author: HAMITER, Justice.

text:
    214 La. 220
    PEARSON v. PRUDENTIAL INS. CO. OF AMERICA.
    No. 38523.
    Supreme Court of Louisiana.
    June 1, 1948.
    Rehearing Denied July 2, 1948.

    Melvin F. Johnson of Shreveport for defendant-appellant.
    Bethard & Bethard, of Shreveport, for plaintiff-appellee.
   HAMITER, Justice.

Tom C. Pearson, in this ■ action, seeks to recover disability benefits of $50 per month from April 6, 1944, together with statutory penalties and attorney’s fees, allegedly due under a policy issued to him by defendant, the Prudential Insurance Company of America.

Finding that plaintiff was totally and presumably permanently disabled, as defined in the contract of insurance, the district court rendered judgment in his favor for all monthly benefits accruing on and after April 6, 1944, and also for the premiums paid during that period. The demand for penalties and attorney’s fees was rejected.

Both defendant and plaintiff appealed to the Court of Appeal of the ¡Second Circuit, the latter’s appeal being only from that part of the .judgment which, rejected his demand. That tribunal, holding that it was without jurisdiction because of the amount in dispute, transferred the appeals to this court. 29 So.2d 70.

The policy in question, having a face amount of $5000, was issued to plaintiff on December 3, 1930, he at the time being 28 years of age. The written application therefor recited his occupation then to be “Planter (Farm Manager).” In addition to provisions for the payment of death benefits, the policy contáined clauses stipulating, in the event of total and permanent disability before his sixtieth birthday, a monthly income to the insured of $10 for each $1000 of the face amount of insurance, “beginning at the end of four months from the commencement of such total disability,” and further stipulating a waiver of all premiums. The defendant obligated itself to pay those benefits, according to the contract,

“ * * * if the Insured shall become totally and permanently disabled, from bodily injury or disease, to such an. extent as to be incapacitated from engaging in any occupation for remuneration or profit, Provided,
* * * * * *
“ (b) that the Company shall have received due proof that total disability exists and that such total disability is permanent, which shall be deemed to be the case if the Company shall have received due proof that such total disability has existed continuously during a period of not less than four months immediately preceding receipt by the Company of said proof'

The contract provided further:

“Proof of Continuance of Disability.— Notwithstanding the acceptance by the Company of proof of total and permanent disability, or of proof of the duration of total disability for a period of four months, the Insured, upon demand by the Company from time to time, but not oftener than once a year after such total disability has continued for two full years, for the purpose of verifying that such total disability is actually permanent and not temporary, shall furnish due proof that the said Insured actually continues to be totally disabled. If the Insured shall fail to furnish such proof, or if the Insured shall become able to engage in any occupation for remuneration or profit, the waiver of premiums and the payment of the monthly income shall cease from the end of the last completed month of total disability, but this Policy shall be continued in force subject to the payment by the Insured, in'the manner and at the time provided in the Policy, of any premium or premiums, the due date of which, as specified in the Policy, shall occur thereafter.”

In interpreting policy provisions similar to the above, this court, as well as the Courts of Appeal of this state, has ruled that they do not require the insured to be absolutely helpless before he is entitled to the monthly benefits; rather, it is only necessary, under those provisions, that the disability render him unable to perform the substantial and material acts of his business or occupation in the usual and customary way. Crowe v. Equitable Life Assurance Society, 179 La. 444, 154 So. 52; Boughton v. Mutual Life Insurance Company of New York, 183 La. 908, 165 So. 140; Nomey v. Pacific Mutual Life Insurance Company, 212 La. 819, 33 So.2d 531; Manuel v. Metropolitan Life Insurance Company, La.App., 139 So. 548; Phillips v. Mutual Life Insurance Company of New York, La.App., 155 So. 487; Cates v. New York Life Insurance Company, La.App., 159 So. 172.

With this rule in mind we proceed to a consideration of the disability on which plaintiff founds his claim. From the record it appears that in 1930, when the policy was issued, he was farming through the medium of share croppers a large portion of a 2300 acre plantation rented from the American Investment Company, he receiving for his efforts one-fourth of the crops produced. Additionally, he then operated a cotton gin which he owned. While still thus engaged in 1935, he purchased, on terms of credit, a farm of approximately 346 acres and commenced the cultivation of it. All of those activities, which continued until 1941, required not only his supervision of the persons working for and with him but also much manual labor and physical exertion on his part during each working day of from 12 to 20 hours. For example, in connection with the farming, he drove tractors, attached to which were cultivators, harrows and other necessary implements ; on occasions he plowed with mules; he operated a combine and sacked and handled the oats harvested; and he did considerable carpentry work, building and repairing tenant houses. As to his gin, he did all of the, actual mechanical work, including the making of needed repairs; he weighed the cotton, both before and after its ginning, climbing a sizable flight of stairs to do so; and he rolled out the completed bales for loading into trucks.

During the morning of May 26, 1941, shortly after filling four sacks with oats and placing them in his pick-up car, he experienced severe pains in his chest, arms and'shoulders. Later, he was taken to the Schumpert Sanitarium in Shreveport where he remained under medical care for-several weeks. As to that experience, the brief of defense counsel correctly states: “In May, 1941, the plaintiff suffered an attack which knocked him out and there is no dispute that medical examination at the time showed that he was suffering from a heart attack commonly described as coronary heart disease and the medical examinations ’ conducted by physicians, both on behalf of plaintiff and defendant, substantiated this diagnosis. The plaintiff was disabled for several years during which time the defendant recognized his claims for disability benefits and issued monthly payments in accordance therewith.”

On returning 'to his home in the town of East Point, plaintiff followed the advice of the medical attendants, Dr. Car-lisle, his family physician and next door neighbor, and Dr. M. D. Hargrove of Shreveport. They advised that he should avoid any. physical exertion which would produce pain and should rest regularly, eat moderately and take life easily and calmly; otherwise, abnormal exertion might precipitate coronary thrombosis and prove fatal. Additionally, he installed in his home oxygen equipment which he used when pains recurred.

Up until March, 1944, the defendant paid to plaintiff the monthly income of $50 and waived the payment of premiums, all as stipulated in the policy. In a letter dated the 27th of that month, defendant’s claim appraiser informed plaintiff that his disability claim was being terminated and the policy restored to a premium payment basis. This action was based primarily oh a medical report issued by Dr. W. S. Kerlin of Shreveport, following his examination of the insured in December, 1943, to the' effect that plaintiff, in his opinion, was no longer totally disabled.

Thereafter some correspondence passed between plaintiff’s counsel and defendant’s-claim appraiser, and on January 3, 1945, this suit was filed. During the trial, which occurred in January, 1946, plaintiff testified that since the initial attack in May, .1941; he has experienced similar pains in his arm's and chest, and has consulted his family physician, approximately once every week. He has been unable to farm the American Investment Company’s 2300 acre plantation on a share cropper basis, from which he originally received 25 percent of the crops produced; instead, he has only written rent contracts for that owner with tenants, and for those services he received 10 percent of the production. In 1944 he purchased, on terms of credit, 494 acres of land, thereby bringing his ownership of farm property to 840 acres; but to farm his holdings he has been compelled to employ managers, as-well as to have the assistance of his wife and brother, inasmuch as he could stand no physical exertion. In the operation of his gin, which required mechanical work, weighing of cotton and bookkeeping, it has been necessary also to hire other persons. From 1936 to 1944 he served as a. member of the Red River Police Jury, being the President of that body during a-, portion of such period. His services, however, required no physical exertion, and in. offering for reelection he made no campaign.

Other lay witnesses, who are farming neighbors, told of plaintiff’s having performed much manual labor before May 26,. 1941, and of his refraining from doing it. since that date.

The family physician (Dr. Carlisle), according to his testimony, has seen plaintiff professionally about once a week since May, 1941. Although none of the several: electrocardiograms made subsequent to the-original attack has disclosed the existence of coronary heart disease he is of the opinion that the patient is still suffering from that ailment. Additionally, plaintiff has, as shown by an X-ray picture made in 1945, a diaphragmatic hernia, this being a hernia caused by a portion of the bowel entering the diaphragm. The instructions of this physician, as initially, are: “To limit his activities as much as possible. Don’t do anything that he knows in advance would cause him to have pain.”

