author: HAMITER, Justice.

text:
    212 La. 965
    COMISKEY v. DISALVO.
    No. 37990.
    Supreme Court of Louisiana.
    Dec. 15, 1947.
    Rehearing Denied Feb. 16, 1948.
    Fred S. LeBlanc, Atty. Gen., and Bertrand I. Cahn, Sp. Asst. Atty. Gen., for appellant.
    Friedrichs, Connolly & Simoneaux, of New Orleans, for plaintiff-appellee.
   HAMITER, Justice.

As the holder and owner of a promissory note secured by a vendor’s lien and special mortgage on a lot of ground in the City of New Orleans plaintiff, James E. Comiskey, resorted in this cause to execu-tory process to obtain the seizure and sale of the property. The note, together with its security, had been given by the defendant, William Disalvo, and represented a part of the consideration for his purchase of the lot from Charles J. Ziegler on March 24, 1943. It was acquired in due course by plaintiff.

Under the writ of seizure and sale, which recited that there was due to plaintiff the sum of $5,019.07, plus interest, taxes and costs, the property was adjudicated at a sheriff’s sale on September 28, 1944, for $4,650. But this amount was insufficient to satisfy all of the encumbrances affecting the property, they being, according to a mortgage certificate of that date, as follows :

Mortgage granted by said William Di-salvo in favor of his vendor, Charles J. Ziegler, to secure the sum of $5,250, interest, etc., as per act before Clarence de Lucas, Notary Public, dated March 24, 1943, recorded in the Mortgage Office on March 25, 1943, in Book 1652, folio 378, being the mortgage foreclosed on herein.

Judgment in favor of Philip Rissuto against William Disalvo, in the sum of $1,050, interest, etc., rendered by the Civil District Court for the Parish of Orleans, under the No. 256,065 of its docket, dated June 2, 1944-, recorded in the Mortgage Office on the same day, in Book 1601, folio 546.

Judgment for license tax in favor of the State of Louisiana and against William Disalvo, in the sum of $333.33, interest, etc., rendered by the Civil District Court for the Parish of Orleans, under the No. 218,141 of its docket, dated July 27, 1936, recorded in the Mortgage Office on July 28, 1936, in Book 1507, folio 221.

Whereupon, the civil sheriff of the Parish of Orleans caused the issuance of a rule, under which all interested parties were cited, for the purpose of obtaining a judicial ranking of the encumbrances.

After trial of the rule, the court decreed that the claims be paid from the proceeds of the sheriff’s sale in the following order:

1. The vendor’s lien and mortgage held by plaintiff.

2. Judgment of the State of Louisiana for the license tax due it.

3. Judgment in favor of Philip Rus-suto.

From this ruling the State of Louisiana appealed, thereby presenting for our determination the question of whether its claim should be satisfied by preference and priority over the vendor’s lien of plaintiff, James E. Comiskey.

The record does not contain a copy of the State's judgment or of the proceedings in which it was rendered. From the brief of counsel we learn, however, that it was obtained in July, 1936, in a suit brought against William Disalvo to recover the unpaid balance ($333.33, with penalties and interest) of an occupational license procured by him on September 21, 1935, in order to engage in the City of New Orleans in the business described in Section 1(a) of Act No. 24 of the Third Extra Session of 1935. And in the judgment there was recognized a first lien and privilege of the State upon all of the property, movable and immovable, of such tax debtor.

The mentioned statute, under which Di-salvo was sued, did not itself create a first lien and privilege in favor of the State. It did in Section 4 thereof, however, authorize the Supervisor of Public Accounts to enforce payment of the assessed taxes “in the same manner as provided for the collection of license taxes levied by Act 15 of the Third Extra Session of 1934 and its amendments * * And Section 52 of the latter act made provision for such lien and privilege as follows: “That all unpaid licenses shall bear interest at the rate of two percent per month from the first day of March, and the payment thereof shall be secured by first lien and privilege in favor of the State upon the property, movable and immovable, of the delinquent owing the license, and the Supervisor of Public Accounts shall collect said license and interest in the manner prescribed by existing laws.”

This section, by the authority of which the lien and privilege was recognized in the State’s judgment, was amended by Act No. 429 of 1938, § 1, to the extent of making the lien and privilege applicable to property used in carrying on the business as well as that belonging to the delinquent tax debtor. But by Act No. 368 of 1940, § 1, said Section 52 as amended by the 1938 Act, was further amended and re-enacted so as to provide, among other things, that the State’s lien and privilege should not take priority over a subsequently recorded vendor’s lien retained in an act of transfer of property. And in 1942, by Act No. 166, § 11, said Section 52, as amended, was again amended and re-enacted, and that statute, which is the latest on the subject, fails to accord to the State any first lien and privilege to secure the payment of license taxes.

Relying on Acts No. 368 of 1940 and No. 166 of 1942, counsel for Comiskey, in their brief, point out that “ * * * the first lien and privilege accorded the State by the original provisions of Act No. 15 of 1934 of the Third Extra Session was first impaired, and, in the last act quoted, abolished.” Hence, they insist that the vendor’s lien in question, which was retained in an. act of transfer of property and recorded subsequent to the 1940 and 1942 statutes, outranks the State’s claim herein. Countering, the State takes the position, to quote from the brief of its counsel, that “the legislation relied upon by opposing counsel is not, and was not intended to be, retroactive.

“That, if the legislature intended the legislation to have retroactive effect, so as to subordinate the State’s highest lien to secure its claim for taxes, after same was reduced to judgment and its lien recognized therein, then said legislation is unconstitutional.”

Had the vendor’s lien of Comiskey come into being prior to the enactment of the 1940 and 1942 legislation, even if subsequent to the obtaining and recordation of the tax judgment, there might be some merit in the State’s contention, for it could be argued forcefully (although we do not say correctly, because the question is not before us) that the rights of the parties were fixed by the law then in existence. But that contention overlooks the significant fact that the judgment debtor Disalvo did not purchase the property, and plaintiff’s security did not arise, until the year 1943. At that time there existed no law favoring the tax claim of the State over a vendor’s lien; on the contrary the latter was recognized as being superior to the former. The State, in other words, could have no privilege on or vested right in the property involved in this cause until Disal-vo’s purchase of it in 1943, and when that occurred our statutory law preferred the vendor’s lien to the license tax claim.

Thus, the facts of this case do not furnish, and we do not decide, the legal question of whether the statutes of 1940 and 1942 are to be given a retroactive effect and applied to a vendor’s lien previously created. Involved here is merely the matter of applying those statutes to a subsequently arising vendor’s lien, and the trial court, in our opinion, has correctly ruled that it is to be paid by preference and priority over the State’s claim.

The judgment is affirmed.

BOND, J., absent.


source: Caselaw Access Project

author: FOURNET, Justice.

license: Public Domain

text:
    212 La. 971
    FLETCHER v. FLETCHER.
    No. 37583.
    Supreme Court of Louisiana.
    Jan. 12, 1948.
    Martin E. Kranz, of New Orleans, for defendant and appellant.
    Alcide J. Weysham, of New Orleans, for plaintiff and appellee.
   FOURNET, Justice.

Ferdinand J. Fletcher instituted this suit against his wife, Emma P. Fletcher, to secure a divorce on the ground that they had been living separate and apart for more than two years. In her answer the defendant admitted the separation had occurred more than two years previous but, averring it was precipitated by the plaintiff’s neglect, abuse, and cruel treatment, she asked for alimony in an amount to be fixed by the court and for attorney fees of $150. There was judgment in the lower court granting the divorce but denying the wife’s claim to alimony. She is appealing from such judgment.

The parties having lived separate and apart for more than two years, the plaintiff was entitled to a divorce, Act No. 269 of 1916, as amended by Act No. 430 of 1938; White v. Broussard, 206 La. 25, 18 So.2d 641, thus leaving; -for our consideration the question of whether the wife, by a preponderance of the evidence, established her right to alimony under Article 160 of the Revised Civil Code, as amended, wherein it is provided that where “the husband has obtained a divorce upon the ground of such living separate and apart, and the wife has not been at fault, then the court may allow the wife in its discretion, out of the property and earnings of her husband, alimony which shall not exceed one-third of his income.” (Italics ours.)

This question was resolved against the wife by the trial judge and his findings in this respect will not be disturbed unless they are manifestly erroneous. Abbott v. Abbott, 199 La. 65, 5 So.2d 504; Jones v. Jones, 200 La. 911, 9 So.2d 227; Gerstner v. Stringer, 205 La. 791, 18 So.2d 195; Matheny v. Matheny, 205 La. 869, 18 So.2d 324. From our appreciation of the facts in this case as found in the very meager note of evidence that is in the record, it is our opinion that the trial judge’s conclusion in this respect is correct.

Counsel for the appellant calls our attention to the fact that the trial judge in his judgment failed to allow the wife’s claim for attorney fees and he asks that we fix such fees in accordance with her demand.

A reference to the record shows that the trial judge not only did not adjudicate upon this particular claim, but that the reason for his failure in this respect is not evident and it is not even clear that he gave the matter any consideration. In view of this fact and the condition in which we find the record, we do not feel justified in giving this matter the consideration requested, particularly since the defendant has failed to cite any authorities in support of her right to attorney fees in a case of this kind. Such right as she may have, if any, is reserved to her and her claim in this respect is, therefore, non-suited.

