author: FOURNET, Justice. HAWTHORNE, Justice

text:
    213 La. 980
    STANLEY et al. v. CRYER DRILLING CO. et al.
    No. 38542.
    Supreme Court of Louisiana.
    April 26, 1948.
    Rehearing Denied June 1, 1948.

      Graydon K. Kitchens, of Minden, and Irion & Switzer, of Shreveport, for rela-tors.
    Boatner, Simon & Carroll and Fred Simon, all of Shreveport, for defendants, respondents.
   FOURNET, Justice.

This suit was instituted by five plaintiffs against Del Cryer, doing business as the Cryer Drilling Company, and his insurer, the Employers Casualty Company, to recover varying sums for the damages incurred by each as the result of an accident that occurred on U. S. Highway No. 80 between Minden and Shreveport around 7 p. m. on the night of Saturday, December 15, 1945, when the l]/z ton Ford truck being operated by the plaintiff L. P. Nelson ran into a cable that Hosea Robinson had stretched across the highway in an attempt to pull back on the road the 2^ ton Diamond T truck owned by his employer, Del Cryer, and allegedly being driven by him with his employer’s permission at the time it was forced from the road into a ditch by a passing motorist. Nelson and his wife, Aline, who was riding with him at the time of the accident, are seeking to recover the sums of $15,973 and $6,500 respectively for personal injuries; Edgar B. Smith and James A. Stanley the sum of $354.86, for damages to the truck’ jointly owned by them; and Edmund L. Stewart the sum of $25 for damages to his fence at the scene of the accident.

The defendants filed a joint answer denying liability, specially averring that the insurance policy was issued for the exclusive protection and benefit of the owner of the truck and such persons as were actually using it with the assured’s permission and that at the time of the accident Robinson was not on any mission of or for the assured but on one of his own, without the knowledge or consent of the assured.

The Associated Indemnity Corporation, compensation insurer of Nelson’s employer, intervened to recover the amounts paid Nelson as compensation, as well as his hospital and medical bills, plus attorney fees.

There was judgment in the district court in favor of L.P. Nelson in the sum of $3,-179.50; in favor of Aline Nelson in the sum of $2,000, and in favor of the remaining plaintiffs and the intervenor as prayed for, including attorney fees of $50 for the compensation insurer’s attorney, but rejecting all demands as to Del Cryer personally.

From this judgment the Employers Casualty Company appealed, and the Nelsons, answering the appeal, asked that the judgment be. amended by increasing the awards to them to the amounts originally prayed for. The matter is now before us to review the judgment of the Court of Appeal for the Second Circuit reversing the judgment of the district court and dismissing the suit. See 29 So.2d 810.

Since the plaintiffs did not appeal from the judgment dismissing their suit against Del Cryer personally and there is no question but that the car was not being used by Robinson in the course of his employment at the time of the accident, or that this accident was caused by the, gross and palpable negligence of Hosea Robinson in stretching the cable attached to a winch on the back of the Diamond T truck taut across a much travelled highway and anchoring it to a high-line pole on the other side about a foot from the ground, without any warning to passing motorists that the cable, invisible in the gathering dusk, was there, the primary issue we are called upon to determine is the insurer’s liability under the omnibus coverage clause in the light of the facts of this case.

Under Section 1 of the Insuring Agreements, coverages A, and B, the insurer is obligated to pay on behalf of the insured such sums as he may be liable for as the result of bodily injury (including death) and damage to property “caused by accident and arising out of the ownership, maintenance, or use,” of the Cryer truck, and in Section III under this same heading it is stipulated that the unqualified word “insured” as used in the policy “includes the Named Insured and, except where specifically stated to the contrary, also includes any person while using the automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is with the permission of the Named Insured.”

The record shows that Del Cryer, upon the recommendation of his father, employed Hosea Robinson as a truck driver on a monthly basis, subject to call at all times, for the purpose of hauling all of the necessary fuel and equipment for his rig operations in the Diamond T truck owned by him, subj ect to the approval of P. E. Haynes, who was in charge of the field operations at the time. After Haynes had interviewed and approved Robinson’s employment, he turned the truck over to him with the keys. In addition to his regular duties as truck driver, Robinson was also called upon to keep the truck properly repaired and serviced and to transport the “roughnecks” employed by Cryer from the bus stop in front of his (Robinson’s) home to the drilling operations 3 miles away and back to the bus stop. Because of the nature of these duties, the truck was, of necessity, under Robinson’s control at all times. At night it was parked in a public roadway directly outside Robinson’s window and in front of his house, his employer haying been assured by the highway patrol that there would be no objection to it being thus parked without the required flare signals. It is conceded that during the entire time he was employed by Cryer this truck was in his exclusive custody.

The record further shows that Robinson was never instructed by Cryer or Haynes that the use of the truck was restricted to business purposes, although about a week after his employment Cryer did tell him he could not haul anything in the truck for anyone else because this use of the truck was not authorized under the truck license and was not covered by the insurance. Robinson therefore used the truck for his own personal convenience, driving 20 miles to Minden on occasion and 12 miles to Bossier City to purchase groceries, and attend to other personal and family matters.

On the day of the accident, after Cryer had told the men around noon that they could knock off for the afternoon and do their Christmas shopping, Robinson took his co-workers to the bus stop and then went to his house to pick up his wife. Finding she had gone to Shreveport, he waited until she returned around 2:30 p. m. and then drove with her to his brother-in-law’s some distance away, where they were killing and dressing a hog. When it was discovered that the salt supply was insufficient to preserve the meat, Robinson and his brother-in-law drove in to Minden to get some salt and it was while they were on the way back that he drove off the edge of the road and slid into the ditch while attempting to pass a car on the curve. The accident occurred while he was attempting to extricate the truck from this ditch.

The defendant’s contention, as expressed in its brief and in which it was upheld by the Court of Appeal for the Second Circuit, is that when Robinson reached his home on this day and parked the truck his permission to use it terminated and “could not be revived without his employer’s consent before Monday morning when he was to drive the truck to the drill site.”

In Parks v. Hall, 189 La. 849, 181 So. 191, 194, we held the insurer liable under a similar omnibus clause for the damages sustained by the plaintiffs when the chauffeur H'all, who had been instructed by his employer, the insured, not to' use the car except in the course of his employment, nevertheless after having been told to have the car serviced at a specific garage went on a mission of his own several miles away when he found the grease racks at the garage occupied, becoming involved in the accident that caused the injury to the plaintiffs on his way back, our conclusion being that “the permission of the assured to Hall to use the car in the first instance, irrespective of the use to which he put the car while in his possession was ‘permission of the assured’ within the meaning and contemplation of the ‘omnibus clause’ * *

The only real difference between the omnibus clause in the Parks case and the case we are now considering is that the word “actual” appears before the word “use”; but we think, as was held' by the Court of Appeal for the Parish of Orleans in the case of Haeuser v. Ætna Casualty Company, La.App., 187 So. 684 (in which we refused writs on the ground that the judgment was correct), that the word “actual” in this place neither adds nor detracts from the insurer’s liability under this omnibus clause.

As pointed out in the Parks case [189 La. 849, 181 So. 193], “ ‘An insurance policy is a contract and the rules established for the construction of written instruments apply to contracts of insurance.’ 14 Ruling Case Law, § 102, p. 925; Wallace v. Insurance Co., 4 La. 289; Brown v. Life & Casualty Ins. Co., La.App., 146 So. 332; Civ.Code, arts. 1901, 1945. In accordance with this rule ‘an automobile collision policy must be construed according to the evident intent of the parties, to be derived from the words used, the subject matter to which they relate, and the matters naturally or usually incident thereto. The language employed in the policy is to be construed so as to effectuate the insurance and not for the purpose of defeating it; therefore, if the language used is ambiguous or admits of two constructions, it will be construed in favor of insured and against insurer in such a way as to protect the interest of insured who has paid a consideration for the indemnity. * * * ’ 42 Corpus Juris, § 356, pp. 790, 791; Heiman v. Pan American Life Ins. Co., 183, La. 1045, 165 So. 195; Travia v. Metropolitan Life Ins. Company, 186 La. 934, 173 So. 721.”

In the policy in the instant case we find the statement in Item 5 that the purpose for which the insured automobile is to be used is “commercial” and in this same item the term “commercial” is defined “as use principally in the business occupation of the Named Insured * * * including occasional use for personal, pleasure, family and other business purposes(Italics ours.)