Dr. Hargrove, a specialist in cardiology, who attended plaintiff in 1941 and then diagnosed his. ailment as coronary heart disease, examined him last on December 18, 1945. Although at that time there appeared no objective symptoms, -as orig-iginally shown by a cardiogram, he was of the belief that the patient still suffered from and was disabled as a result of the disease; the pains complained of were typical of it. Besides, X-ray pictures disclosed the existence of a diaphragmatic hernia.

Defendant’s medical expert, Dr. Herold, examined plaintiff on May 18, 1945. In addition to making - the usual physical tests, he fluoroscoped the heart and had a technician run an electrocardiogram. When asked to state his conclusion from the examination, he said: “Well, I would say that I found nothing abnormal from an objective standpoint; that is as far as you could tell from external examination. I found no evidence of disease. Subjectively, that is from his symptoms and statement, I did feel like he had some abnormality.”

Further, Dr. Herold gave the following pertinent and interesting testimony:

“Q. Doctor, you have heard Mr. Pearson or did hear him recite the conditions of his complaint and I believe you said that objectively you found nothing but subjectively he did have a heart complaint? A. Yes.
“Q. Now, how would you classify that heart complaint ? A. Practically every case, attack of coronary occlusion, you get even after the evidences of the condition have subsided, you get what we call angina pectoris; that means pain in the heart; pain in the chest.
■ . “Q. So based upon the subjective conditions which you considered he possibly had a coronary occlusion and angina pec-toris? A. Yes, sir. That’s one of the causes of angina pectoris, is coronary disease.
“Q. Doctor, let me ask you this question. If you were to examine him with this cardiogram instrument and make a cardiogram at the time that he was experiencing pains in the chest from angina, would that register on your cardiogram? A. Sometimes it will show abnormalities, yes, sir, if the pain is severe.
“Q. But if you make an examination of a man who has angina at a time when he is not experiencing pain in his chest, will it register on your cardiogram? A. Not unless he has some organic disease of the heart behind it.
“Q. So then the test for angina in so far as the cardiogram is concerned would be to make a cardiogram while he is experiencing pain from angina? A. Yes.
“Q. That’s correct? A. Yes, sir.
“Q. So therefore the cardiogram that you made in your office when he was not experiencing pain is not a .true test of whether or not he might have angina ? A. Well, as I said you don’t always get abnormal cardiograms with angina, if there is no organic disease, but sometimes you do, if the pain is severe.
“Q. . But you can only get them at the time when he is experiencing the pain? A. That’s right.”

Dr. Herold’s explanation of the efficacy of the cardiogram accords with the views expressed by the other medical experts on that subject.

..From all of the evidence in the record it can only be concluded that there has been no noticeable improvement in the physical condition of plaintiff as it existed during the period immediately following May, 1941, in which the monthly benefits were being paid by defendant. Defense counsel, however, directs attention to plaintiff’s declaration in the application for the insurance' in 1930 that he was a Planter or Farm Manager, and takes the position that, notwithstanding the disclosed present physical condition, no recovery can be had herein because the insured is able to successfully perform the customary acts of such an occupation and has actually done so, all as is shown by his accum-mulation of property and his increased earnings. Thus, in counsel’s brief it is said: “If we should assume the major premise of plaintiff in his syllogism, — ■ that plaintiff was a farmer in 1930 when he took out his insurance, — then we think it logically follows that he had shown a plausible basis for disability. But the facts do not support such a chain of thought because Mr. Pearson took out his policy in 1930 and declared that his occupation was a planter or farm manager. The natural import of such words is that the insured had investments in farm lands and exercised supervisory and managing duties over the farm and cotton gin. Once this major premise is corrected the plaintiff’s whole case dissolves because the insured has not shown the slightest inability to perform the customary acts of his occupation, as he stated it to be in the insurance contract. He is working at the same job, harder and more profitably than before.”

Plaintiff denies that his income now is larger than it was prior to 1941; and he shows that much of his property is still mortgaged for the original purchase price. Furthermore, we do not understand that a planter or farm manager is restricted to supervisory or managing duties; at least nothing in the record discloses that to be true. But be that as it may to sustain the mentioned position of defendant it would be necessary for us to overrule the decision in the almost parallel case of Boughton v. Mutual Life Insurance Company of New York, supra, for the doing of which there appears no good reason.

In that case the insured was a farmer of plantation status, as is the plaintiff herein. Prior to receiving his disabling injury he not only supervised the operation of his 700 acre farm, on which there were 13 tenant families, but he also performed there numerous acts of manual labor, such as driving tractors, baling hay, repairing fences and herding cattle. A hernia developed, following an operation for appendicitis, and prevented a carrying on of his physical activities; however, his farming operations continued, under his supervision, through the medium of tenant farmers and with the assistance of relatives. In holding that he was totally disabled within the meaning of the insurance contract, we said [183 La. 908, 165 So. 143]:

“In this case, the fact that it was the plaintiff’s good fortune to own several hundred acres of land and to have had years of experience in the operation of a farm,'which placed him in a position where he could, by ingenuity and through the medium of tenant farmers and the assistance, support, and co-operation of his brother, brother-in-law, and son, keep the farm in operation; is no criterion of whether or not plaintiff is able to manage, supervise, or oversee a plantation or farm. Surely, if one were about to employ a man for like or similar services, the very fact that plaintiff would need the aid and help of members of his immediate family would disqualify him and show his incapacity and inability to substantially perform those services in the usual and customary way.
“It is said that the evidence shows that the plaintiff is successfully operating his farm and producing just as large a crop as he did before he was stricken. Fie testified that the. farm was not being conducted as it was under his active administration and superintendence and that about 350 acres of it had been sold for taxes, which he was unable to pay, since his disability. It further appears that he has had to practically abandon the cattle business. The fact that a person may own land from which he gets revenues in the form of money, or a portion of the crop from tenants, who occupy and till the soil, is a very poor index, if any, to an afflicted man’s capacity and ability to earn a living through gainful employment. Would any one who has need for the services of an overseer, a manager, or a superintendent of a farm or plantation, or who was about to engage a person to perform work of a similar nature, kind, or character, employ a man handicapped with the physical disability with which the plaintiff is suffering? We think not, because he could not substantially and reasonably perform the services required of him. This test may ■not be infallible, but it is certainly pertinent and practical.
“Applying the above-quoted rule here, we find that the evidence is overwhelming that the plaintiff is totally and permanently disabled from operating his farm in the same manner as he did before the appendectomy operation. We further conclude that there is sufficient evidence in the record to support the finding of our learned brother below that the plaintiff is so afflicted as to ‘render him unable to perform the substantial and material acts of his occupation in the usual and customary way.’ After a careful review of the record, we are not prepared to differ with his view that the plaintiff is incapable of riding a horse or driving an automobile, while wearing an abdominal belt for the length of time required of an overseer, a •manager, or a superintendent of a plantation or farm to perform his duties without discomfort, pain, and danger to his health and life.”

Obviously, this plaintiff, just as •the insured in the Boughton case, could not now gain employment as a farm manager, overseer or superintendent. Due to his present physical disability and his con•dition of restricted activity, he can not ■reasonably perform the services required of a person in that occupation. His disability, therefore, being such as to render him unable to perform the substantial and material acts of his business or occupation in the usual and customary way, and coming within the rule announced by our jurisprudence, plaintiff is entitled to recover in this action.

