July 2, 1976, ordering the defendant to pay $200 per month for the 2 children who have not reached the age of majority. The judgment represents no appreciable total increase but a per child increase from approximately $65 to $100 monthly.

Appellant argues that the amount should have been fixed at $30 per week. In view of the fact that appellant has not filed a motion to reduce the amount of child support previously fixed by the Court, there can be no consideration of a reduction from $45 per week to $30 per week. The issue is whether the Court erred in granting a per child increase of approximately $35 per month; or, stated another way, whether the Court erred in leaving the child support essentially the same after a lapse of four years in view of the fact that the sum is now allocated for two children instead of three children as heretofore.

The Family Court found that although the plaintiff was working and earning more than she had in 1972, she could contribute “practically nothing” to the support of the children, because of a great amount of medical expenses incurred as a result of her own health. The evidence shows she is in debt, and except for occasional assistance from her father for whom she works she has no means of support other than her own net earnings of $514.88. The Court also found that the children’s expenses have increased since 1972, and that they were in need of certain dental expenses which defendant is unable to pay.

In 1972 the defendant was out of work and represented to the Court that he was averaging $367 gross income per month as unemployment benefits. For the current year it appeared the defendant would earn over $16,000. His expenses had meantime increased. He has remarried and has another child born of his marriage to his present wife. He has a net worth of $59,-000; he owns several vehicles; he has over $5,000 cash on deposit, and he is building a new home. The Court concluded that the defendant is in a much better position at present to pay child support than he was in 1972.

The increase in expenses for the support of the children, and the defendant’s substantial increase in earnings represent a change in circumstances justifying an increase in child support. Rabun v. Rabun, 232 La. 1004, 95 So.2d 635 (1957).

The trial court has great discretion in the matter of child support, and we find no abuse. Tobin v. Tobin, 323 So.2d 896 (La.App.2nd Cir. 1975).

Judgment will be affirmed. The cost of this appeal will be paid by the appellant.

AFFIRMED.


author: MARVIN, Judge.

text:
    LOUISIANA BRICK & TILE CORPORATION, Plaintiff-Appellant, v. Floyd BROWNING, Sr., Defendant-Appellee.
    No. 13127.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 14, 1977.
    En Banc. Rehearing Denied March 21, 1977.

      Oliver & Wilson by William A. Hargiss, Monroe, for plaintiff-appellant, Louisiana Brick & Tile Corp.
    Samuel T. Singer, Winnsboro, for defendant-appellee, Floyd Browning, Sr.
    Before BOLIN, MARVIN and JONES, JJ.
   MARVIN, Judge.

Plaintiff materialman appeals from a judgment rejecting its demands for recognition of a materialman’s lien for brick furnished by it for the construction of a residence on defendant’s property. The lower court found the lien was not filed within the 60-day period after construction was abandoned. R.S. 9:4812.

The 60-day lien period begins to run in such cases from the time the abandonment becomes or should become reasonably apparent. Gaston v. Stover, 126 So.2d 360 (La.App. 2d Cir. 1960). The time when the abandonment becomes apparent is primarily a factual determination dependent upon the circumstances of each case, which is best made by the trial court.

We find no error in the trial court’s determinations and affirm the judgment.

Without a written, recorded construction contract, defendant’s son began construction of a residence on defendant’s property. On the son’s order, brick was delivered and used in the construction before August, 1974.

In August, 1974, the uncompleted residence was almost totally destroyed by a fire and defendant’s son collected the proceeds of a builder’s risk policy he had purchased covering the construction. There were no negotiations between defendant and plaintiff for the purchase of the brick and the sale of the brick was in no way ratified by defendant. After the house burned, the son’s wife gave her check to plaintiff for the amount owed for the brick. The check was not honored. Plaintiff then brought suit and obtained a default judgment against the son in February, 1975.

On January 14, 1976 (17 months after the fire), plaintiff recorded the materialman’s lien in question against defendant’s property and shortly afterward filed this suit against defendant, which is here appealed. It was about this time that defendant began constructing on the site of the burned residence a large steel and concrete block building for commercial or farm use. In defendant’s 1976 construction, the old slab was rebuilt and apparently enlarged for the new building. Plaintiff’s own employee testified, “. . .1 knew it could not be a house, you know, with a big, tall steel construction they had.” The record is devoid of evidence tending to show even an attempt to rebuild the burned residence or any other activity until defendant began his new construction some 17 months after the fire.

Considering the original construction’s destruction by fire and the inactivity on the site for more than a year thereafter, it should have been reasonably apparent that the original construction was in fact abandoned more than 60 days before plaintiff filed its lien in January, 1976. See Louisiana cases on question: “[Materialmen’s] Liens—Time for Filing”, 52 ALR 3d 797, 822-824.

The burden of proving timeliness is on the materialman. Jeffer’s Trust v. Justice, 253 So.2d 234 (La.App. 4th Cir. 1971).

At appellant’s cost, judgment is

AFFIRMED.


author: BOLIN, Judge.

text:
    Joy Grice SMITH, Individually and as Natural Tutrix for the minor, Raymond Lee Smith, Plaintiff-Appellant, v. Orin Isaac TAYLOR et al., Defendants-Appellees.
    No. 13129.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 14, 1977.
    En Banc. Rehearing Denied March 21, 1977.
    Gravel, Roy & Burnes by James J. Brady, Alexandria, for plaintiff-appellant.
    Davenport, Files, Kelly & Marsh by William G. Kelly, Jr., Monroe, for defendants-appellees.
    Before BOLIN, PRICE and HALL, JJ.
   BOLIN, Judge.

James L. Smith was killed instantly in an automobile accident on his 38th birthday, leaving his wife, Joy, to whom he had been married 19 years, and a 14-year-old adopted son, Raymond. The widow, individually and on behalf of her son, brought a wrongful death action against Jones Truck Lines and its insurer. Liability and insurance coverage in excess of the demands were conceded and the case was tried solely on the issue of quantum. For written reasons the trial court rendered judgment in the following amounts:

Plaintiff appeals seeking an increase in the award and defendant answers the appeal seeking a decrease. We amend the judgment to increase the award to the widow, individually and on behalf of her son, from $40,000 to $60,000 for loss of future support.

The only issue is whether or not the trial judge in fixing the amount of the awards abused the much discretion vested in him under Louisiana Civil Code Article 1934(3).

In his written reasons the trial judge said of the Smith family:

“Without doubt theirs was a close and enduring relationship and they were partners in all aspects of life, both working diligently toward family goals. .
While there appears nothing superior or extravagantly remarkable about their lives, the very simplicity and normalcy of it speaks eloquently of the trauma which plaintiff and her son have Suffered in their loss.”

These observations of the trial judge are amply supported by the record.

It is difficult for a trial court to place a monetary value upon the loss of love and affection which results when a member of a close knit family dies. It is even more difficult for an appellate court to determine if the trier of facts abused his much discretion in fixing the amount of the award. Beginning with the landmark case of Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149 (1963) and continuing to the latest case of Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976), our Supreme Court has attempted to clarify what constitutes an abuse of much discretion. Throughout the cases runs one unmistakable pronouncement as related to appellate review, i. e., an award may not be altered simply because the reviewing court would have made a different award if it had been the trier of facts.

From our study of the cold record in this case we would award more than $32,-000 to the widow and $16,000 to the son as general damages for loss of love and affection. However, since we are unable to set forth any facts to justify a conclusion that the trial judge abused his discretion in fixing the awards, they are affirmed.

Turning to the award for loss of future support, the record reflects decedent had been employed for more than ten years as a laborer for the highway department. Testimony indicated that he was a dependable and steady worker. He was earning $5100 per year at the time of the accident and had he been in the same classification at the time of trial his annual salary would have been $7140. Plaintiff testified that, although she went to ‘work in 1969, decedent presented her with his entire check each month. She would then give decedent any money he needed. She stated she used his money to pay the bills and saved most of the money she earned. Decedent being 38 years old at the time of his death, had a life work expectancy of at least 25 years.

