author: PROVOST, Judge ad hoc.

text:
    COTTER v. FIGARO.
    No. 3011.
    Court of Appeal of Louisiana, First Circuit.
    June 30, 1948.
    Rehearing Denied Aug. 0, 1948.
    Writ of Error Refused Nov. 8,1948.
    A. Wilmot Dalferes, of Lafayette, for i appellant.
    Wei ton P. Mouton, of Lafayette, for ap-pellee.
   PROVOST, Judge ad hoc.

The plaintiff in this suit is a duly licensed Real Estate Agent of Lafayette, La. He claims the sum of Fifteen Hundred ($1500.-00) Dollars, less a credit of Two Hunderd Seventy Six and 78/100 ($276.78) Dollars as a commission for alleged services in procuring a purchaser for a lot of ground situated in Lafayette, listed with him by defendant, who represented himself as, and acted as, agent for the Estate of Achille Figaro. Plaintiff had become the owner of a 93/504-th interest in the property by purchase from one of the Figaro heirs— Emma Figaro — October 20, 1944.

The listing in question was given August 15, 1945, and appears in the record. It contains the following:

“It is agreed and understood that agent is to offer this property for Forty Thousand ($40,000.00) Dollars, and is to retain Fifteen Hundred ($1500.00) Dollars as his commission. The remaining Thirty Eight Thousand Five Hundred ($38,500.00) Dollars is to be divided between the owners in proportion to their various equities.”

Plaintiff claims to have secured a purchaser, the Gulf Refining Co., which was ready, willing and able to purchase the property during the term of listing, and as provided 'by the listing, and to have advised defendant of this fact, and requested that defendant transfer the interest of the heirs of Achille Figaro and his wife to the said Company, without avail. He made formal demand, in this connection, on November 6, 1945, as shown by registered letter addressed to "Oscar Figaro, Agent, Estate of Achille Figaro, Lafayatte, Louisiana.”

Defendant admitted the listing, but denied all the remaining allegations of plaintiff’s petition. The defense was that plaintiff had not secured a purchaser who was willing to pay the price called for in the listing.

Under the issues presented, as above set forth, judgment was rendered -by the lower Court in favor of plaintiff and against the defendant for the sum of Fifteen Hundred ($1500.00) Dollars, subject to credit of Two Hundred Seventy-Six and 78/100 ($276.-78) Dollars, with legal interest thereon from judicial demand, until paid, and all costs. From this judgment the defendant appealed.

Plaintiff moved to dismiss the suspensive appeal for the reason that 1) the appeal bond was filed too late, and, in the alternative, 2) that the order granting the sus-pensive appeal was defective, null and void, because it fixed “the amount of the bond in the sum of Two Thousand ($2000.00) Dollars as is provided- for by law.”

The record discloses that notice of judgment was accepted by defendant-appellant on January 26, 1948. The order for a sus-pensive appeal was granted February 6, 1948. The bond furnished is dated February 6, 1948. On the left hand side there appears the following: “Signed and acknowledged before me and filed on above date. (Signed) Valsin Benoit, Dy. Clerk of Court and Ex-Officio Notary Public.” (Italics -ours.) At the bottom of the said bond appears the following: “Filed this 7th day of Feb., 1948. (Signed) Valsin Benoit, Dy. 'Clerk of Court.”

Appellee contends that the last day for perfecting the appeal by filing bond was February 6, 1948, and that the entry appearing at the bottom of the bond governs, that, therefore, the bond was filed too late. Appellant contends that the entry at -the left hand side of the bond, above-mentioned, controls, and that, accordingly, the bond was filed in accordance with all legal requirements.

There is no evidence in the record to explain the discrepancy existing between, the two dates. They were made by the same deputy. It being the policy of the appellate Courts of our State to uphold appeals, if possible, there being no showing why the two dates were entered on the bond, it being concluded that the second entry was superfluous and of no effect, and that the first entry of filing controls, we agree that the bond was filed on February 6, 1948, and was within the time prescribed by law.

With reference to the alternative ground for dismissal we must consider the order, which is as follows :

“Let -the petitioner be and he is hereby granted suspensive appeal * * * according to law, upon his furnishing bond, with good and solvent surety in the amount of Two Thousand and no/100 ($2,000.00) Dollars, as provided by law.” (Italics ours.)

Appellee contends that since the judgment was rendered for a specific amount -the trial Judge did not have the authority to fix the amount of the bond in a specific amount in view of the -provisions of Article 575 of our Code of Practice which provides for a bond in such cases in a sum “exceeding by one-half the amount for which judgment was given, including interest allowed in said judgment to date of appeal bond.”

By mathematical calculation, a bond in the sum of Nineteen Hundred Forty Three and 90/100 ($1943.90) Dollars would have been sufficient. Since defendant furnished bond in excess thereof, it is our opinion that the contention of appellee is erroneous; that the fixing of the bond 'by the lower Court at a specific amount is of no moment. We believe -that the bond furnished was “according to law”, and sufficient for the purposes of 'this appeal; and accordingly, the motion, to dismiss is denied.

It appears that plaintiff had subsequent to his purchase, and prior to the listing out of which this suit arose, the property listed with him for a period of. sixty (60) days, commencing January 20, 1945, when he was endeavoring to sell it for a War Memorial site. He had from time to time received certain sums of money from Oscar Figaro, who acted as agent for the estate of Achille Figaro, from the rents and revenues of the property.-

Both prior and subsequent to plaintiffs demand that defendant transfer the property to the Gulf Refining Co. -he -had numerous conversations with defendant and with defendant’s attorney relative to the said transfer. There appears in the record a letter to plaintiff from the Gulf Refining Co., dated September 13, 1945, advising him that the Company had concluded to purchase the property subject to defendant’s ability to furnish a good marketable record title free from all liens and encumbrances and with full and lawful right to sell the same; the grantor to furnish a full abstract of title showing a good marketable title and make available such other information as may be required to complete the title examination; defendant to pay all taxes and outstanding paving or other assessments now maturing or maturing in the future; taxes for the year 1945 to be pro-rated as of the date, of purchase.

While the listing did not so provide defendant furnished the abstract above referred to and paid for same. From a letter from a representative of the Gulf Refining Co. to Mr. Daniel DeBailli-on, attorney, Lafayette, dated September 18, 1945, from his reply dated September 20, 1945, also appearing in the record, and from testimony of both plaintiff and defendant, it appears that the question of the opening of successions of Oscar Figaro and his wife and some of their children who had died subsequently to them, had been discussed, but there is no positive testimony that this was an absolute requirement of the prospective purchaser. It is not shown that defendant endeavored to show a marketable title by ex parte affidavits, which would have connected up the showing made 'by the record title, as by showing the heirs, etc. where the record title rests in one deceased. Reeves v. Roberts, 294 Mo. 593, 242 S.W. 956, 957. This would have satisfied the legal requirements, and should and perhaps would have been acceptable to the Company’s attorney. His letter indicates such would have been the case. •

There were delays, and on November 8th, defendant’s attorney advised plaintiff, in answer to plaintiff’s letter of November 6th that defendant was willing and ready to sell and deliver “such interest as he has or may hold Power of Attorney to sell imediately upon your compliance with the terms and conditions of such listing as you hold.” In his letter we also find the following: “As you well know Oscar Figaro does not represent all the co-owners in -the particular property which you have -reference to.” ■ This last circumstance is,.to our mind, the reason why the transaction was not consummated, notwithstanding, appellant gave as his reason for not selling the requirement by the purchaser that the owners pay all assessments against the property, pro-rate the taxes, and open the successions, thereby reducing the net price called for in the listing, below Thirty Eight Thousand Five Hundred ($38,500.00) Dollars. Suppose there had been a prior existing mortgage on the property of Five Thousand ($5,000.00) Dollars? Could appellant claim that an offer of Forty Five Thousand ($45,000.00) Dollars - would have been necessary to -comply with the listing? We think not. These are not costs or charges incident to or resulting from the sale of the property. -Could appellant have refused to transfer the property because he was required to pay for the internal revenue stamps which likewise constitutes encumbrances on the property, and must be paid for by the vendor? We think not. When the price of Thirty Eight Thousand Five Hundred ($38,500.00) Dollars net was mentioned this contemplated the selling price, less the real estate agent’s commission. The remarks on the listing can lead us to no other conclusion. It was not shown that appellee had any knowledge of any defects in title, or want in authority of Oscar Figaro to aot for the heirs for whom he represented himself as authorized to act when he signed the listing. It' is shown that appellant was always ready to transfer his interest in the property to the prospective purchaser. He even agreed to pay his pro-ra-ta of the costs of opening the successions which had been raised in connection with the transfer of the property or in connection with the perfection of the title thereof.

We are of the opinion that plaintiff secured a firm offer to purchase the property by a party who was ready, willing and able to purchase under the terms and stipulations of the listing, and is entitled to his commission, irrespective of the fact that the transaction was not consummated. As we have said before, Oscar Figaro was not in a position to convey the entire interest ■he held himself out as authorized to sell when he signed the listing. In the case of Doll v. Russo, et al., La.App., 7 So.2d 406, judgment was -rendered in favor of a plaintiff real estate broker against one who had listed property to which he did not have title.