Thus it may be seen that under the express terms of the policy it was contemplated by the parties that the use of the truck by Robinson would include his use of it for his personal convenience and family purposes. Plence, we think it is significant that the only instructions given Robinson by Cryer with respect to the use of the truck was that he should not haul anything in the truck for anyone else because such use of the truck was not only unauthorized under his truck license but was not covered by his insurance, necessarily implying that such use as was covered by the insurance was authorized.

It is our opinion, therefore, that the authorities from other jurisdictions relied on by the defendant insurer have no application here since this court has adopted the view of this omnibus clause entertained by the majority of the jurisdictions. For an able and interesting review of the authorities on this subject, see the article by Ben R. Miller in 15 Tulane Law Review 422.

This brings up for our consideration the claim of the Nelsons for an increase in the amount awarded them by the lower court, which amounts the defendant contends are excessive and should be substantially reduced. We feel that the trial judge who, in addition to hearing the evidence in the case, had an opportunity to observe the Nelsons, was in a better position than we are to evaluate the extent of their injuries and we do not feel justified in disturbing the awards made by him after our review of the evidence.

For the reasons assigned, the judgment of the Court of Appeal for the Second Circuit is annulled and set aside, and it is now ordered that the judgment of the district court be affirmed; all costs to be paid by the defendant insurer, Employers Casualty Company.

HAMITER, J., concurs in the decree.

HAWTHORNE, Justice

(dissenting).

I think the opinion of the Court of Appeal, Second Circuit, correctly disposes of the issue in this case and the judgment rendered by that court should be reinstated and made the judgment of this court. See Stanley et al. v. Cryer Drilling Co. et al. (Associated Indemnity Corporation, Intervenor), La.App., 29 So.2d 810.

The majority opinion in the instant case cites with full approval the case of Parks v. Hall et al., 189 La. 849, 181 So. 191. There is some doubt in my mind as to the correctness of this court’s holding in that case. However, the Court of Appeal, in my judgment, clearly distinguished this case as well as other cases cited in the opinion of that court (Haeuser v. Ætna Casualty & Surety Co. et al., La.App., 187 So. 684; Farnet v. DeCuers et al., La.App., 195 So. 797) from the instant case, and in doing so said [La.App., 29 So.2d 814]:

“There is a fundamental difference between the facts of the three cited cases, in each of which the insurer was held lia-
ble under the omnibus clause, and the facts of the present case, and it is this: in neither of the three cited cases.had the employee delivered the car to the owner’s garage, as directed, before involving it in an accident, whereas in the present case, the truck had been delivered to its usual parking place, after working hours, and some eight hours thereafter was involved in an accident when being used solely for the employee’s pleasure. We think this difference in facts pivotal.
* * * * * *

"It is. a legal certainty that if Robinson had been required at the end of each day’s work to put the truck in a designated garage of Cryer’s, and he had done so the day of the accident, and thereafter, without the knowledge or consent of Cryer, removed it from -the garage and had an accident, the coverage provision of the policy would not have protected him. James et al. v. J. S. Williams & Son, Inc., 177 La. 1033, 150 So. 9; Stephenson v. List Laundry & Dry Cleaners, Inc., et al., 186 La. 11, 171 So. 556; Wilson v. Farnsworth et al., La.App., 4 So.2d 247; Clemons et al. v. Metropolitan Casualty Ins. Company et al., La.App., 18 So.2d 228.”

I respectfully dissent.


source: Caselaw Access Project

author: HAMITER,' Justice.

license: Public Domain

text:
    213 La. 992
    BOURGEOIS v. J. W. CRAWFORD CONST. CO. et al.
    No. 38529.
    Supreme Court of Louisiana.
    April 26, 1948.
    Rehearing Denied June 1, 1948.

      Charles C. Jaubert and Preston L. Savoy, both of Lake Charles, for plaintiff and relator.
    McCoy, King, Anderson, Hall & Swift, of Lake Charles, for defendant and respondent.
   HAMITER,' Justice.

- Mrs. Aurelia Bourgeois instituted this suit to recover compensation, under the provisions of the Louisiana Employers’ Liability Statute, Act No. 20 of 1914, as amended, for the injury and death of her minor son, Allen Bourgeois, which occurred while he was in the employ of the J. W. Crawford Construction Company. Named as defendants were the minor’s employer and its compensation insurer, the Employer’s Casualty Company. The employer was never cited, however, and the suit as to it was dismissed.

On August 22, 1944, the first day of his employment in the hazardous business of the construction company, the minor, then 16 years and some months old, stepped on a nail, as a result 'of which he contracted tetanus and died within a few days. At the time he was residing with his mother, the plaintiff herein, who lived separate and apart from her husband, the minor’s father.

Plaintiff alleged, among other things, “That said employee had made no choice as to whether or not he came under the Employers’ Liability Act, but that petitioner, as his surviving mother, totally dependent upon him, does hereby so elect for his employment to come under the Workmen’s Compensation Act, and the benefits thereof.”

The district court rendered judgment favor of'plaintiff and against the employer’s insurer for 300 weeks’ compensation of $9.36 per week (32%% of the employee’s weekly wage), plus $50 hospital expense and $150 funeral cost. On appeal to the Court of Appeal the judgment was reversed and the suit dismissed. The case is before this court as the result of our issuing the writ of certiorari applied for by plaintiff. in

In the brief of defense counsel it is said:

“The sole question to he decided in this case is: Where a minor between the ages of sixteen and eighteen years engages in a hazardous employment, without the knowledge of his mother and father, and is injured in the course of said employment, before his mother or father learn of his employment, and subsequently dies of said injury, can his dependent mother, who is above the age of majority and mentally competent, successfully maintain a suit for compensation under the provisions of Act 20 of 1914, as amended, the Workmen’s Compensation Act?”

In urging that the question should be answered in the affirmative counsel for plaintiff, as shown in their brief, take the position that the minor employee “ * * * would either be presumed to have elected to come under the Workmen’s Compensation Law, or else his parent would have the right after his accidental death of making the election in his behalf.”

Preliminary to a discussion of the question presented, it is well to consider the history, theory and growth of workmen’s compensation legislation. Before it came into being the only recourse of an employee to compel remuneration for injuries sustained while employed in a hazardous occupation was to sue in a regular tort action and prove negligence on the part of the employer. But in the great majority of cases his demands were denied because of his inability to prove negligence of the employer or because of the defense of contributory negligence, assumption of risk, or the fellow-servant doctrine. If the employee himself was partly to be blamed, or if a fellow-worker caused the injury, or if the contract of employment apparently subjected him to the risk of harm, he lost his case. It has been estimated that, due to such situation, approximately 70% of the wage loss resulting from disability caused by industrial or work accidents was borne by the workers themselves.

In 1884 Germany, led by Bismarck, evolved the idea (and placed it in practice) of compensating work injuries on the basis of employment relation, not on that of negligence. The idea spread to England and to the United States, and it has been incorporated in legislation in virtually all of the states of this country. The legislation purposes primarily to abolish the common law system of defenses with reference tó injuries to' employees, it having proved in-, adequate to meet modern conditions arid conceptions óf moral obligations, and to substitute therefof a system based on a high conception of man’s obligation to his fellow man. This system, adopted as a humanitarian measure, creates a new type óf liability — liability without fault — and makes it dependent solely on a relationship to the job, in a liberal, humane manner, with litigation reduced to a minimum. And under it the loss incurred as a result of the employee’s injury is recognized- as an element of the cost of production, to be charged to the industry rather than to the individual employer and liquidated in the steps ending with consumption, so that the burden is finally borne by the community iri general. Horovitz on Workmen’s Compensation, pages 1 to 10; Schneider’s Workmen’s Compensation Law, 2d Ed., Volume 1, Sections 1 and 2; Puchner v. Employer’s Liability Assurance Corporation, 198 La. 921, 5 So.2d 288.

The Louisiana Employers’ Liability Act was adopted in 1914, and from time to time thereafter it has been amended. As to its purpose this court has commented:

“To the legal action which the injured employee might have to recover full indemnification the act substitutes a right to partial indemnification, but seeks to facilitate and insure as far as possible the recovery of this indemnity. To that end it takes away defenses, simplifies procedure, and creates presumptions. * * * ” Bronson v. Harris Ice Cream Company, Inc., 150 La. 455, 90 So. 759, 760.