That part of the judgment of the district court which rejected plaintiff’s demand for statutory penalties and attorney’s fees was likewise correctly rendered, in our opinion. Under the provisions of Act No. 310 of 1910 an insurance company is to be penalized when it delays payment of benefits to the insured “for a longer period than thirty days from due notice and proof of disability, without just and reasonable grounds such as to put a reasonable and prudent business man on his guard.” This defendant did not delay the commencement of payments to the insured following his attack in May, 1941. On receipt of medical proof of his disabling condition, it began paying the stipulated monthly benefits, and continued them until March, 1944, or until after Dr. W. S. Ker-lin, a highly reputable and prominent physician, reported to it that his thorough examination of the insured was convincing that the disability no longer existed. The report of this medical expert furnished just and reasonable grounds for defendant’s discontinuance of the payments.

The judgment is affirmed.

O’NIELL, C. J., absent.


source: Caselaw Access Project

license: Public Domain

text:
    214 La. 237
    STANGA v. LAKE SUPERIOR PILING CO.
    No. 38151.
    Supreme Court of Louisiana.
    June 1. 1948.
    Rehearing Denied July 2, 1948.

      Ponder & Ponder, of Amite, for petitioner-appellant.
    Mary Purser, of Amite, and Benj. W. Miller of Bogalusa, for defendant Lake Superior Piling Co.
   HAMITER, Justice.

On February 23, 1916, Claiborne F. Stan-ga (plaintiffs brother) sold to the defendant corporation, Lake Superior Piling Company, by a notarial act and for a cash consideration of $572, “All the pine timber of every sort and description on the NEj4 of 'NE1^ of Section 36 in Township 6, Range 9 in the Parish of Tangipahoa, State of Louisiana.” The deed, which was duly placed of record, authorized defendant’s entering on the land and constructing tram-roads and railroads for the removal of the timber; but it stipulated no time limit for the effecting of the removal.

Some four years later Claiborne F. Stan-ga sold the land, for a recited consideration of $200, to the plaintiff herein.

This suit was filed May 28, 1945. In his petition plaintiff alleged that within two years after the execution of the timber deed defendant removed all of the pine timber merchantable in 1916, and abandoned the property; and that years later, after the abandonment, defendant again went upon the property, without any authority whatever, and removed some 50,-000 feet of pine timber and 40,000 feet of hardwood timber, all of which was not merchantable in 1916 but was then mere saplings and seedlings. In connection with these allegations he pleaded, in the alternative, that defendant’s right of removal prescribed in two or ten years from the date of the timber deed, or that he is entitled to have the court fix the expiration date and define merchantable timber as of the year 1916. He prayed for the annullment of the timber deed;', for injunctive relief against defendant’s further trespassing on the property; for a judgment against defendant in the sum of $4150 (damages resulting from the alleged trespass) ; and for all general and equitable relief.

Defendant denied generally the allegations of the petition and prayed for judgment dismissing the suit and awarding it $500 attorney’s fees.

The district court, after trial, rendered judgment in plaintiffs favor fixing a period of six months (after the finality of the judgment) in which defendant should remove all pine timber purchased under its deed. But it rejected plaintiffs demands for nullification of the deed, for the in-junctive relief, and for damages. Alsq, it rejected defendant’s claim for attorney’s fees, and it taxed the costs of the suit against that litigant. On a rehearing the judgment was amended to the extent of designating October 1, 1946, as the last day for defendant’s removal of the timber.

Plaintiff appealed suspensively and de-volutively. Defendant answered the appeal, praying that the judgment be annulled in so far as it ordered defendant to pay the costs of the suit and fixed a time limit for the removal of the timber.

The effect of the timber deed executed by Claiborne F. Stanga on February 23, 1916, was’ the creation in favor of defendant of an estate, separate and apart from the land, consisting of all of the then merchantable pine timber. Act No. 188 of 1904; Cooley et al. v. Meridian Lumber Company, Limited, 195 La. 631, 197 So. 255; Clark v. Weaver Brothers Realty Corporation, 197 La. 63, 200 So. 821 (and cases therein cited). The failure to fix a time limit in the deed for the. removal of such timber did not invalidate the conveyance; the omission may be supplied by application to the courts. Kavanaugh v. Frost-Johnson Lumber Company, 149 La. 972, 90 So. 275; Brown v. Hodge-Hunt Lumber Company, Inc., 162 La. 635, 110 So. 886. Moreover, the transaction was a sale of standing timber, not the granting of a servitude, and the landowner cannot have the timber declared forfeited to him, or successfully plead abandonment against defendant’s rights under the contract, until the removal time limit has been fixed and has expired. Simmons v. Tremont Lumber Company, 144 La. 719, 81 So. 263. This, of course, is subject to the rule that if the vendee once removes the timber purchased (that which was merchantable on the date of the sale), the contract is terminated, and he cannot later go upon the cutover land and renew operations. American Creosote Works, Inc., v. Campbell et al., 172 La. 866, 135 So. 659; Taylor v. Southland Lumber Company, Inc., 162 La. 535, 110 So. 746; Clark v. Weaver Brothers Realty Corporation, supra.

The trial court found that the plaintiff herein had not sustained the burden (which he carried) of proving his allegations that defendant, following its purchase in 1916, went upon the land and cut all of the merchantable timber, and that later, after the lapse of several years and after the growth of small trees into large timber, it again entered and conducted cutting operations. We agree with that finding of fact, for in support of such charge plaintiff offered only the testimony of himself and of his brother to the effect that five or six' years after the sale much of the timber (both pine and hardwood) was removed, but neither saw any timber operations on the land or knew who had reriioved the timber. - The president of the defendant company, on the other hand, testified emphatically that no timber has ever been cut from the land in question by the Lake Superior Piling Company or by anyone else under its direction or authorization. Further, evidence was adduced tending to show that storms of 1909 and 1915 blew down most of the timber on the tract which was then suitable for sawmill operations. We hold, therefore, that the court correctly rejected plaintiffs demands for nullification of the deed, for damages, and for in-junctive relief.

Plaintiff- is entitled, however, to have judicially fixed a period of time within which defendant must remove the merchantable timber purchased under its deed of February 23, 1916, and to have the court determine what constituted merchantable timber as of that date. True, as defense counsel point out, plaintiff did not specifically pray for this relief; but his allegations covered it and he prayed for general and equitable relief, all of which, we think, sufficed. As held in Kinder v. Scharff et al., 125 La. 594, 51 So. 654, under a prayer for general relief, suited to the nature and justice of the case, the court may render such judgment as would be given in a new suit, to avoid circuity of action.

The judgment of the district court (as amended) decreed that the timber be removed by October 1, 1946. But there is no evidence in the record disclosing what would be a reasonable time for the removal ; further the date thus fixed expired during plaintiff’s suspensive appeal to this court. For these reasons we shall remand the case for the reception of evidence on this point with instructions that the court, on the evidence to be introduced, fix a period for the removal to run from the finality of the judgment.

With reference to the issue of what constituted merchantable timber on February 23, 1916, the judgment is silent, and the evidence in the record is unsatisfactory. On the remand the district court is directed to receive further evidence on this issue and to definitely determine it.

The taxing of costs of the trial court against defendant was not improper in view of plaintiff’s having succeeded in obtaining the judicial fixing of the period for removal.

For the reasons assigned the judgment of the district court is set aside in so far as it decreed October 1, 1946, to be the expiration date for the removal of defendant’s timber, and the case is remanded for further proceedings according to law and consistent with the views herein expressed. In all other respects the judgment is affirmed. Plaintiff shall pay the costs of this appeal.

FOURNET, J., concurs.

PONDER, J., recused.

O’NIELL, C. J., absent.


author: PONDER, Justice.

text:
    214 La. 245
    STATE v. COMERY.
    No. 38715.
    Supreme Court of Louisiana.
    June 1, 1948.
    Rehearing Denied July 2, 1948.

      C. A. Blanchard, of Donaldsonville, for appellant.
    Fred S. LéBlanc, Atty. Gen., M. E. Cul-ligan, Asst. Atty. Gen., Aubert L. Talbot, Dist. Atty., of Napoleonville, George R. Blum, Asst. Dist. Atty., of Donaldsonville, for appellee.
   PONDER, Justice.

The accused was charged with the murder of her infant child. Upon trial, she was found guilty of negligent homicide and sentenced to serve five years in the penitentiary. She has appealed from the conviction and sentence.