There are numerous cases which hold that a real estate broker is entitled to a commission under circumstances as presented by this case. The Court has carefully examined the following cases: Matthews Bros. v. Berniur, 12 La.App. 203, 123 So. 389; Clesi v. Thacher, 12 La.App. 55, 125 So. 194; Mercer v. Dambly, 16 La.App. 354, 133 So. 455; E. A. Carrere & Sons v. Michel, La.App., 144 So. 540; Leaman v. Rauschkolb, La.App., 199 So. 663, 1 So.2d 338, 339. In effect the Courts have held in these cases that:

“A real estate agent employed to sell property is entitled to a commission when he has secured a purchaser ready, able and willing to buy on vendor’s terms, and has right to assume that his principal has marketable title, and when he finds an acceptable purchaser, his obligation has been fulfilled even though sale is never consummated because of principal’s fault or inability to furnish title free from defect.”

The above quotation is from the Leaman v. Rauschkolb case. To further bring to light our jurisprudence on this point the Court takes the liberty of quoting further from the same Leaman case, 1 So.2d at pages 339 and 340, Thus:

“A review of the applicable jurisprudence reveals the following: For many years, the Courts of Appeal of this State had established the rule, which is in line with the common law authorities, that a real estate agent employed to sell property is entitled to a commission when he has secured a purchaser ready, able and willing to buy on the terms prescribed by the vendor; that he has the right to assume that his principal has a marketable title and that, when he finds a purchaser acceptable to his principal, his obligation has been fulfilled even though the sale is never consummated because of the fault of the principal or because of the latter’s inability to furnish a title free from defect. See Gristina v. Nunez, 8 La.App. 531; Loyacano v. Succession of Thompson, 4 Orleans App. 345; Gurley & Parkinson v. Loeffler, 14 Orleans App. 424; Palmisano v. Stewart, 3 La.App. 66; Dauterive v. West India Transportation Corp., 3 La.App. 319; Barry v. Guiffria, 10 La.App. 123, 120 So. 878; Devereaux & Ashby v. Rochester, 10 La.App. 430, 120 So. 658; Clesi v. Thacher, 12 La.App. 55, 125 So. 194; and Mercer v. Dambly, 16 La.App. 354, 133 So. 455.
“The views expressed by the Courts of Appeal in the above cited cases .were subsequently approved in the year 1930 by the Supreme Court in Mathews Bros. v. Bernius, 169 La. 1069, 1070, 126 So. 556, 558, where that court, after citing 2 Corpus Juris, pages 769 and 770, as authority, observed that, where the broker had produced a purchaser acceptable to his principal, his obligation was fulfilled in spite of the fact that a sale could not be consummated as a consequence of the inability of the principal to convey a marketable title. And, in its consideration of the question, the court made it very clear that the right of the agent to a commission is not in any way dependent upon the validity of his principal’s title, for it said:
“ ‘The broker in such a case, in the absence of notice to the contrary, has the right to act upon the assumption that his principal has a marketable title,’ ”

In view of the particular facts as shown by the evidence and the offerings, we are of the opinion that the judgment of the lower Court, in favor of the plaintiff and against the defendant, is correct. Accordingly, the judgment of the lower Court is affirmed at appellant’s costs.

ELLIS, J., absent.


source: Caselaw Access Project

author: KENNON, Judge.

license: Public Domain

text:
    GREENE v. LAMBERT.
    No. 7195.
    Court of Appeals of Louisiana, Second Circuit.
    June 28, 1948.
    James W. Jones, Jr., of Natchitoches, for appellant.
    Gahagan & Pierson, of Natchitoches, for appellee.
   KENNON, Judge.

Thomas Greene filed this suit in the District Court of Natchitoches Parish to set aside >and nullify a judgment rendered against .him on April 28,1947, on the ground that the judgment was not read aloud nor signed at the regular motion hour, but was signed in the office of the clerk of court after adjournment of the Court and out of the presence of Greene’s counsel.

The answer admitted that the judgment was not signed in the court room, but alleged that same was signed in an open court session held in the clerk’s office on the afternoon of the day in which the same judgment had been exhibited to Greene’s-counsel in open court and that the delay in signing was simply to settle a question raised by the Court as to whether or not the maintenance of a writ of attachment had already been covered in a written decree.

The District Court rendered judgment dismissing the suit at plaintiff’s costs, in which the Judge stated that an opinion was given by the Court in open court on April 24, 1947 in the presence of counsel for both parties; that on April 28th at motion hour, the judgment, in accordance with the opinion, was read but withdrawn before signing because the judgment did not contain a decree maintaining the writs of attachment; that later in the day, after the Court had visited the scene in a pending railroad case, Court was opened in the clerk’s office for the purpose of deciding this railroad case and that the Lambert-Greene judgment, having been corrected, was also read and signed; and that defendant Greene (plaintiff in the present case) perfected an appeal from the judgment and lost his case in the Court of Appeal.

Article 605 of the Code of Practice sets forth the causes for which the nullity of a definitive judgment may be demanded. These causes relate either to the form of the proceeding in which the judgment is rendered, or to the merits of the question tried. In the case before us, ho question of merit is raised by the pleadings — nor could it well be since an appeal was taken on the judgment and same was affirmed ■on the merits in this Court after full hearing. Lambert v. Greene, La.App., 32 So. 2d 400.

Article 606 of the Code of Practice sets ■forth the vices of form by which the judgment can be annulled. Briefly, a judgment can be annulled for vices of form only in cases (1) when the defendant could not stand in judgment (2) where the defendant has not been cited and has made voluntary appearance and (3) where the Court was without jurisdiction ratione materiae. The petition in the case before us sets forth none of the causes enumerated in this Article of the Code of Practice. The record shows that no proof was made of facts showing the existence of any vices in the form of proceeding which would entitle Greene to a judgment nullifying the judgment rendered against him.

We find no evidence in the record to sustain the allegation of fraud and ill practice contained in the petition. On the contrary, the record discloses that the judgment was rendered after citation, appearance, trial, and after the opinion of the trial court had been delivered in open court in the presence of defendant’s counsel. From an equitable standpoint, the irregularity complained of was minor and did the defendant no substantial damage. In addition, defendant Greene is guilty of laches. At the time he perfected his appeal, he knew of course that the judgment had been signed. He accepted the benefit of having the case reviewed, and, having lost on the merits, he cannot with good grace now ask that the judgment be set aside because of a deviation from the rules of court, which did his client no substantial injury. As noted by the District Judge, if this were a case in which Greene’s counsel had no notice of the signing of the judgment and as a consequence, had failed to perfect an appeal, he would be entitled to relief.

Since the plaintiff neither alleged or proved any legal grounds justifying the setting aside of the judgment regularly rendered against him, the District Court correctly rendered judgment rejecting his demands. That judgment is affirmed, with costs.


text:
    SMITH v. SMITH.
    No. 7197.
    Court of Appeal of Louisiana. Second Circuit.
    June 28, 1948.
    Browne, Browne & Bodenheimer, of Shreveport, for appellant.
    Neckley M. Ferris, of Shreveport, for appellee.
   KENNON, Judge.

This is an automobile damage suit on appeal from a judgment denying plaintiff's demands and rejecting defendant’s claim in reconvention.

Plaintiff alleged that the accident resulted from defendant’s negligence in proceeding at an excessive speed and in not perceiving plaintiff’s stopping signal in sufficient time to stop before striking plaintiff from the rear.

The answer set forth that the accident occurred when plaintiff, without cause or reason, and -without pulling his vehicle over to the right curb or giving any prior warning, suddenly and abruptly stopped, and that notwithstanding defendant’s prompt application of Iris brakes and every other reasonable effort on his part, the right portion of his car struck the left rear of plaintiff’s vehicle.

Plaintiff, driver of the leading vehicle, charged that the accident resulted from defendant’s negligence in (1) proceeding at an excessive speed (2) not maintaining a proper lookout (3) not stopping his car or turning same aside before striking the rear of plaintiff’s automobile.

Plaintiff has established none of the above listed allegations. The record shows that both plaintiff and defendant were driving at a rate of speed reasonable under the circumstances. The record further shows that the accident occurred when the defendant was confronted by the emergency due to plaintiff’s abruptly stopping his automobile without advance warning and without pulling to the curb. Under these circumstances, the District Court correctly rejected plaintiff’s demands.

We next consider the reconven-tional demand of the defendant. In order to be successful, the defendant must establish the negligence of plaintiff with the same certainty as if he were himself plaintiff.

The accident occurred near noon time on a clear day. Plaintiff was proceeding north along Southern Avenue in the city of Shreveport, Louisiana, when, upon seeing a young lady standing at the curb whom he recognized as a former schoolmate, he, without having given a prior hand signal, put his foot on the brake and brought his car to a stop, without changing direction other than to pull slightly toward the curb. Defendant, who was traveling some forty feet behind plaintiff, upon observing plaintiff’s stopping maneuver, applied his own brakes but too late to avoid the collision.