Addressing ourselves now to the particular question posed by this litigation, it is conceded that the minor when injured was engaged in the hazardous business of his employer, and that his mother, the plaintiff herein, was wholly and actually dependent on him. These are two requisites for the recovery of compensation by this plaintiff. It is also essential for the recovery, of course, that our compensation statute be otherwise applicable to the minor’s employment.

Paragraph 1 of Section 3 of the statute, as amended by Act No. 85 of 1926, provides that the act shall not apply to any employer or employee “ * * * unless prior to the injury they shall have so elected by agreement, either express or implied, as hereinafter providedParagraph 2 relates to employment agreements entered into prior to the effective date of the statute, and has no bearing on this case. Paragraph 3 recites that every contract of hiring (in businesses affected by the statute) “ * * * made subsequent to the time provided for this act to take effect, shall be presumed to have been made subject to the provisions of this act, unless there be as a part of said contract an express statement in writing either in the contract itself or by written notice by either party to the other, that the provisions of this act * * * are not intended to apply, and it shall be presumed that the parties have elected to be subject to the provisions of this act and to be • bound thereby, unless such election be terminated as hereinafter provided.” Paragraph 4 states: “Any agreement or election, either express or implied, or presumed under the provisions of * * * paragraph 3 of this Section, between an employer and any employee * * * for the operation of the provisions of this act may be terminated by either party to the contract of hiring giving written notice not less than thirty days prior to the accident to the other party of such contract that the provisions of this act * * * shall no longer apply.” In paragraph 5, it is said: “Either an employee who has given notice to his employer in writing as aforesaid or an employer who had given notice to his employee in writing as aforesaid that he dects not to be subject to the provisions of this act, may waive such election by a notice in writing which shall take effect immediately.” And paragraph 6 declares “Any employee of the age of eighteen and upwards * * * shall himself exercise the right of election or termination or waiver authorized by this Section. Such right of election or termination or waiver shall be exercised on behalf of any employee under the age of eighteen by either his father, mother or tutor, or if neither of these can readily be gotten to act, then by the Court. Provided, that this act shall not apply to employees of less than the minimum age prescribed by law for the employment of minors * * *.” (Italics ours.) This last quoted proviso, which excludes from the statute’s operation employees of less than the minimum age required for employment, is without relevancy to the instant case; plaintiff’s son at the time of his injury was 16 years and some months of age. Further, in this connection, whenever the word “minor” is used hereinafter it has no reference to a person within that excluded group.

The remaining above referred to provisions of Section 3, as we understand them, render the compensation statute applicable to every person (minors as well as majors) employed in a business determined to be hazardous, unless it is expressly stated in writing as a part of the employment contract, or the employee or employer gives written notice to the other not less than thirty days prior to the accident, that the statute shall not apply. As to' the minor employee less than 18 years of age the mentioned statement in writing or the written notice is to be given either by his father,' mother, tutor, or the court.

Of course, by considering paragraph 1 of Section 3 alone the impression is gained that the act is operative strictly on the mutual contract theory and is applicable only when the employer and employee expressly or impliedly contract, pri- or to the injury, to have its provisions govern the employment. But that paragraph, as stated therein, must be read in connection with the other, provisions of Section 3, particularly those of paragraphs 3 and 4. When this is done it is clear that the confection of such a contract is not required. If the parties have not so agreed (either expressly or impliedly), and neither has stipulated in writing that the statute shall not be applicable, the law presumes for both an agreement or election to be governed by the provisions of the act. And the agreement ,or election, whether it be express or implied or presumed (as declared in paragraph 4), endures until terminated by either party’s giving to the other the thirty day written notice prescribed in paragraph 4. Further, even after a termination is effected the party giving the notice may waive it by his furnishing to the other a statement in writing that he wishes to do so.

The reason for the creation of the presumption of an election or agreement to be bound by the act is obvious. As before shown one of the primary purposes of compensation legislation was to abolish the common law system of defenses, with reference to injuries to the employee, and to eliminate the necessity of proving negligence on the part of the employer. Hence, in a vast majority of industrial or work injury cases, the provisions of the statute are very much to the benefit and advantage of the employee. For this reason his employment has been placed under those provisions, by operation of law through the creation of the presumption, and it is governed thereby until he chooses otherwise.

The presumption applies to all employees, even minors working without the consent of their parents. The compensation statute is as beneficial to minors as it is to majors, if not more beneficial. If minors were not intended to be affected by the presumption unquestionably the Legislature would have specifically excepted them from it.

The right of election (referred to in paragraph 6) to be exercised on behalf of an employee under the age of 18 by a parent, tutor, or the court, relates, in our opinion, to an election not to be subject to the act. There is no need, as before shown, for a representative to elect for him that the statute shall apply; the law presumes such an election. It is when the beneficial effects of the statute are thought to be inadequate for the minor that his representative is permitted to elect that he not be bound by the provisions.

In the instant case it appears that the parents of the injured employee never elected that his employment should not be governed by the compensation statute. In fact, the record discloses that they were unaware of the employment. This being true the agreement to be subject to the act which the law presumes was effective at the time of the injury and death, and plaintiff, as the dependent mother, is entitled to recover compensation herein.

This conclusion, as well as 'the interpretation hereinabove given to the provisions of Section 3 of the statute, accords with the holdings of this court in at least two previous cases. In Garcia et ux. v. Salmen Brick & Lumber Company, 1922, 151 La. 784, 92 So. 335, 337, plaintiffs were awarded compensation for the death of their 17 year old son who was killed while at work for the defendant at its brick and tile factory. In granting the award the court observed in the course of the opinion, among other things, that, “The presumption is that the contract is to be governed by the act regulating the rights and remedies of the employer and employee, in the absence of any agreement or notice to the contrary.”

Again, in Labourdette v. Doullut & Williams Shipbuilding Company, Inc., 1924, 156 La. 412, 100 So. 547, 548, the father sued for damages, under Civil Code Article 2315, for the death of his son aged 17 years and seven months who was killed accidentally while in defendant’s employ. An alternative demand for compensation was not made. The petition contained no allegation to the effect that the father, prior to the accident, had elected that the employee should not be subject to the provisions of the Ethployers’ Liability Act; nor was any mention made therein respecting knowledge on the part of the father as to his son’s employment. At the commencement of the trial defendant objected to the reception of any evidence in the case for the reason that the petition disclosed a claim for compensation, not one for damages in tort. The district court sustained the objection and dismissed the suit, reserving to plaintiff the right to sue for compensation. On appeal to this court, in affirming the judgment, we commented:

“The date when the deceased was employed, that is, when the contract of employment was entered into, does not appear. All that we know, in this respect, is that the deceased was engaged in discharging the duties of his employment when he was killed accidentally in September, 1919. However, it is immaterial whether the contract of employment was entered into before or after the promulgation of the act of 1918, since the presumption in either event is the same; that is, that the deceased, at the time he met his death, was, in so far as relates to his employment, subject to the provisions of the Employers’ Liability Act, unless the contrary be made to appear, as indicated above.
******
“The issue, therefore, under consideration is reduced to this: Does the petition make such a contrary showing? As we have. seen, it does not. There is not a single allegation in it, placing the employment alleged outside of the Employers’ Liability Act. Hence the presumption is that the employment was subject to the provisions of that act, and was governed thereby.
******
“Hence, as the presumption is that the employment of the deceased was governed by the provisions of the Employers’ Liability Act, so long as that presumption is permitted to remain, it must be considered that plaintiff’s claim for damages is excluded from the provisions of article 2315 of the Civil Code. * * * ”

In 1929, the Court of Appeal of the Second Circuit in deciding Ross et ux. v. Cochran & Franklin Company, Inc., 10 La.App. 719, 122 So. 141, 142, similarly conátrued Section 3 of the compensation statute. There the plaintiffs sought to recover damages under Civil Code Article 2315 on behalf of their minor son who had been injured during the course of his employment. Alternatively, they prayed for an award of compensation. In affirming the judgment of the district court, which rejected the main demand but granted compensation to plaintiffs, the court said:

“The boy. was employed without the knowledge or consent of his parents, both of whom were living. He was injured on the tenth day after having been employed, but there was no election by agreement between him and his employer previous to the injury that the contract should be subject to the provisions of the Workmen’s Compensation Acts, and it is now suggested that, inasmuch as there was no such election by agreement between the parties, the acts do not apply. The injury, as stated, was sustained on the tenth day after the contract of employment was entered into, arid we do not think that it was necessary that such agreement be made, because in the original act and each of its amendments, including Act 85 of 1926, it is specifically provided that the parties shall be presumed to have elected by the' contract of employment to be subject to the provisions of that law. * * * ”