For the reasons assigned, the judgment of the lower court is amended by non-suiting the defendant’s claim to attorney fees and as thus amended it is affirmed.


text:
    212 La. 975
    LA GRAIZE et al. v. TRACY et al.
    No. 38347.
    Supreme Court of Louisiana.
    Dec. 15, 1947.
    Rehearing Denied Feb. 16, 1948.

      Alfred D. Danziger, of New Orleans (Arthur L. Ballin', of New Orleans, of counsel), for plaintiffs-appellants.
    Legier, McEnerny & Waguespack, Edward R. Schowalter and Preston J. Scho-walter, all of New Orleans, for appellees-movers.
   HAMITER, Justice.

In this suit, plaintiffs, who are the heirs of Desire L. LaGraize and Mrs. Alice Berg-eron LaGraize, seek to set aside certain powers of attorney, leases, mineral deeds and other documents which they, together with the said Mrs. LaGraize, executed in favor of defendant, James J. Tracy, an attorney at law of the New Orleans Bar. Others cited as defendants are the La-fourche Petroleum Company, Miss B. Esma Newhauser, Miss Miriam R. Newhauser, and S. R. Coulon, all of whom are alleged to be transferees of.Tracy.

As to the cause of action forming the basis of the demands of plaintiffs, the brief of their counsel states: “* * * The suit arises out of an attorney-client relation, and charges the principal defendant, James J. Tracy, with having abused his position as attorney for his own benefit, and to the detriment of plaintiffs who were his clients. * * * Plaintiffs base their prayer for relief on the fact that defendant Tracy obtained said agreements and documents by misrepresentation and by abuse of his position as their attorney. * * * Plaintiffs are particularly aggrieved by a so-called ‘Agreement and Assignment’ of Aug. 3, 1936 (Tr. Yol. 1, p. 60), and ‘Extension’ of March 6, 1939 (Tr. Vol. 1, p. 64) which purport to extend the primary terms of leases, which ‘Extension’ was for the sole benefit of James J. Tracy and was signed by said James J. Tracy as attorney in fact for plaintiffs, without their knowledge or consent.”

All of the charges made by plaintiffs were denied by the defendants in their answer.

After the trial of the case, which consumed almost five weeks and resulted in the building of a voluminous record, there was judgment rejecting the demands of plaintiffs, the trial court holding that they had not “established the essential facts necessary to obtain the relief prayed for.”

Following the taking of an appeal to this court by plaintiffs, appellees moved to dismiss it on March 5, 1947, alleging that the record was not timely filed. In denying the motion, 211 La. 765, 30 So.2d 828, we pointed out that appellees had tendered a previous motion (February 5, 1947) in this court suggesting that the transcript was incomplete and praying that appellants be ordered to show cause why the omitted documents should not be included therein; then we ruled: “Since appellees have taken a position inconsistent with the dismissal of the appeal, they are now precluded from having the appeal dismissed.” 211 La. 765, 30 So.2d 828, 829. Subsequent to that ruling, appellees filed another motion to dismiss the appeal in which they now contend that appellants, in petitioning for the appeal, did not cause to be cited defendant Miriam R. Newhauser, in whose favor the district court rendered an indivisible and inseparable judgment. This defendant was a party to the motion respecting the completion of the transcript, and for the reasons given in connection with our previous ruling the present motion to dismiss must and will be denied.

Addressing ourselves now to the merits of the case, we find that in the year 1895, Desire L. LaGraize purchased at a tax sale, under an assessment to the estate of Jules Lapene and for unpaid taxes of 1894, a number ot tracts of land in Lafourche Parish totaling, according to the deed evidencing the sale, approximately 1591.87 acres. Later (May 14, 1904), Desire L. LaGraize sold several of these tracts (a total of about 530 acres) to Dr. J. E. Blanchard, Jr. And on his remaining land he, in 1928, granted an oil gas and mineral lease, for a primary term of five years, to E. F. Simms. The instrument particularly described the property affected and then stated, “Sea Marsh total acres 1080, more or less.” This lease, subsequently, was acquired through assignments by the Southern Sulphur Corporation and the Prince Oil Company, Inc.

Shortly after his execution of the mentioned Simms lease, LaGraize sold to S. A. Guidry, Dr. Thomas Stark and P. C. Au-thement “an undivided one-half (%) interest in and to all the oil, gas, sulphur and other minerals on, in and under * * *” almost all of the leased lands.

In 1934, after the death of Desire L. La-Graize which occurred in 1931, the decedent’s widow accepted rental payments under the Simms lease, notwithstanding that its primary term had expired; and because of the acceptance the assignees of Simms were contending that such.lease was then in full force and effect. Whereupon Mrs. LaGraize and her children asked a friend of the family to obtain for them the services of an attorney, and he, in compliance with the request, suggested and introduced the principal defendant herein, James J. Tracy.

Following the introduction, the widow and heirs of Desire L. LaGraize executed a power of attorney or what was styled a “Procuration” (there were two identical instruments, one of which was signed on April 11, 1934, by the widow and heirs living in or near Thibodeaux and the other on April 16, 1934, by the heirs living in or near New Orleans). In the procuration the signers appointed James J. Tracy as their true and lawful attorney in fact and granted to him certain powers. Further, the following was contained therein:

“#1. The aforesaid powers granted herein to said attorney in fact are to be confined to any and all matters of every nature and kind whatsoever, in connection with the:
“1. Opening of the succession of Desire L. LaGraize.
“2. Putting in possession, all heirs in connection therewith.
“3. Emancipation of the minor Albert LaGraize.
“4. Clearing the following described land and the public records in connection therewith, without any admission whatever on the part of the said constituents as to the force, effect or validity of one certain oil, gas and sulphur lease executed by Desire L. LaGraize in favor of E. F. Simms, his successors and assigns, under date of February 25th, 1928, and recorded in the Records of Lafourche Parish, Louisiana, No. 15563, on May 19th, 1928.
“All of the above in connection with the following described land, to-wit: (Here follows the identical description contained in the Simms lease, with this added statement : “ * * * and this to include all the lands whether properly described herein or not which the said Desire L. LaGraize purchased at a tax sale June 22, 1895, C. B. 29 — Folio 54.”)
“#2. It is hereby agreed by said constituents that this power of attorney, being coupled with an interest, is irrevocable.
“#3. It is agreed by said constituents that the services to be rendered by the said James J. Tracy, attorney-in-fact, are valued at the sum of $5,000.00. In consideration of said above services being rendered by the said James J. Tracy, the said constituents hereby contract, agree and bind themselves :
“(a) To execute in favor of the said James J. Tracy, a customary oil, gas and sulphur mineral lease, carrying the customary royalty to the said constituents, on all of the aforesaid land of every kind and character; said mineral lease to be for a period of five years from date thereof, and, as further consideration for said services being rendered by said James J. Tracy, said mineral lease is to be free of any and all rentals payments during the term thereof.
“(b) To execute in favor of the said James J. Tracy, a mineral deed conveying a one twenty-fourth (l/24th) mineral interest in and to all of the minerals of every kind and character in, on and under all of the aforesaid land, less amount previously sold.”

The mentioned lease and mineral deed in favor of Tracy were executed simultaneously with the procuration’s signing.

In August, 1934, the widow and heirs amended the lease granted to Tracy so as to relieve him of the drilling obligation therein stipulated, and also they amended the mineral deed by providing that it should cover the mineral interests previously sold by Desire L. LaGraize on the reversion thereof by reason of forfeiture.

In the meantime, Tracy was engaged in performing the four tasks enumerated in the procuration. He opened the succession of Desire L. LaGraize, had the heirs placed in possession of decedent’s property, obtained the emancipation of the minor, Albert LaGraize, and instituted suit (May 17, 1934) to secure the cancellation of the Simms lease. The litigation resulting from this last mentioned action was terminated in September, 1934, through the signing of documents by the assignees, Southern Sul-phur Corporation and Prince Oil Company, Inc., releasing, relinquishing and surrendering their interests in the Simms lease.

During Tracy’s performance of those services, however, a claim was made by the Louisiana Land and Exploration Company to a large portion of the land to which the widow and heirs asserted ownership, and, as a result of this claim, they executed in favor of Tracy on November 10, 1934, a document reading in part as follows:

“Whereas, since the signing of said Acts of Procuration, it has now just been discovered by the parties of the first and second part, that certain lands belonging to the parties of the first part, has been claimed by the Louisiana Land & Exploration Company of New Orleans and elsewhere; said lands being described as follows, to-wit:
“(Here follows a description of the land.)
“Whereas, the recovery and/or clearing of said above cloud on said title of parties of the first part, of the hereinabove described lands or any part thereof, all originally covered under and by the above referred to Acts of Procuration, was not contemplated, nor was any agreement to recover and/or remove said above cloud on said title entered into under the terms and conditions of said Acts of Procurations, it being definitely understood by all parties thereto at said above time that said parties of the first part had a good and clear title to a-11 of the lands as described and covered by said Acts of Procurations, and,
“Whereas, the party of the second part (James J. Tracy) is now called upon by parties of the first part, to perform extensive additional services and incur additional heavy expenses, due to it now having become necessary to recover and/or remove said above cloud from said title to said above lands, and,
“Whereas, it now becomes necessary to amend said Acts of Procurations in order to include the said above recovery and/or clearing of said above cloud to said title to said lands, and to extend any and all powers granted to said attorney in fact therein, so as to include any and all matters in connection with the said recovery and/or removing said cloud, and,
“Therefore, in consideration of the extensive additional services rendered and to be rendered and the heavy expenses incurred and to be incurred by the party of the second part, in recovering, and/or removing cloud from, said title to said above lands, receipt of which is hereby acknowledged, and for other good and valuable consideration, the parties of the first part do by these presents, sell, assign, set-over and deliver unto the party of the second part fifty (SO) per cent undivided interest, in fee simple, in and to all of the lands recovered, and/or upon which lands the cloud on the title has been removed.”