During the course of the trial, ten bills of exceptions were taken to the ruling of the trial judge, nine of which are urged on this appeal.

Bill of exception Number One was taken to the ruling of the trial judge sustaining an objection on behalf of the State to a question propounded to the coroner as follows: “Is it your desire, as Coronor of this Parish, to send the accused to the electric chair merely because of a little popping sound which could come from crushing the tunnels and bags and the air rushing o.ut?” The trial judge in his per cur-iam states that the objection was leveled at the manner in which the question was formed and that he permitted counsel for the defendant to question the witness, touching the same facts in a properly formed question. Under the circumstances, there could be no injury to the accused.

Bill of exception Number Two was taken to the overruling of the defendant’s objection to questions propounded to a State witness while laying the foundation for the introduction of a confessioh. The questions were objected to as being leading. The questions' were in this form: “Did you use any threats, etc.?” Admissibility of a confession is a question for the trial judge to decide and not the jury. The questions are not leading because they do not suggest an answer and may be answered in the affirmative or negative. Article 373, Code of Criminal Procedure. Moreover, the accused could not have been injured by these questions merely because of the manner in which they were asked, for the reason that it was conclusively shown that the confession was freely and voluntarily given. This Court will not set aside a verdict unless there is error on the part of the trial judge that results in injury or prejudice to the accused. State v. Thornhill, 188 La. 762, 178 So. 343.

Bill of exception Number Three was taken to the introduction of the confession on the ground that it was not the original confession but a copy of it. It appears that the district attorney made some notes, or a narrative, while he and the sheriff were questioning the accused, which were given to a stenographer to be typewritten. After the stenographer had prepared the typewritten instrument, it was read to the accused in the presence of the district attorney, the sheriff and a deputy sheriff, and was signed by the accused. The lower court took the position that the instrument, read to the accused and signed by her, was the original confession. We think the trial judge’s ruling was correct because the notes taken by the district attorney were not read to the accused or signed by her. To permit the introduction of notes taken by anyone without having them read back to the accused and without 'permitting her to admit or deny their correctness would constitute a very serious error and could not be considered the confession of the accused. Counsel cites the case of State v. Murphy, 154 La. 190, 97 So. 397, which is not in point.

Bill of exception Number Four was taken to the refusal of the trial judge to. maintain an objection to the introduction of the confession until after the State and the accused had closed the case in chief. The trial judge states in his per curiam that counsel for the accused was given an op.-portunity to traverse the witnesses of the State before the confession was admitted and that the accused' failed to avail herself of this right and did not place any witnesses on the stand. The proper time for determining the admissibility of a confession is when the State is making out its case in chief. State v. Thomas, 208 La. 548, 23 So.2d 212.

Bill of exception Number Five was taken to the overruling of a motion for a. continuance. When the case was called for trial, two witnesses, Dr. Buck Richard and Dr. Malcolm P. Schwauzenback of Orleans Parish, were not present in court. Counsel for the defendant did not apply for a continuance at that time and stated that he felt sure they would be in court. When they failed to arrive, during the middle of the trial, counsel for the defendant moved for a continuance, which was denied. The court recessed and an effort was made to reach the witnesses over the telephone. It was ascertained that there was no doctor, known as Dr. Buck Richard in Orleans Parish and Dr. Schwauzenback could not be reached. The trial was proceeded with. The granting or refusing of a continuance is addressed to the discretion of the trial judge. Article 320, Code of Criminal Procedure. Counsel did not exercise due diligence in securing the attendance of the witnesses before the trial was commenced. Article 322, Code of Criminal Procedure.

Bill of exception Number Six is not urged.

Bill of exception Number Seven is taken to the overruling of counsel’s objection to rebuttal testimony given by the sheriff. Counsel alleges in his bill that the witness was permitted to recite all the testimony that he had given on his examination in chief and to again read the confession to the jury. The per curiam of the judge is to the effect that the rebuttal testimony was given solely in rebuttal of evidence of intimidation offered by the accused and that the confession was not read again at that time. We see no merit in this bill.

Bill of exception Number Eight was taken to the refusal of the trial judge to give certain charges. The per curiam of the trial judge is to the effect that he covered the special charges in every detail in his'general charge. There is no merit in this bill. Articles 390 and 391, Code of Criminal Procedure.

Bill of exception Number Nine is taken to the verdict of the jury on the ground that negligent homicide is not responsive to the charge or the evidence. Negligent homicide has been made a responsive verdict to a charge of murder by statute. Article 29 of Act No. 43 of 1942, Cr.Code. State v. Stanford, 204 La. 439, 15 So.2d 817.

Bill of exception Number Ten is taken to an overruling of a motion in arrest of judgment. The motion in arrest is •based on the evidence and not on any error patent on .the face of the record. Under the provisions of Article 517 of the Code of Criminal Procedure, a motion in arrest of judgment must be based on a defect patent on the face of the record. A defect that cannot be ascertained without an examination of the evidence, is not a ground for arresting a judgment. Article 518, Code of Criminal Procedure.

For the reasons assigned, the verdict and sentence are affirmed.

O’NIELL, C. J.-, absent..


author: FOURNET, Justice.

text:
    214 La. 254
    McCALL v. REGAN et al.
    No. 39164.
    Supreme Court of Louisiana.
    Sept. 28, 1948.
    Jacob H. Morrison, Henry B. Curtis, Wood Brown, Howard Lenfant, and Philip Gensler, all of New Orleans, for plaintiff and appellant.
    Leander H. Perez, Chalin O. Perez and Charles J. Rivet, all of New Orleans, for defendants and appellees.
    William Porteous, of New Orleans, for Secretary of State.
   FOURNET, Justice.

Henry G. McCall, following the promulgation by the Secretary of State of the results of the democratic primary election held on August 31, 1948, for the purpose of nominating a candidate for the office of Judge of the Court of Appeal for the Parish of Orleans, revealing that his opponent, the incumbent judge, Godfrey Z. Regan, received the greatest number of votes in the said primary election, which results had been certified to the chairman of the Orleans Parish Court of Appeal District Democratic Executive Committee, filed a suit in the Nineteenth Judicial District Court in and for the Parish of East Baton Rouge contesting this election. He joined as parties defendant, in addition to the contestee, the Secretary of State and the Committee. He is now appealing from the judgment rendered by that court maintaining the con-testee’s plea to the jurisdiction of the court ratione personae.

The Legislature of Louisiana, pursuant to the constitutional mandate that it provide by law for the trial and determination of contested elections of all public officers by courts of law (Section 12 of Article VIII), in adopting its Act No. 46 of 1940 (under which act the contested election was held) vested the courts of this state with the power and jurisdiction to hear and determine all election contests held under the act and made provisions regulating the manner, time, conditions, and limitations relating to such contests. The pertinent part of the act declares that any candidate for nomination for any office desiring to contest an election “shall present a petition to the Judge of the District Court of the Parish in which the capítol of the State is situated, if the office 'be that of Governor, Lieutenant Governor, Attorney General, Secretary of State, State Treasurer, Auditor of Public Accounts, Superintendent of Public Education, or other State officer or United States Senator. If the office be a * * * district office, then the petition shall be presented to the District Court of the parish in which the contestee resides. * * *.” Section 86 (Italics ours.)

It is the contention of the appellant that the office of judge of the Court of Appeal for the Parish of Orleans is a state office within the meaning and contemplation of the above quoted provision; consequently, that the district court of the parish in which the state capítol is situated— the Nineteenth Judicial District Court- for the Parish of East Baton Rouge — has jurisdiction to try the case, whereas the con-testee contends that the office is a district office under the plain provision of the act and that the suit must, therefore, be instituted against him' in the district court of the parish of his domicile — Orleans Parish —and that if the act is given the construction contended for by the appellant it will render the same unconstitutional.

While there are certain provisions of the act of 1940 pertaining to matters other than the contest of elections held thereunder that might be confusing or misleading as to just what is a state and a district office, we think that when the act is read as a whole, and particularly those provisions that are pertinent here, it unmistakably shows that the office of judge of the Court of Appeal for the Parish of Orleans is a district office, as distinguished from a state office within the meaning of the act.