But a different construction has since been given to Section 3 (as to minors) by the Courts of Appeal of both the First and Second Circuits. In Ballard v. Stroube Drug Company, et al, 10 So.2d 532, 533, decided by the Court of Appeal of the First Circuit in 1942, the plaintiff sued in tort to recover for injuries to his son sustained while working for the defendant. He alleged that the accident occurred on the day the minor commenced working, and that the employment was without the knowledge and consent of the parents. In the alternative workmen’s compensation was demanded. As to the action in tort the district court sustained exceptions of no cause and no right of action, they having been grounded on the-theory that the claim was governed exclusively by the compensation law, and plaintiff appealed. The Court of Appeal reversed the judgment, overruled the exceptions, and remanded the case for further proceedings. In reaching the decision it reasoned, with respect to the provisions of Section 3 of the statute, as follows:

“The requirement for an election by a minor under eighteen to be made for him by either his father, .or mother or tutor clearly indicates his inability to make the election for himself, whether that election is a presumed one under the provisions of paragraph 3 to come under the act or a special agreement not to come under it. To presume an election for such a minor to come under the act without the implied or express consent of his parents or tutor would create the anomalous situation of giving such a minor the capacity to have a presumed election forced on him without the consent of his parents, while denying him the capacity to elect not to come under the act without the consent of his parents or tutor.
“Our opinion is that the presumed election to come under the act in order to have effect against a minor under eighteen years of age must have either the implied or express consent or approval of his parents or tutor. * * * ”

The court erred, we think, in concluding that for the presumed election (to come under the Act) to be effective as to the minor employee it must be supported by either the implied or express consent of either the parents or tutor. What the conclusion overlooks is that Section 3 sets forth three different kinds of agreement by reason of which the statute is made applicable — the express, the implied, or the presumed. The presumed agreement (or election) is a creature of the law, designed to be operative when and if there is no express or implied agreement whatever, and, being thus created and designed, there is no need for the consent, either express or implied, of the parents or tutor. As to.whether or not the Legislature acted wisely in making the presumption effective as to minors is not for the judiciary to determine.

It is interesting to note that the same Court of Appeal (First Circuit) did recognize the distinction between a consent election and a presumed election (provided for in Section 3 of the statute) in the case of Brooks v. American Mutual Liability Insurance Company et al., 7 So.2d 654, 658, 659, also decided in 1942. On the question of whether or not plaintiff therein had alleged a cause of action for damages in tort for the death of her husband (a major) the court commented:

“The petition in this case does not allege that there was any agreement between the deceased and his employer that the provisions of the compensation law were not to apply, nor does it allege that either the deceased or his employer had given notice to the other at least 30 days before the accident that the provisions of the act were not to apply. It therefore follows that the deceased employee was working under a contract of hiring whereby he is presumed to have elected to come under the provisions of the act. * * * ”

In Melton v. Fraering Brokerage Company, Inc., 1947, 31 So.2d 884, the Court of Appeal of the Second Circuit adopted the conclusion announced in the Ballard case, i. e., that the presumed election to come under the act (with reference to a minor employee) must have the consent of the parents or tutor of the minor, and then it proceeded to consider the question of responsibility as between the father and mother for giving the consent.

True, we refused to grant writs of cer-tiorari in both the Ballard and Melton cases, applications for which were filed. Of the application in the former it may be said, however, that no reference was therein made to the jurisprudence of this court, particularly the Labourdette decision mentioned supra. The application in the latter concerned primarily the question of the giving of consent as between the mother and the father of the minor. Nevertheless, the holding in the Ballard and Melton cases are contrary to our jurisprudence, and they must be and are now expressly overruled.

Having determined that the employment of plaintiff’s minor son was governed by the compensation statute, in view of the legally created presumed agreement discussed above, it is unnecessary for us to consider the further and alternative contention of plaintiff that she, under the provisions of Section 16 of the statute, as amended by Act No. 38 of 1918, had the right to make an election in his behalf after the accidental death.

For the reasons assigned, the judgment of the Court of Appeal is now reversed and set aside, and it is ordered, adjudged and decreed that the judgment of the district court, which was in favor of Mrs. Aurelia Bourgeois and against defendant Employer’s Casualty Company for 300 weeks’ compensation at $9.36 per week beginning September 1, 1944, together with legal interest on all past due installments until paid, and also for the sum of $50 hospital expense and $150 funeral expense, be reinstated and made the final decree of this court. The named defendant shall pay all costs.


author: FOURNET, Justice.

text:
    213 La. 1011
    STATE v. SAVAGE et al.
    No. 38802.
    Supreme Court of Louisiana.
    June 1, 1948.
    John R. blunter & Son, of Alexandria, for appellants.
    Fred S. LeBlanc, Atty. Gen., M. E. Cul-ligan, Asst. Atty. Gen., and Ben F. Thompson, Dist. Atty., and Walter M. Hunter, Asst. Dist. Atty., both of Alexandria, for appellee.
   FOURNET, Justice.

The defendants, Otis and Elvin Savage, are appealing from their conviction and sentence on a charge in a -bill of information with the theft of a cow, relying for the reversal thereof on four bills of exceptions, Nos. 1, 2, 3, and 4, the remaining bills reserved during the course of the trial having been formally abandoned.

It appears that the subject cow had been missing and was located by the owner, Hiram Holden, in the pens of a packing company in Missouri with the assistance of the J. M. McLemore Livestock Commission Market of Alexandria, Louisiana, through which agency the cow had been sold at auction. In order to establish the theft of the cow by the defendants, the state sought to prove that the tag bearing No. 515 which was removed from the ear of the cow by the deputy sheriff accompanying the owner to Missouri and remained in his possession until the time of the trial had been placed there by one of the employees of the McLemore agency when the cow was delivered to it by the defendants. It was while the state was attempting to establish this fact that the four bills of exceptions now being relied on were reserved.

The first bill was reserved when the trial judge permitted the introduction of tag No. SIS (State’s Exhibit No. 1) in connection with the testimony of the deputy sheriff removing it from the cow’s ear. The next three bills were reserved when the trial judge permitted, in connection with the testimony of O. G. Beauregard, an employee of the McLemore market, the introduction from the files of this agency of (1) a receipt (State’s Exhibit No. 2) signed by L. West and purporting to show the receipt of the cow from O. L. Savage; (2) an unsigned receipt (State’s Exhibit No. 3) purporting to show the receipt by the market of the cow identified as No. 51S from O. L. Savage of Longleaf, Louisiana, and (3) a cancelled check (State’s Exhibit No. 5) of the commission market in favor of O. L. Savage in the amount of $55.58. (This last exhibit seems to be confused in the record with State’s Exhibit No. 4, which is a sales sheet prepared by Mrs. Harriet Gremillion and was introduced in connection with her testimony. This exhibit forms the basis for Bill of Exception No. 5, which is one of the bills that has been abandoned.)

The relevancy of the facts sought to be established from these exhibits is not questioned by counsel for defendants. Instead, it is counsel’s contention that tag No. 515 was not sufficiently identified as having been placed on the cow’s ear by an employee of the McLemore market since the state only made an effort to prove that it was similar in appearance to those placed on the ears of all of the cattle sold on that occasion without producing L. West, the employee who received and tagged the animal and issued the receipt therefor, as a witness or giving any explanation for the failure to produce him.

Counsel argue that the signed receipt taken from the files of the commission market is likewise not competent evidence since it was only identified by Beauregard, a fellow-employee of West, who not only did not sign the receipt but knew nothing about the transaction or the receipt other than that it was taken by him from the files and was signed by West, whose signature he verified. The same objection was levelled at the other receipt sought to be introduced, and, in addition, the fact that it was unsigned. While the witness Beauregard did sign the check introduced by the state, he testified he did not know the payee, O. L. Savage, did not know that the check had ever been delivered to Savage, and could not verify that the endorsement on the reverse of the check was in the handwriting of Savage.

Under the express provisions of the Code of Criminal Procedure, except as otherwise therein provided, “hearsay evidence is inadmissible” (Article 434), and the best evidence “which is within a party’s control, must be produced.” Article 436. This is in accordance with the generally accepted rule that “book entries not made by one who has personal knowledge of the transactions, but based upon memo-randa or data furnished by others, are not admissible in evidence, without verification by the one furnishing the data and having personal knowledge of the transactions on which it is based, since otherwise the entries, even though made in the regular course of business, and as a part of the duties of the entrant, are not the best evidence, but are in the nature of hearsay.” 2 Wharton’s Criminal Evidence, 11th Edition, 1396, § 809. See, also, 23 C.J.S., Criminal Law, § 851, page 43; State v. Maddox, 140 La. 718, 73 So. 783; State v. Martin, 145 La. 35, 81 So. 747; State v. James, 165 La. 822, 116 So. 199; State v. Goldstein, 187 La. 353, 174 So. 873.