Section 48 of Ordinance No. 207 of 1923 of the city of Shreveport provides:

“Section 48: Stopping at Curb. Exceptions. Be it further ordained etc. - That all vehicles shall not stop other than at curb, except in an emergency, or to allow another vehicle, or pedestrian to' pass in front, or upon the signal of a traffic officer.”

The Louisiana Highway Regulatory Act (Act 286 of 1938, Rule 10 of Section 3, Dart’s 5215) provides:

“(a) The driver of any vehicle * * * before * * * stopping * * * shall first see that such movement can be made in safety, * * * ”

Plaintiff’s stop was not on traffic signal nor was he at the end of a block. His sudden notion to stop, after recognition of his school friend, was not the sort of traffic “emergency” permitting a sudden stop under Section 48 above quoted. His car was six to nine feet from the right curb after the collision — nearer nine feet, according to the investigating traffic officer.

The following language in the syllabus and opinion of this Court in deciding the case of Hill v. Knight et al., La.App., 163 So. 727, is appropriate to the case before us:

“In action for damages to automobile which collided with truck ahead of automobile, motorist held not contributorily negligent in' following truck so closely as to be unable to stop in time to avoid collision where truck abruptly' stopped, without warning, to pick up pedestrian. * * *
“We are satisfied from the meager damage done that, had defendant’s driver slowed down gradually, pulled in to the curb, looked behind, or held out his hand in warning signal, plaintiff would have avoided the collision. Hegewisch v. Seiferth, 17 La.App. 199, 135 So. 712.”

We conclude that plaintiff was guilty of negligence in stopping suddenly, in failing to give advance warning of his intention to stop, and in stopping away from the curb at a time when such a stop could not be made in safety. The above acts of negligence were the proximate cause of the collision in which defendant’s car was damag'ed.

Defendant’s car was a Chevrolet special deluxe coach, which had been driven approximately 48,000 miles at the time of the accident. Something like a year before the accident, he had purchased the car secondhand for $1200. He received a $500 value trade-in on the car after the accident. Under these circumstances, we think an allowance of $400 for the damage done in the collision would be proper.

The. judgment appealed from is affirmed' insofar as it affects plaintiff’s demands and reversed insofar as it affects defendant’s reconventional demands. Judgment is now rendered in favor of defendant, Frederick Martin Smith, and against plaintiff, Perry Lee Smith, in the sum of $400, with interest at 5% per annum from November 13, 1947, until paid. Costs of the lower court and appeal to be paid by plaintiff.


author: PROVOST, Judge ad Hoc.

text:
    CHARGOIS v. GRIMMETT & JAMES.
    No. 3010.
    Court of Appeal of Louisiana. First Circuit.
    June 30, 1948.
    Rehearing Denied Aug. 9, 1948.
    Voorhies & Labbe, of Lafayette, for ■ appellant.
    Maurice T. Mouton, of Lafayette, for appellee.
   PROVOST, Judge ad Hoc.

This is a suit against an alleged commercial partnership (a construction company) and the individual members thereof, insólido, for damages, as itemized in plaintiff’s petition, resulting from “cm mu-lamful and wanton trespass” (italics ours) as alleged in plaintiff’s petition, by defendants in entering upon plaintiff’s property situated in the Parish of Lafayette, Louisiana, and cutting therefrom trees, cutting fence wires and excavating large holes thereon, without plaintiff’s knowledge or consent, in connection with a parish-wide drainage project. Plaintiff alleged in his petition (Article 9) that the work was done under the authority of the Department of Public Works of the State of Louisiana.

Exceptions of no right, and no cause of action were filed on behalf of defendants. The exception of no cause of action was abandoned. After hearing evidence, the lower Court over-ruled the exception of no right of action. Defendants then filed an answer in the nature of a general denial. Thereafter, with leave of Court, the defendants filed an amended and supplemental answer, wherein they set forth that early in the year 1946 the Department of Public Works of the State of Louisiana entered into a contract with defendants, in connection with the aforementioned parish-wide drainage project. They pleaded specifically that whatever entry was made by the defendants on plaintiff’s property was made under “the direction and authority, as representatives and agents of the Department of Public Works of the State of Louisiana”, and resulted entirely from a compliance with the aforementioned public drainage contract. Under this state of facts the case was tried on its merits, and judgment was rendered in favor of the defendants, dismissing plaintiff’s demand, with costs. From this judgment the plaintiff appealed.

In the course of the trial defendants offered in evidence the contract between the Department of Public Works and defendants, which the learned trial judge admits in his written reasons for judgment he erroneously kept from the record upon objection to the introduction thereof by counsel for plaintiff. As he says in his reasons for judgment “in view of the parole evidence in the transcript it is of no moment”. In this statement, and with respect to this holding, we concur. The facts clearly disclose that the defendants were engaged in the furtherance or carrying out of a public drainage project in the Parish of Lafayette under a contract between the said defendants and the Department of Public Works at the time of the alleged trespass when plaintiff’s fence was cut, and a “dozer” was driven unto plaintiff’s property, trees were uprooted and a right-of-way was cleared along one side of a coullee or natural drain traversing plaintiff’s property, all without his knowledge or consent. The work was being done under the supervision of an engineer of the Department of Public Works, who had put in stakes showing the course and the levels to be followed in carrying on the work. Neither was it alleged, nor was it proved, that defendants exceeded their authority or were negligent in the performance of their duties in connection with the contract. It was stipulated by the parties that neither defendants nor the Police'Jury of the Parish of Lafayette had obtained a right-of-way, either written or oral, to go unto the property of plaintiff.

Pláintiff bases his claim under the provisions of Article 1, Section 2 of the Constitution of the State of Louisiana of 1921, prohibiting the taking of private property without adequate compensation. The trial Judge, we think, erroneously held that in a case such as is here presented, Article 16, Section 6 of the Constitution, is an exception to Article 1, section 2. The pertinent part of Section 6 provides:

“Lands and improvements thereon hereafter actually used or destroyed for levees or levee drainage purposes (italics ours) * * * shall be paid for at a price not to exceed the assessed value for the preceding year * *

It is unmistakably clear that Section 6 has reference to drainage in connection with the levee system of the State. It has no application to a general drainage project in which a levee is not involved. We are fortified in this position by an expression of our Supreme Court in the case of Thibaut v. Board of Commissioners, 153 La. 501, 502, 96 So., 47, 48, where it is said:

“When the act of 1922 is considered in its entirety, it at once becomes evident that the purpose which the Legislature had in view was to better enable the district to accomplish the purpose of its creation. That purpose, as appears from Act 13 of 1892, was not to construct and maintain a system of drainage, as a drainage district does, but to construct and maintain a system of levees for the purpose of protecting the lands therein from overflow, and, as a part of that purpose, implied in the express power granted to build and maintain levees, to construct such drainage as might be necessary for the building and maintenance of levees, that is to say, levee drainage, the kind of drainage sanctioned by article 16 of the Constitution, and not drain age for the reclamation and improvement of land. (Italics ours.) It was that purpose alone — that is, levee drainage — that the Legislature had in view, when it authorized the board of commissioners of the district, by the act of 1922, to issue the bonds for drainage and levee purposes.”

In view of the above, we do not feel that the levee and drainage district cases cited and relied on by the lower Court are in point.

While the case of Petit Anse Coteau Drainage Dist. v. Iberia & V. R. Co., 124 La. 502, 50 So. 512, gives an exhaustive review of the drainage laws up to 1909, we do not believe that case to be in point. We, too, would appreciate the opportunity to review the drainage laws of the State, but feel that in so doing we would perhaps confuse, rather than clarify the issue, as we do not believe such a course to be necessary to the decision of this case.

From the above, it is manifest that we must also disagree with our learned brother below who held that the provisions of Section 1 of Act 61 of 1904 are applicable to the case under consideration. It is not shown here that the work is that of a levee or drainage district. Accordingly, the provisions of that law do not apply to this case.

We are thoroughly in accord with the holding of the trial Judge that “the State cannot be sued ex delicto for damages arising during the performance of a governmental function, and this immunity descends to its representatives and agents, unless such agents are negligent. The defendants herein were not charged with negligence, and no negligence was proved.” The trial Judge held that the defendants did not stand, in this case, as trespassers or tort-feasors, but stand in the shoes of the Department of Public Works; and precisely in the same position as that agency would stand if it had done the work directly, without the intervention of defendants, and were now at the bar instead of defendants. Connell v. Y. & M. V. R. R., 141 La. 701, 706, 75 So. 652. It seems un-controvertible that the Department of Public Works under the provisions of Section 2 of Act 2 of 1942, as amended by Section 1 of Act 27 of 1944, and Section 10 of Act 2 of 1942, as amended by Section 2 of Act 27 of 1944, had every right and authority to undertake the project out of which this claim arose. Further, as' was said by the trial Judge, “It is essential that the agents or representatives of the State, be granted such immunity that their principal possessed, otherwise, since the State could not be sued, its agents or representatives would be continually harassed by damage claims and suits. Under such a condition, would the State be able to obtain contractors to perform governmental functions ? The answer is self-evident. The State would be compelled to perform all drainage work itself which would necessarily entail thousands of employees and the purchase and maintenance of costly equipment.”