The primary object of Act No. 46 of 1940 is stated in its title to be “To- provide for calling, holding, conducting and regulating primary elections by political parties and to define the term political party.” These political parties, under the provisions to be found in Section 5 are controlled and directed by committees therein created. Aniong the committees created is a State Central Committee and “A Court of Appeal District Committee for each of the court of appeal districts in the State.” A mandatory duty of the former committee is that it meet at a designated time and issue a call for a primary election to nominate candidates for the various political parties "for governor or other State officers." Section 20. - Th.e next section (21) makes it the duty of the respective district and parochial committees to meet within 20 days thereafter “and order that all nominations for district, parochial and ward officers * * * be made by * * * primary election to be held -on the same date and at the same places at which Candidates for State officers are voted for.” It was under the latter section that the election in controversy here was called and conducted.

Moreover, it is our opinion that to construe the act in the manner contended for by the appellant would be in direct violation of the provision of Section 12 of Article VIII of the Constitution of 1921 stipulating that the trial and determination of contested elections of all public officers (except governor and lieutenant governor) “shall be by the courts of law, and at the domicile- of the party defendant.”

The argument submitted by counsel that this section is not controlling here for the reason that it governs general elections only, the provisions governing primary elections being Section 4 of that same article, is not impressive in view of the plain, unambiguous, and unrestricted language of Section 12. The two sections are to be found under that part of the constitution dealing with the general heading “Suffrage And Elections” and they do not conflict one with the other nor are they contradictory. See Perez v. Cognevich, 156 La. 331, 100 So. 444.

The case of State ex rel. Graham et al. v. Republican State Central Committee, 193 La. 863, 192 So. 374, relied on by the appellant, is neither apposite nor controlling here as that case did not involve an election contest but, rather, was a suit to compel the State Central Committee to place the names of the plaintiffs on the ballot.

For the reasons assigned, the judgment appealed from is afijrmed.

O’NEILL, C. J., absent.


author: LeBLANC, Judge.

text:
    STATE ex rel. WILLIAMS et al. v. EAST BATON ROUGE PARISH SCHOOL BOARD et al.
    No. 3026.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 5, 1948.
    Greene & Womack and Aubrey B. Hirsch, all of Baton Rouge, for appellants.
    Cadwallader & Dameron, of Baton Rouge, for appellees.- •
   LeBLANC, Judge.

Under the provisions of Act No-. 185 of 1944, school bus operators who -have served satisfactorily in. the .employ of any parish school board for more than three consecutive years become regular and permanent school bus operators in the employ of the school board of the parish in which they work. In order to acquire tenure under the act it is necessary that each personally operate and drive the school bus he is employed to operate.

Should his services be found unsatisfactory during the probationary period of the first three years for which he is employed, he can be discharged or dismissed by the parish school board upon written notice given to him in writing. If he has attained tenure he cannot “be removed from his position except upon written and signed charges o'f 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 equipped 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” he is employed- Further it is provided by the act, that any hearing under its terms “may Ibe private or public at the option of the School Bus Operator.” The act further requires that he “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 on which removal or discharge is sought.” Further, he is given the right to appear in his own behalf and with counsel of his selection, all of whom shall be heard by the board at the hearing.

Claiming that they are school bus operators for the parish of East Baton Rouge, all having qualified as permanent school bus operators under the provisions of the ■law, the twenty-nine plaintiffs in this suit, after alleging that they were illegally discharged by the school board of the parish of East Baton Rouge on September 6, 1946, pray in their petition that they be re-instated and they obtained from the district court an order for an alternative writ of mandamus directed to the said board, through its president, Karl V. Dawson, and also to Clark L. Barrow, superintendent for schools of said parish, ordering them to reinstate them to their position of school bus operators and further returning to them the functions and emoluments of their position as such, or else, to show cause to the contrary.

They allege that on or about August 21, 1946, each received a communication from the superintendent of schools advising them that he was charging each and every one with wilful neglect of duty; that the president of the school board had advised him that he was going to call a meeting of the school board on September 6, 1946 for the purpose of having a hearing and trying the charges that were preferred against them and that the letter addressed to them contained an enclosure dated August 21, 1946, written by the said superintendent to the president of the board preferring charges of wilful neglect of duty and requesting that a meeting of the board be called not later than September 6, 1946, to hear said charges.

They then allege that they never received any official notice of trial on the charges, setting forth specifically the date of the meeting and where it was to be held, all of which they were entitled to under the terms of Act No. 185 of 1944.

They allege that on information and belief a meeting of the school board was held on September 6, 1946, charges were heard against them by the board without their being present or represented by counsel and therefore the verdict or judgment rendered at that hearing is altogether illegal, null and void. In the alternative they aver that should it be held that the action taken at the said meeting was legal, that the judgment or decision taken by the board was without legal foundation, not being sustained by a preponderance of evidence or as a matter of fact by any legal evidence. Also they plead in the alternative that they were not given the opportunity to submit witnesses to testify on their behalf and were put in the position of having to accept the arbitrary decision of the board.

Further pleading in the alternative they set out that they were under no duty to appear at the numerous meetings previously had by the board and that they were not guilty of the charge of wilful neglect of duty in failing or refusing to sign a one-sided and illegal contract which had been submited to them by the school board, especially as their active work and duty with the board had ceased with the closing of the school year of 1945-46 and their duty under any contract of employment did not commence again until the beginning of the school year 1946-47.

In answer to the rule, the school hoard of the Parish of East Baton Rouge appeared and filed an exception of no right or cause of action, on which the court reserved i'ts ruling. Answer was then filed on behalf of both the school board and Clark L. Barrow the superintendent, under reservation of the exception.

In their answer the defendants denied that the plaintiffs were regular and permanent school bus operators in the employ of the parish school board and had never acquired tenure. Further answering they alleged that on August 21, 1946, the superintendent addressed a communication to each of the plaintiffs in which each was sent a copy of the charges of wilful neglect of duty and a letter advising each that a meeting of the school board was ■being called on the second floor of the courthouse, at 9 o’clock a. m., September 6, 1946, for the purpose of hearing and trying the charges, each of the plaintiffs being advised further that he or she had the right to appear at the meeting in his or her behalf or with counsel of his or her own choosing and that the hearing would be public or private at the option of each. This communication was addressed to each of the plaintiffs by registered mail and was received by each as shown by the return receipt signed by each.

The defendants then aver that all of the plaintiffs were present at the courthouse at 9 o’clock a- m. on September 6, 1946 and were represented by counsel and although they were all invited to the meeting they all refused to attend knowing full well why the meeting was being held.

Defendants then set out that it was their duty, as the parish school board, to prepare during the summer vacation for the school term which was to open in the fall, and among their duties was the one which required them to furnish transportation for the school children of the parish. That in the pursuance of their said duties the board had adopted certain policies and requirements with reference to school buses and school bus drivers. A circular containing these policies and requirements was mailed to each bus operator including all of the plaintiffs, and each was sent a blank to fill in to suit his or her own particular case, all as more fully appeared in the circular mailed to them and dated June 17, 1946. Each of the plaintiffs was asked to answer the circular and they each failed, refused and neglected to do so. The remaining paragraphs of the answer contain recitals of a series of circulars following the one of June 17, 1946, further outlining the policy of the school board with regard to bus operators and requesting either an answer or a personal interview, all of which were totally ignored by each and everyone of the plaintiffs and that finally, in desperation, as the fall season for the opening of school was fast approaching, it was found necessary to prefer charges of wilful neglect of duty against each of them and the meeting of September 6, 1946 was called for the purpose of a hearing. Defendants annexed to their answer copies of the various circulars and notices addressed to each of the plaintiffs.

Upon trial of the rule for mandamus, the district judge ruled in favor of the defendants, dismissing plaintiff’s suit and rejecting their demand at their costs. From the judgment rendered plaintiffs took this devolutive appeal.

