author: PER CURIAM.

text:
    GOMEZ v. BROUSSARD.
    No. 2996.
    Court of Appeal of Louisiana. Pirst Circuit.
    May 26, 1948.
    For original opinion, see 34 So.2d 643.
    John Fred Odom and Homer J. Belanger, both of Baton Rouge, for appellant.
    Brumfield, Hebert & Rush, of Baton Rouge, for appellee.
   PER CURIAM.

Opinion was rendered in this case on April 12, 1948, and notice thereof was given by registered mail on April 13, 1948. The application for rehearing was filed by the defendant-appellee on April 27, 1948. Plaintiff-appellant has filed a motion to dismiss the application for a rehearing for the reason that the application was filed too late. As fourteen days had not intervened between the date of the notice of the judgment and the filing of the application, the application was timely filed. See Act No. 16 of 1910 and Art VII, Sec. 24 of the Constitution. Plaintiff-appellant’s motion is denied.

After a thorough reconsideration of the record, our opinion and defendant-appellee’s application for rehearing, we are firm in our opinion that our decision is correct. Therefore the application for rehearing is denied.

ELLIS, J., absent.


source: Caselaw Access Project

author: J. CLEVELAND FRUGE, Judge ad hoc.

license: Public Domain

text:
    DELAHOUSSAYE v. CITY OF NEW IBERIA.
    No. 3003.
    Court of Appeal of Louisiana. First Circuit.
    May 26, 1948.

      For former opinion, see 33 So.2d 75.
    Helm & Simon, of New I'beria, for appellant.
    Jacob S. Landry and Guyton H. Watkins, both of New Iberia, for appellee.
   J. CLEVELAND FRUGE, Judge ad hoc.

There' was judgment in the District Court dismissing plaintiff's suit and this court affirmed the decree, reported 33 So.2d 75, but granted a rehearing January 26, 1948. This court decided in the first hearing that; first, that the bridge was defective; second, that the City had constructive if not actual notice of the defective condition of the bridge; third, that the City was negligent. On this rehearing this court agree that we were right on all of the above issues and since the reported opinion speaks for itself, it is not necessary to re-incorporate in this opinion what was said therein.

We held on the first hearing that the minor child was guilty of such contributory negligence as to bar his recovery. Upon reconsideration of this issue, we have now come to the conclusion that the child was not guilty of contributory negligence. On this factual issue, we quote from the written reasons of the trial Judge, this comment:

“It becomes unnecessary to pass upon the plea of contributory negligence but it may be stated that the evidence does not show that young Delahoussaye was negligent in either running or trotting over this bridge, or in not passing on the other side of the street, as claimed by the defendant. Considering the boy’s age, and customary behavior of boys of that age, it seems to me that running or trotting is more the rule with them than an exception, and if the City’s bridges and sidewalks are unable to stand that kind of traffic, then it is not properly discharging its municipal functions.”

This conclusion of the trial Judge is entitled to great weight. The trial Judge had the Delahoussaye, boy under his personal observation during the trial, and is by far the better Judge to test the boy’s ability to appreciate the dangers of the defective bridge and the warnings of his parents. We agree with the trial Judge that it is the customary behavior of boys of his age to run and “trot” rather than the exception. Since the District Judge came to this conclusion, we do not find from the record that this finding was in any way manifestly erroneous.

The plea of contributory negligence is a special plea which imports upon the defendant the burden of showing plaintiff’s fault by a preponderance of proof. There is evidence that the boy was “walking kinda fast” and that he was walking on the side plank and he nearly fell in the ditch, and then put his foot on the middle plank and this plank bounced and he fell on the bridge and rolled over in the ditch. This indicates that the boy was attempting to exercise due care in walking on the side plank. Defendant introduced no evidence to contradict this testimony and this testimony standing alone, in our opinion, does not show any contributory negligence, but to the contrary shows the boy attempting to exercise caution.

The Delahoussaye boy, who comes from a poor family, living in a back portion of the City of New Iberia, was eleven years of age, and was only in the third grade at school.

In our opinion this does not show that he was a bright, intelligent or well matured child, as at that age he should have been in a much higher grade. We think the rule of law applied in The Cook v. Louisiana Public Utilities Co., La.App., 19 So.2d 297, 298, is applicable here, wherein, it was stated: who at that age ordinarily makes the fourth or fifth grade. We are satisfied therefore that he was correctly held free of contributory negligence by the trial judge and that as far as liability on the part of the defendant is concerned the judgment appealed from is correct.”

“Counsel for defendant refer to several cases involving the rule of contributory negligence as it relates to children, citing in particular cases in which some ten and eleven years old were held to come within the rule. Invariably however, we have to recur to the proposition that its application depends upon the intelligence of the child and his power to exercise a certain amount of judgment and also upon the given facts and circumstances surrounding each case. To show that the matter is not limited strictly to a question of age, we might well cite the case of Shally v. New Orleans Public Service Sewerage & Water Board, 1 La.App. 770, in which the court stated that a boy sixteen years old, although amenable to the rule of contributory negligence, ‘could not be expected to possess the same degree of prescience, caution and intelligence of an adult, nor could he be judged by the same rigor of law applicable to the latter.’ The court in that case cited Mitchell v. Illinois Cent. R. R. Co., 110 La. 630, 34 So. 714, 98 Am. St. Rep. 472, in which the rule was not applied in relation to a boy twelve years of age. Incidentally, the Mitchell case was one of the authorities cited and relied on in the Ledet case. [(Ledet v. Lockport Power & Light Co.), 15 La.App. 426, 132 So. 272.] In the present case the boy who was ten years old was still in the second grade at school which of itself showed that he was backward and that his mind had not yet developed to that of a normal child

We do not believe that this eleven year old boy in the third grade should have been required to constantly and continuously bear in mind and remember that the middle plank of this City bridge would sag when stepped upon, We again refer to the Cook case in support of this view when we stated:

“In considering and applying the doctrine of contributory negligence as it relates to children, it is proper, as shown by numerous decisions on the subject, to take into account the peculiar facts and circumstances of each case and especially too, the intelligence and mental capacity of the child involved. It may well be that a boy ten or twelve years old could be said to’ be guilty of contributory negligence in conducting himself in the face of a rather common danger such as, for instance, the fast approach of an automobile on the highway or a city street, or a train on a railroad track, whereas in his conduct in relation to certain objects he knows nothing about or does not appreciate the dangers involved in coming in contact with them, he should not be held to the same standard of conduct as an adult. That was the underlying reason why the boy in the Ledet case was held free of contributory negligence even though in that case, as in the present, he and a companion spoke of the potential danger that might be lurking in a broken and hanging electric wire, and which is here stressed by counsel as a warning which the injured boy failed to heed.”

In the case of Ledet v. Lockport Light & Power Company, 15 La.App. 426, 132 So. 272, it was held that a boy twelve years of age promoted to sixth grade, which would certainly indicate a boy of high intelligence, and before touching the electric wire had discussed the possible dangers involved, was nevertheless absolved from contributory negligence.

American Jurisprudence, Volume 38, pages 860 to 865, Sections 184 to 188, both inclusive; page 884 to 892, Sections 204, 205, both inclusive, gives us the law of contributory negligence in general and in particular as relates to children. We quote from Section 187, page 863:

“However, momentary forgetfulness may absolve one from the charge of contributory negligence where the danger is latent so as not, of itself, to be a reminder of its existence to one coming within its presence; at least, mere forgetfulness of a latent peril with which one may be acquainted does not necessarily, as a matter of law, constitute contributory negligence.”

This provision is most fitting in the case at Bar of a boy eleven years of age. The main defect in the bridge was a latent defect, consisting of sagging and jerking of the middle plank when it was stepped upon. It would be very difficult even for an adult to constantly keep in mind and remember that the middle plank of this bridge would sag when stepped upon, let alone a child eleven years of age.

We quote again from American Jurisprudence, Section 204, page 887, which we consider peculiarly fitting here:

“The care of a child for its own safety is to be measured by its intelligence and ability to discern and appreciate circumstances of danger. However, it is said that a child is favored in determining contributory negligence, not so much on its lack of knowledge, as upon its indiscretion, imprudence, lack of judgment, and impulsiveness. The exact cautionary measures that must be taken by children cannot be expressed, of course, by any general rule; they must, in connection with the circumstances in each case, depend upon the intelligence, capacity and judgment which the child is shown by the evidence to have possessed.”

We now approach the amount of damages. The plaintiff has proved that the damages which he claims in Article 16 of his petition, which amounts to the full sum of Three Hundred Nine and 50/100 ($309.50) Dollars. The boy’s spleen was removed. He stayed in the hospital seven days and stayed in bed about three weeks. He suffered considerable pain, and while the medical evidence indicates that the spleen is not a necessary organ of the body, it seems to us that the doctor cannot be absolutely sure that this boy will be just as well and strong as he would have been had his spleen not been injured. We believe his injuries justifies an award of Thirty-Five Hundred and No/100 ($3500) Dollars.