We believe that the case of Dupont v. Thibodo, La.App., 5 So.2d 383, is authority for holding that a contractor prosecuting a governmental function for a governmental agency is responsible only when it is shown that the work was carried out in a negligent manner. City of New Orleans v. Drainage Commission of New Orleans, 1 Orleans App., page 24 and 2 Orleans App. 3.

Under the particular facts of this case, and the jurisprudence above referred to we believe that the trial Judge correctly rendered judgment in favor of defendants and against plaintiff, dismissing plaintiff’s suit, at his costs. Accordingly, the judgment of the lower Court is affirmed, at appellant’s costs. .

ELLIS, J., absent.


author: HAWTHORNE, Justice. O’NIELL, C. J., MOISE, Justice

text:
    213 La. 1083
    FORET v. GAUTREAUX.
    No. 38949.
    Supreme Court of Louisiana.
    June 15, 1948.
    C. A. Blanchard, of Donaldsonville, for relator.
    Elton Darsey, of Houma, for respondent.
   HAWTHORNE, Justice.

Relator is the plaintiff in a suit against his wife for separation from bed and board. On a rule to show cause issued in this suit, he was ordered by the court to pay his wife alimony pendente lite in the sum of $20 per week. This judgment making the rule absolute also granted to the wife the custody of their minor child and enjoined plaintiff from alienating or disposing of the community property during the pendency of these proceedings.

From this judgment insofar as it awarded alimony pendente lite, plaintiff moved for a suspensive appeal, which was refused. He then applied to this court for writs of certiorari, prohibition, and mandamus, which were granted, and the matter is now before us under our supervisory jurisdiction.

In 1927, in the case of Ramos v. Ramos, 173 La. 407, 137 So. 196, this court decided that a suspensive appeal lies from a judgment awarding alimony pendente lite. Since that decision, which was rendered over 20 years ago, the same question has been presented to this court at least four times, and the court has consistently followed 'the holding in the Ramos case. See Weyand v. Weyand, 1929, 169 La. 390, 125 So. 282; Demerell v. Gerlinger, 1935, 183 La. 704, 164 So. 633; Cotton v. Wright, 1937, 187 La. 265, 174 So. 351; Gravier v. Gravier, 1942, 200 La. 775, 8 So.2d 697.

It is true that two justices of this court dissented in the Ramos case, but we find it significant that in the case of Cotton v. Wright, supra [187 La. 265, 174 So. 352], one of the justices who dissented in the Ramos case was the organ of the court and in the course of the opinion stated:

“This court has repeatedly held that, under articles 575 and 580 of the Code of Practice, a judgment for alimony pendente lite may be appealed from suspensively. This is no longer an open question but is the settled jurisprudence on this subject. Weyand v. Weyand, 169 La. 390, 125 So. 282; Ramos v. Ramos, 173 La. 407, 137 So. 196; Demerell v. Gerlinger, 183 La. 704, 164 So. 633.”

In Gravier v. Gravier, supra, which is the last case on the subject so far as we have been able to ascertain, the late Justice Higgins as organ of the court said [200 La. 775, 8 So.2d 698]:

“While this court has the power to modify and overrule its former decisions, it has never done so unless it appeared that error had been committed or that the rule announced therein was working hardships or injustices. In cases like the present one, it is true the wife may suffer some disadvantage in not receiving alimony during the pendency of the case on appeal, but if she is successful, she will receive the alimony awarded because the husband is required to furnish a solvent bond securing the payment thereof. On the other hand, if the husband is denied a suspensive appeal and is compelled to pay the wife alimony but eventually wins the case on appeal by showing that the wife is not entitled to such alimony, he will suffer a loss which cannot be recovered.
“In the light of the foregoing authorities, we consider the jurisprudence settled that the husband who is condemned to pay alimony pendente lite for the support and maintenance of his wife, is entitled to a suspensive appeal from such judgment, in a divorce or a separation from bed and board proceeding.”

Moreover, in the instant case respondent has filed no brief in this court and has advanced no reason why we should overrule this settled jurisprudence.

For the reasons assigned, it is ordered that the alternative writs issued herein be made peremptory, and that the judge of the Seventeenth Judicial District Court for the Parish of Terrebonne be, and he is hereby, ordered to grant relator a suspensive appeal from the judgment ordering him to pay alimony pendente lite to respondent herein.

O’NIELL, C. J.,

dissents, adhering to the opinion which he has expressed repeatedly, that an order on a husband to pay alimony for the support of his wife during the pendency of a suit for divorce is only an interlocutory order and that it cannot cause him irreparable injury, and that the allowing of a suspensive appeal from such an order is anomalous.

MOISE, Justice

(dissenting).

An order of court compelling a husband to pay his wife and child alimony during the pendency of the suit, in the sum of $20 a week, is an interlocutory decree from which no appeal should lie unless that order causes irreparable injury:

Article 566 of the Code of Practice reads :

“One may likewise appeal from all interlocutory judgments, when such judgment may cause him an irreparable injury.”

It is difficult for me to understand in what respect a husband is caused irreparable injury by being ordered to perform, by a judge, his legal obligation to support his wife and child. There is no finality to this order. It is pendente lite. It is at all times subject to change, to modification, and even, to being vacated, insofar as it relates to the wife, because, if the husband can show that the separation was caused through no fault of his, the alimony to her must be suspended. The district judge must be guided by the law and he is prohibited from fixing the alimony due the wife for more than one-third of the husband’s income. See R.C.C. Art. 160. That is the maximum amount the judge can fix. He cannot fix the amount for any greater sum, but, he has been granted the discretion to fix it at a lower amount. The district judge is in a better position h> know the needs of the parties than this Court. There is testimony as to the income of the husband, the necessities of the wife, and he has heard the witnesses and is in a better position to judge their credibility.

This suspensive appeal from the judgment of alimony for $20 a week to the wife and child also suspends the payment of alimony to that child. The only irreparable injury that is done is to the child, by the granting of this appeal. This child may or may not receive the necessities of life by reason of this appeal. Therefore, this is a compelling reason why the jurisprudence should be changed.

I respectfully dissent from the majority opinion handed down by this court.


author: PONDER,' Justice.

text:
    213 La. 1089
    MELTON v. MELTON.
    No. 38960.
    Supreme Court of Louisiana.
    June 1, 1948.
    Leo Gold and Donald Garrett, both of Alexandria, for relator.
    W. A. Culpepper, of Alexandria, for respondent.
   PONDER,' Justice.

The relator, having been found guilty of contempt of the lower court and sentenced to serve ten days in the parish jail, has invoked our supervisory jurisdiction.

The relator’s wife was granted a judgment of sepáration from bed and board and the relator was condemned to pay $50 per month for the support of his. wife and-their minor child. The relator, having failed to pay the alimony, was ruled into court to show cause why he should not be held in contempt of court.' Upon trial of the rule, the relator interposed an exception of no right and no cause of action based on the ground that there was no allegation in the petition for the rule that an amicable demand had been made on him for the payment of the alimony. The exception was overruled by the lower court and, after testimony had been adduced on behalf of plaintiff in the rule, the relator was refused the right to show his inability to pay the alimony because the lower court was of the opinion that evidence to that effect was not admissible under the exception and not admissible because the relator had filed no answer to the rule alleging his inability to pay. Thereupon, the lower court adjudged the relator in contempt of court and sentenced him to serve ten days in the parish jail. Our supervisory jurisdiction has been invoked.

Under provisions of Act No. 189 of 1898 a person who has failed to obey an order or judgment condemning him to pay alimony cannot be held in contempt of court if it appears that his failure to obey is due to his' inability to comply with the order or judgment. From the title of the statute, as well as its text, it is plain that the purpose of the statute is to protect a delinquent debtor from being held in contempt of court if he is unable to pay. From the title of the act, we find it is to carry into effect Article 177 of the Constitution of 1898 and to limit the power of courts to punish 'for contempt. Article 177 of the Constitution of 1898 is retained in the Constitution of 1921 as Section 17 of Article 19 and reads as follows: “The power of the courts to punish for contempt shall be limited by law.”

These proceedings by' rule, summary by nature, are not governed by the rules applicable to ordinary proceedings. A rule for contempt for the refusal to pay alimony is in the nature of a criminal prosecution. Perrault v. Edwards, 170 La. 671, 129 So. 125.