The facts in the case are hardly disputed and these plaintiffs seem to rely, in a large measure, on several technical points of law. First they contend that the charges made against them were too vague and indefinite and that there are no specific allegations showing how they were guilty of wilful neglect of duty. That, is will be noted, is only one of the several charges enumerated in the statute under which the school board could have them removed. They seem to contend that they did not neglect any of their duties as bus operators because all that they are charged with are matters that transpired during the vacation period of school and that they had no duties to perform in relation to their position as school bus drivers other than during the school period. We are unable to agree with that contention because whilst it may be true that their active duties as drivers of buses, that is, transporting school children to school, takes place only during the school period, it undoubtedly was incumbent upon them, as it was also incumbent upon the school board, to prepare during the vacation period for the transportation of the children at the time the school term began-

In this case it seems as though the school board, in line with school boards in various other parishes throughout the state, was considering a change in its policy regarding the ownership of school buses used in transporting the children. Apparently, the board had decided to change from private ownership of the buses by the school bus drivers to public ownership by the school board itself and having contracts with the school bus operators for the driving of the buses only. Because of the difficulty experienced in buying any automotive vehicle at the time, including ■school buses, it was obvious that the process involving the change would be one covering a rather long period of time. The school board realized this and adopted a method which it thought was practical and reasonable and it seems that it was when it began to propose this method to the school bus operators that some of them, including all these plaintiffs, became recalcitrant. The School Board, through the superintendent and the manager of transportation, began by addressing communications to all of the school bus operators asking them to answer certain questions regarding the ownership of their buses and if they were willing to co-operate with the board in its policy about the change of ownership. These plaintiffs all refused to answer the first communication that was addressed to them. This was followed up by several communications of a similar nature, requesting a reply or a personal interview with the superintendent or the manager of transportation, which all of them again refused to give. In the meantime, through their representative, they proposed a new contract with the school board which was not at all in line with the policy the school board had adopted and which, from the testimony of the superintendent, would have involved the board into an expenditure which it could not stand. Their representative was notified to this effect and this was followed again by more communications addressed to all of them, by registered mail, asking them once more to indicate their attitude with regard to the situation which they were advised was then becoming imminent by reason of the passage of time. These again were all ignored and finally the school board found it necessary to take the action it did by calling the hearing of ■September 6, 1946.

We are of the opinion, in view of all 'the matters just stated, that it was the ■duty of these school bus operators at least to reply to the communications addressed to them or to have a personal interview with the school authorities In order that the school board on its part could be prepared at the beginning of the school term in September to provide the necessary transportation for the school children of ■the parish. In their failure to perform this duty we hold that they could be charged with neglect of duty and certainly under the facts presented, and which are not disputed, it was a wilful neglect of that duty.

Another contention made on behalf of these plaintiffs in the lower court and which does not seem to be raised before us is that they did not receive the notice of hearing from' the president of the school board; that it was sent to them by the superintendent of education who had no authority himself .to send it. We do not find anything in the act which requires •that the notice be sent by the president of the school board instead of by the superintendent- With regard to that point the act reads that the bus operator “shall be furnished by such school board * * * with a copy of the written grounds on which removal or discharge is sought.” A notice coming from the superintendent directed by the school board itself, certainly complies with the requirements of the act in that respect. The notice in this case to each of the plaintiffs specifically states that the president of the school board has advised the superintendent that he is calling a meeting of the school board for the purpose of hearing and trying the charge of wilful neglect of duty made against each of them. That, it occurs to us, is the proper way in which the notice should have been furnished and it certainly comes within the requirements of the statute.

The next point, and the one which seems to be stressed more than any, is that the notice given did not comply with the requirements of the statute because it was not given at least IS days in advance of the date set for the hearing. It is strongly urged that the day on which the notice is dated, that is August 21, 1946, is not to be included in computing the 15 days, nor should the date of the meeting itself be included, and that being so, the interval between August 22nd and September 5th, was a period less than 15 days and therefore there was lack of compliance with that part of the statute. With regard to some of the plaintiffs it is further stated that they did not receive the notice until August 23, and therefore as far as they are concerned there was certainly less notice than the 15 days required.

A good bit of argument is devoted to this point by counsel for both sides, it •being contended by counsel for the school board that under the wording of the statute to the effect that notice “shall be furnished by such school board at least fifteen days in advance of the date of said hearing”, the moment the notice had been placed m the post office by registered mail, the 15 days began to run. Counsel for the plaintiffs, on the other hand, insists that the time did not begin to run until the receipt of the notice. Be all that as it may, we do not find it necessary to have to pass ■on these technical contentions because we agree with the learned trial judge that these plaintiffs, hawing all appeared at the time and place designated for the meeting on September 6, 1946, in person and also through their counsel, they had in effect waived the time required under the statute for the notice and they are now estopped from making that contention. The testimony shows that when the board convened for its meeting to conduct these hearings at the designated place and time, the plaintiffs were all present in the corridor of the courthouse adjoining the room in which the meeting was being called; •that none of them entered the room and upon being requested to attend the meeting they each and all refused. Even then, they gave the school board no idea, as far as the record discloses, of their intention to contest the hearing on the ground of a delayed notice, or in fact on any ground they now urge. Their presence can be construed in no other manner than that they all had received the proper notice and that they all had been advised of the charges which they would have to defend at the hearing. Their refusal to take any part in the proceedings whatsoever or to make any objections to any part of the ¡proceedings constituted a waiver of all of their defenses and we do not see how they can be heard now to make any of the contentions which they are here advancing in this regard-

Their next contention is that the charges preferred against them were vague and indefinite, there being no specific allegations as to the manner in which they had neglected any official duty. We believe that we have considered this point in our discussion already and clearly a mere reading of the notice 'furnished to each, in which the whole matter was outlined, again gave them sufficient information on which to defend themselves and as not a single one chose to do so the presumption is that there was sufficient evidence on which to base the action of the school board in discharging them all.

The defendant school board raised two other points in its defense to the suit. One was that some of these plaintiffs had not acquired tenure because they had not personally operated their buses as required under the statute and the other, that all the plaintiffs were guilty of laches in having waited eleven months before instituting suit. In view of the conclusions we have reached on all the other points involved in the case we find it unnecessary to pass on the last two mentioned.

The judgment appealed from correctly refused to grant the writ of mandamus prayed for by the plaintiffs and properly dismissed their suit and it is accordingly affirmed at their costs.


author: DORE, Judge.

text:
    KELLY et al. v. OZONE TUNG COOPERATIVE.
    No. 3034.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 5, 1948.
    Dalton J. Barranger, of Covington, and Deutsch, Kerrigan & Stiles, of New, Orleans, for appellants.
    Benj. W. Miller, of Bogalusa, and Hugh Morrison, of New Orleans, for appellee.
   DORE, Judge.

The plaintiffs, Mr. and Mrs. James E. Kelly and Francis E. Bickford, alleging that they are the owners of certain properties in the Town of Covington, Louisiana, brought this suit against the defendant, Ozone Tung Cooperative, seeking damages and the abatement of a nuisance which the plaintiffs allege the defendant has been maintaining in connection with the operation of its tung oil plant in the Town of Covington.

Plaintiffs allege that the defendant’s plant is operated in a tortious and negligent manner in that in said operation the tung dust, which plaintiffs claim is a vile, noxious and poisonous substance, is discharged in clouds into the atmosphere and settles upon their property in great volume. The Kellys further allege that the said dust infilitrates into their homes and store, polluting the atmosphere and settling in great volumes upon the roof, outside, inside, floors, furniture, fixtures and stock, rendering their property unfit in which to live and practically ruining their stock of merchandise in the store; and that they cannot open their windows or doors and cannot use their porch while this operation, which is practically continuous, is going on; that they have suffered hardships, physical and mental sufferings, and that their property has become worthless. The plaintiff, Mrs. Kelly, further claims that her health has become permanently impaired and her respiratory organs have become seriously affected and that she has suffered constantly from asthma due to this dust and that her physical and nervous systems have been seriously and permanently impaired. Plaintiff Bickford alleges that it is a physical impossibility to hang out the laundry and washing on his property on account of the said dust covering the same and rendering it so dirty and filthy that re-laundering is necessary, in addition to rotting and destroying the fibers of the said laundry. He further alleges “that the said noxious dust has so settled upon his house as to render the same filthy and dirty to a degree that the said noxious dust penetrated into the said house, covering the furniture, and that it is necessary to keep all doors and windows closed at all times, and that while this said plant is in operation, the porches, etc., of the house cannot be used.”