It is now accordingly, ordered, adjudged and decreed that:

1. The original judgment and decree of this court be reversed and set aside;

2. The judgment of the District Court be reversed;

3. That there be judgment in favor of the plaintiff, Albert Delahoussaye, Sr., for the use and benefit of his minor child, Albert Delahoussaye, Jr., and against the City of New Iberia, Louisiana, in the full sum of Thirty-Five Hundred and No/100 ($3500) Dollars, together with legal interest thereon from date of judicial demand until paid;

4. That there be judgment in favor of the plaintiff, individually, and against the City of New Iberia, Louisiana, in the full sum of Three Hundred Nine and 50/100 ($309.50) Dollars, with legal interest thereon from date of Judicial demand until paid;

5. That defendant City pay all costs of these proceedings; and

6. That the right of defendant to apply for rehearing is hereby specifically reserved.

LE BLANC, J., dissents, adhering to original decision herein rendered.

ELLIS, J., absent; J. CLEVELAND FRUGE acting as Judge ad hoc.


text:
    LAPEROUSE et al. v. McWILLIAMS DREDGING CO. et al.
    No. 3002.
    Court of Appeal of Louisiana. First Circuit.
    May 26, 1948.
    Helm & Simon, of New Iberia, for appellants.
    Hammett & Bertel, of New Orleans, for appellees.
   J. CLEVELAND FRUGE, Judge ad hoc.

On May 4, 1946, and prior thereto, Roger Laperouse was employed by McWilliams Dredging Company as a laborer in the business of dredging and other similar work by said company, in the Parish of St. Martin, Louisiana. The petition sets forth “That on the 4th day of May, 1946, the said Roger Laperouse and four other employees worked from 8:00 a. m. to 4:00 p. m. ‘walking and breaking the line’ in mud and slush, and in extremely hot weather; that at approximately 4:00 p. m. one . of the employer’s small boats came for said employees in order to transport them back to the dredge boat ‘Natchez,’ their living quarters; that when the said Roger Laper-ouse and his co-employees arrived at the dredge boat ‘Natchez’ they were covered with mud and slush and were overheated and that said employees went into the shallow water near said dredge boat to wash and bathe themselves, and while so doing the said Roger Laperouse accidently drowned.” The petition further sets forth that the average weekly wage of said Roger Laperouse was $38.40, and that he used said wage entirely for the support of plaintiffs herein, namely his father Louis Laperouse, his mother Rosalie Landry, wife of Louis Laperouse, and his minor sister Theresa Laperouse and minor brother, Philip Laperouse, saving only $2.00 for his own enjoyment. Consequently plaintiff filed this suit under the Workmen’s Compensation Act, Act No. 20 of 1914, as amended, against McWilliams Dredging Company, his employer, and the American Motorists Insurance Company as insurer, alleging that as dependents of the said Roger Laperouse they are entitled to judgment in the amount of 65% of his weekly wage, not to exceed the sum of $20 per week for a period of 300 weeks. The petition, of course, alleges that the occupation of Roger Laperouse was hazardous as defined by the compensation laws.

To this petition the defendant filed an exception of vagueness and an exception of no cause and no right of action, as well as an answer.

The exception of vagueness is predicated on the theory that the allegation of the petition with reference to the accidental drowning, which is quoted above, does not set forth why it was necessary or proper for the deceased to have used the bayou for the purpose of'bathing and removing the mud and slime which he had on him as a result of his work; that the allegations do not contain any statement to the effect that the employer failed to furnish proper facilities for that purpose.

The exception of no cause and no right of action is based on the theory that since plaintiffs have failed to allege lack of proper facilities and have failed to allege that it was necessary for the deceased to have used the bayou for cleaning himself, the petition does not reveal a cause of action.

The answer admits the employment and the drowning, but sets forth that the deceased had already returned to his quarters and that without using the showers and the washing facilities provided for his use on the dredge boat “Natchez”, where the employees lived, he chose deliberately to leave the boat upon which he lived and to seek his own pleasures and enjoyment in a swim at a spot located a considerable distance from the employer’s premises.

The trial court sustained the exception of no cause and no right of action and plaintiff has appealed.

In his written reasons for judgment the Judge came to the conclusions:

“The accident in this case, as shown by the petition, took place after the hours of employment had terminated hence, clearly, it did not occur in the course of employment.”

That the accident occurred after the day’s work had terminated and that the deceased was not then engaged in any work; that going batíiing was no benefit to the employer, and that the employee was merely pursuing his own pleasure or comfort.

The trial judge states that if it could be said that the necessities of the employer’s business reasonably required him to be at the place of employment when it happened, a cause of action would be shown herein, but he concludes that the petition makes no such showing; that after the hours of employment, the only way an industrial accident can come under the Act is where the employer’s business reasonably requires the employee to be at the place where the accident occurred. He comes to the conclusion that the accidental, drowning (1) did not occur in the course of the employment, and (2) did not arise out of the employment because (a) the employee was not engaged in his employer’s business, (b) the employer’s business did not reasonably require that he be where the accident occurred when it occurred. The trial judge adds that his conclusions are in conformity with the holding in Rogers v. Mengel Co., La.App., 187 So. 297. In that case an exception of no cause or right of action, see 189 La. 723, 180 So. 499, was sustained by both the District Court and our Court, and on writs the Supreme Court overruled the exception and remanded the case for trial. On the trial on the merits the plaintiff lost and this is the citation relied on by the trial judge. Therefore in so far as the exception is concerned, the case as cited by the trial judge is not apposite, but the decision of the Supreme Court of the case reported in 189 La. 723, 180 So. 499 is very apposite.

Similarly the defendants rely, not only on the Mengel case, but also on the case of Rigsby v. John W. Clark Lbr. Co., La.App., 28 So.2d 346, Evans v. Central Surety and Insurance Corporation, La. App., 10 So.2d 406, which cases were also decided on the merits, and not on exceptions. The only case cited by defendants which was decided on an exception is the •case of Como v. Union Sulphur Co., La. App., 182 So. 155. In that case the petition clearly showed that the employee was engaged strictly in a personal venture of dynamiting fish, which had no connection whatsoever with his employment. That is quite different from the situation herein where the petition shows that the employee was engaged in removing slime and mud from his body, together with fellow employees, which mud and slime had been obtained in line of duty. As .set forth in the Mengel case, supra, “Where one finds himself at the scene of an accident not voluntarily but because of the necessities of his business, injuries suffered in such accidents arise out of the necessity and hence ‘arise out of employment’ within Compensation Act.”

On the question of sufficiency of the petition, the case of Pierre v. Barringer, 149 La. 71, 88 So. 691, appears to correctly set forth the law, as follows:

“A critical examination of the petition, which is carelessly drawn, would show that it does not technically embrace a cause of action. But its general purport shows it to be a suit by an employe against his employer for compensation for an accident while the plaintiff was in the employ of the defendant and while he was supposed to be acting in the performance of his duties. The answer, which was filed at the same time as was the exception, shows quite plainly the above condition of affairs.
“The law provides in Act 234 of 1920, p. 442, which is an act to amend and re-enact certain sections of the original bill, known as No. 20 of 1914, which is the Employers’ Liability Act,* that the answer should be filed to the complaint made by the employe implying that exceptions would be out of order, and it further provides that:
“ ‘The judge shall not be bound by the usual commonlaw or statutory rules of evidence or by any technical or formal rules of procedure other than as herein provided. The judge shall decide the merits of the controversy as equitably, summarily, and simply as may be.’
“The exception of no cause or no right of action should have been overruled.”

That case too was decided on the merits.

It is clearly shown by the jurisprudence of this State that in workmen’s compensation cases an exception of no cause and no right of action should not be sustained merely on the proposition that the petition does not technically express a cause of action; that the general purport of a petition such as the one filed herein shows it to be a suit by the parents of the employee against the employer for compensation due to the accidental death of the employee while he was supposed to be acting in the performance of his duties or as a natural result of his duties. It would appear that the plaintiffs herein have a right to introduce evidence to show the connection with the decedent’s employment of washing off of his person the mud, slime and slush of the swamp, as he did. Certainly, the allegations of the petition are sufficient to show that the plaintiffs believe that they can connect the bathing of the deceased to his actual employment, and that consequently his drowning arose out of his employment. It is probably true that if the defendants can show, as alleged in their answer, that the proper facilities were furnished the employees for the purpose of removing the slime and mud, and that the bathing was entirely unconnected and unnecessary in the employment, then and in that event plaintiffs will not maintain their suit; but that is a matter which goes to the merits, and we do not feel that the plaintiffs should be denied their day in Court on an exception of no cause and no right of action. It is our opinion that the petition i.s sufficient and that the exceptions should be overruled and the case remanded for trial on the merits.

For the reasons assigned, the exceptions are overruled and accordingly the Judgment of the lower Court is reversed and set aside and the case is remanded for trial on the merits not inconsistent with the views expressed herein. Cost of appeal to be paid by appellees.


author: HAWTHORNE, Justice.

text:
    213 La. 721
    McGEHEE v. TOWN OF KENTWOOD. In re McGEHEE.
    No. 38873.
    Supreme Court of Louisiana.
    April 26, 1948.
    Ponder & Ponder, of Many, for relator.
    Reid & Burch, of Amite, for defendant-respondent.
   HAWTHORNE, Justice.

The sole issue presented by this case is whether a court of this state has jurisdiction to issue a restraining order and a preliminary injunction against a municipality, enjoining and restraining the municipality from molesting or interfering with the operation of a retail package liquor store, when the owner’s permit to conduct such business has been withheld by the local authorities.