In the case of Snow v. Snow, 188 La. 660, 177 So. 793, we pointed out that relieving a debtor from the odium of being in contempt of court for having failed to pay his debt is entirely different from releasing him from the debt itself. We cited therein, with approval, decisions of this Court stating that it was error on the part of a trial court to refuse to hear evidence offered by a defendant to show his inability to pay alimony. See also Kemp v. Kemp, 146 La. 361, 83 So. 652.

For the, reasons assigned, the conviction and sentence are set aside and the relator is discharged.


author: HAWTHORNE, Justice.

text:
    213 La. 1092
    JOHNSON et al. v. JOHNSON.
    No. 38459.
    Supreme Court of Louisiana.
    June 1, 1948.

      Howell Carter, Jr. and George E. Konrad, both of New Orleans, for plaintiffs and appellants.
    Henry L. Oulliber, Jr. and Robert J. Pitard, both of New Orleans, for defendant and appellee.
   HAWTHORNE, Justice.

Plaintiffs, Mrs. Maud McGimsey Johnson and F. Lloyd Monroe, instituted this suit for specific -performance of a contract to purchase a parcel of land situated in the City of New Orleans, together with all improvements thereon, and for attorney’s fees in the sum of $500.00.

Defendant, John A. Johnson, admits the execution of the contract but refuses to accept title, denying that plaintiffs have a good, valid, and merchantable title to the property and alleging especially that plaintiffs’ title is suggestive of litigation. In re-convention he prays for judgment for double the amount of the deposit of $1265.-00 which was deposited by him immediately after acceptance of the contract by plaintiffs herein, and, further, for attorney’s fees in the sum of $500.00.

The district court dismissed plaintiffs’ suit at their costs and awarded judgment in favor of defendant and against plaintiffs jointly, severally, and in solido for the full amount of the deposit and for attorney’s fees in the sum of $500.00. From this judgment plaintiffs have appealed. Defendant has answered the appeal, praying that the judgment be amended to award him, in addition to attorney’s fees, the sum of $25-30.00, being double the amount of the deposit. .

The property here involved was acquired by plaintiff Mrs. Maud McGimsey Johnson on September 16, 1938. At that time.she was married to Robert B. Johnson but was living separate and apart from him. The act of sale contains the clause that she was “purchasing with her own separate and paraphernal funds under her separate administration and -control and for her own separate use.” Her husband, Robert B. Johnson, was not a party to this instrument. On October 9, 1944, Mrs. Johnson conveyed an undivided one-half interest in the property to the other plaintiff, F. Lloyd Monroe.

Mrs. Johnson separated from her husband in .the latter part of the year 1934, and since that time has been engaged in operating rooming and apartment houses and in buying and selling real estate. She obtained a divorce from her husband on December 18, 1942, which was after her acquisition of this property.

On March 12, 1945, these plaintiffs agreed to sell, and defendant agreed to purchase, the property here involved for the sum of $12,650.00. Upon acceptance of defendant’s offer to purchase, he deposited the sum of $1265.00 with the real estate agents handling the transaction.

This contract provides that title was to be passed within 30 days after acceptance, and that time was of the essence of the contract.

On advice of his attorney, defendant refused to accept title unless the divorced husband of plaintiff Mrs. Johnson would appear and sign the aot of sale or unless she would have the paraphernality of the property judicially declared in a suit contradictorily with her divorced husband, for the reason that she had acquired the property during the existence of the community between her and her divorced husband, and that, until one or the other of these requirements was met, the wife could not convey a good, valid, and merchantable title and one not suggestive of litigation. Instead of complying with the requirements of defendant’s attorney, plaintiffs elected to institute this suit for specific performance, which was filed on June 8, 1945.

While the suit was pending on the docket of the district court and almost a year after it had been instituted, plaintiffs on April 1, 1946, filed in the record what they styled a “disclaimer”, executed by Robert B. Johnson, the divorced husband, in which he states that he disclaims any right, title, and interest in the property, and also, on the Same date, they filed a power of attorney signed by the husband, authorizing his divorced wife to execute in 'his behalf an act of sale conveying any right, title, and interest which he might have in the property.

Notwithstanding the filing of these documents, the defendant refused to accept title,, and the case was tried on its merits, resulting in the judgment mentioned hereinabove.

In our opinion, the judgment of the district court dismissing plaintiffs’ suit is correct, for, under the jurisprudence of this state, defendant was justified in refusing to accept title to this property by act of sale signed by Mrs. Johnson without being joined by her husband.

In Bachino v. Coste, 35 La.Ann. 570, plaintiff instituted suit to compel the defendant to take title to property which had been purchased by plaintiff during her marriage. In her deed of acquisition it was recited that the property was being purchased with her paraphernal funds, and this aot of purchase was signed by her husband, who was deceased at the time the suit was instituted. This court refused to compel defendant to accept title for the reason that, when property -has been so acquired, the burden rests upon the wife who claims it as 'her separate estate to establish such ownership by positive evidence dehors the recitals of the deed, which alone proved little or nothing; that the property was presumed to be community property and continued to be considered as a community asset until the presumption was effectively destroyed by conclusive proof of the claim of separate ownership of it; that a judgment ordering the defendant to accept title could conclude neither the creditors of the deceased husband nor his forced heirs, and: would therefore be no protection to defendant, who, on paying the price of adjudication, would be entitled to receive a complete, valid, and unclouded title; and that, the plaintiff having failed to tender to defendant such a title as he was bound to accept, the defendant was released from his obligation to purchase.

A similar case is Duruty v. Musacchia, 42 La.Ann. 357, 7 So. 555, in which, the defendant refused to accept title to a parcel.of land acquired by plaintiff, a married woman, with the authorization of her husband. In that act of acquisition it was declared that the property was bought with the wife’s separate and paraphernal funds. The defendant took the position that, the property having been acquired during the existence of the community, it was presumed to be community property, and that he could not he compelled to take title until that presumption was judicially rebutted. During the course of the opinion in that case we said that our decision in the Bachino case, supra, certainly imposes a •duty upon a married woman in such a case, and gives to the purchaser from her the right to require her, to rebut the presumption and to rebut it contradictorily with those having a right to dispute her title, such as the forced heirs of her husband, if he is dead, and judicial mortgage creditors. See also Rouyer et al. v. Carroll, 47 La.Ann. 768, 17 So. 292; Succession of James, 147 La. 944, 86 So. 403; McGill v. Urban, 10 La.App. 82, 120 So. 408; Lotz et al. v. Citizens Bank & Trust Co. et al., La.App., 17 So.2d 463.

This court in the case of Houghton v. Hall et al., 177 La. 237, 148 So. 37, decided in 1933, reiterated the rule that, although property is bought in the wife’s name with recitation of the paraphernality of the funds of purchase, the property is nevertheless presumed to be community property.

In the case at bar, the property having been acquired by plaintiff Mrs. Johnson ■during the existence of her marriage, it is presumed to be community property, and defendant was justified, under the circumstances related hereinabove, in refusing to .accept title.

Plaintiffs concede that property acquired by purchase in the name of either spouse during the existence of the community is presumed, under Article 2402 of the Revised Civil Code, to be community property. They argue, however, that the .amendments to Article 2334 of the Code and the act emancipating married women [La.Act No. 283 of 1928] had the effect of removing this presumption where property is acquired in the name of the wife with her ■own earnings when living separate and apart from her husband although not separated by judgment of the court.

We do not agree with this argument ■that the amendments to the article and the act of 1928 had the effect of changing the presumption in any way in the instant case; but, conceding arguendo that the presumption has been changed and the property is presumed to be the separate property of the wife, defendant even in that event would not be required to accept a presumptive title.

In support o-f the contention that the property is Mrs. Johnson’s separate property since her deed recites that it was purchased with her separate and paraphernal funds and for her separate administration and control, counsel cite the case of Morris v. Giovanni et al., 9 La.App. 242, 119 So. 267, which we must concede supports their contention. This case, however, appears to be an isolated one in our jurisprudence, and the same Court of Appeal which rendered that opinion, subsequently, in 1944, in Lotz et al. v. Citizens Bank & Trust Co. et al., La.App., 17 So.2d 463, without mentioning the Morris case, recognized that the fact that a deed contains the recital of the purchase of property with separate and paraphernal funds makes little difference because all the decisions are to the effect that, notwithstanding such a recital, the presumption still exists and can only be overcome by proper and sufficient proof.

Defendant in answer admitted that he was willing and able to accept title to the property provided that the divorced husband of Mrs. Johnson would appear in the act as a vendor of the property. When plaintiffs filed in these proceedings a disclaimer and a power of attorney, both executed by the divorced husband, it would appear that defendant’s -requirements had been substantially met. We believe, however, that defendant’s admission that he was willing to take title in the event the divorced husband appeared in the act meant that he would accept title if this requirement were met within a reasonable time, and, as we have noted above, the disclaimer and the power of attorney were not filed in these proceedings until nearly a year after plaintiffs had instituted suit for specific performance. Moreover, according to the record, defendant, who is not a wealthy man, was seeking to purchase the property here involved as a home and had to purchase another dwelling for this purpose notwithstanding the pendency of this suit. We think that plaintiffs’ compliance with defendant’s requirements came so late that it would be unreasonable to compel him to take title.