Very pertinent here is the observation in the Maddox case that [140,La. 718, 73 So. 784] “A mere writing in a book, or on a piece of paper, does not prove itself, unless the law so declares, and, in the absence of such law, the verity of the writing must be established by competent evidence or the book, or paper, is itself incompetent.”

We therefore conclude that the position taken by the defendants in this case is correct and that the trial judge committed a reversible error in admitting these exhibits in evidence to their prejudice.

For the reasons assigned, the convictions and sentences of the defendants are annulled and the case is ordered remanded to the lower court for a new trial, in accordance with law.

O’NIELL, C. J., absent.


author: HAMITER, Justice.

text:
    213 La. 1016
    STATE v. COOPER et al.
    No. 38635.
    Supreme Court of Louisiana.
    June 1, 1948.
    Sidney A. Marchand, of Donaldsonville, Arthur B. Hammond, of Baton Rouge, D. Ross Banister, of Monroe, and Joseph A. Loret, of Baton Rouge, for plaintiff-appellant.
    C. V. St. Amant and Blum & Marchand, all of Donaldsonville, for defendants-ap-pellees.
   HAMITER, Justice.

The defendants, Miss Octavine M. Cooper and Mrs. Carrie C. Dixon, own a tract of land in the Parish of Ascension, containing 140 acres, which is bounded on the north by Bayou Manchac and on the south by State Route No. 885, or, as popularly referred to, the Bullion Road. Across this tract there is proposed to be constructed a part of the Prairieville-Nes-ser Highway, a link in what is known as the Airline Highway. '

For the .accomplishment of such purpose the State -of Louisiana, through the Department of Highways, instituted this expropriation suit praying that there be adjudged to it the necessary right of way ■over and across defendants’ property upon payment of the value thereof. That sought from defendants is a strip, with an area of 30.552 acres, running generally north and south ■ near the center of the tract a distance of approximately 4,078% feet, and having a uniform width of 300 feet except at the southern end (at the intersection of •the Bullion Road) 'where, for about 200 feet, it flares to a width of 600 feet. This strip is more fully shown on a blue print marked P-1A and attached to plaintiff’s ■supplemental petition.

Answering, defendants pleaded specially that the quantity of land sought to be ■expropriated exceeds that reasonably necessary for the purpose intended by the plaintiff in the near future. They prayed for judgment denying plaintiff’s demánds. In the alternative, if the desired right of way be granted, they asked judgment in the total sum of $16,410, being for the following alleged items:

Land within the right of way at $200 per acre $6110.40

■Cost of constructing twelve bridges at $150 each 1800.00

Damage resulting to remainder of property 6000.00

Destruction of timber on right of way 2500.00

The expropriation jury, before whom the case was tried, returned a verdict awarding plaintiff a right of way 200 feet wide (being 100 feet less than that sought), with a flare at the southern end thereof proportionately reduced, upon payment to defendants of $200 per acre for the land within the right of way, plus $600 for the timber thereon, $800 as damages to the balance of the property, and $600 for the construction of four bridges. Accordingly, the judgment of the district court adjudged to the plaintiff the reduced right of way (having an area of 20.875 acres), conditioned upon defendants’ receiving the total sum of $6,175; and it taxed the costs of the proceedings against plaintiff.

The plaintiff appealed, complaining here of the reduction in the right of way, of the value of the land as fixed by the jury, and of the damages assessed. It insists that the right of way proposed should be granted upon payment to defendants of not more, than $2,233.12. Appellees urge an affirmance of the judgment.

Besides constituting a link in the important artery of traffic known as the Airline Highway, which extends from near Krotz Springs (at the intersection .of U. S. Highways 71 and 90) to New Orleans, passing in the vicinity of Baton Rouge, the proposed Prairieville-Nésser project (a total length of about eight miles) is a part of U. S. Highways 61 and 65, both of which originate in Minnesota and terminate at New Orleans. Also, it is included in the National System of Interstate Highways (sometimes referred to as Inter-Regional Highways), specifically being a. portion of the southernmost transcontinental route which commences at Jacksonville, Florida, on the Atlantic Seaboard, and ends at San Diego, California, on the Pacific Coast. That system, established by Congress in 1944, comprises approximately 40,000 miles of roads covering the entire United States, they having been selected, because of their importance in connecting major manufacturing areas. Although about one percent of this country’s total mileage is contained therein, the system carries approximately twenty percent of its total traffic.

■ Each state constructs that part of the system lying within its confines. The Federal Government, however, contributes a portion of the cost, if the construction complies with its standards, the contribution being 33% percent of that which is necessary for obtaining the rights of way and 50 percent of that required for the actual building. But the contribution is not available until after the plans for a project have been approved by the Federal Public Roads Administration and the state has secured the necessary right of way in its entirety.

In the construction of a link in the national system, and when federal financial assistance is to be furnished, the Public Roads Administration requires the highest type of highway design. Also, it recommends the acquisition of a right of way of not less than 300 feet in width. In keeping with these standards, Mr. Harry B. Hen-derlite, while Chief Engineer of the Louisiana Department of Highways, designed the Prairieville-Nesser link, adopting therefor what is known as Class or Type I highway. This type, which necessitates having a minimum width right of way of 300 feet with flares at the intersections, will care for an average of 3,000 or more vehicles during each day of 24 hours. When entirely completed it consists of four 12 foot concrete lanes and accompanying flares, each two lanes being separated by a neutral ground at least 40 feet in width, with service -roads and shoulders along the outer edges.

The 12 foot concrete lanes, of course, are primarily for what is referred to generally as through traffic; they are known as the express ways. The 40 foot neutral ground, according to -the testimony of Mr. Henderlite and of Mr. C. F. Meadours, Traffic Engineer of the Department of Highways, is needed for the maneuvering, such as crossing or turning, of vehicles having long wheel bases. Besides, it is a safety factor in that it reduces the hazard of driving caused by the glare of approaching headlights. The flares at the intersections provide additional sight distance both for vehicles on the express ways and for those using the intersecting roads. As to the service roads designed, plaintiff’s engineers explain that they are in a sense semi-private driveways which collect traffic from the adjacent property and carry it to predetermined points of entrance along the express ways. Because traffic moves very fast on a highway of the type proposed, and includes many heavy busses, trucks and trailers, it is quite hazardous for vehicles to enter and leave the express lanes from any and all points.

It is true, as pointed out by defense counsel in connection with -the special plea for a reduction of the right of way, that the Prairieville-Nesser Highway as designed will not be completed soon; the present -plans call for the construction of only two of the paved lanes. It is also true that the remainder of the Airline Highway does not now have a uniform 300 foot width right of way, it varying from 100 to 300 feet and the greater part being of the first named width. Nevertheless, the duty of fixing the width of rights of way is specifically imposed by statute on the chief engineer of the Department of Highways, and in the performance of that duty much discretion and great latitude are permitted him. Further, his -efforts are not restricted to a consideration of immediate traffic needs; his planning is to be also for the future improvement of the highway, to care for the public interest, safety and convenience in times to come. This is required because, as was well said in Crichton v. Louisiana Highway Commission et al., 172 La. 1033, 136 So. 43, 44, our “highways are not intended to be mere makeshifts, built for a day, but are in-tended to be permanent, lasting structures.” Thus, we find in subsection (d) of Section 47 of Act No. 4 of 1942, the following:

“The width of rights of way shall be fixed by the Chief Engineer of the Department. The width so fixed may be sufficient to adequately accommodate the future improvement of the highway by the construction of additional lanes of pavement, service roads, intersections, traffic distribution devices -and grade separations; and to provide sight distances and insure stability and lateral support for the embankments, structures and appurtenances to the highway; to provide for proper drainage, or otherwise sufficient in the judgment of the 'Chief Engineer to provide presently and in the future for the public interest, safety and convenience.”