Pursuant to this agreement, Tracy, along with Attorney George Seth Guión whose legal services he had enlisted, brought suit on March 13, 1935, in the 17th District Court of Lafourche Parish praying for a judgment recognizing the widow and heirs to be the owners of the disputed property. The suit was removed to the United States District Court for the Eastern District of Louisiana on the petition of defendant, and on April 30, 1937, that court rendered and signed a judgment dismissing it and rejecting the demands of plaintiffs. This judgment was affirmed by the United States Circuit Court of Appeals, Fifth Circuit, on March 4, 1938.

While that litigation was pending, specifically on August 3, 1936, the widow and heirs entered into another agreement with Tracy. Therein reference is made to the acts of procuration of April 11 and 16, 1934, and then it is stipulated that since the signing thereof “ * * * it has now just been discovered by the parties hereto that * * * ” certain lands belonging to the widow and heirs had been omitted from the succession proceedings of Desire L. La-Graize. The omitted lands, which are described in the act, are located near the Town of Golden Meadow. Further, the agreement provides:

“Whereas, the party of the second part (James J. Tracy) is now called by the parties of the first part to perform extensive additional services and incur additional heavy expenses, due to it now becoming necessary to re-open said above succession proceedings in order to include said above lands or any part thereof, and further, to remove any and all clouds that may exist against the title of said parties of the first part to said lands.”

And it concludes:

“Therefore, in consideration of the extensive additional services rendered and to be rendered, and the heavy expenses incurred and to be incurred by the party of the second part, (James J. Tracy) in connection with the re-opening of the succession of the said Desire L. LaGraize, and in recovering and/or removing any and all clouds against the title of the said parties of the first part to said hereinabove mentioned lands, receipt of which is hereby fully acknowledged, and for other good and valuable consideration, the parties of the first part do by these presents sell, bargain, grant, convey, transfer and deliver unto the party of the second part (James J. Tracy), an undivided fifty (50%) per cent interest, in fee simple, in and to any and all of the said above described lands, or any part thereof, which may be recovered, and/or upon which lands or part thereof the clouds or cloud on said title thereto has been removed or cleared.
“In consideration of the same consideration herein expressed above, the parties of the first part hereby and hereunder extend the primary term of said mineral leases executed by and between themselves and the party of the second part, under date of April 11th and 16th, 1934, respectively, and recorded in the conveyance records of the said Parish of Lafourche, Louisiana, on June 4th, 1934, in C. B. 71, Folios 410 and 412, entries Nos. 26703 and 26704, so as to include any and all time lost or delays occasioned by any and all litigation connected with any and all lands covered thereunder and/or the royalty rights therein or thereon ; the said extension of said primary term of said mineral lease as above to include the entire lease as a whole in every respect, it being further understood by the parties hereto that said above described above lands or any part thereof are to be included in and covered under, and are included in and covered under, said above mentioned ■ mineral leases.”

With reference to the Golden Meadow acreage, referred to in the August 3, 1936, agreement as having been omitted from the succession proceedings, Tracy after numerous conferences and considerable effort (which will be more fully discussed hereinafter) was successful in obtaining from the Register of the State Land Office a corrected patent in favor of Jules Lapene (through whom the LaGraize heirs are claiming) describing land of which the omitted property was a part; further, he secured an ex parte judgment placing the widow and heirs in possession of it. The remaining part of the agreement of August 3, 1936 (that dealing with the extension of the lease), will likewise be considered more fully hereinafter.

Furthermore, during the pendency of the Louisiana Land and Exploration Company litigation, the persons who had acquired mineral interests from Desire L. LaGraize in 1928 (or their heirs or assigns), were asserting those interests, and on November I, 1936, they granted to the Helis Petroleum Corporation an oil, gas and mineral lease on part of the LaGraize lands covered by Tracy’s lease and mineral deed To obtain a cancellation of the Helis Petroleum Corporation’s lease, Tracy, together with the law firm of Guión and Schulze, instituted a slander of title suit on April 15, 1937.

Before the termination of that suit, James J. Tracy, acting as attorney in fact for the widow and heirs of Desire L. LaGraize, executed on March 6, 1939, in favor of himself individually an instrument styled an “Extension.” Therein, reference is made to the leases granted to Tracy of date April 11 and 16, 1934; and the following, which relates to those leases, is then stipulated:

“That Whereas, the aforementioned owners and co-owners, executed an ‘Agreement and Assignment’, of date August 3rd, 1936, to the aforementioned James J. Tracy, individually and as Lessee, his heirs, successors and assigns, and recorded in the Conveyance Records of the Parish of La-fourche, Louisiana, C. B. 77, Entry '#32224, on August 12th, 1936, in which the parties thereto agreed, and did, extend the ‘Primary Term’ of the mineral leases hereinbefore mentioned, so as to cover time lost or delays occasioned by any and all litigation connected with any and all lands thereunder and/or royalty rights therein or thereto. The said extension of said ‘Primary Term’ of said mineral leases as above mentioned, to include the entire leases as a whole in every respect.
“Now Therefore, in full accordance with hereinbefore mentioned ‘Agreement and Assignment’ of date August 3rd, 1936, I, James J. Tracy, acting in my duly authorized capacity as attorney-in-fact of aforementioned owners and co-owners, by virtue of aforementioned Irrevocable Acts of Procuration, hereby extend the ‘Primary Term’ of aforementioned mineral leases to cover the time lost and delays occasioned as outlined in said ‘Assignment and Agreement’ of August 3rd, 1936, whereby said ‘Primary Term’ of aforesaid mineral leases is now, by these presents, extended in its entirety, to and including April 11th and 16th, 1943.”

This extension, which is vigorously assailed by plaintiffs herein, was recorded in the Conveyance Records of Lafourche Parish on March 8, 1939, and on the following day Tracy mailed to Mrs. LaGraize a copy of it.

On May 4, 1940, Mr. A. D. Danziger, the attorney who instituted the present action on behalf of plaintiffs, addressed a letter to Mr. Tracy informing him that the La-Graize heirs (Mrs. Alice Bergeron La-Graize died August 25, 1939) desired “ * * * to give notice that any and all forms of powers of attorney heretofore executed between you and them are revoked and it is their desire that you take no further steps in connection with their property, either as attorney or otherwise.” And on July 26, 1940, there was recorded in the Conveyance Records of Lafourche Parish an instrument signed by all of the La-Graize heirs in which they expressly approved the mentioned letter (it was quoted in full) and then gave notice to whom it may concern that all agreements between them and Tracy (they were particularly referred to therein) were cancelled and revoked. Further, the instrument evidenced a contract of employment between the heirs and their present counsel.

The instant suit was instituted on July 3, 1941, and on July 8, 1941, a notice of lis pendens was recorded in the mortgage records of Lafourche Parish.

The litigation', as we appreciate the allegations of the petition and the argument made in behalf of plaintiffs, presents only the issue of whether or not the attacked documents (procuration, lease, mineral deed, agreements and extension) were obtained by Tracy through misrepresentations and by abuse of his position as attorney for the LaGraizes. In addition to the extracts quoted hereinabove, which clearly sustain our conclusion as to the issue presented, the following appear in the briefs submitted in behalf of plaintiffs: “We contend that undue influence was exercised by Tracy. * * * In final analysis, the legality and validity of the contracts under investigation revolve upon Tracy’s compliance with his duties as an attorney dealing with his clients. * * * At the very core of this suit, however, is the fiduciary relation of attorney and client. All dealings attacked in this suit were made under the influence of, with regard to, and as a result of said fiduciary relation. And the transactions between plaintiffs and Tracy were attacked because they were made under the influence of said fiduciary relation. In short, it is not our main contention that said contracts are voidable as such, but that they should be set aside because they were induced and brought about by, and resulted from, the fiduciary relation.” Hence, we are not called upon, and do not attempt, to determine whether or not such agreements and other documents are otherwise valid and effectual.

The charge of abuse and undue influence does not seem to concern directly the confection of the original procuration, lease and mineral deed, for practically all of the heirs admitted during the trial of the case that they knew the employment agreement provided for Tracy’s performing four legal services, viz.: opening the succession, having the heirs placed in possession, securing the emancipation of the minor, and obtaining the cancellation of the Simms lease; and they have not denied that these tasks were accomplished satisfactorily and within a reasonable period of time. The complaint is that the heirs are plain, uneducated persons ; that on their signing the original documents Tracy promised to make them rich from oil returns within 30 or 60 days; that they were induced to execute the subsequent agreements, which were prepared by Tracy, without being advised correctly of the contents and consequences of the same; that some of the later documents were inconsistent with the initial agreement and understanding of the parties; and that although Tracy has secured benefits for himself from the mineral interest acquired he has failed to obtain any revenues for them during the 13 years elapsing after the date of the original procuration.