The plaintiffs set forth their damages, as follows:

Mrs. Sarah Schwartz Kelly: Pain and suffering, $5,000; Worry, discomfort and inconvenience, $5,000; Damages to her respiratory, nervous and physical systems, $5,000; total $15,000.

James E. Kelly: Bills of doctors, incurred and to be incurred, $250; Mental and physical pain and suffering, $2,500; Repainting of store, home and tenant house, $600; Cleaning of same, $250; Damages to screens and replacing thereof, $250; Discomfort, inconvenience, worry and annoyance, $2,500; Depreciation of the value of property, $3,000; Total, $9,300.

Francis E. Bickford: Washing, cleaning and re-painting home, $800; Mental and physical anguish, $1,000; Total, $1,800. The three plaintiffs have prayed for a monied judgment in the amounts above set forth and for an injunction prohibiting the defendant from operating its plant in such a manner as to give off and discharge into the atmosphere the foul and noxious dust complained of.

The defendant filed an exception to the citation, which was cured by a proper citation. Thereafter the defendant filed exceptions of misjoinder of parties plaintiff and of vagueness, which exceptions were overruled. These exceptions are abandoned. Defendant in answer denied all the material allegations of plaintiffs’ petition. Defendant, in further answer, set forth that it established its tung manufacturing plant in the Town of Covington in the year 1938; that the manufacturing process of this mill consisted of the extraction of oil from tung nuts; that in the year 1946 it built an addition to this plant which was known as a hammer mill which pulverized the tung nut hull, a waste by-product prior thereto, into a fine powder which is used as a base for fertilizer. The answer of the defendant further sets forth that prior to the construction of the hammer mill, the hulls were dumped on the outside of the mill, allowed to be taken away by the members of the defendant cooperative, or allowed to rot or be burned, causing dust to be emitted, without complaint from the plaintiffs, Kellys; that when this .hammer mill was first put in operation .it was impossible to prevent the emission of some dust, but not any more than prior thereto, and not in sufficient quantities to cause these plaintiffs any real inconvenience. Defendant further set forth that after complaints were made by the Kellys, certain corrections were made in the operation of the mill which prevented the dust escaping therefrom and getting into the property of these plaintiffs. Defendant further set forth that these improvements were made prior to the filing of this suit. Accordingly defendant prays for a dismissal of plaintiffs’ suit.

After a trial of the suit on the merits, the trial judge, for written reasons assigned, found as a fact that the improvements constructed 'by the defendant had abated the emitting of the dust prior to the institution of this suit. He allowed to Mr. and Mrs. James E. Kelly each the sum of $150, for the worry, discomfort and inconvenience suffered by them, and to Mr. James E. Kelly the further sum of $50 as damages to the screens of his house. He disallowed all other damages sought by them. As to plaintiff Bickford, he allowed him the sum of $75 for the worry and inconvenience suffered by him, disallowing his claim for damages for washing, cleaning and repainting his home. He rendered and signed a judgment in accordance with his written reasons; first, denying the application for a writ of injunction; second, granting the sum of $200 to Mr. James E. Kelly; third, granting the sum of $150 to Mrs. Sarah Schwartz Kelly, wife of James E. Kelly; fourth granting the sum of $75 to Francis Bickford; fifth, taxing the sum of $50 each, as expert fees, to Cecil Shil-stone, Dr. Warren H. Rinehart and Dr. Vincent J. Derbes; and, sixth, taxing all costs to defendants. Plaintiffs filed a motion for re-hearing which was refused. Plaintiffs have devolutively appealed. The defendant has answered the appeal, praying that the judgment be reversed in so far as allowing the plaintiffs a monied judgment, and fixing the expert fees and taxing all costs, and that there now be judgment in its favor, dismissing plaintiffs’ suit in its entirety, with costs.

Before discussing the merits of the case, it might be well to state that the claims of each of the Kellys is far in excess of the jurisdiction of this court, and these claims do not involve physical injuries. On the face of the record, it would be our duty to dismiss the appeal as to them on our own motion, or transfer it to the Supreme Court. At the time of ■ the taking of the appeal, a remittitur upon all property claims in excess of $2,000 was entered on behalf of Mr. Kelly. In this court, Mrs. Kelly only seeks an award as “substantial damages for her physical pain and suffering” and a substantial increase of the award of $150 granted to her for worry, discomfort and inconveniences. Mr. Kelly’s demand is that the awards of $150 to him for' physical pain and suffering and worry and inconvenience, and “$50.00 for damages to screens and the inconvenience and annoyance occasioned thereby should be substantially increased”. According to the Supreme Court in the case of Wagner v. New Orleans Ry. & Light Co., 151 La. 400, 91 So. 817, in determining the question of jurisdiction, this court can look into the record to ascertain the real amount in the dispute and is not bound to accept the allegations of the petition. An examination of the record shows that the claims of the Kellys are highly inflated, and it is apparent that the greatest possible amount that may be recovered by each of the Kellys is less than $2,000, as seems conceded by the attorneys on both sides, which is within our jurisdiction. Under these circumstances, we shall retain the jurisdiction of the case and consider the merits of the case.

Since the plaintiffs, in this Court, do not complain of the action of the trial judge in refusing to issue the writ of injunction prayed for, the only question before us is the correctness of the trial Judge’s action in awarding damages and the amounts thereof.

The evidence shows that the plaintiffs, Mr. and Mrs. Kelly, own a combination store and residence and a certain small tenant house in the Town of Covington, at the southeast corner of 27th Avenue and Jackson Street, which combination store and residence is about 200 feet southeast of defendant’s plant. The residence of plaintiff Bickford is at the northeast corner of 26th Avenue and Jackson Street, and about one hundred feet south of the Kellys or about 300 feet southeast of defendant’s plant. The defendant’s plant is at the northwest corner of 27th Avenue and Jackson Street. The streets abutting these properties are dirt streets and are heavily travelled; during dry weather vehicles which travel these streets occasion considerable dust. The section immediately surrounding the properties of the litigants in this suit is industrial in character and in fact constitutes the principal industrial area of Covington. The Gulf, Mobile and Ohio Railroad runs down the center of 27th Avenue, and besides defendant’s plant there are two sawmills, a turpentine plant and several bulk oil stations in the immediate vicinity.

The evidence further shows that the defendant’s tung oil mill was constructed in 1938. At that time, the plaintiffs Kelly were residing at their residence described above, and made no complaints- as to its operation. Prior to November, 1946, defendant constructed a hammer mill for the purpose of crushing the tung nut hulls into a fine powder which was used as a base for fertilizer. The defendant began to operate this hammer mill in the early part of November, 1946, and it is the operation of this hammer mill which plaintiffs contend created the dust which caused the damages complained of. In November, 1946, the Kellys registered a complaint as to the. dust created by the operation of the mill with the defendant. On December 4th, 1946, on complaint of Mrs. Kelly, Mr. Warren H. Reinhart, Acting Chief, Section of Industrial Hygiene of the State Board of Health, investigated defendant’s plant. According to his report of his investigation, he found a small amount of dust was issuing from the dust collector, but did not appear sufficient to justify any complaints. However, he found considerable dust on the roof around the cyclone dust collectors. The manager of defendant’s plant admitted that 3 or 4 times during the night shift, through inexperience or carelessness, the bin outlet had become plugged and considerable dust was expelled. Effort was being made to prevent a recurrence. The accidental discharge of dust from the collectors was apparently ample justification, and possibly the only cause •for complaint. The manager promised to repair one leak which was found in the collector. The examiner further found that the dust collectors were a standard method of control and consequently the only recommendation he made at that time was for a strict supervision of their operation.