Defendant, plaintiff in reconvention, has answered this appeal, praying that we amend the judgment of the lower court by allowing him double the amount of the deposit, or the sum of $2530.00, under the following provision contained in the contract to purchase: “In the event that the seller does not comply with this agreement to sell within the time specified, the purchaser shall have the right, either to demand the return of double the deposit, or specific performance.”

In the instant case, the sellers are attempting to enforce specific performance of the contract. It cannot be said that they have arbitrarily refused to convey title, when in truth they are, even now, willing to comply with the contract, and their failure to comply has been caused by the purchaser’s refusal to take a title which he considered — and justifiably so — defective. Baton Rouge Investment & Realty Co., Inc., v. Bailey, 157 La. 838, 103 So. 184; Morgan & Lindsey v. Ellis Variety Stores et al., 176 La. 198, 145 So. 514; Williams et al. v. Meyer, La.App., 29 So.2d 599.

Since the contract in the instant case on which this suit is predicated does not provide for the payment of attorney’s fees, in our opinion the judgment of the lower court awarding to defendant attorney’s fees in the sum of $500.00 is in error, and in this respeot it is necessary that the judgment be reversed.

Plaintiffs contend also that the lower court erred in condemning them in solido to pay the sum of $1265.00. The judgment ordering plaintiffs to pay defendant this sum is correct, but we agree that the plaintiffs are not obligated in solido for this amount, as the contract does not expressly provide that such obligation shall be in solido. Under the express provisions of Article 2093 of the Civil Code, an obligation in solido is not presumed but must be expressly stipulated, which rule ceases to prevail only in cases where an obligation in solido takes place by virtue of some provision of the law.

For the reasons assigned, the judgment of the district court insofar as it awarded attorney’s fees to the defendant and plaintiff in reconvention is reversed. Insofar as it was rendered in solido against the plaintiffs and defendants in reconvention it is amended so as to give judgment in favor of defendant and plaintiff in reconvention, and against the plaintiffs and defendants in reconvention, jointly and severally, in the full sum of $1265.00, and as thus amended is affirmed. Plaintiffs are to pay all costs.

O’NIELL, C. J., absent.


text:
    213 La. 1105
    STATE v. WILLIAMS.
    No. 38978.
    Supreme Court of Louisiana,
    June 15, 1948.

      B. Newton Hargis and J. Martin Shevn-in, both of Alexandria, for defendant, appellant.
    Bolivar E. Kemp, Jr., Atty. Gen., M. E. Culligan, Asst. Atty. Gen., and Ben F. Thompson, Dist. Atty., and Walter M. Hunter, Asst. Dist. Atty., both of Alexandria, for appellee.
   HAWTHORNE, Justice.

Defendant, Ennis Williams, charged in a bill of indictment with attempted aggravated rape, has appealed to this court from his conviction and sentence to serve 20 years in the Louisiana State Penitentiary.

The indictment under which he was tried and convicted, insofar as it is material here, reads as follows:

“That Ennis Williams late of the Parish aforesaid, on or about the 7th day of June 1947 with force and arms in the Parish, District and State aforesaid, and within the jurisdiction of the Ninth Judicial District Court, did willfully, maliciously and feloniously Attempt to commit aggravated rape on a minor child whose name is unknown contrary to the form of the Statute * *

One of the bills of exception reserved by defendant was to the overruling by the trial judge of his motion in arrest of judgment, in which motion he contends that the indictment is fatally defective in that the name of the person upon whom the offense is alleged to have been committed is not given; that the name of the person alleged to have been injured is substantial and not merely descriptive, and that, if the name of such person is unknown, this fact must be alleged and the indictment should make it appear by sufficient allegation who was the injured person, which it fails to do.

Article 230 of the Code of Criminal Procedure, as amended by Act 147 of 1942, reads as follows:

“When the name of the person injured is substantial, and not merely descriptive, that is to say, when the injury is to the person, as in murder, rape or battery, the indictment shall state the name of such person, or if unknown, that it is unknown, and if unknown, the indictment shall make it appear, by sufficient allegation, who was the party injured.” (Italics ours.)

There can be no doubt that the name or the identity of the injured person in such a charge as we have here under •consideration is substantial and not merely descriptive. It will be observed from the quoted portion of the indictment that it recites that the name of the injured person is unknown, and therefore the sole question raised by this bill of exception is whether this indictment makes it appear by sufficient allegation who was the party injured by describing such person only as “a minor child.”

Article I, Section 10, of our Constitution provides that in all criminal prosecutions the accused shall be informed of the nature and cause of the accusation against him, and Section 9 of the same article, among other things, provides that no person shall be twice in jeopardy of life or liberty for the same offense, except on his own application for a new trial, or where there is a mistrial, or a motion in arrest of judgment is sustained.

There is no doubt that the Legislature in adopting Article 230 of the Code of Criminal Procedure, as amended, had in mind these constitutional safeguards when it provided in this article that, if the party injured was unknown, the indictment should make it appear by sufficient allegation who was the person injured.

The indictment under which defendant was convicted complies with the statute by alleging that the name of the injured ■person is unknown. In our opinion, however, the designation of the injured person solely as “a minor child” is not sufficient allegation to designate who was the injured person, and the indictment as drafted would not support a plea of autrefois acquit or convict, as the case may he, in bar of another information or indictment for the same offense, for it can be readily seen that the term “a minor child” can apply to any individual or person, male or female, below the age of 21 years.

The trial judge in one of his per curiams informs us that the prosecuting witness was a Negro minister who saw the acts of defendant through a window, and that the victims were two small Negro girls. The judge further states that these children did not testify before the grand jury, and that the district attorney and the prosecuting witness did not know the names of these little girls at the time the indictment was drawn; that these children were located by a deputy sheriff a day or two before the trial. Which one of these two small Negro girls does the indictment as drafted charge the accused with attempting to rape ? From the indictment alone we cannot answer this question, and neither could the accused.

We fully realize that in some homicide cases the name of the deceased cannot be ascertained, or he may not even have a name, as in infanticide. In the instant case the State relies on the case of State v. Richmond, 1890, 42 La.Ann. 299, 7 So. 459, which was an infanticide case, and in which the court considered an indictment which charged that the defendant “did kill and murder a female child, whose name is to the said jurors unknown” to give a sufficient description of the deceased. In the cited case the court did not give any reason for its holding or divulge the basis for its decision, merely stating that the objection of the accused that the description of the deceased was insufficient was not a good one. We do not know whether this court would follow the ruling in that case in an infanticide case since the adoption of Article 230 of the Code of Criminal Procedure, but in the instant case, the charge being attempted aggravated rape, we cannot understand why the State did not allege a more detailed description of the party injured, or, further, did not amend the indictment prior to trial upon learning the name of the party injured.

The trial judge was of the opinion that the indictment was valid as a short form indictment. Even under the shore form of indictment contemplated by Article 235 of the Code of Criminal Procedure, as amended, the injured person in the crime of rape must be definitely named, or sufficiently described to show who was the party injured, in conformity with Article 230 of that Code. Since there was no compliance with this requirement in the instant case, the indictment was not valid as a short form indictment.

There are other bills of exception in the record, but, since we have concluded that the motion in arrest of judgment should have been sustained, it is unnecessary for us to consider them.

Under Article 520 of the Code of Criminal Procedure, the accused is entitled to his discharge if the judgment be arrested for any cause fatal to the indictment, but he is subject to be indicted anew.

For the reasons assigned, the motion in arrest of judgment is sustained, and it is ordered, adjudged, and decreed that the verdict and sentence be annulled and set aside.


author: FOURNET, Justice. O’NIELL, Chief Justice

text:
    214 La. 1
    LOUISIANA WHOLESALE DISTRIBUTORS ASS’N, Inc. v. ROSENZWEIG.
    No. 38950.
    Supreme Court of Louisiana.
    June 1, 1948.
    Spencer, Sevier & Adams, of Tallulah, for defendant and appellant.
    K. C. Barranger, of New Orleans, Snyder & Sevier, of Tallulah, Wellborn Jack, of Shreveport, Voorhies & Labbe, of Lafayette, and Ellis, Ellis & Lancaster and Frank B. Ellis, all of Covington, for plaintiff and appellee.
   FOURNET, Justice.

This case is now before us for the second time. It was originally here on an appeal by the defendant from a judgment permanently enjoining him from advertising and selling-'cigarettes at less than Cost in violation of-the “Unfair Sales Act,” Act No. 338 of 1940, as amended by Act No. 79 of 1942 and Act No. 256 of 1946. Finding that we had no jurisdiction in the matter, we transferred the case to the Court of Appeal for the Second Circuit under the authority of Act No. 19 of 1912. 212 La. 1015, 34 So.2d 58. That court is now certifying to us for our answer, under the authority of Section 25 of Article VII of the Constitution of 1921, the question of the constitutionality vel non of this act and we, under the authority of this same section and in order to avoid any further delay in, returning the case with instructions, have concluded to “decide the whole matter in controversy in the same manner as if it had been on appeal directly to the Supreme Court.”