Relator, John H. McGehee, in his petition filed in the district court alleged that for the past three years he had been engaged in the operation of a retail package liquor store in the Town of Kentwood, Louisiana, but that his permit to conduct such business for the current year, 1948, had been withheld for the alleged reason that a building across the highway from his place of business had recently been remodeled and was being used for “church purposes”. In this petition he further alleged that he was entitled to injunctive relief to enjoin and restrain the Town of Kentwood, its mayor and marshal, from molesting or interfering with the operation of his business, although he did not allege in what particular way or manner the town officials were molesting or interfering with the operation of his business, or even that they were actually interfering with its Operation.

Pursuant to his prayer, the lower court issued a temporary restraining order and a rule against the defendant town, through its proper officials, to show cause why a preliminary injunction should not issue restraining the officials from interfering with, molesting, or restricting the operation of plaintiff’s business as a retail liquor dealer.

To the petition the defendant, Town of Kentwood, filed an exception, alleging that the district court was without jurisdiction to issue the restraining order or temporary injunction, the court being specifically prohibited therefrom by the provisions of Act No. IS of 1934, Section 6, as amended.

On the trial of the rule to show cause why a preliminary injunction should not issue, the lower court vacated the restraining order previously issued and dismissed plaintiff’s suit at his costs. From this judgment of dismissal he applied to this court for remedial writs, and the matter is now before us under our supervisory jurisdiction.

Act No. IS of 1934, as amended, insofar as it concerns parishes and municipalities of this state, provides that such subdivisions are authorized and empowered to issue permits for the privilege of operating retail package liquor stores, similar to those permits authorized in the act to be issued for the state by the Collector of Revenue. The act provides that all such retail dealers before engaging in such business are required to, and shall, obtain annually, dating from January 1 of each year, a permit to conduct such retail business, which permit shall be purely a personal privilege and good from the time of issuance until December 31 next following, unless sooner suspended or revoked pursuant to the provisions of the act; further, that any person engaged in the retail liquor business must file application for the permit, and that any dealer applying for renewal of a local permit for the ensuing year who makes his application before January 1 shall continue business under his old permit unless it has been suspended or revoked or the application for the renewal permit has been withheld or denied as provided in the act; further, that an applicant for a permit which has been withheld for some reason specified or authorized in the act may, within the time provided from receipt of notice that his permit is being withheld, appeal to the district court having jurisdiction of his place of business for review of the action of the local authorities in withholding the permit.

Section 6 of Act No. 15 of 1934, as amended by Section 2, Act No. 384 of 1946, provides in Subsection (c), Paragraph (5), that, in all questions involving the granting of a permit by local authorities, the courts of this state shall have no jurisdiction to interfere in any manner or to issue restraining orders and writs of injunction restraining such local authorities from proceeding under the provisions of the act, the jurisdiction of the courts being restricted to devolutive appeals to the district court where the place of business is located, and, further, that the action of any municipality in withholding such permit pursuant to the provisions of the act shall not be enjoined or superseded by any court, nor shall such action be suspended or stayed during the pendency of appeals to the courts.

Although relator prayed in his petition for injunctive relief restraining the officials of the town from interfering with the operation of his retail liquor business, the relief which he actually sought was injunctive relief restraining them from .proceeding against him under the provisions of Act No. 384 of 1946 for operating his business in spite of the fact that his permit had been withheld for the year 1948. His suit, therefore, put before the court a question involving the granting of a permit when local authorities had withheld the issuance of a permit, and thus came within the provisions of Section 6 of the act, as amended, which specifically denies injunctive relief in such cases.

In our opinion, the district judge was therefore entirely correct in recalling the restraining order and denying the plaintiff a preliminary injunction. He conceded in his return to our rule issued herein, however, that he inadvertently and through error dismissed plaintiff’s suit in its entirety when he signed the judgment of dismissal.

In relator’s application to this court for writs, he alleged (1) that there was no legal ground for the refusal of the town to issue him a permit, and (2) that the municipal authorities had not complied with the provisions of the act. He pleaded in the alternative that Act No. 384 of 1946 was unconstitutional, as it sought to regulate the issuance of permits 'and denied a person the right of a hearing in court, or, in other words, was a denial of the due process clause of the Constitution.

If relator’s petition filed in the lower court properly presents his two allegations, they may raise questions to be determined on the trial of this case on its merits in the district court. Although relator’s alternative plea of unconstitutionality was alleged in his petition, the record discloses that this plea was not urged in, or passed upon by, the lower court, and for this reason is not before us in these proceedings.

For the reasons assigned, it is now ordered that the judgment of the district court be sustained insofar as it vacated and recalled the restraining order theretofore issued and denied to relator a preliminary injunction. It is further ordered that the judgment be reversed insofar as it dismissed plaintiff’s suit, and that the case be remanded to the district court to be proceeded with according to law. Costs incurred in the application for writs are to be paid by relator; all other costs to await the final determination of the case.


author: O’NIELL, Chief Justice.

text:
    213 La. 728
    SHERER et al. v. STATE.
    No. 38808.
    Supreme Court of Louisiana.
    April 26, 1948.
    Fred S. LeBlanc, Atty. Gen., W. C. Per-rault, 1st Asst. Atty. Gen., and Robert R. Reid, 2nd Asst. Atty. Gen., for defendant-appellant.
    John Fred Odom and Durrett & Hardin, all of Baton Rouge, for plaintiffs-appellees.
   O’NIELL, Chief Justice.

Several parties brought this suit to recover an alleged indebtedness incurred by the Public Service Commission during the period beginning June 30, 1930, and ending in November, 1932. The claims are for services rendered and supplies furnished to the Commission. The plaintiffs were authorized by Act No. 110 of 1946 to sue the state. The court gave judgment in favor .of each of the plaintiffs for the amount of his claim. The state is appealing from the judgment.

The suit was submitted in the district court on a stipulation of facts in which it is admitted by the state that the services were actually rendered and the supplies were actually furnished to the Commission, and that the amounts claimed are commensurate with the services rendered and the supplies furnished.

One of the plaintiffs is suing for the amount due him for his salary as a member of the Commission. As to his claim the state makes no defense but on the contrary admits the liability. Another plaintiff, Mrs. McGuirt, is suing as transferee of the warrants drawn by another member of the Commission for his salary. The warrants were endorsed by the drawer and delivered to her father and she inherited them from him. As to her claim the state defends on the ground that the warrants are not negotiable instruments and therefore that the endorsement is not sufficient evidence of an assignment. Whether there has been an assignment is a question of fact which the district judge, from the evidence, resolved in favor of Mrs. McGuirt. We see no reason for disturbing his finding.

The other plaintiffs in the suit are holders of certificates of indebtedness issued by the Commission. Some of them were unable to produce their certificates, and were obliged to furnish secondary evidence that the certificates had been in fact issued and to furnish proof that they had been lost. With regard to the plaintiffs whose certificates were lost the state defended on the ground that some third party might show up with one or some of the lost certificates and that the state might be subjected to another lawsuit for the same claim that is made here on the lost certificates. A sufficient answer to that is that the certificates were not negotiable instruments, and that no notice was given to the state that any such certificate had been transferred. According to Article 2644 of the Civil Code if the state should make payment to one of the plaintiffs in this case whose certificate is not produced, the state will be relieved of further liability because of its not having received previous notice of any transfer that may have been made by the original holder of the certificate.

The principal defense urged by the state is that the debts on which this suit is based were incurred at a time when there were no funds appropriated for the purpose of paying the debts. The district judge found that there were funds to the credit of the Commission from time to time during the period in which these debts were incurred; hence he held that the debts were valid obligations, and that their validity was not thereby destroyed if the Commission afterwards paid out the funds for debts subsequently incurred. It is impossible to determine from the record the extent of the funds standing to the credit of the Commission at the time when any particular one of the debts sued on was incurred. But, applying the maxim omnia praesuimmtur rite esse acta, we conclude that there were sufficient funds to pay the debts now sued on at the time when they were incurred.

The judgment is affirmed.


text:
    213 La. 732
    RHEUARK v. TERMINAL MUD & CHEMICAL CO. et al.
    No. 38101.
    Supreme Court of Louisiana.
    April 26, 1948.

      Percy & Wirtz and Joseph A. Loret, all of Baton Rouge, for plaintiff-appellant.
    John E. Fleury, of Gretna, for defendants-appellees:
   HAWTHORNE, Justice.

Plaintiff, Harry B. Rheuark, instituted this suit in the Civil District Court for the Parish of Orleans against the Terminal Mud & Chemical Company, a partnership with its domicile in the Parish of Jefferson, and Carswell O. Hooper, Webb L. Russell, and Raymond C. Allen, alleged to be members of the partnership, praying for judgment against the partnership and the above named members in solido for a large sum as damages for the alleged breach of a contract of employment.

To plaintiff’s petition the defendant partnership and two of the alleged members, Hooper and Russell, filed an exception to the jurisdiction of the cou'rt ratione personae, on the ground that the domicile of the partnership, as alleged in plaintiff’s petition, was in the Parish of Jefferson. Defendant Raymond C. Allen filed an exception of no cause and no right of action, setting forth as the basis of the exception of no right of action that he was not, and never had been, a member of the partnership. The district court sustained the exception to the jurisdiction and the exception of no cause or right of action, and dismissed plaintiff’s suit. From this judgment he has appealed to this court.