In view of this statutory provision the judiciary cannot and will not disturb the chief engineer’s fixing of the width of highway rights of way unless it appears that he has abused the large discretion given him or has acted arbitrarily. As has been previously said’by this court, in cases dealing with highway construction, “The engineers are the ones who should know, and, as a matter of fact, do know. We cannot substitute ou'r own opinions for the opinion of engineers in matters of this kind.” Crichton v. Louisiana Highway Commission et al., supra, and Louisiana Highway Commission v. Hays’ Heirs, 186 La. 398, 172 So. 432.

The defendants have offered no evidence whatever tending to show that the chief engineer’s decision for a 300 foot width right of way is unwarranted., In support of their contention for a reduction they rely almost wholly on the admissions of plaintiff’s witnesses that not all of the remainder of the right of way occupied by the Airline Highway is of that width, and, further, that the Prairieville-Nesser link as designed will not be constructed immediately. But what defendants overlook, in assuming that position, is the now commonly recognized fact that some of the links in that heavily travelled thoroughfare, while completely adequate when constructed, were designed without due regard for future needs, as a result of which they cannot now be widened except at an exorbitant, if not an almost prohibitive, cost.

To avoid the commission of the same mistakes, and after giving special consideration to the importance of the Prairieville-Nesser link in our state and national system of highways and generally to the public convenience and safety of tomorrow, the, chief engineer reached the decision now being assailed. Also, obviously, he took into account the matter of the federal government’s contribution to the cost of the project, an assistance that cannot be expected if a lesser width obtains. In so deciding, we cannot say that he has abused his discretion or has acted arbitrarily.

With reference to the conclusion of the jury of freeholders that the value of the land sought to be expropriated herein is $200 per acre, we find no manifest error. True, the record contains testimony of witnesses offered by plaintiff to the effect that its market value is much less; but there is considerable other evidence indicating the worth to be $200 per acre, it disclosing that several parcels of land in the vicinity, of like character and nature, were sold in recent years for that price.

Also, the evidence supports the jury award of $600 for the cost of constructing four bridges that will be necessary in providing access to defendants’ property from the new highway.

But, in our opinion, error was committed in allowing defendants $800 as damages to the remainder of their land. Of cou'rse, their tract of 140 acres in its present condition is suitable only for farming and stock raising purposes, although it has not been so used for a number of years; and its value for those purposes will be reduced somewhat when the proposed highway, occupying a right of way of 30.552 acres, divides the tract into two parcels, leaving one with about 41 acres and the other with approximately 68% acres. The land is not a great distance, however, from the City of Baton Rouge, and according to the evidence the construction of the proposed highway will fender it valuable for suburban homesites, which are now much in demand, a special benefit that will offset the reduction in value for farming and stock raising purposes. Louisiana Highway Commission v. Grey, 197 La. 942, 2 So.2d 654.

Remaining to be considered is the award of $600 for the destruction of timber. Two expert timber cruisers or estimators went upon the land and,' by actual tree count, found within the. right of way 28,600 feet of mixed hardwood, worth $10 per thousand feet, and 80 cords of other wood, valued at $2 per cord.. Their estimate and appraisement of that timber, a total of $446, is in no manner contradicted; hence, the award must be reduced to that amount.

For the reasons assigned the verdict of the jury and the judgment of the district cou'rt are amended so as to adjudge to the plaintiff, upon its paying to the defendants the total sum of $7,156.40, the 300 foot width right of way (with the accompanying flare) sought in this suit, it being particularly shown and described on the blue print marked Exhibit P-1A which is attached to plaintiff's supplemental petition herein; and, as thus -amended, such verdict and judgment are affirmed at the costs of plaintiff.

O’NIELL, J., absent.


author: HAWTHORNE, Justice.

text:
    213 La. 1028
    CARTER et al. v. ARKANSAS LOUISIANA GAS CO.
    No. 38583.
    Supreme Court of Louisiana.
    June 1, 1948.
    H. C. Walker, Jr., George Conger and Robert Roberts, Jr., all of Shreveport, for defendant and appellant.
    Drew & Drew, of Minden, for appellees.
   HAWTHORNE, Justice.

Defendant-appellant, Arkansas Louisiana Gas Company, has appealed from a judgment of the district court cancelling and decreeing null, void, and of no force and effect a certain oil and gas lease for insufficient development insofar as the lease applies to, and covers, 823.7 acres of a tract of land containing 1263 acres. The judgment leaves the lease in full force and effect as to 439.3 acres, upon which defendant owns and is operating two producing gas wells.

On November 6, 1935, S. L. Carter executed an oil, gas, and mineral lease in favor of the Arkansas Louisiana Gas Company, which lease covered, among other lands, one large, continuous tract of 1263 ■acres. The lease was for a primary term of 10 years and provided that it should remain in full force and effect as long thereafter as oil, gas, or other minerals were produced from the land. The property described in the lease is located in or near the Lake Bistineau gas field in Bienville Parish, Louisiana. Upon the execution of the lease, lessee paid unto lessor $2589, which amounted to $1.50 per acre for all the property described therein.

During the primary term of the lease two producing gas wells were drilled, both of which are now producing in paying quantities. The first well was completed on May 10, 1940, and the second on May 3, 1941. No other wells have been drilled on the property.

The lease provides that “In case of cancellation or termination of this lease for any cause, lessee shall have the right to retain under the terms hereof twenty-five acres of land around each well producing * * *, such tract to be designated by lessee in as near a square form as practicable.”

The plaintiffs are Mrs. Maggie C. Carter and Mrs. Thyra V. David, the widow and surviving spouse in community and the only child and sole heir, respectively, of S. L. Carter, deceased, the original lessor. The owners of fractional mineral .interests in the land described in the lease were made parties to the suit, some of whom have appeared and joined in the demands of plaintiffs.

Plaintiffs pray for the cancellation of the lease except, under the provision of the lease quoted hereinabove, as to 25 acres around each of the two producing gas wells. They contend that defendant has breached the obligation implied in the lease to develop the land for oil and gas reasonably and sufficiently and with reasonable diligence.

Plaintiffs’ petition alleges that in the early part of 1946 they demanded of the lessee more extensive development and in default thereof demanded the. cancellation of- the lease except as to 25 acres around each of the two producing wells, but that the defendant has steadfastly refused to develop further or to surrender the property from the terms of the lease.

Defendant-appellant admits plaintiffs’ demand for additional drilling, but denies their allegations of insufficiency of development. On the trial it attempted to justify its failure to develop the property further by showing the existence of a main fault of some 360 feet displacement which traverses this tract of land in a line running in a slightly northwest-southeast direction, there being 439.3 acres south and west of the fault line, and 823.7 acres north and east thereof. The two wells drilled on the tract are situáted on that portion of the property south and west of the fault line, on the up-throw side thereof. Defendant argues that the area on the down-throw side of the fault is outside the Lake Bistineau gas field, and that the drill- ■ ing of wells on that portion of the tract would be' a wildcat proposition, and was not necessary or required under the implied conditions of the lease to develop the property reasonably; that, under the implied obligation of the lease, defendant is not required to drill exploratory wells on the undeveloped portion of the tract lying north and east of the fault line and outside the proven Lake Bistineau field; or, in other words, that the drilling of any additional wells on the property .described in the lease would constitute exploration and not development.

In the Lake Bistineau field, gas is produced from what is known as the Pettit horizon, and it is conceded that this horizon north and east of the principal fault is more than 300 feet deeper than it is to the south and west of the fault. This simply means that the Pettit horizon, from which gas is produced south and west of the fault, is found at a greater depth north and east of the fault.

The producers in the Lake Bisti-neau field have allocated certain acreage to each well, and- the amount of production therefrom is based on the proportionate acreage allocated to each well. With reference to the wells on plaintiffs’ tract, the allocation includes only the lands lying south and east of the main fault, containing 439.3 acres, and the production from these wells is based on this acreage, notwithstanding the fact that plaintiffs’ entire tract contains 1263 acres. Plaintiffs, not being parties to this agreement, of course are not bound by it in any way.

The record does not show that the Commissioner of Conservation has provided any rules or orders regulating the spacing of wells, fixing of allowables, pooling the land, etc., in this field, and, since the producers by voluntary agreement have allocated to each well the amount of gas to be taken therefrom, we can safely assume that no such orders or regulations have been issued.

More than 90 days prior to the filing of the instant suit, plaintiffs made demand on the defendant for further development or for cancellation of the lease, which was refused, defendant taking the position that the property has been sufficiently developed. The record does not disclose that defendant has any present or future plans to develop this property further, and the evidence convinces us, as it did the trial court, that defendant has no intention of making any 'further development.