Upon additional complaints of the Kel-lys, on January 2, 1947, there was a meeting held at the Parish Health Unit, at which meeting there were present members of the Health Unit, Mrs. Kelly, the Mayor of Covington, officers and members of defendant company and Mr. Reinhart. The chief complaint seems to have been the car-loading of the finished product of the crushing of the hulls. After considerable discussion, it was decided to contact the company that installed the equipment and a recheck of the operation with Mr. Rein-hart. On January 17, 1947, in accordance with the recommendation of the January 2nd meeting, Mr. Reinhart visited the mill with Mr. Rogers, representative of the company which installed the equipment. The result of this visit, which was while the hammer mill and carloading operations were active, was the recommendation of various changes.

It appears from the evidence that practically all of the recommendations made by Mr. Reinhart and those of Messrs. Rein-hart and Rogers were carried out. The defendant contends these recommendations were carried out around January 19th and that thereafter its plant did not emit dust in sufficient quantity to cause damage to any one. The suit was filed on February 17, 1947, and was tried in May of the same year. Although plaintiffs admit that conditions had been considerably improved, they still maintain that the defendant’s plant was a nuisance and was causing them substantial damage.

This is a factual case. It is not necessary to take up and discuss the testimony of each witness or the reports of the several experts offered in the case. The trial judge who saw and heard the witnesses reached the conclusion that immediately after the defendant began the operation of the hammer mill which was in November, 1946, there was a dust emitted from the mill in sufficient quantities to cause considerable inconvenience and property damage, which said dust came from the two cyclone dust collectors on top of the plant and that this condition was corrected by inclosing the dust collectors with tar paper. Although the trial judge found that this condition was corrected the latter part of January or the first part of February, we find that the condition was corrected after Mr. Reinhart’s inspection of the plant and prior to the meeting of January 2nd, 1947. The trial judge further found that “when freight cars were loaded with fertilizer by means of a blow pipe which was used for this purpose, the dust was blown from the car and settled on and in the buildings of these plaintiffs. At the beginning of this operation, too much air velocity was used causing dust to be blown from the car, but the evidence shows that it was subsequently cut down and, in addition to this, burlap bags were used to close the openings on the car, thereby preventing the dust from escaping.” We find that, according to the evidence, this correction is in line with Mr. Reinhart’s recommendations of January 17, 1946, and is in corroboration of defendant’s plant managers’ testimony that such correction was completed about January 19, 1946. As shown by his written reasons for judgment, the trial judge made a personal visit to defendant’s plant while it was in operation and not only examined the dust collectors on the top of the building to see if the dust was being emitted, but he also observed the loading of a freight car with the dust or fertilizer. He also visited the premises of the plaintiffs. He sums up the result of his visit in these words: “The dust collectors were inclosed with tar paper and I not only failed to see an accumulation of dust around them on the roof but I failed to see any dust going into the air from said collectors. As a matter of fact the way it looked to me it was impossible for the.dust to escape through the tar paper surrounding the collector. The dust was blown through a pipe into the freight car in order to load it and the door on the side of the car on which the loading was done was closed with the exception of a small opening to admit the blow pipe. The door on the other side of the freight car was boxed up about two-thirds the way up in. order to prevent the dust from escaping. I did note that in the one-third space that was not closed a slight amount of dust came from the car and certainly could not have caused any real damage to the surrounding property owner. In addition to visiting the plant of the defendant, I also visited the combination store and residence of the plaintiffs, Kelly, and the residence of the plaintiff, Bickford. While it is true there was some dust in the store of .the plaintiffs Kelly, the merchandise that was on the shelf looked just as clean to me as the merchandise found on the shelf of any store and was far cleaner than the merchandise which was offered in evidence by the plaintiffs, Kelly, in this suit. Further than this, I looked at the screening around each house as well as the wood work and while it is true, there is some evidence of this tung dust having gotten on the property, I am sure that the tung dust was deposited prior to the corrections in defendant’s plant which have been heretofore mentioned. I might further add that the exterior of the buildings of these plaintiffs did not look any worse to me than the exterior of any building situated on two dirt streets and which had not been painted for a period of three years. Of course there was some dust on the exterior as well as the interior of the building but I am satisfied that the vast majority of this dust was caused by vehicles traveling the dirt streets immediately adjoining the building.”

The trial judge found that the dust emitted by defendant’s operation was of sufficient amount to cause the Kellys a real injury to the screens of their property and inconvenience in the enjoyment of their property. As stated before, he allowed to each of the Kellys an award of $150 for the worry, discomfort and inconveniences.

In the case of Labasse v. Plat, 121 La. 601, 46 So. 665, the court stated that personal discomfort and annoyances resulting from a nuisance is the primary consideration in allowing damages, although there is no arithmatical rule for their estimation. There is in such cases an injury, the extent of which the jury or the court may measure. See also McGee et al. v. Yazoo & M. V. R. Co., 206 La. 121, 19 So.2d 21; Devoke et al. v. Yazoo & M. V. R. Co., 211 La. 729, 30 So.2d 816.

Under the facts of this case, the defendant, upon complaint being made by the Kellys, attempted to correct the condition of its mill and its operation. It was within the trial court’s discretion to rneas-ure the damage suffered by these plaintiffs. We cannot say that he erred in his conclusion that plaintiffs had suffered a real injury nor can we say that he underestimated the damages. We feel that the amount allowed is adequate.

He disallowed damages to Mrs. Kelly for her alleged pains and suffering from the asthma which she contends she contracted as a result of breathing the dust eminating from the defendant’s mill. After a review of the evidence relating thereto, the trial judge, in his written reasons for judgment comes to the conclusion that her asthmatic condition was not attributable to the dust emitted by the mill. She complains of his conclusion. After a careful review of this voluminous record, we are convinced that she has not proven that her asthmatic condition was caused by the dust. In any event, on this question of fact, we do not see any manifest error in the conclusion of the trial court.

As to plaintiffs Kellys’ demand for an increase in the damages allowed for the screens, we feel, like the trial judge, that it is very ample. He allows this amount for the purpose of replacing two or three screens and the cleaning of the remainder. The evidence is not clear that it was this dust which caused these screens to deteriorate. Our impression is that these screens were old screens, affected by the common dust of the streets and the elements of time.

As to the amount of $56, being the medical fees and drug bills expended by Mr. Kelly, these expenses were incurred for the treatment of Mrs. Kelly for her asthmatic condition. Since there exists no causal connection between her condition and the emitting of the dust, this item was properly disallowed.

We agree with plaintiff’s contention that the trial court should have allowed to Dr. L. E. Jordan an expert fee of $50 as he allowed the three experts called by the defendant, and we will allow the expert fee to Dr. Jordan.

As to plaintiff Bickford, the evidence shows that he moved into the house he is occupying as his residence on December 30, 1946, so he could take possession of it on January 1, 1947. He purchased the property on January 18, 1947. At the time of the purchase of the property, he was well aware of the condition then existing. Furthermore, the two cyclone collectors on the roof had been enclosed. The remaining condition was being remedied. Consequently the dust then emitting could not have been very consequential, and therefore he could not have been bothered, if any, by any dust emitting from defendant’s plant. We are of the opinion that the rule of “damnum absque injuria”, an injury without a remedy, applied. His claim will be disallowed.

For these reasons, the judgment appealed from is hereby reversed, annulled and set aside in so far as it awards the sum of $75 to plaintiff Francis E. Bickford, and accordingly it is now ordered that the claims of the said Bickford be disallowed and his demand rejected.

It is further ordered that the judgment appealed from be amended by the allowance to Dr. L. E. Jordan an expert fee of $50 to be taxed as costs.

It is further ordered that the said judgment be further amended by providing that all costs of the lower court be paid by the defendant and plaintiff Francis E. Bickford in the proportion of % by defendant and % by plaintiff Bickford. It is further ordered that the said judgment as amended be affirmed. . The costs of this appeal to be paid by the plaintiffs.