As to the suggested lack of education on the part of plaintiffs, the trial judge, who saw and heard them testify, observed in his written reasons for judgment that they “are country people with some degree of education and intelligence.” From our study of their testimony (there are hundreds of pages of it in the voluminous record) we have reached the same conclusion. In answering the questions propounded they generally were alert and self-possessed, not confused; they testified coherently and intelligently; and they used language not typical of the uneducated person. Moreover, the evidence suggests that they are not the type that is ordinarily easily imposed on or influenced, for during the period of Tracy’s representation of them they were continually calling on him for information about the success of his efforts and for explanations concerning delays.

Of course, many of the plaintiffs testified that Tracy, on their signing of the original procuration, the lease and the mineral deed, promised that they would receive large financial returns in 30 or 60 days. But some of these same persons, as well as others, stated also that they signed because of their mother’s wish that they do so. Then, too, there is much correspondence in the record that passed between plaintiffs and Tracy in none of which is this 30 or 60 day promise mentioned. Furthermore, one of the plaintiffs testified that he knew that an oil well could not be brought in during such a short period of time.

But even if Tracy did state, when the original acts were signed, that early financial returns from the property were expected, obviously the statement was only an opinion based on the supposition that no complications would arise in performing the four services specified in the pro-curation and that the property would not become involved in the litigation that subsequently developed.

It is the testimony of some of the plaintiffs, too, that Tracy was in a hurry whenever he sought their signatures to the agreements and that he failed and refused to advise them of the legal consequences of the documents. However, in opposition to this, not only Tracy but also other persons who were present when practically all of the instruments were executed testified that the agreements were read and explained fully, both in English and in French, on the occurrence of the signing.

Then there is criticism of Tracy for his having instituted and lost the Louisiana Land and Exploration suit. Clearly the suit was justified, for that company was claiming a large part of the land to which the LaGraizes asserted ownership; and plaintiffs authorized its institution. The fact that the suit was lost is of no consequence insofar as the issue herein is concerned; it is not shown that Tracy, together with his associate therein George Seth Guión, intentionally mismanaged the litigation. Rather, it must be assumed that Tracy did his best to achieve success; he sustained a loss in the property along with the LaGraize heirs and, further, all of the costs of the proceedings were borne by him.

Coming now to the August 3, 1936, agreement, we consider first that part which relates to the land located near Golden Meadow that was omitted from the succession proceedings and in which Tracy was granted a 50% interest upon the recovery thereof. It is contended by plaintiffs’ counsel that the inclusion of that grant in the agreement evidences Tracy’s taking of undue advantage of the LaGraizes, because the original procuration, in connection with which he was given the lease and mineral deed, contemplated his recovery that property or clearing the title thereto and he was not entitled to additional compensation. As before shown, the original procuration named four services to be performed by Tracy, and then it particularly described the property affected (but not the Golden Meadow lands). To the description, however, there was added: “ * * * and this to include all the lands whether properly described herein or not which the said Desire L. LaGraize purchased at a tax sale June 22, 1895—C.B. 29 —Folio 54.” By reason of this added clause counsel contends that the procuration affected the Golden Meadow acreage. Notwithstanding the broad scope of the clause and also the fact that whatever lands Desire L. LaGraize owned was acquired in the mentioned tax sale, we are satisfied that the inclusion of the acreage in question in the procuration was not within the contemplation of the parties. In the first place the deed evidencing the tax sale did not definitely and accurately describe that acreage. Secondly, Desire L. LaGraize seemingly had conveyed in 1904 to Dr. J. E. Blanchard, Jr., a total acreage, in the two sections wherein the Golden Meadow property is situated, much in excess of the amount in those sections which the tax deed of 1895 called for; and, under these circumstances, it may be assumed that the LaGraizes were making no claim to the Golden Meadow acreage when the procuration was executed. Thirdly, the agreement of November 10, 1934, respecting the claim of the Louisiana Land and Exploration Company, clearly discloses an intention of the parties that the original act of pro-curation should cover only lands to which the LaGraizes had a good and clear title.

.On discovering that the LaGraizes might be able to recover the Golden Meadow acreage, and after the execution of the agreement of August 3, 1936, Tracy-proceeded at his own expense to abstract the title, obtained various necessary certificates and other documents, made several trips to Baton Rouge and held conferences with the Attorney General and the Registrar of the State Land Office, caused the making of a survey of the land, and eventually secured a corrected patent in favor of Jules Lapene (ancestor in title of Desire L. LaGraize) which included the omitted property. These efforts, along with the expenditures made in connection therewith, clearly constituted a real consideration for the agreement in question. But it is not at all certain that his work has been completed and will prove beneficial to the LaGraizes and himself in view of the indefiniteness of the tax deed description and the conveyance in 1904 to Dr. Blanchard.

Neither can we conclude that the remaining part of the August 3, 1936, agreement evidences Tracy’s taking advantage of the widow and heirs of Desire L. LaGraize, as contended. The part referred to purports to extend the primary term of the lease granted to Tracy in April, 1934, “* * * so as to include any and all time lost or delays occasioned by any and all litigation connected with any and all lands covered thereunder and/or the royalty rights therein or thereto * * Although we do not determine herein the full effect of the purported extension, it appears to be supported by a valid consideration. The instrument itself recites that it was granted for the additional services rendered by Tracy, as well as the funds expended, in seeking to recover the Golden Meadow property, and for other good and valuable considerations. By this last provision, undoubtedly the parties had in mind the fact that Tracy’s lease (given originally for his performance of the four agreed legal services) had been of no value because of the adverse claims and the litigation affecting the properties covered thereby, and further that it would continue to be valueless and unmarketable so long as the then pending litigation endured.

The last instrument complained; of by plaintiffs is that styled “Extension” (above quoted) which was executed on March 6, 1939, by Tracy, as attorney in fact for the LaGraizes, in favor of himself individually. Unquestionably, it was an unusual instrument; but it in no manner prejudiced the rights of the LaGraizes, nor was it executed, in our opinion, with the view of affording some advantage over them. The document, a copy of which Mrs. LaGraize received immediately after its recordation, specifically referred to the extension agreement of August 3, 1936, and purposed only to definitely fix the period of the extension, the duration of which could not be determined in 1936. The period fixed (time lost by reason of the litigation) was four years, and plaintiffs do not insist that such was excessive. As to the legal effect of the instrument, which was merely a self-serving declaration, it could serve only as an estoppel against Tracy to claim any greater extension than that set forth therein.

Finally it is argued on behalf of plaintiffs that for more than 13 years they have been deprived of oil revenues from the property. But this argument overlooks the fact that during the first six years of such period Tracy’s lease was unmarketable because of the adverse claims made against the property covered, and that during the last seven years (beginning in 1940), when there was placed of record the agreement between plaintiffs and their present attorney) it has been of no value by reason of the instant litigation.

In conclusion, it may be observed that the principal issue in this case is one of fact, determinable largely from the testimony of the numerous witnesses, and that after our careful and thorough consideration of such evidence we are unable to conclude that the district court manifestly erred in resolving the issue in favor of the defendants.

The judgment is affirmed;

BOND, J., absent.


author: HAWTHORNE, Justice.

text:
      212 La. 999
    BOWERMAN v. PACIFIC MUT. INS. CO.
    No. 38409.
    Supreme Court of Louisiana.
    Jan. 12, 1948.
    Rehearing Denied Feb. 16, 1948.
    Seth Lewis, of Opelousas, for defendant-■applicant.
    Edward Dubuisson, of Opelousas, for .plaintiff-respondent.
   HAWTHORNE, Justice.

This case is before us for review of a judgment of the Court of Appeal, First Cir•cuit, in which that court reversed a judgment of the district court sustaining a plea •of one-year prescription in bar of plaintiffs suit and remanded the case to the district court for further proceedings.

On June 26, 1945, William Cecil Bower-:man, plaintiff-respondent, instituted suit in the district court of St. Landry Parish to .recover workmen’s compensation for an injury received on June 29, 1944, in the •course of his employment by the Grey-Wolf Drilling Company, which was not made a defendant in the suit. Plaintiff alleged that the Pacific Mutual Insurance Company, a foreign corporation authorized to do business in this state, had issued to his employer a workmen’s compensation insurance policy which was in full force and effect on the date of his injury, and this named insurance company was made sole defendant in the suit.

Citation and petition were served on the Secretary of State on June 27, 1945. There was no insurance company doing business in the State of Louisiana under the name of Pacific Mutual Insurance Company, the named defendant in this suit, but in due course the Secretary of State sent by registered mail the citation and copy of petition to the Pacific Mutual Life Insurance Company in Los Angeles, California. This company on July 2, 1945, advised the Secretary of State that it wrote no workmen’s compensation coverage and that this service was evidently made in error. '

On July 12, 1945, more than a year after plaintiff’s injury, he filed in the district epurt a supplemental and amended petition in which the Pacific Employers Insurance Company was named as the defendant in the suit, alleging that the name of the compensation insurer was erroneously stated in the original petition. The citation and petition were served on the Pacific Employers Insurance Company through ¡.the Secretary of State on July 13, 1945.