The law of this state is well settled that the main consideration of a mineral lease is the development of the leased premises for minerals, and that the lessee must develop with reasonable diligence or give up the contract; further, that as to what constitutes development and reasonable diligence on the part of the lessee must conform to, and be governed by, what is expected of persons of ordinary prudence under similar circumstances and conditions, having due regard for the interest of both contracting parties. Pipes v. Payne et al., 156 La. 791, 101 So. 144; Stubbs et al. v. Imperial Oil & Gas Co., 164 La. 689, 114 So. 595; Logan v. Tholl Oil Co., Inc., et al., 189 La. 645, 180 So. 473. See also Merrill, The Law Relating to Covenants Implied in Oil and Gas Leases, 2d Ed., sec. 122, p. 280, sec. 123, p. 284; 2 Summers, Oil and Gas, Perm.Ed., sec. 414, p. 370.

In the leading case of Brewster v. Lanyon Zinc Co., 8 Cir., 140 F. 801, 814, it was said:

“* * * Whether or not in any particular instance such [reasonable] diligence is exercised depends upon a variety of circumstances * * *. Whatever, in the circumstances, would be reasonably expected of operators of ordinary prudence, having regard to the interests of both lessor and lessee, is what is required. * * * ”

Whether in any given case the lessee has sufficiently developed the leased property pursuant to the rule set out above, is a question of fact which must be resolved by a consideration of the facts and circumstances shown in the particular case. This is clearly shown by the statement of Mr. Justice Van Devanter, who was a circuit judge, in the case of Brewster v. Lanyon Zinc Co., supra, 140 F. at page 813, that there is * * * difficulty of laying down any comprehensive rule- in respect of a question which is so largely one of fact that it must be resolved in each case according to its particular circumstances * *

The instant case, to say the least, is unique in our jurisprudence, in that'defendant to justify its refusal to develop further the leased premises relies on the existence of a fault which traverses the property, and on the testimony of two reputable and well qualified geologists, one of whom is in defendant’s employ, as to the effect of the fault with reference to production from the leased premises.

These geologists do not in any way condemn the area of the leased premises lying north and east of the main fault, containing 823.7 acres, but the testimony given by one of them, which was most favorable to the defendant, is to the effect that the probabilities are against production, although this area might produce. All the testimony introduced both by plaintiffs and by defendant is to the effect that, according to the history of all such faults in proven oil and gas fields, production has been had on both the up-throw and the down-throw side thereof, with possibly one exception named by defendant’s geologist, that is, the Rodessa field. Plaintiffs’ expert testified that he knew of no instance where production was not obtained from both sides of such fault in a proven field.

In the 10 years or more during which this defendant has had the property under lease, including the primary term which expired on November 6, 1945, no effort has been made and no steps taken to develop the property in any way north and east of the main fault line, nor has defendant conducted geophysical work or made tests of any nature in an effort to ascertain whether production could be had therefrom. Defendant relies solely upon the mere existence of the fault and upon the advice of its geologist not to drill on the 823.7 acres.

Plaintiff called as a witness a competent operator, who has been in the oil and gas business for over 30 years, who has been thoroughly familiar with the Lake Bisti-neau gas field since 1916, who has drilled wells in this field, including the .first deep well in the field, and by whose operation the well which revealed the existence of the fault was drilled. This operator has had seismograph and geophysical work done in the area, and testified that he was thoroughly familiar with all available data with reference to the possibility of producing oil or gas from the Carter tract, and that he would be willing to drill a well thereon provided he owned the lease, and that, if he owned a lease covering the Carter acreage, which is the “main piece of acreage north of the fault line”, he would join with others in the drilling of a well or would drill one himself.

Our analysis of all the testimony convinces us that defendant herein has failed to develop sufficiently the 1263 acres covered by the lease, and that the drilling of only two gas wells which produce in paying quantities is not a reasonable development of this large tract, and that the reasons by which defendant attempts to justify its refusal to develop the property further are not adequate and sufficient, especially in view of the fact that another competent and well qualified producer is willing to drill to the north and east of the main fault line. In other words, defendant has violated the implied condition of the lease to develop the property prudently and reasonably.

Although in the case of Fox Petroleum Co. et al. v. Booker et al., 123 Okl. 276, 253 P. 33, 38, the lease was cancelled on the theory of abandonment, what was said in that case regarding the implied obligation of the lessee to develop the premises is pertinent here:

“The principle, as we understand it, is that development of every part of the lease is an implied condition. Therefore, whether the undeveloped portion be a single tract remote from the rest, or a considerable portion of a very large tract, * * * or the east one hundred acres of a tract of 160, it is an implied condition that the lessee will test every part. * * * ”

The case of Sauder et al. v. Mid-Continent Petroleum Corp., 292 U.S. 272, 54 S.Ct. 671, 674, 78 L.Ed. 1255, 93 A.L.R. 454 (rehearing denied 292 U.S. 613, 54 S.Ct. 856, 78 L.Ed. 1472), was a case in which a lessor, on the ground of insufficient development, brought suit for cancellation of an oil lease containing two adjacent tracts of 320 and 40 acres. Two wells were drilled on the 40-acre tract, but no development whatever occurred on the 320-acre tract. In that case the court made the following observation, which we consider is applicable and pertinent to the instant case:

“ * * * The justification for the respondent’s position is that the geologic data and the experience upon surrounding lands are both unfavorable to the discovery of oil or gas upon the east half of section 16 (the 320-acre tract). The respondent’s officers state that they desire to hold this tract because it may contain oil; but they assert that they have no present intention of drilling at any time in the near or remote future. This attitude does not comport with the obligation to prosecute development with due regard to the interests of the lessor. The production of oil on a small portion of the leased tract cannot justify the lessee’s holding the balance indefinitely and depriving the lessor, not only of the expected royalty from production' pursuant to' the lease, but of the privilege of making some other arrangement for availing himself of the mineral content of the land.”

In our opinion plaintiffs are entitled to the relief for which they prayed in their petition — that is, that the lease be cancelled except as to 25 acres around each producing' well— but, since they did not appeal from the judgment which retained the lease in full force and effect as to 439.3 acres, or answer the appeal, we can afford them no further relief.

Defendant-appellant contends that the decision of the district court had the effect of dividing the plaintiffs’ obligation under the lease or of making the lease divisible and of rewriting or remaking the contract. Under the very terms of the lease itself, if it should be terminated for any cause, the lessee is entitled to retain 25 acres around each producing well, and defendant certainly cannot now be heard to complain of the judgment of the lower court which allowed it to retain 439.3 acres.

For the reasons assigned, the judgment appealed from is affirmed; defendant-appellant to pay all costs.

O’NIELL, C. J., absent. '


author: McCALEB, Justice.

text:
    213 La. 1040
    EUMONT v. RAILWAY EXPRESS AGENCY, Inc., et al.
    No. 38534.
    Supreme Court of Louisiana.
    June 1, 1948.
    H. E. Fallon, of New Orleans, for appellant.
    Lemle, Moreno & Lemle, of New Orleans, for appellees.
   McCALEB, Justice.

This is a suit to recover damages for malicious prosecution. The substance of plaintiff’s claim is that he was arrested on September 29, 1941, at the instance of his employer, Railway Express Agency, Inc., acting through its investigator, A. M. Posey, and charged with the embezzlement of various articles of merchandise; that, after a trial in the Criminal District Court, he was found not guilty by a jury; that the prosecution was malicious and unjust and that, as a result, he has been damaged in the sum of $23,000 for which the defendants, Railway Express Agency, Inc. and A. M. Posey, are liable insólido.

The defendants resisted the demand on the ground that the charges made against plaintiff were without malice and based on probable cause.

After a trial in the District Court, there was judgment in favor of the defendants dismissing the suit. Plaintiff has appealed.

We find the facts of the case to be as follows: During the early part of 1941, Railway Express Agency received claims from various shippers in New Orleans for merchandise which had never been received by'the consignees. Briefs on these claims were sent to Mr. A. M. Posey, a special agent for Railway Express whose office is in Memphis, Tennessee, and he came to New Orleans where he conducted an investigation for the purpose of ascertaining the reason for the losses. With the assistance of various records, Mr. Posey was able to determine that the shipments were probably disappearing during transfer from the Terminal Station to the Texas and Pacific Railroad Station and, since plaintiff and one Powell were.chauf-fers of the Company’s trucks on that particular route, they were brought under suspicion. However, the efforts of Mr. Posey produced no definite results; no action was taken either 'by him or other officials of Railway Express and he returned to Memphis.