We find an award of $40,000 to the widow and son for loss of support is so inadequate as to constitute an abuse of discretion. Where the amount is to be increased the reviewing court should only raise the award to the lowest amount which it would have affirmed. Coco, supra. We conclude the sum of $60,000 for loss of support would have been a conservative award, which amount we adopt and apportion $50,000 to the widow and $10,000 to the son.

The judgment is amended to increase the a\frard in favor of plaintiff individually from $67,000 to $82,000; and the award to plaintiff on behalf of her minor son from $21,000 to $26,000. As thus amended the judgment is affirmed. Cost of this appeal is assessed against appellees.


author: PRICE, Judge.

text:
    J. George NOMEY et al., Plaintiffs-Appellants, v. JACKSON PARISH POLICE JURY et al., Defendants-Appellees.
    No. 13130.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 14, 1977.
    En Banc. Rehearing Denied March 21, 1977.

      Baker, Culpepper & Brunson by Bobby L. Culpepper, Jonesboro, for plaintiffs-appellants.
    Lpon H. Whitten, Dist. Atty., Jackson Parish, Jonesboro, for defendants-appellees.
    Before BOLIN, PRICE and HALL, JJ.
   PRICE, Judge.

Plaintiffs have appealed from the judgment rejecting their demands to have a local option election in certain wards of Jackson Parish declared illegal.

J. George Nomey and Advance Sporting Goods, Inc., who hold retail liquor licenses that could be affected by the election, contend the ordinance of the police jury calling a referendum on the sale of alcoholic beverages in the designated wards was illegal because:

1) The ordinance was adopted at a special or called meeting of the Police Jury which is contrary to the provision of LSA-R.S. 26:586, which requires the governing authority to take such action at a “regular meeting.”
2) The election was called for a portion of the municipalities of Jonesboro and Hodge which is in violation of the local option statute.
3) The effect of an election held in the manner prescribed by the ordinance would deny plaintiffs equal protection and due process of law as guaranteed by the State and Federal Constitutions.
4) The election is invalid as changes have been made in the local option election laws without obtaining Federal approval as provided by 42 U.S.C.S. Section 1973c.

The first two issues raised by appellants have been resolved by the decision in McFerrin v. Police Jury of Sabine Parish, 220 So.2d 203 (La.App. 3rd Cir. 1969).

In McFerrin, the court rejected the argument that the election is void if the ordinance is not adopted at a regular meeting of the Police Jury under the following rationale:

Here the Police Jury was confronted with a situation in which it was necessary to act. Under the provisions of LSA-R.S. 26:586, the Jury was required to adopt a resolution in not less than thirty days and not more than forty-five days following the filing of the petition. When the Jury met on April 18, 1967, thirty days had not yet elapsed since the petitions were filed. Should they have waited until the May 15 meeting, then more than forty-five days would have elapsed. The Police Jury had to act, and with all the members present and participating in the May 2, 1967 meeting, the meeting was sufficiently “regular” to constitute compliance with LSA-R.S. 26:586.

In the instant case, the petitions were presented by the registrar of voters on May 27, 1976. The next scheduled meeting of the Jury was June 7th, less than thirty days from the filing. The next scheduled meeting after that was on July 12th, forty-six days after the filing of the petitions. This calculation of time is correct as the first day of the specified period begins the day following the date of filing the petition with the Jury. This method of computation is in accord with C.C.P. Art. 5059, which provides in part:

In computing a period of time allowed or prescribed by law or by order of court, the date of the act, event, or default after which the period begins to run is not to be included. .

Therefore, the facts here fall squarely within the McFerrin decision.

The complaint of appellants that the ordinance is invalid as it called an election for only a portion of the municipalities was also refuted by McFerrin as follows:

Plaintiffs complain that the calling and holding of the election in only a part of Zwolle violated LSA-R.S. 26:582, since this statute contemplates elections in wards and municipalities and no other subdivisions, such as part of a municipality-
The statute cited limits the calling of elections to the entirety of municipalities or the entirety of wards, and no subdivisions thereof. What was done in this ease was simply the calling of a ward-wide election. The fact that only a portion of the municipality of Zwolle was included in the ward should not mean that the election would have to be called for the entirety of the municipality, as again, this was only a ward-wide, not a municipality-wide election. The voters of Ward 5 from the unincorporated as well as from the incorporated section could not, by law, call an election which would include that portion of Zwolle in Ward 8. A close reading of this statute, does not convince us that it was the legislative intent that when a ward includes a portion rather than the entirety of an incorporated municipality, that the election has to be called for the entirety of the ward as well as the entirety of the incorporated municipality, not fully within the ward. Ip fact, should this be the legislative intent, as proposed by plaintiffs, then the inability of the Ward 5 residents to call an election which would include the Ward 8 section of Zwolle would effectively bar them from ever having a local option election in Ward 5.
Appellants cited the case of McGee v. Police Jury of Caddo Parish, 225 La. 471, 73 So.2d 424 (1954), as upholding their proposition that the election should have been called for the entirety of the municipality of Zwolle. We feel that the case does not uphold their proposition in that there an election was called for the unincorporated portion of a ward, specifically leaving out the City of Shreveport, which was completely within that ward. That election was neither ward-wide nor citywide. Under those facts, we feel that the holding of the court that it was a violation of R.S. 26:582, in that it was a calling for “any subdivision other than the ones above mentioned”, was proper.

We adhere to the views expressed in McFerrin, and find that the ordinance under attack is in accord with the local option statute and the jurisprudence interpreting it.

Appellants contend they are denied the constitutional guarantee of equal protection and due process as they could be deprived of their right to sell alcoholic beverages by the election as they are located in one of the wards affected, whereas other establishments in the same municipalities would not be affected if located outside of the wards in question. (Jonesboro and Hodge are situated in multiple wards of Jackson Parish, and no election was requested or called in certain of these wards.) It is well recognized that the State has the right to regulate the sale of alcoholic beverages under the police power so long as the regulatory laws are for a reasonable purpose. Nomey v. State of Louisiana, 315 So.2d 709 (La.1975). The statute permitting local option elections on a ward-wide basis is not an unreasonable exercise of the police power. The coincidence that the ward also includes a portion of a municipality does not deprive a resident of the included municipal area of equal protection or due process of law. He is given the same treatment as all others situated in the voting unit.

We find no merit to the argument advanced for the first time on this appeal that the local option election is invalid under Federal law because there have been modifications in the statute authorizing local governmental bodies to hold such elections without compliance with the provisions of U.S.C.S. 1973c, the Voting Rights Act. This Federal law has for its purpose the elimination of racial discrimination in voting laws. The changes made by the legislature in election procedures in the local option statutes did not require prior approval by Federal authorities.

The judgment is affirmed at appellants’ costs.


text:
    Mrs. Ona Mae Williamson BLONDIN et al., Plaintiffs-Appellees, v. FIRST NATIONAL BANK OF COMMERCE, Defendant-Appellant.
    No. 13131.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 14, 1977.
    En Banc. Rehearing Denied March 21, 1977.
    Writ Refused May 6, 1977.
    Cook, Clark, Egan, Yancey & King by Sidney B. Galloway, Shreveport, for plaintiffs-appellees Mrs. Ona Mae Williamson Blondin, et al.
    Hudson, Potts & Bernstein by B. Roy Liuzza, Monroe, for defendants-appellees Christy Co. of Arkansas and George J. Christy.
    Shushan, Meyer, Jackson, McPherson & Herzog by Louis G. Shushan, New Orleans, and Goff, Goff & Levy by A. K. Goff, Jr., Ruston, for defendant-appellant First Nat. Bank of Commerce.
    Before BOLIN, PRICE and HALL, JJ.
   PRICE, Judge.