The simple question posed in this case has been answered adversely to the contention of the appellant, by the courts of the thirty states of the Union that have had occasion to- review the similar acts adopted by their respective legislatures. See Wholesale Tobacco Dealers Bureau v. National Candy & Tobacco Co., 11 Cal.2d 634, 82 P.2d 3, 118 A.L.R. 486; Rust v. Griggs, 172 Tenn. 565, 113 S.W.2d 733; McElhone v. Geror, 207 Minn. 580, 292 N.W. 414; Associated Merchants v. Ormesher, 107 Mont. 530, 86 P.2d 1031; State v. Langley, 53 Wyo. 332, 84 P.2d 767; State v. Sears, 4 Wash.2d 200, 103 P.2d 327; Moore v. Food Dealers Ass’n, 286 Ky. 24, 149 S.W.2d 755; Dikeou v. Food Distributors Ass’n, 107 Colo. 38, 108 P.2d 529; Carroll v. Schwartz, 127 Conn. 126, 14 A.2d 754; Blum v. Engelman, Md., 57 A.2d 421. The underlying principle upon which these decisions are based has the support of the decisions of the Supreme Court of the United States. Nebbia v. New York, 291 U.S. 502, 54 S.Ct. 505, 78 L.Ed. 940, 89 A.L.R. 1469; Northern Securities Co. v. United States, 193 U.S. 197, 24 S.Ct. 436, 48 L.Ed. 679; Townsend v. Yoemans, 301 U.S. 441, 57 S.Ct. 842, 81 L.Ed. 1210; Kunsman v. Max Factor Co., 299 U.S. 198, 57 S.Ct. 147, 81 L.Ed. 122; Old Dearborn Distributing Co. v. Seagram-Distillers Corporation, 299 U.S. 183, 57 S.Ct. 139, 81 L.Ed. 109; Hegeman Farms Corporation v. Baldwin, 293 U.S. 163, 55 S.Ct. 7, 79 L.Ed. 259; Highland Farms Dairy v. Agnew, 300 U.S. 608, 57 S.Ct. 549, 81 L.Ed. 835.

The great strides made by mass production and the development of national brands of standard consumers’ goods exploited by advertising addressed directly to the public since the beginning of the century have been paralleled by increased and intensified competition, with its resultant effect upon the economic welfare of the citizen and the merchant. To combat the monopolistic dangers inherent in the concentration of retail distribution in the hands of large and richly-financed distributive units seeking to secure an increasingly large share of the retail market in all nationally advertised brands, and to protect the small and independent retailers from gradual liquidation by reason of the varied schemes devised to “kill off” the competition they afford, the law-making bodies throughout the various states of the country early in the century undertook to restrain the inexorable tendency of these practices by enacting legislation designed to elimate the employment of questionable devices for the studied purpose of injuring competitors. Such devices were condemned in these acts as being inimicable to the public welfare and to the economic stability of the community.

Among one of the most common of these devices is the so-called “loss leader”, employed under the guise of an advertising scheme but characterized as “bait” by the late Justice Brandéis of the United States Supreme Court in an article written before his elevation to the bench. Justice Brandéis also said this device would be more, appropriately termed a “mis-leader” because its very purpose is, ordinarily, “to create a false impression.” This observation, made in 1913, is equally true today. “Loss leader” is the term applied to the practice of selling nationally known articles at cost or less than cost for the calculated purpose of enticing customers away from competitors and into stores where they may be entrapped into purchasing other goods at marked-up prices that will more than make up for the loss on the “leader.” Such practices tend to bankrupt the small merchants and to create monopolies by the concentration of distribution in the hands of a few well-financed groups. In addition, they are inimicable to sound and honest merchandizing.

Beginning with South Carolina’s rather feeble initial attempt to cope with this problem in 1902, the states have gradually and increasingly strengthened legislation levelled at preventing the unreasonably low pricing of goods for the purpose of destroying competition or of eliminating an individual competitor while at the same time deluding the public. Today all but three states have fair trade statutes of some kind. Some thirty states have statutes that are designated generally as Unfair Practices Acts or Unfair Sales Acts. These acts all follow the same general pattern, the only practical difference being that the method employed in computing the cost of the article varies.

■ The legislature of Louisiana, following this trend and expression of public policy, adopted in 1940 its Unfair Sales Act, the express object of which, according to its title, is “to protect the public against the creation or perpetuation of monopolies and to foster and encourage competition by prohibiting unfair sales and discriminatory practices by which fair and honest competition is destroyed or prevented.” The act, as amended, makes it unlawful for any retailer or wholesaler, with the intent or effect of unfair competition, to advertise, offer to sell, or sell, any merchandise at less than cost. “Cost” is defined in Section 2 to be the invoice cost, or the replacement cost within thirty days prior to the date of sale, whichever is lower, less all trade discounts, except customary discounts for cash, and plus freight charges, cartage and certain taxes, and also plus a markup to cover a proportionate part of the cost of doing business, which markup, in the absence of proof of a lesser cost, is fixed at six per cent for retailers and two per cent at the wholesale level. Section 6 of the act excepts from the operation of its provisions all out of the ordinary situations where a sale at less than cost may be necessary, such as bankruptcy sales, sales to the highest bidder of confiscated goods, and those situations where the price of merchandise has been made in good faith to meet conpetition. Any violation of the act is made a misdemeanor in Section 4, punishable by a fine of not less than $25 and not more than $500 for each offense. Section 5 vests the courts of' the state with jurisdiction to prevent and restrain violations of the act and authorizes any person damaged or threatened with loss or injury by reason of its violation to sue .for and secure in-junctive relief. It is also made.the duty of the district attorneys throughout the state to institute proceedings to prevent and restrain violations of the act.

The defendant in this case, I. Rosenzweig, doing business as the Pic-Kwickly Grocery, located at Tallulah, Louisiana, in Madison Parish, in answer to the suit filed against him by the Louisiana Wholesale Distributors Association, Inc., a nonprofit corporation composed of a large group of wholesale tobacco ánd grocery distributors of Louisiana, commonly known as jobbers, admitted the allegations contained in the petition charging him with having advertised and sold certain popular brands of cigarettes at less than cost, in violation of the Unfair Sales Act, stating that he used them as a “loss leader” in an effort to stimulate his general grocery business. As a defense, he urged that the act is unconstitutional because it violates the due process and equal protection guaranteed him under the Fifth and Fourteenth Amendments of the Constitution of the United States, and under Section 2 of Article I of the Constitution of Louisiana, contending that such a statute is, in fact, a price fixing statute and class legislation, precluding him from freely contracting with regard to his property.

Upon this constitutional issue there was judgment in the lower court decreeing Act 338 of 1940, as amended, to be constitutional and granting the plaintiff the injunctive relief prayed for.

The leading case on this subject, Nebbia v. New York, 291 U.S. 502, 54 S.Ct. 505, 516, 78 L.Ed. 940, 89 A.L.R. 1469, brought to the Supreme Court of the United States for its decision the question of the constitutionality of a New York milk control law that had been adopted for the .purpose o.f thwarting harmful competition. Under this law the administrative board issued regulations fixing the minimum price that could be charged for milk by the quart and pint and Nebbia, when charged with the violation of these minimum price regulations, asserted as his defense that the statute and regulation contravened the equal protection and due process clauses of the Constitution of the United States. His argument before the United States Supreme Court was that the board’s order discriminated unfairly against him as a “cash-and-carry” dealer in milk since his rivals in the trade who had no store but only a wagon and delivery route had no lower limit set for the price at which they were obliged to buy his milk and were allowed to sell pints of milk as low as he did, with delivery to the customer’s door as a bonus. In upholding the constitutionality of the regulations issued under the Milk Control Law, the court made the following pertinent observations that are equally applicable in the case now before us:

“So far as the requirement of due process is concerned, and in the absence of other constitutional restriction, a state is free to adopt whatever economic policy may reasonably be deemed to promote public welfare, and to enforce that policy by legislation adapted to' its ptirpose. The courts are without authority either to declare such policy, or, when it is declared by the legislature, to override it. If the laws passed are seen to have a reasonable relation to a proper legislative purpose, and are neither arbitrary nor discriminatory, the requirements of due process are satisfied, and judicial determination to that effect renders a court functus officio. 'Whether the free operation of the normal laws of competition is a wise and wholesome rule for trade and commerce is an economic question which this court need not consider or determine.’ Northern Securities Co. v. United States, 193 U.S. 197, 337, 338, 24 S. Ct. 436, 457, 48 L.Ed. 679 [700, 701], And it is equally clear that if. the legislative policy be to curb unrestrained and harmful competition by measures which are not arbitrary or discriminatory it does not lie with the courts to determine that the rule is unwise. With the wisdom of the policy adopted, with the adequacy or practicability of the law enacted to forward it, the courts are both incompetent and unauthorized to deal. The course of decision in this court exhibits a firm adherence to these principles. Times without number we have said that the Legislature is primarily the judge of the necessity of such an enactment, that every possible presumption is in favor of its validity, and that though the court may hold views inconsistent with the wisdom of the law, it may not be annulled unless palpably in excess of legislative power. * * * The constitution does not secure to anyone liberty to conduct his business in such fashion as to inflict injury upon the public at large, or upon any substantial group of the people. Price control, like any other form of regulation, is unconstitutional only if arbitrary, discriminatory, or demonstrably irrelevant to the policy the legislature is free to adopt, and hence an unnecessary and unwarranted interference with individual liberty .” (Italics ours.)