Plaintiff’s cause of action is based entirely on an alleged breach of a contract of employment entered into by him and the defendant partnership, Terminal Mud & Chemical Company, on August 28, 1944, and he prays that the court order an accounting between him and the partnership to determine the amount which he contends is due him on account of commissions alleged to be earned under his employment, and for judgment for any amount shown to be due by said accounting, and also for damages for the alleged breach of the contract.

On the trial of the exceptions in the district court, testimony was adduced, without objection, which disclosed that one of the alleged members of the partnership, Raymond C. Allen, was not a member of the partnership, and that one of the partners, Webb L. Russell, was a resident of the Parish of Orleans. The residence of Hooper was alleged to be in the Parish of Orleans, and no evidence was adduced to the contrary. It is admitted by all parties that the defendant partnership is domiciled in the Parish of Jefferson.

To support his contention that the plea to the jurisdiction is without merit, plaintiff relies on Article 165(6) of the Code of Practice, which provides that, when the defendants are joint or solidary obligors, they may be cited at the domicile of any one of them. From this he argues that on a partnership obligation the defendant commercial partnership and its members can be su'ed in the Parish of Orleans, the domicile of one of its members, even though the partnership is domiciled in the Parish of Jefferson.

One of the exceptions to the rule which requires that a defendant be sued before the judge having jurisdiction over the plape of his domicile or residence is found ín Article 165(2) of the Code of Practice, which reads as follows: “Partnership. In matters relative to the partnership, as long as the partnership continues, in all suits concerning it the parties must be cited to appear before the tribunal. of the place where it is established, or if there are several establishments, before that of the place where the obligation was entered into.”

It is not alleged that defendant partnership has more than one establishment, or that the obligation was entered into in the Parish of Orleans. Moreover, it is to be observed that this is not an action for a tort committed in the Parish of Orleans.

Article 2872 of the Revised Civil Code provides that commercial partners are bound in solido for the debts of the partnership, and under Article 165(6) of the Code of Practice, when the defendants are solidary obligors, they may be cited at the domicile of any one of them. But, regardless of this, we are of the opinion that the exception to the jurisdiction ratione personae as to the partnership, filed in this case, has merit, and that the lower court properly sustained it under the plain provisions of Article 165(2) quoted herein-above.

Commercial partners are bound in solido for the debts of the partnership in the sense that they and each of them may ultimately be required to pay the whole of its debts; yet such solidary obligation is not a primary one, and, until the debt is established contradictorily with the partnership, so long as it exists, there is no debt within the meaning of Article 2872 of the Civil Code which can be enforced against the individual partners, and the partnership is a necessary party to the liquidation of such a claim. In other words, that liability does not become enforceable against the individual members who compose the commercial partnership separately and apart from the firm until it has been dissolved; so long as it continues, they must be sued through and with it. See E. B. Hayes Machinery Co. v. Eastham, 147 La. 347, 84 So. 898, and authorities therein cited.

For these reasons, we do not think that in the instant case defendants are joint or solidary obligors within the contemplation of Article 165(6) of the Code of Practice, and hence this paragraph has no application. But Paragraph (2) of the article is applicable because this is a matter relating to a partnership, and the partners must be cited to appear before the tribunal of the place where the partnership is established. The plaintiff relies on Klotz v. Tru-Fruit Distributors et al., La.App., 173 So. 592, in urging us to reach a contrary conclusion. We have read that case carefully and do not consider that it supports his contention.

The exception as to Hooper and Russell might properly have been one of venue rather than of jurisdiction ratione personae. However, we consider the contentions supporting the exception to have merit, and the venue of the instant suit is in the Parish of Jefferson, the admitted domicile of the defendant partnership.

In the exception of no cause and no right of action filed by the defendant Allen, he urges that there is no right of action for the reason that he is not, and never has been, a member of the partnership. Although this contention is urged in support of the exception of no right of action, it in no way challenges plaintiff’s right or capacity to institute the instant suit, but is aimed at a lack of legal cause or reason for the action.

Testimony was adduced without objection in support of the contention, and, had timely objection been made, the admission of this testimony would have been error, because testimony is not admissible to show no cause of action. Duplain v. Wiltz, La. App., 174 So. 652. However, since it was introduced without objection, it had the effect of enlarging the pleadings and may be considered as though written in the petition. Further, the testimony, which is not rebutted or denied, shows conclusively that Allen is not, and has never been, a member of the partnership, and this testimony was therefore properly considered by the trial judge in sustaining the exception filed by this exceptor.

In the case of Phillips v. New Amsterdam Casualty Co. et al., 193 La. 314, 190 So. 565, this court held that, when evidence tending to show no cause of action is introduced without objection, the pleadings are enlarged by the evidence, and it may be considered as though written in the petition. In that case, as in this one, the plaintiff allowed the testimony to be taken without objection and participated in the cross-examination of the witnesses tendered by the defendant.

For the reasons assigned, the judgment appealed from is affirmed; plaintiff-appellant to pay all costs of this appeal.

FOURNET, J., absent.


text:
    213 La. 739
    GREEN v. GEORGE et al.
    No. 38202.
    Supreme Court of Louisiana.
    April 26, 1948.
    Truett L. Scarborough, of Ruston, for plaintiff and appellant.
    Tooke & Tooke and J. R. Goff, all of Shreveport, for defendants and appellees.
   HAWTHORNE, Justice.

Plaintiff-appellant, Arch Green, instituted this jactitation or slander of title suit, alleging that he has been for more than 30 years, and is now, in actual, physical, corporeal possession as owner of a tract of land containing 40 acres, situated in the Parish of Bienville, Louisiana; that he has exercised possession of the property by living in a dwelling on the property, and by cultivating, fencing, farming, and pasturing the land, and in general exercising dominion and control over it as owner; that the acts and possession have been continuous and uninterrupted during this whole period of time, and that said acts' of possession have been public and unequivocal.

The petition further alleges that the defendants, Walter L. George, J. R. Goff, J. H. Poole, Dorothy Jane George, C. E. Tooke, Sr., S. E. Mix, and Dee Vanzant, are slandering his title by claiming and asserting that they own the property or have an interest therein or in the mineral rights thereto by virtue of deeds and instruments recorded in the conveyance records of Bienville Parish, all of which are fully described in his petition.

Plaintiff prays for judgment against the defendants in solido for the full sum of $1250, $1000 of this amount as damages as a result of the defendants’ allegedly slanderous acts and $250 as attorney’s fees, and prays further for the usual relief sought in suits of this nature.

Defendants in their answer deny the allegations- of the petition with the exception that they admit the existence and recordation of the various deeds and instruments described in plaintiff’s petition, but deny that the execution and recordation of these instruments constitute slander of title against the plaintiff or any property belonging to him.

After trial on the merits the district judge dismissed plaintiff’s suit at his costs, and from this judgment he has appealed to this court.

The defendants in their answer do not claim or assert title in themselves and therefore have not converted this suit into a petitoi-y action, and title or ownership of this property is not at issue. This suit is, and remains, a suit in jactitation or slander of title. It is clearly disclosed by the pleadings themselves and by the trial of the case on its merits that the only issue is whether plaintiff has the real and actual possession as owner of a sufficient character and nature to entitle him, under the law, to maintain a slander of title or jactitation suit.

The pleadings and the record as made up do not disclose that this court has appellate jurisdiction, inasmuch as the amount in dispute is not shown to be in excess of $2000, and we take cognizance of this fact ex proprio motu. Dupey v. Greffin’s Executor et al., 1 Mart., N.S., 198; Lafon’s Executor 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.

The action of jactitation or slander of title is founded exclusively on possession, is a form of the possessory action, and is governed by the rules thereon of the Code of Practice. See Article 46, Code of Practice; Williams’ Heirs et al. v. Zengel, 117 La. 599, 42 So. 153; Miller v. Albert Hanson Lumber Co., Ltd., 134 La. 225, 63 So. 883; Brashears et al. v. Chandler, La.App., 183 So. 546.

It is well settled that, when possession of property is at issue, it is the value of the “right of possession,” and not the value of the property, by which the jurisdiction of this court is to be determined.

“The suit being one for possession, its value, and not the value of the property, is the test of jurisdiction. * * * ” Norwood v. Wimby, 104 La. 645, 29 So. 311.
“ * * * we find it has been several times held by this court, where the issue between the parties is not as to the ownership of property, but as to its possession, that it is the value of the 'right of possession’ which is involved, and not the value of the property itself, by which the jurisdiction of this court has to be determined.” Macedonia Baptist Church v. Elias S. Dickinson et al., 52 La.Ann. 704, 27 So. 100, 101.

See also In Re Genella, 45 La.Ann. 1377, 14 So. 302, wherein it was held that, where the issue in a case is not the ownership of property but the right of possession thereof, it is the value of the right of possession and not the value of the property which determines the question of jurisdiction of the appellate court.