This court noted a probable lack of jurisdiction of this appeal and ordered appellant to show cause why the appeal should not be dismissed because of the untimely filing of the appeal bond.

Judgment against the First National Bank of Commerce was signed on February 27, 1976. A motion for a new trial was overruled on March 11,1976. An order was signed granting the bank a devolutive appeal on March 24, 1976. No provision for the fixing of an appeal bond was made in the order. The appellant took no further action until September 21, 1976, when on appellant’s request, the trial judge signed an amended order of appeal fixing the amount of the devolutive appeal bond. This security was furnished by appellant on the same date.

Appellant contends its failure to file the bond within the ninety day period prescribed by C.C.P. Article 2087 is merely an irregularity caused by the failure of the trial judge to provide for the amount of bond in the order granting the appeal; that such an error or irregularity could be and was corrected by the amended order of appeal; and that the irregularity was not jurisdictional. Appellant contends these circumstances are analogous to and controlled by the Succession of Parker, 18 La. Ann. 644 (1866), in which the court allowed the appeal.

Prior to 1965, the jurisprudence was unclear on the effect of the late filing of the appeal bond. A number of cases followed the decision in Succession of Parker, supra, which held the untimely filing of bond was an irregularity which could be judicially corrected. See Bordes v. Bank of St. Bernard, 141 La. 144, 74 So. 884 (La.1915); Young v. Daire, 157 So.2d 353 (La.App. 3rd Cir. 1963).

Other cases held the failure to timely file bond was fatal to the jurisdiction, and the appeal must be dismissed. See Untereiner v. Milier, 29 La.Ann. 435 (1877); Thompson v. Bamburg, 231 La. 1082, 93 So.2d 666 (La.1957); and Britt v. Brocato, 170 So.2d 516 (La.App. 4th Cir. 1965).

The Louisiana Supreme Court resolved this conflict in Orreli v. Southern Farm Bureau Casualty Insurance Co., 248 La. 576, 180 So.2d 710 (1965), by holding:

Albeit there have been some expressions in the decisions of the Courts of Appeal and this Court to the contrary, we consider it to be now well settled that the failure to perfect an appeal by the timely filing of the appeal bond is jurisdictional and that the appellate court can never acquire jurisdiction of an appeal unless the bond for the appeal is filed within the time prescribed by law. [Citations Omitted]

180 So.2d at 712.

Subsequently, the Supreme Court recognized there may be exceptions to-its holding in Orreli where an appellant who timely moves for an appeal and continuously presses for its perfection is unsuccessful because of an erroneous refusal of the trial court to sign an appeal order or in imposing unreasonable conditions on the right to appeal. Graves v. Kaiser Aluminum and Chemical Corp., 319 So.2d 323 (La.1975).

The appellant’s failure to timely furnish security in this instance does not fall within the Graves exception. There is no showing that after filing the motion for appeal, appellant took any further action or made any inquiry into the status of its appeal until after the delay for perfecting the appeal had run. It is, therefore, apparent that any omission on the part of the trial court was not the cause of appellant’s untimely furnishing of security to perfect its appeal. Accordingly, this court is without jurisdiction, and the appeal is dismissed at appellant’s cost.


author: MARVIN, Judge. HALL, Judge,

text:
    HOME FURNITURE AND APPLIANCE, Plaintiff-Appellee, v. RED BALL MOTOR FREIGHT, INC., Defendant-Appellant.
    No. 13144.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 14, 1977.
    Rehearing En Banc. Rehearing Denied March 21, 1977.

    Writ Refused May 26, 1977.

      Hudson, Potts & Bernstein by W. Craig Henry, Monroe, for Red Ball Motor Freight, Inc.
    Baker, Culpepper & Brunson by Herman A. Castete, Jonesboro, for Home Furniture & Appliance.
    Before BOLIN, HALL and MARVIN, JJ.

      Price and Hali, JJ., dissented from refusai to grant rehearing.

   MARVIN, Judge.

The defendant carrier appeals from a judgment in favor of the plaintiff consignee for $196 as damages to a refrigerator delivered in the crate by the carrier. We affirm.

The refrigerator was crated and shipped by an out-of-state manufacturer on one or more carriers other than defendant to a distributor in Shreveport where defendant received it. From Shreveport, the refrigerator was transported by defendant to Monroe and then to plaintiff in Jonesboro. The Bill of Lading, signed by the carrier in Shreveport, and the Freight Bill, signed by the consignee in Jonesboro, provide tha,t the property was received by each in apparent good order, condition of contents unknown, with no exceptions being written in the space provided therefor. In commercial jargon, this is referred to as a “clean” bill of lading.

The carrier’s driver assisted the consignee in unloading the crate from the truck in Jonesboro. The crate showed no apparent signs of damage. When the refrigerator was uncrated the next day it was found to be damaged. A close inspection then revealed some minor damage to the crate. When the carrier rejected the consignee’s claim for the damage, this litigation was instituted.

C.C. Art. 2754 provides:

“Carriers . . . are liable for . damage of the things intrusted to their care, unless they can prove that such . damage has been occasioned by accidental and uncontrollable events.” (Emphasis supplied).

In any case against a carrier for damage to goods, the claimant (whether shipper or consignee) must prove (1) receipt by the carrier in good condition; (2) arrival in a damaged condition; and (3) the amount of the loss. Frischhertz Electric Co. v. Strickland Transportation Co., 262 La. 791, 264 So.2d 646 (1972).

The trial court found all three requirements to have been satisfied, but that the only proof of requirement one was the clean bill of lading signed by the carrier in Shreveport.

In Frischhertz, supra, our Supreme Court stated that the execution of a clean bill of lading “. . . has been generally held to constitute prima facie evidence that the goods were received [by the carrier] in good condition, at least with respect to external matters.” We recognized the prima facie effect of a clean bill of lading in Rabon v. Red Ball Motor Freight, Inc., 292 So.2d 332 (La.App. 2d Cir. 1974).

The carrier contends prima facie effect of a clean bill does not apply to the goods unless the crate has visible damage upon delivery. The carrier argues that where there is no visible damage to the crate upon delivery, the prima facie effect of the clean bill establishes only the presumption that the crate (and not the goods) was in good condition when the bill was executed by the carrier.

The uniform bill of lading in this case describes the pertinent property received thereunder, not only as one or more packages or crates, but in this manner:

"No.
PkftS Description ..,
4 Freezers, Refrigerators
HHD Item #53100.”

In our opinion, this bill is not limited to the packages, but is to be interpreted to mean packages of refrigerators, as it says. The prima facie effect of the bill is not only that the crates or packages were received in apparent good order, but that the packages of refrigerators were received in apparent good order. The presumption applies to the goods within the packages or crates, and in our opinion, the presumption should be applied against the carrier whether or not the crate has visible damage upon delivery.

The general rule is best explained and stated in the annotation, “Conclusiveness of receipt clauses in bill of lading,” 67 A.L. R.2d 1023. From our review of many of the cases cited therein, we restate the rule in this way:

A recital in a bill of lading that goods (and particularly crated goods) received in apparent good order, in the absence of special provisions, is prima facie but not conclusive evidence of the apparent condition of the goods received, and the carrier (with or without additional notations in the bill of want of knowledge and unless otherwise precluded by special estop-pel, contract or statute) may show either that (1) the damage subsequently found resulted from a cause not apparent at the time the carrier received the goods, or (2) the truth on the issue of condition of the goods at the time of receipt in support of any proper defense. Similarly, any party is not prevented from showing the true condition of the goods at the time of receipt, notwithstanding the clean bill, if the condition of the goods is an issue in support of a cause of action or of a defense.