In due course the Pacific Employers Insurance Company, thus made a defendant by the supplemental and amended petition, filed a plea of prescription of one year, under Section 31 of the Louisiana Employers’ Liability Act, Act No. 20 of 1914, as amended, in bar of plaintiff’s action. This plea was sustained by the district court, and the plaintiff’s suit was dismissed. On appeal, the Court of Appeal, First Circuit, reversed the judgment and remanded the case to the district court. Upon defendant’s application, a writ of certiorari was granted by this court, and the matter is now before us under our supervisory jurisdiction.

The sole question involved is whether the filing of plaintiff’s suit within the prescriptive period of one year against a defendant named as the Pacific Mutual Insurance Company interrupted that prescription as to the true insurer, the Pacific Employers Insurance Company, which was not cited or served and received no notice and had no actual knowledge of the filing of the suit until more than one year had elapsed after the accident.

Under the provisions of Section 31 of Act No. 20 of 1914, as amended, Act No. 29 of 1934, § 1, the Workmen’s Compensation Act, “In case of personal injury * * * all claims for payment shall be forever barred unless within one year after the accident * * * the parties shall have agreed upon the payments to be made * * * or unless within one year after the accident proceedings have been begun as provided in Sections 17 and 18 of this Act”.

Section 1 of Act No. 39 of 1932 provides: “ * * * That the filing of a suit in a court of competent jurisdiction shall interrupt all prescriptions affecting the cause of action therein sued upon, against all defendants, including minors and interdicts.”

The true defendant, Pacific Employers Insurance Company, having been made a party to this suit more than one year after the accident, the plaintiff’s claim for compensation payments is forever barred unless the filing of the original petition against the wrong defendant, Pacific Mutual Insurance Company, within one year of the accident interrupted the current of prescription.

We are of the opinion that the filing of the original petition in the instant case did not interrupt prescription under the provisions of Act No. 39 of 1932 for the reason that the true insurer was not named as defendant therein; or, stated somewhat differently, suit was not filed against the true insurer within one year of the accident.

In the instant case, we are sure that plaintiff through error named in the original petition a defendant which was not doing business in this state or shown to be in actual existence. This mistake could have been easily avoided because under a provision of Act No. 371 of 1940 the casualty and surety rating commission is required to furnish to any claimant or his attorney, upon request at any reasonable time, the name of the employer’s insurer in compensation matters. Had plaintiff-respondent availed himself of the provisions of this act, he would, of course, have named as the defendant in his original petition his employer’s compensation insurer,, and his suit would have been timely filed-

Respondent, in support of his contention that the filing of the original petition-had the effect of interrupting the current of prescription, although filed against an-incorrect and possibly non-existent defendant, cites and relies upon the cases of Satterley v. Morgan, 33 La.Ann. 846;. Jackson v. American Employers’ Ins. Co.,. 202 La. 23, 11 So.2d 225; Lunkin v. Triangle Farms, Inc., 208 La. 538, 23 So.2d 209; and Broussard v. Missouri Pac. R. Co., D.C.W.D.La.1942, 47 F.Supp. 750. We do not think that any of these cases-support his contention.

The district judge in his reasons for judgment discussed and distinguished the-Broussard case from the instant case, saying : “This case is clearly not applicable to-the case at bar. The Plaintiff in the Brou-sard case sued the right defendant, whereas,, the Plaintiff in the case at bar instituted a suit against a defendant which did not even exist in fact. There was a mere technicality of law involved in the Broussard case. Service of process was made originally on the corporation instead of on the trustee of the corporation in the process of reorganization. The proper party was sued and also there was evidence of said party having notice of the suit. The Court felt that the proper party had knowledge of the suit when it was initially filed and for that reason held that the amendment and service related back to the original service. * * * ”

We might add further that in the case presently before us, insofar as the record shows, a non-existent defendant was named in the original petition, and the right defendant did not have actual notice that this suit was filed within the prescriptive period of one year.

In the Jackson and Lunkin cases (both compensation cases), we did hold that the filing of a suit within the prescriptive period, although not against the proper defendant — that is, the employer or the employer’s insurer — , had the effect of interrupting prescription, and that plaintiff could urge his cause of action in a subsequent suit filed after the prescriptive period against the true insurer or employer. However, under the peculiar circumstances and facts in these cases, this court made it perfectly clear that the correct employer or true insurer had notice or actual knowledge that the claimant or plaintiff was asserting his claim by filing suit within the prescriptive period — a fact which is not presented by the case at bar.

Satterley v. Morgan, 33 La.Ann. 846, decided prior to the adoption of Act No. 39 of 1932, is authority simply for the proposition that citation for the purpose of interrupting prescription need not be technically perfect either in form or in service.

In the instant case, since the prescriptive period had expired without the filing of a suit against the true insurer, and since there was no proof that the insurer had notice or actual knowledge that plaintiff was asserting his claim by instituting suit within the prescriptive period, the plea of prescription is valid.

For the reasons assigned, the judgment of the Court of Appeal, First- Circuit, is annulled and set aside, and the judgment of the district court sustaining the plea of prescription and dismissing plaintiff’s suit is reinstated and affirmed; all costs to be paid by plaintiff-respondent.


text:
    212 La. 1007
    LAMA et al. v. MANALE et al.
    No. 38585.
    Supreme Court of Louisiana.
    Jan. 12, 1948.
    Rehearing Denied Feb. 16, 1948.

      Elias Bowsky, of New Orleans, for defendant-appellant.
    P. M. Flanagan, of New Orleans, for plaintiffs and appellees.
   HAMITER, Justice.

John Manale is appealing from a judgment which condemned him and the other defendant herein, Frank Lombardo, to vacate the premises kn'own as 2500-08 Bell Street in the City of New Orleans and to deliver possession thereof to the plaintiffs, Nicholas and Joseph Lama, who are the owners.

By a written contract of date August 21, 1944, plaintiffs leased the property to the defendants for the fixed duration of two years, beginning September 1, 1944, and ending August 31, 1946. The instrument recited, however, that “Privilege is hereby given to lessees to renew this lease for three (3) more years under same terms and conditions.” It further provided: “The lessees agree to notify the lessors or their agent in writing on or before the first day of July, 1946, whether or not they wish to retain the premises for one or more years from the expiration of this lease.”

Neither of the lessees notified in writing the lessors or their agent on or before July 1, 1946, of a desire to renew the lease, pursuant to the quoted provisions of the contract; and on August 10, 1946, they received written notice from the lessors to vacate the premises on August 31, 1946, the lease’s expiration date.

The notice was not obeyed, and on October 1, 1946, the lessors instituted this summary proceeding to obtain possession. To the rule to show cause defendant John' Manale pleaded prematurity, alleging that proper notice to vacate had not been given. He then answered, averring that he is entitled to retain possession of the premises for an additional three years because (1) he was assured by plaintiffs of his right to renew without the giving of any written notice, and in the alternative (-2) all of the parties agreed orally to a new lease for that period.

On the hearing of the rule, the court-denied the plea of prematurity and then-rendered judgment, ori the merits of the case, in favor of plaintiffs. The instant, appeal of defendant John Manale followed..

Considering first the issue of prematurity, re-urged here by appellant, the written notice to vacate was received by the lessees on August 10, 1946, which was 21 days-prior to the termination of the lease (August 31, 1946) and 52 days before the institution of this suit (October 1, 1946).. Our statutory law, with reference to the giving of notice in proceedings for possession of leased premises, provides:

“When any person having leased any house, store or other buildings, or landed estate, for a term of on'e or more years,, or by the month or otherwise, either verbally or otherwise, shall be desirous of obtaining possession of the said leased premises upon the termination of the lease, either by limitation or by non-payment of the rent when due, or any other breach of the said lease, he shall demand and require in writing his tenant to remove from and leave the same, allowing him five calendar days from the day such notice is delivered.
“And if the owner or his agent shall be desirous of obtaining the possession of the said leased premises for any other reason or cause, such as, for the purpose of leasing the said premises to another tenant or otherwise, he shall give to the tenant a notice in writing to vacate, ten days before the expiration of the month, if the same be a monthly lease, or thirty days before the expiration of the said lease, if the said lease be in writing, and for a term of one or more years or otherwise, otlier than by the month.” * * * Revised Statutes, § 2155, as last amended and reenacted by Act No. 200 of 1936.

Relying on the provisions of the quoted second paragraph of the statute, appellant insists that he was entitled to receive 30 days’ written notice before the expiration' of the lease. Our opinion is, however, that the provisions of the quoted first paragraph are applicable here and that, as the trial court held, the written notice given appellant before the institution of this ejectment proceedings was more than adequate. According to those provisions it is necessary to allow the tenant five days from the day the written' notice is delivered when the lessor is desirous ■of obtaining possession of the premises upon the termination of the lease by limitation or by some breach thereof. In its popular sense the word “limitation” means the act or instance of limiting, the state ■or condition of being limited. Webster’s New International Dictionary, Second Edition. The written lease in question, by its very terms, was limited to a period of two years, beginning September 1, 1944, and ■ending August 31, 1946, and on' the arrival of the last mentioned date it ceased to exist—it expired, it terminated—by reason of the limitation. “The lease ceases of •course, at the expiration of the time agreed ■on.” Civil Code, article 2727. And since plaintiffs notified the lessees on August 10, 1946, to vacate the premises, and this suit was not filed until October 1, 1946, there was a compliance with the law.