We have made a research of the jurisprudence in regard to the test of appellate jurisdiction in a jactitation suit, and we find that no definite test has been established by this court. It is possible that no definite rule can be laid down because the matter in controversy in each suit will be determined by the defendant’s answer, that is, whether he denies the plaintiff’s possession, or denies the slander, or sets up title in himself.

In the instant case, if the value of the right of possession determines the ap-apellate jurisdiction, this court is without jurisdiction, because the value of that right is not alleged or affirmatively shown in the pleadings or by the record as made up.

If the item of damages prayed for determines the amount in controversy, the result would be the same. In Interstate Land Co., Ltd., v. Fellman, 134 La. 538, 64 So. 404, the issue was almost identical with the issue in this case. The plaintiff brought a jactitation suit for alleged ■slander of title and for damages. The defendant pleaded the general issue and specifically denied plaintiff’s possession of the property. The court held that damages were at issue, since an amount was claimed and the right to recover it was denied. In that case damages in the amount of $2100 were prayed for, and this court overruled the motion to dismiss. In the instant case ■damages in the amount of $1000 and attorney’s fees in the sum of $250 are claimed, and that claim is denied. But that amount, even if considered in determining jurisdiction, would not be sufficient to give this court appellate jurisdiction. If it were considered proper to add the damages prayed for to the value of the right of possession, this court still would not have jurisdiction because it is not affirmatively shown what the value of the right of possession is.

Further, even if defendants had converted the instant suit into a petitory action by asserting title in themselves without any allegation as to the value of the land, this court still would not have jurisdiction for the reason that plaintiff has alleged that the property has a value of $1000.

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 no the Supreme Court; all other costs shall abide the final disposition of the case.


text:
    213 La. 746
    ROACH et al. v. ROACH et al.
    No. 38002.
    Supreme Court of Louisiana.
    April 26, 1948.

      Browne, Browne & Bodenheimer and Chas. B. Emery, all of Shreveport, for plaintiff-appellee and plaintiff-appellant.
    Frank A. Blanchard and Sylvian W. Gamm, both of Shreveport, for defendant-appellee and defendant-appellant.
   HAWTHORNE, Justice.

Mrs. Mary H. Pugh Roach, widow of Benjamin H. Roach, died on July 29, 1943, leaving an estate valued in the inventory at $9250. She was survived by eight children bom of her marriage with Benjamin H. Roach. Mrs. Roach left a last will and testament in nuncupative form by public act dated November 20, 1914, in which she bequeathed all of her property to certain of her children who were named as legatees therein.

Two of her children who received no bequest under her will, John B. Roach and Mrs. Annie Caroline Roach Nicholson, hereinafter referred to as plaintiffs (together with Mrs. lone V. Roach as as-signee of John B. Roach), instituted this suit on July 6, 1944, seeking to have the last will and testament of Mrs. Roach decreed to be null- and void because she did not expressly declare in the will that the property bequeathed to the legatees named therein was being bequeathed as an advantage or extra portion, and urging that the bequest of all of the property to the legatees mu'st fall under the obligation to collate and become a part of the estate. They pray that each of them be recognized as the owner of an undivided one-eighth interest in all the property left by the deceased.

In the alternative, these plaintiffs pray that, in the event the will should be held to be valid, the bequests therein made to the other children be reduced to one-third of the property of the testatrix, and that they be recognized as owners of an undivided one-eighth interest each in the remaining two-thirds, or one-twelfth to each. Stated' somewhat differently, the alternative demand is simply for a reduction of the legacies insofar as they encroach on the legitime of each of these plaintiffs.

The testatrix stated in the will that she considered that the plaintiffs had already had all that was due them, and no bequest was made in the will to these plaintiffs of any property left by the deceased. Plaintiffs contend that, because of this fact, the will as written had the effect of disinheriting them.

The other children of the testatrix or their heirs are defendants in this suit. In their answer they admit that plaintiffs are the forced heirs of the testatrix, but deny generally all other allegations of the petition. By way of special defense they set out that each plaintiff had received more than his or her share of their mother’s estate during the lifetime of their father and mother by donations of community property.

As to plaintiff John B. Roach, defendants allege that he was donated a tract of land comprising five acres by virtue of a simulated sale from his father dated December 16, 1901, and that the property so •donated had a value in excess of $3500 at the time of the death of the donor. They allege also that he was donated and given without consideration by his mother in December, 1914, 39 head of dairy cattle •of the value of $1750. The total value •of these alleged donations to John B. Roach is therefore $5250.

As to plaintiff Mrs. Annie Roach Nicholson, defendants allege that by act of donation dated December 4, 1891, she was given by her father 5.22 acres of land belonging to the community existing between her father and mother. They allege that on December 16, 1914, the same property described in the act of donation was purportedly sold by their father to Mrs. Nicholson (the consideration named in the act of sale being' $1000); that this purported sale was a simulation pure and simple, and that the consideration named in the deed was not paid; that the property was worth in excess of $15,000 at the time of the death of the donor.

Defendants pray that the demands of plaintiffs be rejected, and, in the alternative, that “John B. Roach and Mrs. Annie C. Nicholson be ordered to collate the sums of $5250.00 and $15,000.00 respectively, before being allowed to share in this estate, and on their failure to do so that they be required to collate by taking less and thereupon their demands be rejected and their suit dismissed * * Defendants pray further in the alternative that, if plaintiffs are entitled to anything from their mother’s estate, they are entitled to receive only one-eighth of two-thirds of this estate, and that the judgment in such event provide that the value of the special gifts made to John B. Roach and Mrs. Nicholson, as set out herein-above, be deducted from said one-eighth of two-thirds.

Although the answer avers that the property alleged to have been donated to Mrs. Nicholson was valued at $15,000 at the time of the death of the donor, her father, counsel for all parties have stipulated that this tract of land was worth at the death of the testatrix as much as $5000.

Prior to trial on the merits, plaintiffs filed a plea of prescription of five years against all of defendants’ demands for collation, and plaintiff John B. Roach filed a plea of prescription of three years against their demand for collation as to the 39 head of cattle. These pleas were referred to the merits by the trial judge.

After trial on the merits, the district judge overruled both pleas of prescription and was of the opinion, as shown by his reasons for judgment, that the will was not null and void, but that the bequests made therein were reducible to the disposable portion, there being no obligation to collate donations or bequests mortis causa; that defendant had not sustained the burden of proving that the sale of the five-acre tract by their father to plaintiff John B. Roach was a simulation, and that the defendants had likewise failed to prove to the satisfaction of the judge that the 39 head of cattle were donated to John B. Roach by his mother; that the tract of 5.22 acres was donated to Mrs. Annie Roach Nicholson, and that the defendants had sustained the burden of proving that it was a donation and that the deed was a simulation, and that Mrs. Nicholson had received more than her legitime.

Accordingly judgment was rendered in favor of plaintiff John B. Roach, recognizing him as one of the heirs of his deceased mother and entitled to the ownership and possession of an undivided one-eighth of two-thirds, or one-twelfth, of all the property belonging to her succession, and judgment was rendered against plaintiff Mrs. Nicholson, rejecting her demand and dismissing her suit.

From this judgment Mrs. Nicholson appealed, and from the judgment insofar as it was in favor of John B. Roach the defendants appealed. Plaintiff John B. Roach and his assignee, Mrs. lone V. Roach, have answered the appeal o'f defendants, calling our attention to the fact that in the proceedings in the lower court a deed was filed in which plaintiff John B. Roach conveyed to Mrs. lone V. Roach all of his right, title, and interest in the successions of Benjamin H. Roach and Mrs. Mary H. Pugh Roach, and that John B. Roach was made a party plaintiff in these proceedings as warrantor under the deed and as one of the heirs of his mother, and that Mrs. lone V. Roach was made a party plaintiff as assignee named in said' deed, and that for these reasons the judgment O'f the district court should be amended and revised so “as to recognize the said Mrs. lone V. Roach as vendee and assignee of the said John B. Roach, and that, in any event, the said parties be recognized as entitled to 1/12 of said estate, as their interests might appear.”

We have discovered in our examination of the record that the defendants have not filed an appeal bond to perfect their appeal from the judgment in favor of John B. Roach. The plaintiff John B. Roach has made no issue of this, but, as stated above, answered the appeal.

We find a conflict in the jurisprudence on the question of whether the filing of an appeal bond is necessary to give an appellate court jurisdiction of an appeal, or, in other words, whether an appellate court can take cognizance of the lack of an appeal bond ex proprio motu and dismiss the appeal. Inasmuch as this point was not raised by counsel and the case was not argued before this court, we do not feel that this case is a proper one in which to resolve the conflict, and therefore we have considered the case as though the appeal of defendants were properly before us.

This case was submitted to this court on briefs, and we do not have the benefit of able counsel’s oral argument. The trial judge, however, has given us -the benefit of written reasons for judgment. He has patiently and carefully marshaled the facts from the very conflicting evidence in this case and has set out all pertinent facts in sufficient detail. Moreover, he has cited the law applicable to each conclusion which he reached, and has given his reasons therefor with clarity, logic, and precision.