In the landmark case of Wholesale Tobacco Dealers Bureau v. National Candy & Tobacco Co., 11 Cal.2d 634, 82 P.2d 3, 9, 118 A.L.R. 486, the California Supreme Court upheld the constitutionality of the California Unfair Practices Act of 1913, as amended (an act that is for all intents and purposes identical with the one here being considered), despite the attack made upon it by the defendant, enjoined from selling its products below cost or replacement cost, whichever was the lower, plus the cost of doing business as defined in the act, epitomizing in the following excerpt from its opinion the attitude of the courts with respect to the legality of such statutes:

“That the avowed purpose of the act as stated in section 13 '* * * to safeguard the public against the creation or perpetuation of monopolies and to foster and encourage competition, by prohibiting unfair and discriminatory practices by which fair and honest competition is destroyed or prevented’ — is well within the state’s police power cannot be seriously doubted. It has now become firmly established that the police power of the state extends not only to the preservation of the public health, safety and morals, but also extends to the preservation and promotion of the public welfare. In recent years the state, in promoting and advancing the general welfare of its citizens, has frequently 'and properly used this power to promote ■the general'prosperity of the state by the regulation of aconomic Conditions. This apparent extension of the police power is in fact no extension at all. The police power has not expanded. Its proper exercise has always been and still is confined to regulation in the public welfare, and has always been and still is sub ject to the standard of reasonableness in its relation to that interest. However, changed social, political and economic conditions have enlarged the field of conduct which may properly be subjected to regulation in order .that the general welfare may be adequately protected. The proper application of the power cannot be measured by past precedents — the test is, of course, present day conditions. These principles have frequently been enunciated by this court and by the Supreme Court of the United States. * * * That the prevention of monopolies and the fostering of free, open and fair competition and the prohibition of unfair trade practices is in the public welfare is obvious, and requires no further citation of authority.” (Italics ours.)

The case relied on by the defendant is Great Atlantic & Pacific Tea Co. v. Ervin, D.C., 23 F.Supp. 70. The statute under which this case was decided has since been superseded by an act of the Minnesota legislature that is practically identical with the one here under .consideration, and the constitutionality of this later act was upheld by the Supreme Court of Minnesota in the case of McElhone v. Geror, 207 Minn. 580, 292 N.W. 414, 417, wherein it is said:

“Until recently it was thought, incorrectly, that outside the field of businesses conducted under a franchise and enterprises which, historically, were considered subject to price regulation, the fixing of prices was permissible only where the business was 'affected with a public interest.’ Tyson & Bro. v. Banton, 273 U.S. 418, 47 S.Ct. 426, 428, 71 L.Ed. 718, 58 A.L.R. 1236; Williams v. Standard Oil Co., 278 U.S. 235, 49 S.Ct. 115, 73 L.Ed. 287, 60 A.L.R. 596. That doctrine, which put price control in a •different category from other forms of state regulation, has been disapproved. In Nebbia v. New York, supra, it was said: Price control, like any other form of regulation, is unconstitutional only if arbitrary, discriminatory, or demonstrably irrelevant to the policy the Legislature is free to adopt, and hence an unnecessary and unwarranted interference with individual liberty.’ ”

Such acts have consistently been held not to be price fixing statutes. They merely fix the level below which producers and distributors many not sell without injury to a competitor and, ultimately, to the community. Clearly, therefore, in adopting this state’s Unfair Sales Act for the protection of our economic structure and to prevent the creation or perpetuation of monopolies, the legislature was acting well within its police power. And since the act has neither been alleged nor shown to be arbitrary or discriminatory and an examination of its context shows it is broad in its scope and uniform and fair in its operation and is not violative of any of the personal or contractual rights guaranteed to our citizens by the federal and.state constitutions, it is our conclusion that the statute is consitutional.

For the reasons assigned the judgment of the district court, granting the injunctive relief prayed for, is affirmed.

O’NIELL, Chief Justice

(dissenting).

The question propounded by the court of appeal is this:

“Are the acts of the Legislature mentioned herein [Act 338 of 1940 as amended by Act 79 of 1942 and by Act 256 of 1946] vulnerable to the plea of unconstitutionality tendered and urged by the defendant”?

My opinion is that Act No. 338 of 1940 as amended by Act No. 79 of 1942 and by Act No. 256 of 1946 is unconstitutional. I base this opinion upon the fact that the provisions of the act have no direct relation to the mischiefs at which, in the title and preamble, the act is said to be aimed, or to the purposes which, according to the title and preamble, are intended to be accomplished. The title and preamble are not at all appropriate to the avowed purpose for which the statute was enacted. The statute, including the title and preamble, was copied from or patterned after statutes adopted originally in other states. See Virginia Acts of 1938, Ch. 441; Arizona Laws of 1939, Ch. 39; Idaho Laws of 1939, Ch. 209; Wisconsin Laws of 1939, Ch. 56. The title and .preamble of the Louisiana statute have never been amended in any way since they were adopted originally as the title and preamble of Act 338 of 1940. It appears to me — I say with great respect — that the original composer of this title and preamble had an exaggerated idea of the things to be accomplished and the evils to be abolished by the adoption of the ach Competition is the life of trade. A merchant putting out and advertising “loss leaders” in his stock of merchandise cannot possibly do injury to his customers or to the general public. Such practice can affect adversely only competitors in business, by stimulating competition. No merchant can continue indefinitely or for a great length of time to advertise and sell “loss leaders” without putting himself out of business. He has as much right to put himself out of business in that way as he would have to close his door and leave the field to his competitors whenever he sees fit. Besides, a customer who goes to a store to buy a so-called “loss leader”, whether it be a carton of cigarettes or any other article of merchandise, is not obliged to buy anything else. If.he sees fit he may buy only the “loss leader”, within the limits of the quantity which the advertiser is willing to sell to any one buyer.

And now, for the purpose of showing why I consider that the title and preamble to this statute, which originated somewhere outside of Louisiana, is — to say the least of it — farfetched—and misleading — I reproduce here a copy of the title and preamble:

“AN ACT
“To protect the public against the creation or perpetuation of monopolies and to foster and encourage competition by prohibiting unfair sales and discriminatory practices by which fair and honest competition is destroyed or prevented; to define ‘unfair sales’ and to provide remedies for the violations thereof; and to provide penalties for the violation of the provisions of this Act.
“Whereas, the practice of selling certain items of merchandise below cost in order to attract patronage is generally a form of deceptive advertising and an unfair method of competition in commerce; and
“Whereas, such practice causes commercial dislocations, misleads the consumer, works back against the farmer, directly burdens and obstructs commerce, and diverts business from dealers who maintain a fair price policy; and
“Whereas, bankruptcies among merchants who fail because of the competition of those who use such methods result in unemployment, disruption of leases, and non-payment of taxes and loans, and contribute to an inevitable train of undesirable consequences, including economic depression, now therefore,
“Be it enacted by the Legislature of Louisiana, That” etc.

In the sixth section of the act certain exceptions are made to its applicability, such as bona fide clearance sales, if the merchandise is marked and sold as in such sales, or where perishable merchandise must be sold promptly to prevent a loss, or where merchandise is imperfect or damaged, or the sale of it is being discontinued, provided that the merchandise in such cases is advertised and marked down as being sold for such reason, or where merchandise is sold in the final liquidation of any business, or where it is sold to a relief agency, or to a governmental institution, etc., or where the price of the merchandise is made in good faith to meet competition, or where a sale is made by an officer under an order or the direction of any court. These exceptions to the applicability of the statute are only such as the courts themselves would be apt to observe to prevent injustice. But these exceptions do not save the statute from the plea of unconstitutional-ity.

The statute contains also what is called a severability clause, declaring that if any section, sentence, clause or provision of the act shall be decreed unconstitutional the decree shall not impair any valid provision of the act. The severability clause is a matter of no importance in this case because, if the general provisions of the statute are violative of the due process clause in the Fourteenth Amendment of the Constitution of the United States, the statute is entirely unconstitutional.

The due process clause does not permit the Legislature to authorize the several district attorneys and grand juries throughout the state to prosecute — or to authorize the district judges to convict and punish by a fine of $500.00 — a merchant who does nothing worse than to sell a package of cigarettes or any other article of merchandise for a sum less than it cost him.

For these reasons I respectfully dissent from the majority opinion in this case.