The portion of the statute on which appellant relies (the quoted second paragraph) obviously contemplates principally a lease which contains no definite and unqualified duration or limitation fixed by agreement of the parties an'd therefore is terminable at the will of the lessor or upon the occurrence of some specified contingency. Under such a lease the owner, to obtain possession of the premises, is required by the statute to “give to the tenant ■a notice in writing to vacate, 10 days before the expiration of the month, if the same be a monthly lease, or 30 days before the expiration of the said lease, if the said lease be in writing, and for a term ■of one or more years or otherwise, other than by the month.” Supporting this construction are various provisions of the 'Civil Code found under Title IX “Of Lease.” For example, where a house, apartment, or other edifice is rented without a fixed duration the lease is considered to have been made by the month, Article 2685 ; and the party desiring to put an end to it must give notice in writing to the other at least 10 days before the expiration of the month which has begun to run, Article 2686. Other instances of uncertain tenure of possession by tenants, undoubtedly contemplated by the statutory provisions of the quoted second paragraph, are to be noted in Civil Code, articles 2687, 2688, 2689, 2734, 2736, 2739, and 2741.

Unquestionably, the interpretation that we give herein to the discussed two paragraphs of the statute produces a just and equitable result When the lessee has agreed that his lease is to be limited to a specific period and is to expire on a particular date, or if it should be terminated by some breach thereof on his part, a five days’ notice to vacate before the lessor’s commencement of ejectment proceedings is ample. Where, however, the lease has no fixed duration and the lessee is permitted to occupy the premises. for an' indeterminate period he should be allowed more time in which to vacate, for it is not until he receives the notice that he has knowledge of the lessor’s desire to obtain possession,

On the merits of the case there are presented only the issues of fact, created by the special defense of appellant, of (1) whether appellees assured appellant of his right to renew the lease without his giving written' notice of a desire to do so, and alternatively (2) whether the parties agreed orally on a new lease. With respect to these issues the evidence in the record, which we have carefully studied and considered, is irreconcilably conflicting, and no useful purpose would be served by an analysis of it here. It is sufficient to state that we are unable to conclude, following our consideration of such evidence, that the defendant discharged the burden of proving his mentioned special defense and that the trial judge manifestly erred in his findings and his decision in favor of appel-lees.

The judgment is affirmed.

BOND, J., recused.


text:
    212 La. 1015
    LOUISIANA WHOLESALE DISTRIBUTORS ASS’N, Inc. v. ROSENZWEIG.
    No. 38660.
    Supreme Court of Louisiana.
    Dec. 15, 1947.
    Rehearing Denied Feb. 16, 1948.
    Spencer, Sevier & Adams, of Tallulah, for defendant and appellant.
    K. C. Barranger, of New Orleans, Snyder & Sevier, of Tallulah, Voorhies & Labbe, Ellis, Ellis & Lancaster and Frank B. Ellis, all of New Orleans, and Well-born Jack, of Shreveport, for plaintiff and appellee.
   HAWTHORNE, Justice.

Plaintiff, Louisiana Wholesale Distributors Association, Inc., a non-profit corporation organized and existing under the laws of this state, instituted this injunction suit against I. Rosenzweig as the sole owner and operator of a large retail store known as the Pic-Kwickly Grocery, located in the City of Tallulah, Louisiana.

In this petition plaintiff alleged that on April 12, 1947, and subsequent thereto defendant caused numerous pamphlets to be circulated in Tallulah to the effect that at certain times he would sell certain popular brands of cigarettes at $1.75 per carton, tax included, and 18^ per package, tax included; that on April 12, 1947, he did actually sell for said prices cigarettes to' six persons named in the petition; that the advertisement and sales consummated by defendant were in direct contravention of law and particularly in violation of the express provisions of the Louisiana Unfair Sales Act, Act No. 338 of 1940, as amended by Act 79 of 1942 and subsequently by Act No. 256 of 1946; that under the terms and conditions of said act, it was unlawful for any person, outside the City of New Orleans, to sell these ciga-retes at less than $2 per carton or 20‡ per package. The petition further alleged that, under the terms and conditions of the act, petitioner was entitled to an injunction permanently restraining, prohibiting, and enjoining the defendant from continuing to advertise or sell said commodities in violation of the act.

Petitioner then prayed for the usual citation, and, after regular proceedings had, for a permanent writ of injunction forever restraining, prohibiting, and enjoining the defendant from advertising and selling the aforesaid commodities in violation of the law.

Answering this petition, defendant admitted all the material allegations of fact, but denied that the plaintiff was entitled to injunctive relief for the reason that the said act was wholly unconstitutional in that it violated the due process and the equal protection of the laws provisions of the Constitutions of the United States and this ■.state, U.S.C.A.Const. Amend. 14; Const. La.1921, art. 1, § 2, and, further, that the act was a price-fixing statute and class legislation and precluded defendant from freely contracting with regard to the prop-erty and things which he owned.

After trial in the lower court, judgment •was rendered in favor of plaintiff and against defendant, decreeing the act in -question to be constitutional and granting unto plaintiff the injunctive relief prayed for. From this judgment defendant has appealed to this court.

We shall not discuss the merits of this case, since we take cognizance ex pro-prio motu of the fact that we do not have appellate jurisdiction of this case. Dupey v. Greffin’s Executor et al., 1 Mart.,N.S., 198; Lafon’s Executors v. Lafon, 1 Mart.,N.S., 703; Kerr v. Kerr et al., 14 La. 177; Foundation Finance Co., Inc., v. Robbins et al., La.App. 144 So. 293.

Article VII, Section 10, of the Louisiana Constitution of 1921 defines the appellate jurisdiction of this court in cases involving constitutional questions thus: “It shall have appellate jurisdiction in all cases wherein the constitutionality or legality •of any tax, local improvement assessment, ■toll or impost levied by the State, or by any parish, municipality, board, or subdivision of the State is contested, or where the legality, or constitutionality of any fine, forfeiture, or penalty imposed by a parish, municipal corporation, board, or •subdivision of the State shall be in contest, whatever may be the amount thereof, and in all cases wherein an ordinance of a parish, municipal corporation, board, or ■subdivision of the State, or a law of this State has been declared unconstitutional. * * * ” (Italics ours.)

This case is not a contest over the constitutionality or legality of any tax, local improvement assessment, etc., imposed by the state or any subdivision thereof, nor is it a contest over the legality or constitutionality of any fine, forfeiture, or penalty imposed by the state or any subdivision thereof, nor .is it a case wherein a law of this state has been declared unconstitutional. On the contrary, it is a suit in which plaintiff seeks an injunction prohibiting the defendant from violating the terms and provisions of Act No. 338 of 1940, as amended. The only defense, that is, that the statute is unconstitutional, the lower court concluded was without merit in holding that the statute was constitutional.

An examination in its entirety of Article VII, Section 10, of the Louisiana Constitution discloses that this is not a case in which this court is given appellate jurisdiction, and for this reason this court is without such jurisdiction.

After this case was argued before this court and submitted for decision, the court took cognizance of the fact there was a serious doubt that it had appellate jurisdiction. Accordingly we requested counsel to file briefs on the question, and counsel for both sides have complied, urging that we have jurisdiction of the case under Article VII, Section 10, of the Louisiana Constitution of 1921, because it is a civil suit where the amount in dispute exceeds $2,000. An affidavit also was filed on behalf of the appellee to the effect that the amount involved in the case exceeds $2,000. It is alleged in the affidavit:

“In the event that this injunction had not been obtained from the District Court, it would have become necessary for retail outlets to cut their price in order to meet this ‘loss-leader’ practice, which would, in a period of less than twenty-four hours, cause the members of plaintiff corporation to lose a sum in excess of $2000.00. * * *
* * SH * * *
“That the Louisiana Wholesale Distributors Ass’n, Inc., collects an excess of $10,000.00 per year from its members as dues and this membership could not afford to continue paying said dues to said organization where the use of ‘loss-leader’ practices as engaged in by the defendant herein are continuous, * * * that said corporation under such circumstances would suffer a decided loss in dues in excess of the jurisdictional minimum of $2000.00.”

We do not in any way question the good faith of the affiant in this affidavit, but it is obvious that the loss claimed is based on conjecture as to future events and con-elusions of the affiant from such conjecture. Undoubtedly such presumptions cannot inject an “amount in dispute or * * * fund to be distributed” in excess of $2,000 into this injunction proceeding.

For the reasons assigned, this case is ordered transferred to the Court of Appeal, Second Circuit, provided that the record be filed in that court within 30 days from the date on which this decree shall become final; otherwise the appeal shall be dismissed. The appellant is to pay the costs of appeal to the Supreme Court; all other costs shall abide final disposition of the case.

BOND, J.-, absent.


author: A. LEON HEBERT, JR., Judge ad hoc.

text:
    TOWN OF AMITE CITY v. SOUTHERN UNITED ICE CO.
    No. 2983.
    Court of Appeal of Louisiana. First Circuit.
    March 9, 1948.
    S. S. Reid, of Amite, for appellant.
    Reid & Reid, of Hammond, for appellee-
   A. LEON HEBERT, JR., Judge ad hoc.