In refusing to decree the last will and testament of the testatrix null and void, the lower court recognized the general principles of law as they are now established in this state, to -the effect that, when a testator disposes of his entire estate to the prejudice of a forced heir, he has done nothing except to make a disposition of property mortis causa affecting the quantum he m-ay legally dispose of to the prejudice of such forced heir, and that such a bequest does not make the will null and void but merely subjects such donation mor-tis causa to an action by the forced heir for the reduction thereof and for the recovery of his legitime; and, further, that the obligation to collate does not apply to donations mortis causa. In support of these principles of law the judge cites Article 1502 of the Civil Code, the leading case of Jordan v. Filmore, 167 La. 725, 120 So. 275, and also Succession of Smith, 182 La. 389, 162 So. 21, and Draper v. Van Leer, 197 La. 259, 1 So.2d 513.

Article 1502 provides:

“Any disposal of property, whether inter vivos or mortis causa, exceeding the quantum of which a person may legally dispose to the prejudice of the forced heirs, is not null, but only reducible to that quantum.”

In brief of plaintiff Mrs. Nicholson, it is argued that we should overrule Jordan v. Fihnore, supra, and return to the original construction and interpretation given Article 1501 of the Civil Code, and in support of this argument counsel rely strongly on the case of Succession of Ford, 130 La. 442, 58 So. 141.

Article 1501 of the Civil Code reads as follows:

“The disposable quantum .may be given in whole or in part, by an act inter vivos or mortis causa, to one or more of the disposer’s children or successible descendants, to the prejudice of his other children or successible descendants, without its being liable to be brought into the succession by the donee or legatee, provided it be expressly declared by the donor that this disposition is intended to be over and above the legitimate portion.
“This declaration may be made, either by the act containing the disposition, or subsequently by an instrument executed before a notary public, in presence of two witnesses.”

In Jordan v. Filmore, supra, the author of the opinion, speaking for the court with reference to the Ford case, said [167 La. 725, 120 So. 280] :

“In the Succession of Ford, the testator left four children of his first marriage and six children of his second marriage. He declared in his will that he bequeathed all of his property to the six children of his second marriage, share and share alike, and, declaring that he had already given one-half of all of his property to the four children of his first marriage in settlement of their claims against his estate, he bequeathed $1 to each of them. They sued to compel the six children of the second marriage to collate the whole estate, on the ground that the testator had not expressed the intention to confer an advantage upon them, or to give them an extra portion; and the court ruled accordingly. Assuming that the court’s interpretation of the language of the will was correct, and that the testator did not intend to give the children of his second marriage an advantage, or an extra portion, over the children of his first marriage, the decree was correct; but, in so far as the author of the opinion dealt with the case as if the residuary legatees were obliged to collate, according to the technical meaning of the word, and as if a testator must, in order to avoid the obligation of collation, express in an universal or a residuary bequest given to one of his children — any more than the very nature of the bequest itself expresses — the intention to give the legatee an advantage or an extra portion, the decision is wrong, and ought to be considered overruled by the decision in the Succession of Maltry [161 La. 1032, 109 So. 827].”

In the course of the opinion in the Jordan case, this court interpreted Article 1501 and construed it to have the following meaning [167 La. 725, 120 So. 278]:

“Article 1501 of the Louisiana Code indicates, more plainly than article 919 of the French Code, that it is only when the disposable portion is given to a prospective heir by donation inter vivos, and not when it is given to an heir by testament, that it must be expressly declared to be given as an advantage or an extra portion, in order to exempt the donee from the obligation of collation, strictly so called; for article 1501 provides that such a declaration must be made by the donor, to- avoid the obligation of the donee to collate. There is no indication in article 1501 — -for there would be no sense in the requirement — that a testator who bequeaths more of the disposable portion of his estate to one of his descendant heirs than to another must express, any more plainly than his favoritism itself expresses, his intention that the legacy bequeathed to the favored heir is intended as an advantage over the other heir, or as an extra portion — in order to avoid the obligation of collation, strictly so called. All that the testator has to do in the distribution of his estate among his heirs as he sees fit, to be sure that his will shall be carried out, is to avoid impinging upon the legitime which the law reserves to each of his forced heirs.”

The arguments offered by counsel on this point do not warrant the overruling of Jordan v. Filmore, supra. We are not disposed to overrule a case unless it is conclusively shown that the prior conclusion is erroneous. This plea of nullity of the will is therefore without merit.

Article 3542 of the Civil Code provides that an action for the reduction of excessive donations, among other actions, is barred by the prescription of five years, but this article does not fix a time at which prescription begins to run, as heretofore pointed out by this court. It is plaintiffs’ contention that this article is applicable to defendants’ demand for collation of the property received by them, which defendants allege plaintiffs received by donations or simulated sales. Plaintiffs have apparently abandoned the plea of prescription of three years, for they do not urge it in this court.

All the property acquired by plaintiffs in these various transactions belonged to the community which existed between their parents—the first, the five-acre tract, being acquired by Mrs. Nicholson in 1891, and the last, 39 head of cattle, allegedly acquired by John B. Roach in December, 1914.

The testatrix died on July 29, 1943, and this suit was filed on July 6, 1944, a little less than one year later. Although application had been made to the court to have her will probated, it had not been admitted to probate on the date this suit was filed. Defendants’ demand for collation is to the mother’s succession. In such a case, where donations have been made from community property or from community funds, one-half of the amount to be returned must be collated in the father’s succession and the other one-half in the mother’s succession.

Plaintiffs apparently base their plea of prescription on the theory that the prescription in this case started to run from the death of their father on April 3, 1926, and cite in support of this plea the case of Naudon et al. v. Mauvezin, 194 La. 739, 194 So. 766, in which case a plea of pre-cription of five years for a claim for collation was sustained by this court. However, a few months later, without mentioning or citing the Naudon case, this court in disposing of a similar plea in the case of Himel v. Connely, 195 La. 769, 197 So. 424, 428, said: “* * * the prescription of five years, by which, according to article 3542 of the Civil Code, an action to' reduce an excessive donation to the disposable portion is barred, is not applicable to an action to compel collation. * * * ”

Plaintiffs urge that, even though the trial court felt constrained to follow the Himel case, this court is not compelled to do so and can return, if it sees fit, to the doctrine plainly announced in the Naudon case. It is not necessary for us in the instant case to discuss these two decisions, however, for the reason that five years have not elapsed from the date of the death of the testatrix herein, and it obvious that the right to demand collation as to the mother’s succession could not in any case exist before her death. To say that prescription started to run from the date of the death of the father would lead to the absurd result that prescription of the right to demand collation in the mother’s succession began to run before the existence of that right. Obviously five years have not elapsed since the testament was filed for probate, if prescription to defendants’ demand for collation began to run on this later date.

We now come to the questions of fact, raised in answer by defendants’ special defense, whether plaintiffs, Mrs. Nicholson and John B. Roach, had received donations of community property from their father and mother of a value in excess of their respective legitimes.

As pointed out by the trial judge, the testimony of several of the witnesses discloses such bias and animosity toward other witnesses as to destroy partially any effect that could be given to their testimony. However, from the undisputed facts and documentary evidence, we have reached the same conclusions as the trial judge.

Mrs. Nicholson received by donation from her father in December, 1891, 5.22 acres of land. Although this same property was subsequently sold to Mrs. Nicholson in December, 1914, for a purported consideration of $1000, this transaction was a simulation pure and simple, made for the purpose of clearing her title to the land, and no consideration was paid for this deed. The value of the land as of the death of Mrs. Roach, according to a stipulation of all parties, was as much as $5000. If under the law one-half of this amount, $2500, is collated in the mother’s succession, valued in the inventory at $9250, the total value of the' property left by the testatrix would be $11,750, and it can readily be seen that Mrs. Nicholson has received by virtue of the donation inter vivos of community property more than her legitime, and therefore is entitled to nothing from her mother’s succession.

According to the allegations of the special defense set up by defendants, plaintiff John B. Roach received by donations of community property five acres of land and 39 head of dairy cattle. The land was received by him under a deed dated December 16, 1901, from his father for a purported consideration of $100. The testimony of defendants that John B. Roach did not have $100, the amount of the consideration, at the time this land was deeded to him is not sufficient to prove that this was not a bona fide sale of the property. In Blackman v. Brown et al., 155 La. 959, 99 So. 711, 713, this court said: “The law does not favor actions by forced heirs to undo transactions of their ancestors as done in fraud of their rights. Such actions can only succeed where the proof adduced in support thereof is convincing, if not irresistible. * * * ”

As to the 39 head of cattle, valued at $1750, allegedly donated by the mother to John B. Roach, the evidence is so conflicting that it is impossible for us to say that this herd of cattle was so donated to him or even that such a herd of cattle ever actually existed.

We therefore conclude that the defendants have failed to discharge the burden of proving their special defense as to John B. Roach, and that he is accordingly entitled to his legitime in his mother’s estate — one-eighth of two-thirds, or one twelfth, thereof.

It is well settled in our law that the trial judge’s finding of fact is entitled to great weight and will not be reversed unless manifest error is shown on appeal. Wagner v. Shannon, 180 La. 233, 156 So. 289; Lejeune v. Lejeune, 187 La. 339, 174 So. 643; Ludeau v. Stromer, 199 La. 824, 7 So.2d 70; McGee et al. v. Yazoo & M. V. R. Co., 206 La. 121, 19 So.2d 21; Jones v. Blossman, 209 La. 530, 25 So.2d 85; Thornton v. Ellington, 209 La. 613, 25 So.2d 282; State ex rel. Theriot v. Pulling et al., 209 La. 871, 25 So.2d 620.