Application of the rule as we have stated it does not impose an impossible burden on either the consignee or the terminal carrier. The carrier is not precluded from showing, as the rule states, “. . . that the damage subsequently found resulted from a cause not apparent at the time the carrier received the goods.” The carrier may establish this to overcome the prima facie effect of the clean bill by showing, through its own employees having direct knowledge of the facts, that the crate was in the same condition when delivered as it was when received and exactly how this particular crate was handled during the time it was under the responsibility of this carrier, thus allowing a trier of fact to reasonably deduce that it is more probable than not that the merchandise was in a damaged condition when the carrier received it.

It must be remembered that the clean bill of lading is given only prima facie, and not conclusive, effect. In Watkins v. Zeigler, 147 So.2d 435, 438 (La.App. 2d Cir. 1962), we recognized that prima facie evidence was only a fact “. . . presumed to be true unless disproved by some evidence to the contrary.”

The question of damage to the crate (whether existing or not, to whatever degree) is relevant as to the type and the amount of evidence the carrier must introduce to overcome the prima facie effect of a clean bill. The evidentiary burden imposed on the carrier to overcome the presumption created by the clean bill that the crated goods were received in apparent good order, will vary proportionately with the degree, if any, of the damage to the crate or the package. Obviously, if the crate is shown to have extensive damage upon delivery, the effect of the clean bill becomes almost conclusive. See cases annotated, 33 A.L. R.2d 860. The annotation comments expressly note: “The form and limits of this presumption or prima facie case [of the clean bill] are, however, difficult to define with precision.” id. at page 872.

We are not persuaded to the contrary by Aetna Insurance Company v. General Terminals Transfer and Storage, Inc., 225 So.2d 72 (La.App. 4th Cir. 1969). There, the court recognized the general rule of the prima facie effect of a clean bill, but rejected its application “. . . insofar as the rule . applies to the facts of this case.” The defendant carrier there showed the goods had been transported by motor carrier in Italy before being shipped to the United States and that it had used due care in its handling of the goods which, when unc-rated, were found to have been damaged.

Here, the defendant carrier introduced only the testimony of its.driver from Monroe to Jonesboro. This employee first saw the crated refrigerator in question after it was loaded on his truck in Monroe. The driver testified only that it was transported from Monroe to Jonesboro without event. He did not and could not testify as to the crate’s condition when received in Shreveport or when delivered in Monroe, or to events which may or may not have occurred between the two points. The defendant carrier’s evidence was insufficient to overcome the prima facie effect of the clean bill.

We have considered R.S. 45:901, et seq. (the Bills of Lading Law, adopted from the Uniform Act) and C.C. Art. 2754 pertaining to the liability of carriers for damage to goods. Our application of the rule giving prima facie effect to a clean bill of lading, does not do violence to these laws in letter or in spirit. We believe the rule is in accord with the principle clearly expressed in C.C. Art. 2754 that carriers are liable for damage of the things intrusted to their care, unless they can prove that such damage has been occasioned by reason other than their own fault.

We find no error in the lower court’s assessment of damages.

At appellant’s cost, judgment is

AFFIRMED.

HALL, J., dissents and assigns written reasons.

HALL, Judge,

dissenting.

This dissent takes issue with the majority opinion on both a key finding of fact and the controlling rule of law.

The opinion states that the carton containing the refrigerator was delivered by the carrier to the consignee with minor damage to the carton. This statement of fact is contrary to the trial court’s finding of fact that there was “no apparent damage to the . . . cartons at the time of delivery to the plaintiffs.” The record contains some scant evidence of damage to the carton, but the evidence is hardly sufficient to support a conclusion that the trial court was manifestly erroneous. I find that the trial court was correct in its evaluation of the evidence and that there was no damage to the carton at the time it was delivered by the carrier to the consignee.

The majority opinion states a rule of law to the effect that a clean bill of lading establishes a prima facie ease that the contents of crated items were delivered to the carrier in good condition, and that where the contents are delivered in a damaged condition, the carrier has the burden of proving it did not cause the damage. The rule as stated in the majority opinion is not supported by the jurisprudence of Louisiana, of other states or of federal courts.

A carrier is liable to the consignee of goods for damage to the goods caused by the carrier. In order to recover against a carrier, the consignee must prove the carrier caused the damage. The burden of proof is on the consignee. A well established rule has developed, often repeated by the courts of most states and the federal courts, that an owner must at least establish a prima facie case that the carrier caused the damage by proving: (1) receipt of the goods by the carrier in good condition; and (2) delivery of the goods by the carrier in damaged condition. The owner, of course, must also prove the amount of the damage in order to establish the amount of recovery.

In regard to proof of receipt by the carrier in good condition, another well established rule has developed: that a clean bill of lading is prima facie evidence that the goods were received in good condition, insofar as external, visible damage or damage discoverable upon reasonable inspection are concerned. Where goods are received by the carrier in containers, the clean bill of lading is prima facie evidence only of the fact that the container is in good condition and is not evidence as to the condition of the contents of the containers. This is consistent with the standard language on the bill of lading — “received in apparent good order, except as noted (condition of contents of packages unknown.)”

An extension of this rule has developed— where the clean bill of lading evidences receipt by the carrier of the container in good condition and the carton and contents are delivered in damaged condition, it may be inferred, prima facie, that the damage to the carton and contents was caused by the carrier while the goods were in transit.

The rules as stated above are consistent with the holdings in Frischhertz Electric Company v. Strickland Transportation Company, 262 La. 791, 264 So.2d 646 (1942); Rabon v. Red Ball Motor Freight, Inc., 292 So.2d 332 (La.App. 2d Cir. 1974); Aetna Insurance Company v. General Terminals Transfer and Storage, Inc., 225 So.2d 72 (La.App. 4th Cir. 1969); Caillier v. Texas and Pacific Railway Company, 303 So.2d 871 (La.App. 1st Cir. 1974), and Arwady v. Texas & N.O.R. Co., 18 So.2d 339 (La.App. 2d Cir. 1944). See Texas and Pacific Railway Company v. George, 466 S.W.2d 659 (Tex.Civ.App.1971) and Red Arrow Freight Lines, Inc. v. Howe, 480 S.W.2d 281 (Tex. Civ.App.1975). See also 13 Am.Jur.2d Carriers, §§ 285, 507, 593, 616 and 619; 13 C.J.S. Carriers §§ 121, 123, 127, 254 and 256.

All of the foregoing rules are based on logical inferences from established facts. All inferences created by the rules are subject to rebuttal by proving actual facts to the contrary.

The rule stated by the majority opinion is not a logical inference from established facts. The issuance of a clean bill of lading covering packaged goods, particularly in view of the disclaimer as to knowledge of the condition of the contents of the package, does not logically infer that the contents are in good condition. In the instant case, before the packaged refrigerator was delivered to the carrier which transported it from Shreveport to Jonesboro, the refrigerator was crated by the manufacturer in some other state, it was handled by the manufacturer and then by one or more carriers in shipment to a distributor in Shreveport, and it was handled by the distributor. There is no logical inference that the damage to the refrigerator was caused by the defendant carrier.

In the case before the court, the plaintiff failed to prove the crated refrigerator was in good condition when delivered to the carrier in Shreveport. Also, plaintiff failed to make out a prima facie case against the carrier under the Frischhertz rule because, although plaintiff proved good condition of the carton when delivered to the carrier by virtue of the clean bill of lading, plaintiff did not prove the carton was damaged when received by plaintiff.

LSA-C.C. Art. 2754 does not place the burden of proof on the defendant carrier, absent a prima facie showing by the plaintiff that the damage occurred while the goods were in the care of the carrier.

I would reverse the judgment of the district court and reject plaintiff’s demands.


text:
    George W. WYATT, d/b/a Wyatt’s Firestone Store, Plaintiff-Appellee, v. RED BALL MOTOR FREIGHT, INC., Defendant-Appellant.
    No. 13145.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 14, 1977.
    En Banc. Rehearing Denied March 21, 1977.