This case involves the right of the Town-of Amite City, appellant, to enjoin the defendant appellee, Southern United Ice Co.,, from the use of a certain drainage ditch located in the Town of Amite City and lying within its municipal limits.

The controversy developed after the appellant had called upon the appellee to bear a portion of the cost of cleaning the ditch which is approximately 3000 feet long.

In the operation of an ice plant in the Town of Amite City tire defendant maintains a one hundred foot well from which water is pumped and is used to cool the condenser necessary in the manufacture of ice. When this water has been thus used it is then allowed to drain into the ditch in question. The volume of water being poured into the ditch by the defendant was variously estimated by the witnesses from 50 to 75 gallons per minute (by O. C. Wykert, Chief Engineer at defendant’s plant), to 275 gallons per minute (by C. A. Daniel).

The testimony clearly shows that the ice plant begins operation in the early spring around March 15 and continues in operation until the latter part of October or November and that after that time though ice is sold at the plant it is not produced there.

The testimony further shows that the manner of operation of this ice plant has not been changed since the defendant took over the plant in 1927. All the witnesses who testified on the trial of the case admitted that there were 6 to 8 inches of water in the ditch on the date of trial which was the 27th day of February, 1947, and this, despite the fact that the ice company had ceased operation requiring the use of water since November. Testimony also shows that the ditch in question serves as a drain from a filling station operated by Flood where automobiles aré washed and where presumably the waste oil found in the ditch came in. Testimony was offered by the Town to show that the Gullett Gin Company assisted financially in the cleaning of this same ditch voluntarily because it also used the ditch to rid itself of artifically produced water.

The main contentions of the Town are that by the production of artificial water which is drained off through the ditch that the fresh water stimulates the growth of weeds, lilies and other aquatic vegetation in the ditch and stops the flow of water which causes the softening of the sub-surface of West Railroad Avenue which is surfaced with blacktopping and causes sinking and holes in said paving. Articles V, VI and VII of the petition state these contentions. The Town contends that such a situation is productive of a continuing nuisance.

There is testimony in the record to show that the other ditches situated in the Town and maintained by Town are cleaned from once to twice a year and that two thorough cleanings of this ditch each year would adequately drain the water pumped from defendant’s well into this ditch as well as all the other natural drainage which is taken care of by this ditch.

The petition alleges that the ditch is maintained by the plaintiff “within the limits of your petitioner.” This maintenance was admitted by the defendant and presumably this maintenance admits ownership by the plaintiff. It is described in the rule nisi to show cause why a preliminary injunction should not issue as the “drainage ditch running between West Railroad Avenue and the Chicago, St. Louis and New Orleans Railroad Company between Chestnut and Factory Street in Amite City * *

In view of the conclusions reached in this opinion, it is not necessary to pass on the plea of perscription filed under Article 765 of the Revised Civil Code, filed herein for the first time on appeal.

The evidence adduced by the plaintiff does not show, in our opinion, that the plaintiff is entitled to an injunction because defendant has not maintained a nuisance. On the contrary, the evidence is clear that .the defendant has engaged in the very operation sought to be enjoined for approximately 20 years and that the only complaint by the officials of the Town is that the fresh water artifically produced and allowed to flow into this ditch is productive of aquatic growth. Just how the town’s officials can distinguish such growth resulting from natural rain water and the water dumped by the defendant is not clear. It seems important that at the time the suit was tried that the defendant was not making any use of the ditch by pouring artifically produced fresh water therein and yet all witnesses agreed that there were 6 to 8 inches of water in the ditch on that day of the trial.

The conclusions reached by the counsel for the defendant in his brief that a continuous flow of fresh water such as maintained by the defendant in this case would not permit the breeding of mosquito larve seem entirely reasonable. Likewise the fact that the other ditches throughout the Town require cleaning at least once a year and some of the ditches require cleaning twice a year indicate that, if an injurious situation does exist, that the fault lies not with the defendant who makes use of the ditch but with the Town authorities in failing to adequately clean the ditch. All of the witnesses for the Town of Amite City indicated that a cleaning of the ditch twice a year would allow this use of the ditch by the defendant without any injurious effect to the street or the inhabitants of the Town.

Public things as defined by Article 453 of the Revised Civil Code are those “ * .* * the property of which is vested in a whole nation, and the use of which is allowed to all the members of the nation of this kind are navigable rivers, seaports, road steads and harbors, highways and the beds of rivers, as long as the same are covered with water.”

Article 454. of the Revised Civil Code further explains the definition of public things “things which are for the common use of a city or other place, as streets and public squares, are likewise public things.” To the Court it logically follows that a ditch maintained by the Town should be for the common use of all of the citizens of the Town and property owners therein. To require only one or two taxpayers to assist in the cleaning and maintenance of this ditch when the whole community enjoys its use appears unreasonable and the fact that this controversy has arisen because of the refusal of the defendant to contribute over and beyond its tax payments cannot be entirely ignored.

For the foregoing reasons the judgment of the District Court is affirmed.

ELLIS, J., recused.


author: JANVIER, Judge.

text:
    DeBARDELEBEN COAL CORPORATION v. PROTECTION & INDEMNITY UNDERWRITING SYNDICATE et al.
    No. 18773.
    Court of Appeal of Louisiana. Orleans.
    Mar. 1, 1948.
    Arthur B. Hammond, and Richard B. Montgomery, Jr., both of New Orleans, for plaintiff-appellant.
    Terriberry, Young, Rault & Carroll, and Walter Carroll, all of New Orleans, for defendants-appellees.
   JANVIER, Judge.

DeBardeleben Coal Corporation owns and operates tugboats and other vessels in the various waterways of the United States. It brought this suit against the Protection and Indemnity Underwriting Syndicate and the insurance companies forming the said syndicate, claiming $1150.00 on allegations which may be summarized as follows:

That the said syndicate, in January 1941, and in each succeeding year, issued to the plaintiff company a policy of P. & I. (Protection and Indemnity) insurance under which it agreed to indemnify the said corporation against loss resulting from liability growing out of damage caused by its tugs to bridges, piers, breakwaters, beacons and various other structures, except other vessels; that in said policy there was what is known as a deductible clause under which the first $350.00 of any such loss resulting from liability should be borne by the corporation itself, the insuring syndicate to pay only the balance of the loss; that in addition to the said policy known as the P. & I. policy, the plaintiff corporation secured through the same insurance agency, George S. Kausler, Ltd., another policy of insurance known as a hull policy, issued by the United States Fire Insurance Company of New York, under which that insurance company agreed to indemnify plaintiff against damage sustained by its vessels and against loss resulting from liability growing out of collision by its vessels with any vessel, craft, or structure, floating or otherwise; that in the said policy of hull insurance there was also a deductible clause which provided that the first $1500.00 of loss should be borne by the said plaintiff corporation and that the balance would be paid by the insurers; that for several years all cases of liability resulting from damage caused by its vessels to bridges, wharves, docks, etc., were reported to the Kausler Agency as adjusters of the various insurance companies and were adjusted under the hull policy which required plaintiff corporation to bear the first $1500.00 of each loss; that each of the said losses should have been adjusted under and on the basis of the P. & I. policy and that thus in each case the plaintiff corporation should have been required to stand only the deductible loss of $350.00 instead of the deductible loss of $1500.00; that on October 22, 1945, one of the plaintiff’s tugs, the C. F. DeBardeleben, came into collision with what is known as the West Port Arthur Bridge under circumstances which made plaintiff corporation liable for the damage, and that plaintiff corporation, believing that the loss should be adjusted under the P. & I. policy, paid the said loss and then demanded settlement of the defendant syndicate with a deduction of only $350.00; that the said syndicate refused to settle the loss with plaintiff on the basis of $350.00, contending that the loss was payable under the hull policy issued by the United States Fire Insurance Company of New York and under which there would have been deducted from the settlement $1500.00, and that the said adjusters therefore delivered to plaintiff a check for $174.30 (which seems to represent the difference between the total loss and the $1500.00 deductible provided for in the hull policy) ; that the loss is one covered by the P. & I. policy, under which the amount which should have been deducted was only $350.00 and that, therefore, plaintiff is entitled to recover from the defendant syndicate, and the various insurance companies composing it, the difference between the $350.00, which plaintiff admits should be deducted, and $1500.00, which was deducted by the company which issued and made settlement under the hull insurance policy.

The suit is brought for that difference, to-wit $1150.00.

To this petition defendants' filed an exception of no cause of action. This exception was sustained and the suit ordered dismissed. Plaintiff has appealed.

Exceptors, conceding that the policy sued on was issued and that the loss occurred as alleged and that, except for a certain stipulation in the policy sued on, they would be liable for all except the first $350.00 of the loss, in denying that they are liable, point to that stipulation, which reads as follows:

“Notwithstanding anything to the contrary contained in this policy, no liability attaches to the Assurers:

“For any loss, damage, or expense which would be payable under the terms of the American Tug Syndicate present standard form of policy on hull and machinery, etc., whether or not the vessel were fully covered by such insurance sufficient in amount to pay such loss, damage, or expense.”

Exceptors maintain that, under-the terms of what is known as the American Tug Syndicate standard form of policy on hull and machinery, any loss caused as this loss is alleged to have been caused would be payable, and since such a policy was available, the policy sued on was not effective as to that loss, and that this is true whether the vessel in question was covered by such a policy of the American Tug Syndicate or not.