For the reasons assigned, the judgment of the district court is amended to recognize Mrs. lone V. Roach as vendee and as-signee of John B. Roach, and Mrs. lone Roach is hereby declared to be the owner of an undivided one-eighth of two-thirds, or one-twelfth, of all the property left by Mrs. Mary H. Pugh Roach, real, personal, and mixed, and sent into possession thereof, insofar as the interest of John B. Roach in the Succession of Mrs. Mary H. Pugh Roach was conveyed to Mrs. lone V. Roach by the instrument dated December 10, 1943, and recorded in Conveyance Book 480, page 453, of the records of Caddo Parish; and as thus amended the judgment is affirmed. It is further ordered that the costs be divided equally between, and paid.by, plaintiff Mrs. Annie Roach Nicholson and said defendants.


author: HARDY, Judge.

text:
    McCANN v. LOUISIANA, ARKANSAS & TEXAS TRANSP. CO. et al.
    No. 7187.
    Court of Appeal of Louisiana. Second Circuit.
    May 31, 1948.

      White, Holloman & White, of Alexandria, for appellant.
    Polk & Culpepper, of Alexandria, for appellee.
   HARDY, Judge.

This is a suit in which plaintiff seeks to recover the sum of $777.92 allegedly representing the value of one Lufkin van body or trailer owned by plaintiff and alleged to have been illegally taken possession of by defendant and converted to its own use.

The significant facts appear to be very simple. On or about January 31, 1947, plaintiff purchased from the Trailer Distributors, Inc. a Lufkin van body particularly described in an invoice dated January 31, 1947, which description contained the designation of the serial number of the body as being 5235. According to the testimony of the plaintiff the body was delivered some day or so following the date of the invoice. Payment was made, for the van body, together with other items of vehicular equipment, by a draft dated February 3, 1947, drawn by Trailer Distributors, Inc., on plaintiff, which was duly paid February 19, 1947. A notation on the draft bears four serial numbers, among which, is the number 5235.

According to the testimony on behalf of plaintiff, delivery of the van body was made by placing same on a vacant corner lot at Bolton and Monroe Streets in the City of Alexandria, which lot was owned by plaintiff, and was located directly across the street from another corner lot on which plaintiff operated a filling station. It is. shown that plaintiff was engaged, among other pursuits, in the purchase and resale of trailers and van bodies, and that he had purchased the body, which is particularly concerned in this suit, for the purpose of resale.

At some time about the middle of March, 1947, the defendant, Louisiana, Arkansas & Texas Transportation Company is shown to have ordered two van bodies from the Trailer Distributors, Inc., which bodies were invoiced to the defendant under date of March 17, 1947. The invoice1 did not particularly describe the bodies sold,, designating them simply as two twelve-foot van bodies. The only specifications appear to have been with reference to color and it is shown that defendant purchased one green and one red body, but there is no. showing that any serial numbers were designated in the negotiations.

On the afternoon of Saturday, March 15th, two van bodies were transported to. the shop of defendant company, located in Alexandria, but acceptance of the tendered delivery was refused by the shop foreman. Subsequently, representatives and employees of the defendant company were advised to pick up the bodies from the lot on the Trailer Distributors, Inc., in Alexandria, and on Sunday, March 16th, these representatives and employees went to the lot at Bolton and Monroe Streets, owned by plaintiff, and there took possession of and removed two van bodies which were found thereon.

Another fact which perhaps has some bearing upon the case at hand is that the Trailer Distributors, Inc. operated a car lot on Bolton Avenue at a point several blocks removed from the corner of Bolton and Monroe Streets.

Briefly summarized, the defense to plaintiff’s action is based upon the proposition that the defendant was a purchaser in good faith; that it took possession of the vehicle in question without knowledge of any prior purchase, and that under the provisions of Article 1922 of the Civil Code it is entitled to be considered the owner.

After trial there was judgment in favor of plaintiff in the sum of $628.32, representing the amount of the actual purchase price, and, defendant having called the Trailer Distributors, Inc. in warranty, further judgment against said company in favor of defendant. From this judgment defendant appeals, and plaintiff has answered the appeal by praying for an increase in the amount of the judgment to the sum of $777.92 on the ground that the actual value and not the purchase price is the measure of recovery. In our statement of facts as above recapitulated, we have eliminated from consideration a number of matters which we regard as immaterial.

The attempt'was made on the part of defendant to establish the fact that Trailer Distributors, Inc. was a lessee of the vacant lot at Bolton and Monroe Streets at the time the incidents narrated took place, but in this attempt defendant utterly failed. The great preponderance of the testimony establishes the fact that the use of the lot in question by Trailer Distributors, Inc. terminated on January 31, 1947, and never at any time since then, so far as the record discloses, had the lot been used by Trailer Distributors, Inc., nor was there any external sign of its use thereof which might 'have served to lead an innocent party to such a belief.

We are quite in accord with the conclusion of the District Judge to the effect that the difficulty resulted from an honest mistake which our learned brother made no attempt to explain, nor do we.

In our opinion the facts admit of no question as to the correctness of the conclusion that plaintiff purchased, paid for and was seized with possession of the van body, which is the subject matter of this litigation, some six weeks before defendant ever entered into negotiations for the purchase of similar bodies from the Trailer Distributors, Inc.

If the facts in this case justified a holding that Trailer Distributors, Inc. was in possession of the van body at the time it was taken over by defendant, then it would indeed follow that the provisions of Article 1922 of the Civil Code and the authorities cited thereunder would be applicable. But the facts adduced clearly substantiate the truth of plaintiff’s contention that the body had been delivered into his possession and was actually in his possession, on his property, at the time it was mistakenly removed by defendant.

With respect to plaintiff’s claim as to the amount of the recovery, we conclude that the judgment rendered is correct. The only acceptable evidence of value, as comprehended in the record before us, is made up on the basis of the actual purchase price which was shown to have been the sum of $628.32. It is true that plaintiff testified that the list price of the body was $748.00, which fact is attested by the figures set forth on his invoice, before the allowance of discount. It is further true that plaintiff testified he would have sold the body for the list price plus federal tax. Nevertheless, in the absence of any showing that plaintiff could have sold the body for the alleged price, this effort to fix value must be regarded as purely speculative.

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


author: TALIAFERRO, Judge.

text:
    BECHARD v. ST. ROMAIN (MORGAN, Intervener).
    No. 7184.
    Court of Appeal of Louisiana. Second Circuit.
    May 31, 1948.
    Philo Coco, of Marksville, for appellant.
    W. K. Joffrion, of Marksville, for appel-lee.
   TALIAFERRO, Judge.

For some years prior to and at the time this suit was filed, the defendant, J. Lloyd St. Romain, in the Parish of Avoyelles, Louisiana, was engaged in producing for the market, honey bees. On November 1, 1945, he and F. M. Morgan, the inter-venor herein, signed an' instrument of which the f ollowing is a copy, to-wit:

“I, J. Lloyd St. Romain, of Moreauville, La. sell 350 colonies of bees, 8oo mating hives and saw to F. M. Morgan of Hamburg, La., with the agreement that the bees will be delivered Nov. 1st, 1947 or will pay the sum of $1,982.88 for the consideration of $1,700.00; of which I have received today, Nov. 1st, 1945, $1,000.00, and balance to be given to me later in the regular course of business.”

The $282.88 in excess of the principal sum of $1,700, as explained by the parties in their testimony, represented interest on the amount to November 1, 1947.

In the latter part of the year 1945, defendant acquired a patron by the name of Jean Louis Bechard, who lived in the City of Montreal, Canada, and who described himself as being engaged in the business of bee-keeping. The first business dealings between this man and defendant, so far as the record discloses, occurred in December, 1945. On the 12th day of that month, Bechard mailed to the defendant a bank draft for $504.50 to pay for bees to be delivered on a future date. Thereafter, bees of the value of $54.50 were delivered under this contract. Notwithstanding defendant’s default in this respect, Bechard, during the months of February and March, 1947, made advances in cash to him, in four different amounts, aggregating $2,083.25, to pay the price of bees to be delivered on future dates. Not a bee was delivered under the agreements upon the faith of which plaintiff advanced said $2,083.25. After this signal default on defendant’s part, and amicable demand, this suit was filed on June 5, 1947, to recover judgment for the total sum due plaintiff, $2,538.25. A writ of attachment was sued out on the grounds that defendant had mortgaged, assigned or disposed of, etc., his property, rights and credit or some part thereof, with intent to defraud his creditors (particularly plaintiff), or had given an unfair preference to some of them; and that he had converted or was about to convert his property into money or evidences of debt with intent to place it beyond the reach of his creditors. Under the writ two hundred hives of bees were seized by the sheriff.

Defendant, in his answer, admits owing plaintiff the amount for which he sued, but denies that any cause or reason existed for the issuance of the writ of attachment. He avers that the instrument signed by him and Morgan on November 1st, 1945, is a bona fide contract. He adds that while title to the bees passed thereby it was also understood and agreed that should he pay to Morgan on or before November 1, 1947, the said amount of $1,982.88, the bees would then again become his property. In other words, he contends that he had the right and privilege of redeeming the property from the effects of the sale not later than November 1, 1947, by paying said amount. Defendant further denies that he willfully breached his obligations to plaintiff, but says -that due to unforseen and uncontrollable events he was unable to live up to them. He prayed that there be judgment herein in accordance with law and the evidence and “as the court may deem right in the premises.”