    Writ Refused May 26, 1977.
    Hudson, Potts & Bernstein by W. Craig Henry, Monroe, for Red Ball Motor Freight, Inc.
    Baker, Culpepper & Brunson by Herman A. Castete, Jonesboro, for George W. Wyatt, d/b/a Wyatt’s Firestone Store.
    Before BOLIN, HALL and MARVIN, JJ.

       Price and Hall, JJ., dissented from refusal to grant rehearing.

   MARVIN, Judge.

This case presents similar facts and is against the same defendant as in Home Furniture and Appliance v. Red Ball Motor Freight, Inc., 343 So.2d 319 (La.App.2d Cir. 1977), rendered this date.

Red Ball received the crated goods and signed a clean bill of lading in Shreveport. From Shreveport, the goods were delivered to Monroe, and eventually to the plaintiff consignee in Jonesboro. Subsequent to delivery and uncrating, damage to the goods and minor damage to the carton were discovered. The driver’s testimony was essentially the same as in Home Furniture and Appliance v. Red Ball Motor Freight, Inc., supra. For reasons there assigned, and at appellant’s cost, judgment is

AFFIRMED.

HALL, J., dissents and assigns written reasons.

HALL, Judge,

dissenting.

I respectfully dissent for the reasons stated in my dissent in Home Furniture and Appliance v. Red Ball Motor Freight, Inc., 343 So.2d 319 (La.App.2d Cir. 1977), decided the same day as this case.


text:
    George W. WYATT, d/b/a Wyatt’s Firestone Store, Plaintiff-Appellee, v. RED BALL MOTOR FREIGHT, INC., Defendant-Appellant.
    No. 13146.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 14, 1977.
    En Banc. Rehearing Denied March March 21, 1977.

    Writ Refused May 26, 1977.
    Hudson, Potts & Bernstein by Craig Henry, Monroe, for Red Ball Motor Freight, Inc.
    Baker, Culpepper & Brunson by Herman A. Castete, Jonesboro, for George W. Wyatt, d/b/a Wyatt’s Firestone Store.
    Before BOLIN, HALL and MARVIN, JJ.

       Price and Bolin, JJ„ dissented from refusal to grant rehearing.

   MARVIN, Judge.

This case presents similar facts and is against the same defendant as in Home Furniture and Appliance v. Red Ball Motor Freight, Inc., 343 So.2d 319 (La.App.2d Cir. 1977), rendered this date.

Red Ball received the crated goods and signed a clean bill of lading in Dallas, Texas. From Dallas, the goods were delivered to Monroe, Louisiana, and eventually to the plaintiff consignee in Jonesboro, Louisiana. Subsequent to delivery and uncrating, damage to the goods and minor damage to the carton were discovered. The driver’s testimony was essentially the same as in Home Furniture and Appliance v. Red Ball Motor Freight, Inc., supra. For reasons there assigned, and at appellant’s cost, judgment is

AFFIRMED.

HALL, J., dissents and assigns written reasons.

HALL, Judge,

dissenting.

I respectfully dissent for the reasons stated in my dissent in Home Furniture and Appliance v. Red Ball Motor Freight, Inc., 343 So.2d 319 (La.App.2d Cir. 1977), decided the same day as this case.

It should be noted that in this case there was absolutely no evidence of damage to the container at the time of delivery by the carrier to the consignee.

Further, the shipment in this case was an interstate shipment and is governed by federal law. The rule consistently applied in federal cases is that a clean bill of lading issued on goods in a container is prima facie evidence only as to the condition of the container, not the contents. See, for example, Blue Bird Food Products Co. v. Baltimore & Ohio Railroad Company, 492 F.2d 1329 (3d Cir. 1974) and Armour Research Foundation of Illinois Institute of Technology v. Chicago, Rock Island and Pacific Railroad Company, 311 F.2d 493 (7th Cir. 1963).


author: JONES, Judge.

text:
    In re COILE.
    No. 13147.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 14, 1977.
    En Banc. Rehearing Denied March 21, 1977.
    Writ Refused May 26, 1977.

      Ford E. Stinson, Benton, for appellant.
    Campbell, Campbell & Johnson by John T. Campbell, Minden, for appellee.
    Before PRICE, HALL and JONES, JJ.
   JONES, Judge.

The stepfather of a four-year-old child petitioned to adopt the child without the consent of her natural father under the provisions of LSA-R.S. 9:422.1. The adoption was opposed by the child’s natural father. The trial court granted the adoption and the natural father appeals. We affirm.

The child was born of a marriage which was dissolved by a judgment of divorce on October 15, 1974, in which the mother was granted custody of the child and the child’s father was ordered to pay $87.50 per month child support. Petitioner and the child’s mother were married June 5, 1975.

In the first days of 1976 the natural father became aware that his former wife’s new husband (petitioner) intended to adopt his minor daughter. The natural father had made no payment of child support during the year 1975 and he learned that his failure to support his daughter for this period of one year made it possible for her to be adopted by her stepfather without his consent. Upon obtaining this information the natural father immediately sent to his former wife a child support payment for the month of January, 1976 and continued to send these payments up through May, 1976, the month in which the adoption hearing was held.

The mother accepted the January letter containing the child support for that month but did not cash the check. She refused to accept the subsequent letters containing the child support for the following months. The natural father had his attorney write a letter to the stepfather’s attorney offering to pay all past due child support payments if the stepfather would discontinue his plans to adopt the child, which offer was rejected. On February 12, 1976 these adoption proceedings were formally filed and were opposed by the natural father of the child.

On appeal the natural father urges that the decision of the trial court should be reversed for the following reasons:

(1) The child’s mother had agreed he could be relieved from the payment of child support and therefore his non-payment was justified;

(2) He was financially unable to make the child support payments;

(3) That he had commenced child support payments prior to institution of the adoption proceeding and had offered to pay all past due payments;

(4) That Act 106 of 1962 which amended and re-enacted R.S. 9:422.1 which provides for adoption without the father’s consent was unconstitutional for the following reasons:

(a) The title to the Act was not broad enough to encompass the content of the Act;

(b) The statute violates constitutional prohibition of the abolition of forced heir-ship;

(c) The act permitted deprival of parental rights without due process.

The mother of the child denied that she agreed the child’s father could withhold payment of the child support. The testimony of appellant was that his former wife had agreed to permit him to withhold payment of “a couple of months” child support during the spring of 1975 and was to catch up on these payments during the summer. He stated that following his former wife’s marriage to petitioner in June, 1975, he became angry with her and refused to make child support payments. It is apparent his explanation to the effect he failed to make payments based upon an agreement with his former wife is totally without merit.

Appellant’s argument that he was financially unable to make the payments is likewise without merit. During 1975 he purchased an expensive car on which he made several $168 monthly installments. The evidence also shows the natural father’s busi ness expenses were substantially reduced during the summer of 1975. Funds used to pay these car notes or saved by reduction of business expenses could have been used to pay his child support obligation.

Neither the natural father’s mailing of checks in payment of child support in January, 1976 and the months that followed, nor his tender through his attorney of past due child support, will change the legal effect of his having failed to make these monthly child support payments for the full twelve months of 1975. Once he failed to make the payments for one year his consent was no longer essential to the adoption of his daughter by her stepfather under the terms of R.S. 9:422.1. A similar attempt to evade the provisions of R.S. 9:422.1, by tendering past due child support after nonpayment for more than a year, was made in In Re Lafitte, 247 La. 856, 174 So.2d 804 (1965). The court there rejected the natural father’s argument in the following language:

“Hutchinson’s claim he should not be deprived of his parental rights for failing to make payments during this 14-month period because he tendered payment of all past due alimony prior to the institution of the instant proceeding, and particularly since his former wife never protested his failure to promptly pay alimony support for his children, is without merit, and not supported by the evidence.
“We think, as did our learned brother below, that ‘If it were possible to pay up an arrearage in the twelfth month of each year and thereby defeat each effort of the adoptive step-parent to adopt children he is attempting to be a father to, the intent of the legislature in adopting R.S. 9:442.1 would surely be defeated.’ (The emphasis has been supplied.)”