When the exception was argued below, counsel entered into a stipulation to which was attached a standard form of hull policy of the American Tug Syndicate, which we understand is the hull policy referred to above.

Counsel for plaintiff direct our attention to the word “payable” in the above quoted stipulation in the P. & I. policy, and they assert that since the amount claimed in this suit was not “payable” under the other or hull policy, it is not excluded from the coverage of this policy. They maintain that at least the stipulation is ambiguous, and that, therefore, it should, under the familiar rule be interpreted against the insurers who prepared and issued the policy.

It is asserted that the clause is ambigu-uous in that it seems to attempt to exclude from the coverage of the P. & I. policy not certain particular “risks” which may be insured against in the standard form of hull policy, but rather attempts to exclude the “loss, damage, or expense” which may result from such “risks.” The argument is that had the word “risks” been used instead of the words “loss, damage, or expense”, then it would have been clear that the framers of the policy intended to base the exclusion from the one policy on the character of the occurrence causing the loss rather than on the amount or extent of the loss, and that since the word “risks”, or some similar word was not used, it is evident that the clause bases the exclusion not on the character of the occurrence which caused the loss, but on the amount of the loss and on whether the entire amount thereof is payable under the other policy. Counsel say that it would have been very easy to have found language which could clearly have set forth such an intention, and and the point which they seek to make, they say, is illustrated in the case of The Scho-dack (United States v. American Insurance Company of Newark), 2 Cir., 89 F.2d 8. In that case there was a somewhat similar clause in one policy by which certain “risks” were excluded because those particular “risks” were “covered” by the terms of another policy. There the clause read as follows: “No vessel enrolled in the Agency shall be entitled to indemnity from the Agency * * * for any liability or expense resulting from any risk, event or occurrence covered by the terms of the ordinary form of marine insurance policy on hull, machinery, etc.”

We are unable to agree entirely with the contention of plaintiff or that of the defendants. Plaintiff, as we have shown, asserts that, by the use of the word “payable”, the parties indicated an intention that there would be excluded from the coverage of the P. & I. policy only such loss, damage, or expense as might actually be due under the hull policy, whereas defendants maintain with equal certainty that there is entirely excluded from the P. & I. policy any loss, damage, or expense resulting from any of the causes which are included within the protection of the hull policy; that if the loss is covered by the form of the hull policy, there can be no recovery under the P. & I. policy, whether the whole of the amount of the loss .is payable under the hull policy or not.

We find ourselves unable to see in the stipulation the ambiguity on which plaintiff relies. Surely the clause is not so clearly ambiguous as counsel now contend, for we are told by the petition that since 1941 all adjustments involving similar losses were made on the theory that they were payable under the hull policy and from each there was deducted $1500, and this until recently, without protest or objection from the plaintiff corporation. In fact, in oral argument, we are told by counsel for all parties that in that period — 1941—1945 —the plaintiff accepted, in seventy-three cases, settlements under the hull policy and thus acquiesced in a deduction of $1500 in each case. Surely if the exclusion clause were so clearly ambiguous, the contention now made would have sooner presented itself to the minds of the officials of the plaintiff corporation.

As we understand the matter, the hull insurance is issued to cover certain specified losses, particularly damage to the vessel itself, and we note that a hull policy, in addition to indemnifying the owners against loss sustained by their vessels also contains a clause under which indemnity is provided to the assured against certain other losses resulting from liability to others.

The P. & I. policy is issued in recognition of the fact that there might be some other “loss, damage, or expense” for which the insured might become liable and it, therefore, was intended to include all other such items of possible loss. But the issuers of that policy (the P. & I.) recognized the fact that in the standard form of hull policy, which was available to the insured, many items of “loss, damage, or expense” were or might be insured against and, therefore, provided that whatever might be contained in that policy, (the P. & I.), there would be no liability for such items as would be contemplated under a hull policy and which might, therefore, be covered by such a hull policy should the owner choose to purchase such a policy, and it provided that such exclusion should not depend upon the actual issuance of such a hull policy; all that was required being that such a policy be available. We see nothing wrong with such a stipulation. We do not see anything ambiguous about it.

The argument of counsel for plaintiff that the mere availability of such a hull policy is not enough to prevent the application of the P. & I. policy to such risks as might be or might have been covered by a hull policy, does not impress us in view of the actual wording of the stipulation, for that stipulation provides that such loss, damage, or expense would be excluded from the coverage of the P. & I. policy, not only if such a hull policy had actually been obtained by the insured, but also “whether or not the vessel was fully covered by such insurance sufficient in amount to pay such loss, damage, or expense.”

Counsel for plaintiff say that, at least to the extent of $1500, the loss would not be payable under the hull policy, since that was the amount deductible in any event in the hull policy, and that, therefore, since $1500 was not payable under the hull policy, it should be payable under the P. & I. policy except for $350, which was also deductible under the latter policy.

We think that it was the intention expressed in the language of the stipulation that if the loss sustained was one which could have been covered by a hull policy, it was not also covered by the P. & I. policy regardless of the amount of the loss. Any other interpretation would place it within the power of the insured — by agreeing to a larger or to a smaller deductible in the hull policy, — to increase or decrease at the will of the insured the protection afforded by the P. & I. policy. What we mean is this: If we assume that the $1150 herein sued for is an amount which, because of the deductible clause, is a “loss, damage, or expense” not payable under the hull policy and, therefore, payable under the P. & I. policy, we see at once that had the insured agreed to a higher deductible in the hull policy, say $5,000, it would automatically have increased the possible liability under the P. & I. policy.

Counsel for plaintiff argue that if the liability on which this suit is attempted to be based is not one covered by the P. & I. policy, then the syndicate and the insurance companies obtained a part of the premium which was charged without giving any consideration therefor, since the premium charged must have been based upon a consideration of each item of possible loss. We do not see that we are concerned in any way with the amount of premiums charged, nor with the process of calculation by which that amount was arrived at. As we construe the policy, it does not cover bridge damage, except possibly to the extent we shall later discuss, since that damage was included in the coverage of the other policy. Therefore, whether or not any premium Vvas charged for the coverage which was not afforded does not concern us.

While we thoroughly agree with counsel for defendants that the stipulation relied on prevents the attachment of the P. & I. policy to any loss which might have been insured against under the hull or American Tug standard form policy, we are much concerned over the fact that we cannot detect from the record at this tíme, nor from the form of policy submitted, whether such-a policy as would have covered the first $1500 of the loss was actually available to the insured; in other words, whether the American Tug standard form of policy provided for a deductible in this amount or whether, had the plaintiff (the insured) insisted upon it, it could have obtained a hull policy with a deductible of only $350 by paying a higher premium. We do not concern ourselves with the question of whether the insured actually secured such a policy, because, as we have said, all that the defendants need show to avoid liability under the P. & I. policy is that, under such a hull policy as was available and could have been secured by the insured, all of the loss, damage, or expense which is herein sued for could have been included within that hull policy. But we have nothing by which we can determine that plaintiff could have secured hull insurance which would have covered the difference between the $1500 deductible on the one hand and the $350 deductible on the other.

What we have in mind is this. Suppose it should appear that no insurer regardless of the premium charged, would issue a hull policy containing a deductible of less than $1500, could it then be said that that much of the loss would be payable under the standard form of policy of the American Tug Syndicate? The form of the hull policy which is before us contains a blank in which is to be inserted the amount of the deductible. If that amount could be fixed in advance at $350, even though the premium charged might have been controlled to some extent by the amount of the deductible agreed upon, then we feel that, regardless of the amount that it might have had to pay as a premium, the coverage could have been obtained by the insured under the standard hull policy and, consequently, that that loss would have been automatically excluded from the coverage of the P. & I. policy. On the other hand, if it should appear that under no circumstances would any insurer have issued a hull policy with a deductible of less than $1500, then we feel that that particular loss which is now sued for could not have been made payable under a hull policy and, therefore, might be covered under the P. & I. policy. The thought which we have in mind is inadvertently recognized by the language of counsel for defendants themselves who, in their original brief, have’ this to say: “ * * * the amount of deductible in the hull policy does not in any way affect the liability of the P. and I. underwriters because the exclusion is defined by reference to a specific form of hull policy and not by reference to the terms of the particular hull policy which the assured might happen to have. By referring to a form of hull policy the exclusion is constant and fixed and the result is the same whether the assured does or does not carry any hull insurance at all.”

We would quite agree if, as a matter of fact, the standard form on which defendants rely contained in its printed matter ‘a standard deductible. Counsel say that the hull policy and the exclusion is constant. That is not true insofar as the amount of the deductible is concerned for that is not fixed in the form which is before us. Therefore, there is nothing before us to show that the particular loss now sued for could have been covered by the standard form of policy, and for this reason we feel that the exception should not have been maintained. Consequently, the matter must be remanded to the Civil District Court for the Parish of Orleans in order that evidence touching upon this question, whether the loss herein sued for could have been covered (whether it was or not is unimportant) by a standard form of policy on hull or machinery of the American Tug Syndicate, may be offered by the parties.

The judgment appealed from is annulled, avoided and reversed, and the matter is remanded to the Civil District Court for further proceedings according to law and not inconsistent with the views herein expressed; costs of this appeal to be borne by appellees, all other costs to await final determination.

Reversed and remanded.