Subsequently, in March, a salesman for Buckman & Company of New Orleans, one of the firms making claim for lost shipments, spotted a bolt of goods in the window of “Handy Tailors”, Erato and Rampart Streets, which he identified as part of a shipment from his Company for which claim had been made. He immediately contacted officials of Railway Express and they reported the fact to the police. The police made an investigation which resulted in the arrest of the proprietress of “Handy Tailors”. She informed them that she had purchased the bolt of goods, and others of the same kind, from a Mr. Edward Feinmann, the operator of a store on Dryades Street, and had paid for them by check. Thereupon, the police contacted Feinmann, who, admitted that he had sold the goods to the lady but claimed that he bought them from a Negro and had no idea that they were stolen. Feinmann was then arrested and charged with receiving stolen property. There were no further developments in the matter until the month of September, during which Feinmann’s case was fixed for trial. Shortly before the appointed day the police, with the knowledge and approval of Railway Express, contacted Feinmann’s attorney and proposed that, if Feinmann would name the person who sold him the stolen goods, the District Attorney would agree to nolle prosequi the charge against him. At that time (September 25, 1941), Captain William G. Bell, Acting Chief of Detectives of the New Orleans Police Department, telegraphed to Mr. Posey in Memphis as follows: “Your presence urgent this city Monday September 29 reference case pending reply immediately.” On the morning of September 29th, Mr. Posey arrived in New Orleans and contacted the police. He went with them to the office of Feinmann’s attorney and, thereafter, Feinmann made a written confession in which he named plaintiff as the person from whom he had bought various stolen merchandise.

In the early afternoon of the same day, plaintiff was arrested at his home and brought to the First Precinct Station. He claims that he was immediately taken into a yard, where he was administered a severe beating; that, to save himself, he signed various confessions which were already prepared and that he signed these confessions while he was standing, using Mr. Posey’s briefcase as a support.

On the other hand, the detectives and Mr. Posey testified that plaintiff was incarcerated in the precinct station and, on the following morning, he indicated that he wanted to talk to Posey alone; that, at that time, he made a verbal confession to Posey; that, later -on the same day (September 30th), he. was taken to the Second Precinct Station where he dictated eleven, written confessions (a separate confession for each lot of merchandise allegedly stolen by him). Plaintiff was thereafter tried and acquitted. This suit followed.

After a perusal of the evidence, We have no hesitancy in concluding that plaintiff has utterly failed to make oüt a case of malicious prosecution and that the District Judge did not err in dismissing his suit. The jurisprudence in these cases is firmly established and it has been many times stated and reiterated that an action for malicious-prosecution will not lie unless there is a concurrence of the presence of malice and the absence of probable causé. In the recent case of Eusant v. Unity Industrial Life Ins. etc. Ass’n, 195 La. 347, 196 So. 554, 556, we said: “This court in the early -case of Barton v. Kavanaugh, 12 La.Ann. 332, held that the plaintiff must not only prove malice, but must also show that there was no probable cause for the prosecution. Both must concur. This rule of law has never been deviated from, the latest expression to that effect being found in the case of Urbanek v. Moore, 179 La. 300, 154 So. 4. See, also, Womack v. Fudikar, 47 La.Ann. 33, 16 So. 645; Mosley v. Yearwood, 48 La.Ann. 334, 19 So. 274; Lang v. De Luca, 108 La. 304, 32 So. 329; Carnes v. Atkins Bros. Co., 123 La. 26, 48 So. 572; Graham v. Interstate Electric Co., 170 La. 392, 127 So. 879.”

Probable cause does not depend upon the actual state of the case in point of fact, “but upon the honest and reasonable belief of the party prosecuting”, Sandoz v. Veazie, 106 La. 202, 30 So. 767, 773, and the burden is on plaintiff to prove want of probable cause for the prosecution. Graham v. Interstate Electric Co., supra.

We find it difficult, in our examination of plaintiff’s brief, to discern the basis of his complaint in view of the record. It seems to be pitched on the idea that, since the defendants cannot definitely show by evidence, independent of the confessions and Feinmann’s statement that the stolen merchandise came into his hands, probable cause did not exist. Then, too, counsel lays great stress on plaintiff’s evidence that he was severely beaten by the detectives and Mr. Posey, as corroborated by photographs and medical testimony showing that he had sustained contusions and bruises of the body.

However, three detectives and Mr. Posey deny that plaintiff was maltreated and the eleven confessions offered in evidence contain information and statistics, concerning members of plaintiff’s family, which could not have been obtained by the detectives or the Railway Express Company in advance of the signing of the confessions. This circumstance has the effect of weakening plaintiff’s testimony that the confessions were already prepared at the time that he signed them; that he did not know the contents and that he furnished the officers no information whatever.

But, even if it be conceded that the confessions were involuntary, plaintiff fails to show lack of probable cause for the prosecution as there remains the testimony of Feinmann and his wife that plaintiff is the man from whom the stolen goods were purchased. There can be no doubt at all that someone stole merchandise from the Express Company while in transit. This, plus the direct evidence of the person found in possession of the stolen property that plaintiff is the culprit, fully warranted the defendants in assisting the police in his prosecution.

The judgment is affirmed.


text:
    213 La. 1047
    STATE v. GUIDRY.
    No. 38717.
    Supreme Court of Louisiana.
    June 1, 1948.

      A. V. Pavy and Lessley P. Gardiner, both of Opelausas, for appellant.
    Fred S. LeBlanc, Atty. Gen., M. E. Culli-gan, Ass’t Atty. Gen., and Seth Lewis, Dist. Atty., of Opelausas, for appellee.
   HAWTHORNE, Justice.

Defendant, Theo Guidry, charged in a bill of indictment with the crime of aggravated rape [of a juvenile], after trial was found guilty of simple rape and sentenced to serve a term in the state penitentiary.

On the trial of this case two bills of exception were taken to rulings of the court on the admissibility of testimony elicited from witnesses for the State on direct examination, over the defendant’s objection that this testimony was hearsay.

Clifton Jeansonne, chief of police of Eunice, Louisiana, a witness for the State, was asked on direct examination whether the prosecuting witness had shown him the place where the alleged rape occurred. Over defendant’s objection he was permitted to describe the location of the place pointed out to him by the prosecuting witness.

The trial judge in his per curiam points out that this testimony was admitted solely for the purpose of establishing venue — ■ that is, that the crime was committed within the Parish of St. Landry. We are convinced that the question was asked, not to prove the truth of the assertion that the rape had been committed at this place, but to establish that a place had been pointed out to the officer by the prosecuting witness, and this officer established only the fact that the place designated was in the Parish of St. Landry. A reading of the testimony attached to the bill shows that it in no way pertains to the guilt or innocence of the accused.

The trial judge further states that the testimony of the chief of police as to the place where the crime was alleged to have been committed was subsequently corroborated by the prosecuting witness herself, and under these circumstances the defendant was in no way prejudiced by the admission of the testimony of the chief of police, which was admitted solely for the purpose of establishing and proving venue.

In support of his ruling, the trial judge relies on the case of State v. Brasseaux, 163 La. 686, 112 So. 650, certiorari denied 275 U.S. 522, 48 S.Ct. 22, 72 L.Ed. 405, and we think that this case is full authority for his position.

The other bill of exception was taken to a question propounded on direct examination to Dr. J. J. Stagg, also a witness for the State, who had testified that he ordeied his technician to make a smear from the vagina of the prosecuting witness. When he was asked whether he had later made an examination under a microscope of this smear, counsel for defendant objected on the ground that, unless the doctor could testify that the smear was taken under his direction and in his presence, and that he saw it mounted on a microscope, the testimony constituted hearsay of the rankest sort.

The trial judge’s per curiam to this bill states: “The Court, out of the presence of the Jury, and by questioning the doctor, satisfied itself completely that this smear was made under the direction of the doctor, by his technician, who was in attendance at the physical examination of this child [the prosecuting witness] ; that it was thereupon mounted on the microscope and personally examined by him. All of this was accomplished at one and the same time in the usual course. The doctor was able to testify and did testify that the smear he examined was taken from the vagina of the child and that he examined that slide.

The per euriam of the trial judge fully and completely answers the objection made by counsel for defendant, and we find no merit in this bill.

The conviction and sentence are affirmed.

O’NIELL, C. J., dissents from the ruling on the bill relating to the testimony of Clifton Jeansonne.