We have carefully considered each of appellant’s arguments on the unconstitutionality of R.S. 9:422.1 and find no basis for them, either under the constitutional provisions cited or in the jurisprudence.

With regard to appellant’s contention that the 1962 Act was broader than its title and that it' includes more than one object, it is significant to point out that LSA-R.S. 9:422.1 was first added by Act 501 of 1958. It was thereafter amended by Act 268 of 1960 and by Act 106 of 1962. Appellant complains particularly of the title of Act 106 of 1962, which reads as follows:

“To amend and re-enact Section 422.1 of Title 9 of the Louisiana Revised Statutes of 1950, relative to the adoptions of children by step-parent or grandparent without the consent of one of the legitimate parents.”

The constitutional provisions which appellant contends was violated reads as follows:

“Every statute enacted by the Legislature shall embrace but one object, and shall have a title indicative of its object. “The Legislature may, however, by means of a single statute, enact or revise a system of laws of a general or public nature, such as the general statutes, or a codification of laws on the same general subject matter, or both. Such a statute shall be deemed to embrace but one object and its title need only refer to the general purpose and scope of the statute. (As amended Acts 1948, No. 528, adopted Nov. 2, 1948.)”
Louisiana Constitution of 1921, Art. 3, Section 16.

The title to Act 106 of 1962 clearly meets the requirement of the above quoted section of the 1921 Constitution. The provision of this section which eliminates the requirement of appellant’s consent, was enacted prior to Act 106 of 1962. This act merely added additional provisions whereby consent of the noncustodial parent is not required and which have no application to the instant case. The title of the Act provides the section is merely “. . . amended and re-enacted. . . . ” In State v. Clayton, 233 La. 972, 99 So.2d 312 (1957), the court stated:

“ * * * At the outset, it is to be observed that it is well settled in this State that, whenever a law or article or section of a code of laws or revised statutes is amended, its title satisfies the requirement of Section 16 of Article 3 of the Constitution by merely stating that it is an act to amend and reenact the particular law or section of the code of laws amended, as such a title clearly indicates the object of the Act . . .” (Citations omitted)

The appellant’s contention that the cited section of the adoption statute violates the constitutional prohibition against abolishment of forced heirship is also without merit. Article 4, Section 16 of the Louisiana Constitution of 1921 specifically provided for the effect of adoptions upon forced heir-ship in the following language:

“ * * * No law shall be passed abolishing forced heirship but the legitime may be placed in trust to the extent authorized by the Legislature. Children lawfully adopted shall become forced heirs to the same extent as if born to the adopter and shall retain their rights as heirs of their blood relatives, but their blood relatives shall have their rights of inheritance from these children terminated.”

Section 5 of Article 12 of the 1974 Constitution, while providing that no law shall abolish forced heirship provides that the rules regulating forced heirship and disin-herison shall be established by law.

The effect of the adoption statute upon the right of the natural father to inherit from his natural child falls directly within the framework of the provisions of the 1921 and 1974 Constitutions dealing with forced heirship and does not violate the provisions of either constitution.

Appellant’s final contention is the cited statute is unconstitutional for the reason he is being deprived of his parental rights without due process. In Mongogna v. O’Dwyer, 204 La. 1030, 16 So.2d 829 (1943), the court, in discussing the basic requirements of due process, pointed out:

“The essential elements of due process of law are notice and an opportunity to be heard and to defend in an orderly proceeding adapted to the nature of the case. ...” Id. p. 833

Our adoption law clearly meets these requirements of due process. The appellant was served a copy of the adoption petition herein and given every opportunity to oppose it. There has been no showing made that appellant was denied due process of law.

For the reasons assigned, the trial court’s judgment is affirmed at appellant’s cost.

      . “If the spouse of the petitioner is the legitimate parent of the child . . . then the consent of the other legitimate parent is not necessary if .
      “(1) The spouse of the petitioner [has] been granted custody of the child by a court of competent jurisdiction and
      “(2) The other legitimate parent has refused or failed to comply with a court order of support for a period of one year . . .

      . Louisiana Constitution of 1974, Article 12, Section 5 provides:
      “§ 5. Forced Heirship and Trusts

      Section 5. No law shall abolish forced heir-ship. The determination of forced heirs, the amount of the forced portion, and the grounds for disinherison shall be provided by law. Trusts may be authorized by law, and a forced portion may be placed in trust.”


author: HALL, Judge.

text:
    Jay H. PIPES, Plaintiff-Appellant, v. W. H. PIPES, Defendant-Appellee.
    No. 13152.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 14, 1977.
    En Banc. Rehearing Denied March 21, 1977.
    Writ Refused May 26, 1977.

      Jones, Jones & Alexander by Jerry G. Jones and Glenn W. Alexander, Cameron, for plaintiffs-appellants, Mary W. Pipes, Mary Sue Peace arid Jeanine P. Jones, Heirs at Law of Jay H. Pipes.
    Goff, Goff & Levy by A. K. Goff, Jr., Ruston, for appellee.
    Before BOLIN, HALL and MARVIN, JJ.
   HALL, Judge.

This lawsuit involves a dispute between two brothers, plaintiff J. H. Pipes and defendant W. H. Pipes, over the ownership of a 20 acre tract of land in Lincoln Parish. Plaintiff, claiming to be the owner of the 20 acre tract, sued defendant to have cancelled from the public records a 1960 oil and gas lease and a 1971 timber deed executed by defendant as being clouds on plaintiff’s title and to recover money received by defendant as consideration for the lease and timber deed. Defendant answered and reconvened claiming ownership of the property by virtue of a 1937 deed from plaintiff, which described other property but which defendant seeks to reform to correctly describe the 20 acre tract in dispute. Alternatively, defendant claimed ownership by virtue of 30 years acquisitive prescription. Plaintiff denied the allegations of the re-conventional demand and filed a plea of 10 year liberative prescription to the action for reformation.

The issues during trial and on appeal are:

(1) Is defendant’s action to reform the 1937 deed barred by 10 year liberative prescription?
(2) If not, is defendant entitled to reformation of the description contained in the deed because of mutual mistake and error and thereby entitled to be recognized as owner of the property in dispute?
(3) Is defendant entitled to be recognized as owner of the property by reason of 30 years acquisitive prescription based on adverse possession?

The district court in a comprehensive well-written and expressed opinion resolved each of the issues in favor of defendant and recognized him as owner of the property. Plaintiff appealed. Being of the opinion that the district court correctly resolved each issue of fact and law for the reasons expressed by the district court, this court affirms the judgment.

Background Facts

The property in dispute is the S/2 of the NW/4 of the SE/4 of Section 17, T 18 N, R 2 W, Lincoln Parish, Louisiana, known as the Sandy Branch Twenty. It was originally part of a larger tract of land owned by the parents of the parties to this suit. After the mother’s death, the father and the several children partitioned the larger tract by instrument dated September 6, 1932. Plaintiff acquired the property in dispute on the same day by deed from one of his brothers. Also on the same day, plaintiff conveyed another 20 acre tract located in Section 26, known as the Long Bottom Twenty, to defendant.

Five years later in 1937, plaintiff executed a deed to defendant describing the same 20 acre tract in Section 26 (the Long Bottom property) which plaintiff had previously sold to the defendant in 1932. This deed contained a mineral reservation in favor of plaintiff.