F. M. Morgan intervened in the suit and asserted ownership of the seized bees under the agreement of November 1, 1945, with defendant. He admits that it was part of the contract between them that the bees were to remain in defendant’s possession and under his supervision until November 1, 1947, at which time, he avers, “actual delivery would be made and possession given” to him. He prays to be decreed the owner of the bees, that same be ordered delivered to him, and that the writ of attachment be dissolved.

Plaintiff’s answer to the petition of intervention is not in the record. We conclude from oral arguments and briefs of both sides that plaintiff in his answer attacked the purported act of sale to intervenor as being a simulation outright, but if not of that character, that as an instrument of sale it was not effective as to third persons because the seller retained possession of the bees thereafter, the same as he had previously done.

The trial judge did not assign written reasons for his judgment but we are convinced- he held that regardless of whether the instrument relied upon by intervenor was signed in good or bad faith, it was impotent as a sale because title to the bees did not thereby pass from St. Romain to the in-tervenor; and this being true, the property was subject to the pursuit of St. Romain’s creditors. Judgment went for plaintiff with recognition of the writ of attachment. The intervenor only appealed.

Defendant and intervenor are neighbors. Intervenor has been eng-aged in the bee business longer than has the defendant. He testified that through his assistance defendant got into the business of producing and selling bees and that he often aided him in a financial way.

Usually those who participate in the transfer of personal property do not reduce their agreements to writing, and when this method of evidencing the transfer of title is resorted to and the verity of the instrument is challenged by one having the right so to do, a court will not accept such instrument at its face value but will scrutinize the same and the actions of the parties thereto with the view of determining the true character of such instrument and the reasons motivating its execution.

The good faith of the parties in executing the embattled instrument is seriously challenged by the plaintiff. He argues that if intervenor actually advanced the money to defendant for the purposes contended, why should he not have taken a mortgage to secure payment of the indebtedness? He points to the fact that intervenor is a Justice of the Peace, has been so for many years and doubtless had knowledge of the business course, under such circumstances, to pursue to protect himself in the reimbursement of the amounts allegedly advanced to the defendant. These arguments are not without support in reason and inferences that logically arise from the record before us. However, we shall adjudicate the controversy on the assumption that the instrument was signed by the parties in good faith and that intervenor did advance thereon at least $1,000.

It is certain the parties to the purported act of sale did not really intend that it be of that character. Granting that intervenor advanced the initial $1,000 (the record does not disclose that further advances were made), the subsequent acts and attitude of the parties clearly prove that the amount was to be reimbursed by the defendant through and by proceeds of future sales of bees. Anent this question Morgan testified:

“Well, to take actual possession, I didn’t. He was to work the bees and buy the bees back.”

Morgan and St. Romain do not 'in material respects agree with regard to the operative effect of the purported sale.

The instrument, on its face, sets at rest the question of delivery of possession. This was to happen on November 1, 1947, in the event of the failure to pay the $1,982.88. Therefore, defendant’s possession of the bees underwent no change nor was such intended as a consequence of the execution of the instrument.

The instrument here in controversy does not meet the requirements of the Civil Code that treat “Of the Power or Right of Redemption” in sales; Articles 2567-2588, inclusive. One of the indispensable essentials to the lawful confection of such an instrument is that actual, physical -possession of the property involved pass to the purchaser. Latiolais v. Breaux, 154 La. 1006, 98 So. 620.

It is obvious that the use of the word “sell” in said instrument was improvident. To have more clearly expressed the intent of the parties.the word “mortgage” should have been employed. The construction, as placed by the parties themselves upon the instrument over a period of nearly two years, unquestionably proves that the instrument was really designed to operate as a contract of security to protect Morgan for the amounts he advanced on the faith of it. This conclusion finds support in the fact that in every instance when the inter-venor had opportunity to sell any part of the bees he referred the prospective purchaser to the defendant. In one instance, wherein a goodly portion of the bees was shipped to a purchaser, both parties participated in the sale, but the price thereof $700, went to the defendant.

Our conclusion, therefore, is that title to the bees did not pass to intervenor by virtue of the instrument herein discussed, and this being true, the bees were at all times the property of the defendant and were liable to seizure for his debts. The instrument not being of record, of course, was ineffective as to a seizing creditor and other third persons.

For the reasons herein assigned, the judgment appealed from is affirmed with costs.


text:
    STATE ex rel. CRUSE et al. v. LA SALLE PARISH SCHOOL BOARD.
    No. 7181.
    Court of Appeal of Louisiana. Second Circuit.
    May 31, 1948.

      Parker & Parker, of Jena, for appellants.
    Cameron C. Minard, of Columbia, for appellee.
   HARDY, Judge.

This is a proceeding which seeks the issuance of writs of mandamus commanding the School Board of the Parish of LaSalle to hold a hearing upon charges preferred against a school bus operator. From a judgment sustaining exceptions of no cause and no right of action and dismissing plaintiffs’ suit, plaintiffs have brought this appeal.

The pertinent allegations of the petition of the thirteen relators set forth that they are parents of children of school age who are transported to and from the Olla-Standard High School in the Parish of LaSalle by a 'school bus driven and operated by one Ira O. Tarver; that the said Tarver is a tenured bus operator in the employ of the LaSalle Parish School Board; that the said named bus operator has been guilty of certain specified immoral acts; that he is neglectful of his duties; is careless and incompetent; that his transfer equipment is not in a proper state of repair and therefore is dangerous; that relators have filed a petition with the LaSalle Parish School Board setting forth in detail the specifications of the charges noted, praying for a hearing thereon, and, finally, the removal of said operator; that the said School Board has failed, neglected and refused to accord a hearing on the petition and charges filed by relators, wherefore they seek the aid of writs of mandamus for the purpose of enforcing a hearing.

Relators’ action is based upon the provisions of Act No. 185 of 1944. The exceptions tendered by the respondent, School Board, are predicated upon the propositions that plaintiffs have no right to prosecute an action of this character, and that the action has no foundation, in law.

The provisions of Act No. 185 of 1944, which is sometimes referred to as the School Bus Operator’s Tenure Law, having a material bearing upon the issue before us, read as follows:

“No permanent School Bus Operator shall be removed from his position except upon written and signed charges of wilful neglect of duty, or incompetence, or immorality, or drunkenness while on duty, or physical disability to perform his duties, or failure to, keep his transfer equipment in safe, comfortable and practical operating condition, and then only if found guilty after a hearing by the School Board of that Parish in which the School Bus Operator is employed. * * * It is provided that any hearing under this act may be private or public at the option of the School Bus Operator. It is further provided that said School Bus Operator shall be furnished by such school board at least fifteen days in advance of the date of said hearing, with a copy of the written grounds upon which removal or discharge is sought. Said School Bus Operator shall have the right to appear in his own behalf, and with counsel of his own selection, all of whom shall be heard by said Board ,át said hearing; provided, further that it is not the intent of this act to impair the right of appeal to a court of competent jurisdiction.”

As was said in the opinion of the Supreme Court in Miller v. Rapides Parish School Board et al., 209 La. 877, 25 So.2d 623, 624:

“From a mere reading of these tenure acts, it is apparent that they were passed in the interest of the school bus operators to prevent their being discharged for grounds other than those set forth in the acts. * * The legislature carefully safeguarded their interests * * •*.”

There is no provision in the act which imposes upon a Parish. School Board a mandatory duty to hold a hearing. And, further, it is to be observed that there is no provision in the act which requires a School Board to discharge an operator even in the event charges against him of the nature set forth in the act were sustained in a hearing fixed and held in accordance with the provisions of the said act. Additionally, it is noted that the provisions of the act with respect to the filing of charges are vague and ambiguous in that they do not establish or recognize any specific source or sources from which such charges might originate and by which they might be presented.

We freely concede the full justice in principle of the burden of the argument advanced by relator’s learned counsel that the people who are the governed have the right to petition for a redress of grievances. It is to be regretted that all too frequently,by reason of the imperfections in legislative enactments, such a right becomes a mockery through failure to clothe such petitioners with the right to enforce action upon their petitions.

It would appear that the instant case', is an excellent example of the unintended injustice that frequently follows legislation primarily designed to protect the rights of individuals or groups of individuals and which utterly fails at the same time to insure the rights of the public generally.

Mindful as we are of the injustices and inequities which may result, we are helpless to afford relief. It is not the province of the courts to encroach upon the authority of the legislative branches of our government, and relief must be sought at the hands of the agency which is charged with lawmaking responsibilities.

Although our holding on the exception of no right of action serves to finally determine this cause, we observe that the exception of no cause of action is also entitled to be maintained. As was said in State ex rel. Monk v. Police Jury of Vernon Parish, La.App., 3 So.2d 186, 187:

“It is too well settled to require the citation of authority that a writ of mandamus will only issue to compel a public official to perform a purely ministerial duty, a duty which a law or an ordinance in plain and unmistakable terms requires him to perform as a part of and in connection with his official functions.”

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