The Sandy Branch property in dispute was assessed to the plaintiff in 1938 but thereafter was assessed to defendant who paid the taxes on the property from 1938 or 1939 to the time this suit was filed in 1975. Defendant exercised physical possession of the property from 1937 or 1938 by farming it, running cattle on it, maintaining fences, and having timber cut from the property on three occasions. He also executed the oil, gas and mineral lease mentioned above. Plaintiff personally exercised no possession and paid no taxes on the property after 1937 or 1938.

Basically, plaintiff claims title by virtue of the 1932 deed and no subsequent conveyance of the property in dispute. Defendant claims title by virtue of the 1937 deed from plaintiff, which defendant contends was intended to convey the property in dispute. Alternatively, defendant claims title by virtue of 30 years acquisitive prescription based on adverse possession.

Ten Year Liberative Prescription

Plaintiff-appellant contends defendant’s action for reformation of the 1937 deed is barred by the 10 year liberative prescriptive period provided in LSA-C.C. Art. 3544. It is well established that an action for reformation of a deed, although incidentally affecting immovable property, is a personal action and is governed by the prescription provided in Article 3544. It is also well established in the jurisprudence that this prescription does not begin to run against the party having the right to seek reformation until the error or mistake is discovered by him or should have been discovered by the use of due diligence. Louisiana Oil Refining Corporation v. Gandy, 168 La. 37, 121 So. 183 (1929); Haas v. Opelousas Mercantile Co., 197 La. 500, 2 So.2d 3 (1941); Antley v. Smith, 219 La. 525, 53 So.2d 401 (1951); Agurs v. Holt, 232 La. 1026, 95 So.2d 644 (1957); Merritt v. Hays, 237 La. 557, 111 So.2d 771 (1959). It is equally well established that this prescription does not run as long as possession of the land is exercised by the party seeking reformation. Louisiana Oil Refining Corporation v. Gandy, supra; Antley v. Smith, supra; Sharpe v. Hayes, 171 So. 862 (La. App. 1st Cir. 1937).

In overruling the plea of liberative prescription, the trial court concluded that defendant did not learn of the alleged error in the 1937 deed until on or about the day before suit was filed in January, 1975. The trial court further concluded that none of the events which transpired after the deed was executed were sufficient to give notice to the defendant, who knew the property simply as the Sandy Branch property, that the description contained in the deed was erroneous.

In support of his contention that the defendant at least should have known of the error, plaintiff points to the fact that defendant had the deed recorded, the property was assessed to plaintiff in 1938 the year after the sale, and defendant had the deed read to him in the clerk’s office about 5 years later in 1942. In Merritt v. Hays, supra, the court noted that the party claiming reformation in that case should have noticed the error in the description when he had the deed recorded, but in that case the deed was not recorded until many years after it was executed. The same reasoning would not apply in this case where the deed was drawn up by a deputy clerk in the clerk’s office with both parties present and recorded the same day. The 1938 assessment in plaintiff’s name was not significant since some time lag in changing the assessment of the property could be expected and the sale was not made until the latter part of 1937. Defendant’s testimony about his having the deed read to him at the clerk’s office in 1942 is likewise of little significance, since the purpose of defendant’s review of the deed at that time was in connection with the mineral reservation over which plaintiff and defendant had a running dispute, and did not concern the description of the property.

We find no error in the trial court’s conclusion that defendant did not learn of the error until shortly before suit was filed and, therefore, prescription did not begin to run until that time. We likewise find no error in the trial court’s conclusion that defendant was in possession of the property after execution of the 1937 deed and that prescription did not run for that reason as well.

Reformation of Deed

Plaintiff-appellant contends that the defendant failed to prove by strong and convincing evidence that both parties to the 1937 deed intended that the Sandy Branch property in dispute be conveyed and that the description of the Long Bottom property was a mutual error and mistake. Defendant, on the other hand, contends, and the trial judge so held, that defendant bore his heavy burden of proving mutual mistake and error and is entitled to reformation.

Reformation of instruments is an equitable remedy and lies only to correct mistakes or errors in written instruments when such instruments, as written, do not express the true contract of the parties. It is a personal action, even when applied to real estate, in which the burden is on the one seeking reformation to establish the mutual error or mistake by clear and convincing proof, parol evidence being admissible for this purpose. Evidence of mutual error must be strong and convincing. Merritt v. Hays, supra.

The trial court enumerated the following reasons for holding the defendant discharged his burden of proof:

(1) The deed contained a description which purported to convey a 20 acre tract that the vendor did not own but had sold some 5 years previously to the same vendee;
(2) A party must not be presumed to have intended to sell property which he did not own;
(3) Although plaintiff owned an undivided interest in other property in Lincoln Parish in 1937, the only 20 acre tract which he owned was the Sandy Branch property;
(4) Plaintiff paid no property taxes on the Sandy Branch property after 1937; and
(5) Plaintiff exercised no possession over the Sandy Branch property after 1937.

Plaintiff testified (his deposition was taken prior to his death and offered into evidence at the trial) that he did not remember in 1937, or at the time his deposition was taken, selling the Long Bottom property to defendant in 1932. He admitted, however, that the signature on the 1932 deed was his and that he must have sold it. His testimony was that it was the parties’ intention that the Long Bottom property be conveyed by the 1937 deed. Defendant’s testimony was that he had already purchased the Long Bottom property and it was the parties’ intent in 1937 that the Sandy Branch property, the only 20 acre tract then owned by plaintiff, be conveyed. Defendant’s testimony is supported and corroborated by the factors enumerated by the trial court.

The plaintiff-vendor cannot be presumed to have intended to sell land which he did not own and had previously sold to the same defendant-vendee. See Antley v. Smith, supra, and Haas v. Opelousas Mercantile Co., supra. It is unreasonable to assume that both parties in 1937 had forgotten about a sale made only 5 years earlier. The following statement from Haas is closely in point:

“There can be no doubt that there was a mutual error in describing part of the property as the S.E. Vi of the N.W. Vi because the defendants and their author in title did not own any land which would fit the erroneous description but, on the contrary, owned the correctly described land which plaintiffs and their ancestor in title acquired and possessed.”

Defendant proved by strong and convincing evidence that it was the parties’ intent in 1937 to convey and purchase the Sandy Branch property in dispute. Defendant is entitled to have the deed reformed to reflect the correct description of that property. Defendant is further entitled to be recognized as the owner of the property by virtue of his acquisition thereof under the 1937 deed.

Thirty Year Acquisitive Prescription

In view of the holding that defendant is the owner of the property by title under the 1937 deed as reformed, it is unnecessary to consider defendant’s alternative claim of ownership based on 30 years acquisitive prescription. The district court nevertheless considered and resolved that issue, holding that defendant proved his ownership by virtue of 30 years adverse possession. This court has also reviewed that issue and affirms the holding of the trial court.

Under LSA-C.C. Arts. 3499-3503, the ownership of immovables is prescribed for by 30 years without any need of title or possession in good faith. The possession must be continuous, uninterrupted, public, unequivocal and under the title of owner. When possession is commenced by corporeal possession of the property, it may be preserved by external and public signs announcing the possessor’s intention to preserve possession of the property. Civil possession following corporeal possession is sufficient so long as there remains on the property any vestiges of works erected by the possessor. Acquisition extends only to that property which has been actually possessed by the person pleading acquisitive possession.

The property in dispute was partly farmland and pasture and partly timberland. The evidence, consisting of defendant’s testimony corroborated by the testimony of several other witnesses, establishes that (1) defendant farmed part of the property at least on an intermittent basis from 1938 to 1961; (2) defendant grazed cattle on the property and rented the property for cattle grazing purposes during the period 1938 to 1961; (3) defendant and his sons repaired and maintained fences on the south boundary and near the west boundary of the property beginning in 1938 or 1939 (defendant owned the land north and east of the Sandy Branch property which was used and maintained along with his other land); (4) the entire tract owned by defendant including the Sandy Branch property was surveyed in the 1950’s and markers placed at the property corners; (5) a new wire fence was constructed on the western border of the property in 1961; (6) defendant paid taxes on the property from 1938 to the time suit was filed; (7) defendant made timber sales in 1948, 1958 and 1971 (the timber buyers testified they cut over the entire tract in 1948 and 1958); and (8) the property was leased for oil and gas purposes in 1959.

Appellant argues that any possession defendant originally exercised ceased in 1961 when he stopped farming and grazing cattle. The evidence is, however, that defendant’s possession continued after that time by maintenance of fences, a timber sale, the execution of a lease and payment of taxes.

Appellant argues that defendant’s possession did not extend to the western boundary of the property because the old fence on the west side of the property ran along an old road which traversed the property inside of the actual boundary line. The evidence is that defendant exercised possession over the entire 20 acre tract and the location of the west fence some distance inside the boundary along an old road is not significant. Even in the years before the new fence was built along the exact western boundary, there was a well known marked pine witness tree visibly marking the southwest corner of the property.

Appellant urges that defendant’s possession was with the permission of plaintiff and, therefore, was not adverse. The evidence is to the contrary.

The trial court’s conclusion was that defendant used the Sandy Branch property for farming, pasture and timber operations beginning in 1938, which was in accordance with the nature of the land and constituted corporeal possession of the property. The trial court concluded the boundaries of the property were marked with sufficient certainty either naturally or artificially to give definite notice to the public of the character and extent of the possession, to identify fully the property possessed, and to fix with certainty the limits thereof. The trial court held defendant’s possession was continuous, uninterrupted, public and unequivocal. The record supports the trial court’s conclusions.

Even if defendant had failed to prove ownership by title, he has proved ownership by virtue of 30 years acquisitive prescription.

Decree

For the reasons assigned in this opinion and in that of the district court, the judgment of the district court is affirmed.

Affirmed.

      . The original plaintiff died during the penden-cy of his suit and his heirs were substituted as plaintiffs. The original plaintiff and the substituted plaintiffs are referred to as the singular “plaintiff” or “appellant” throughout this opinion.


text:
    Mrs. Nomie D. Martin COLE and Jake C. Martin, Plaintiffs-Appellants, v. M. P. MARTIN et al., Defendants-Appellees.
    No. 13153.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 14, 1977.
    En Banc. Rehearing Denied March 21, 1977.
    Writ Refused May 11, 1977.

      Baker, Culpepper & Brunson by Bobby L. Culpepper, Jonesboro, for plaintiffs-appellants.
    Goff, Caskey, Butler & Davis by H. Russell Davis, Arcadia, for defendants-appel-lees.
    Before PRICE, HALL and JONES, JJ.
   HALL, Judge.

Plaintiffs filed suit to partition a tract of land by licitation, claiming an interest in the property through inheritance from their parents, John and Ada Martin. The defendants are brothers and sisters of plaintiffs. The principal defendant is M. P. Martin, a brother who has record title to the property and who asserts that plaintiffs have no interest in it. The trial court rejected plaintiffs’ demands, and this appeal was taken. We affirm.

The disputed property originally was owned by John and Ada Martin as community property. They were divested of title to the property by virtue of an admittedly valid tax sale in 1921 for the nonpayment of 1920 taxes. L. T. Frey purchased the property at the tax sale and paid the taxes on it thereafter.

After the tax sale, the Martin family continued to reside on the property. Ada Martin died in 1924, and John Martin died in 1939. Plaintiffs have not lived on the property or exercised any possession of the property since 1926, but defendant M. P. Martin has resided on the property all of his life. Jasper Martin, a mentally incompetent brother of the parties, also occasionally lived on the property with M. P. Martin prior to his death in 1974. In 1973, defendant M. P. Martin purchased the property from the heirs of L. T. Frey by warranty deed for $8,000, payable on terms of credit at the rate of $67.50 per month.

Plaintiffs claim that they are coowners of the property through (1) inheritance and the subsequent reacquisition of the property by M. P. Martin, which plaintiffs claim inured to the benefit of all the coowners; and (2) acquisitive prescription of ten and/or thirty years exercised on their behalf by John Martin and/or defendant, who plaintiffs claim possessed as owner for the benefit of all of the heirs of John and Ada Martin.

Plaintiffs did not inherit any rights of ownership from John and Ada Martin because the property was not owned by the Martins at the time of their deaths, having been sold at tax sale prior to their deaths. Plaintiffs cannot rely on the equitable doctrine that where a coowner of property purchases the property at a tax sale or redeems property sold at tax sale, the purchase inures to the benefit of all the coowners. First, plaintiffs were not coown-ers of the property at the time of the tax sale. Second, defendant did not purchase the property at the sale. Third, plaintiffs were not coowners at the time defendant purchased the property from the Frey heirs. Fourth, the purchase by defendant was not a redemption of a tax sale, but was an outright purchase of property owned by others for his own account, long after the redemptive period had expired. The Supreme Court held in Jones v. Jones, 240 La. 174, 121 So.2d 734 (1960) that such a purchase does not inure to the benefit of the former coowners unless there is fraud, collusion, or a fiduciary relationship between the coowner acquiring the property and his former coowners. None of these elements was established by the evidence in this case. Defendant’s acquisition of title, therefore, did not benefit plaintiffs.

Plaintiffs have also failed to prove that they gained an interest in the property through acquisitive prescription. They cannot claim the property under ten years prescription. The prescription of ten years requires that the possessor possess the property in good faith under a just title. LSA-C.C. Art. 3479. John Martin was divested of title to the property by the 1921 tax sale. He and his heirs were not possessors under a just title and could not acquire the property by possession of less than thirty years. Faulkner v. Rivers, 4 La.App. 61 (2d Cir. 1926).

Plaintiffs’ remaining claim to the property is that defendant, possessing for all of his brothers and sisters, acquired prescriptive title to the property by virtue of thirty years possession. It is undisputed that defendant resided on the property for over thirty years. However, LSA-C.C Art. 3500 requires that the thirty years possession must be public and unequivocal, and under the title of owner. The principal disputed fact in this action is whether defendant possessed as owner, tenant, or by sufferance of the Freys prior to his purchase of the property from the Frey heirs in 1973.

Defendant testified he did not possess the property as owner, because he realized the taxes had not been paid and that the property had been sold to Frey. His testimony indicates that he recognized Frey’s ownership. His purchase of the property from the Freys in 1973 was made because the Freys intended to sell the property, and if they had sold it to a third party he would have lost his home. We do not view the 1973 purchase as an attempt to prejudice his coheirs by acquisition of title for his own account. The fact that he bought the property in 1973 for a serious consideration is evidence that he did not consider himself to be the owner or that he had possessed as owner.

The Freys paid taxes on the property from the time of the tax sale to the time of the sale to defendant. L. T. Frey, Jr. testified his father had an agreement with John Martin and M. P. Martin that the Martins would take care of the property and in return could live on it without paying rent. Neither John nor M. P. Martin ever took any action to give notice to the Freys that they were possessing as owners rather than as tenants. The possession necessary to acquire property by thirty years prescription must be sufficient to apprise the public and the record owner of the claim of ownership. Woodell v. Roberts, 329 So.2d 858 (La.App. 2d Cir. 1976), writ refused 333 So.2d 248 (1976); Succession of Kemp v. Robertson, 316 So.2d 919 (La.App. 1st Cir. 1975), writ refused 320 So.2d 906 (1975). Plaintiffs failed to prove that defendant’s possession sufficed to apprise the record owner and the public of the ownership claim, and their demands must be rejected.

For the reasons assigned, the judgment of the district court is affirmed at appellants’ costs.

Affirmed.