author: LE BLANC, Judge.

text:
    BORDELON v. HEARD.

      No. 2962.

    Court of Appeal of Louisiana. First Circuit.
    Dec. 30, 1947.

      Chas. F. Boagni, Jr., of Opelousas, for appellant.
    Atlee P. Steckler, of Ville Platte, for appellee.
   LE BLANC, Judge.

The question at issue in this case is whether what is said to be a road adjacent to the defendant’s property and leading from a gravelled road in the Plaisance area of St. Landry Parish to the plaintiff’s property in the rear is a public road or wheth-it is part of the defendant’s property and as such private property. The defendant acquired his property from Adolph Guil-lory on August 1, 1944, and as he claims that the strip in controversy is part of his property and therefore subject to his private ownership and control, he placed three gates across it thus obstructing its use to the public. The plaintiff, maintaining that it is a public road, has instituted this proceeding to have the court order the removal of the said obstructions and enjoin the defendant from further 'closing the road. He also asks for judgment against the defendant in the sum of $350 for the service of the attorney-at-law he was obliged to employ in order to bring this suit.

The defendant for answer denies that the strip of land is a public road and then sets out that formerly there was an old dirt road in the Plaisance area which was a public road, a part of which crossed the western portion of two properties adjoining the property he now owns, on the south, and which, when it reached the southern boundary line of his property, ran directly west along that line, but, he sets out further that many years ago, a new road was established, eliminating that part of the old dirt road just described. This new road was a grav-elled road and the Parish abandoned that part of the old dirt road referred to. He further denies that the remainder of the strip of land along the southern boundary of his property, that is, that part running south from where the old dirt road entered the property to the plaintiff’s property line on the east, was ever a public road, established as such by any of the methods prescribed by law. Defendant attached a sketch of the old dirt road and the new gravelled road to his answer. This sketch shows that the part of the old dirt road which has been described formed a sort of crescent beginning from the south corner of the property now belonging to Jeffrey David, to the south corner of the defendant’s property. We estimate that it followed the line of defendant’s property for a little less than half of the whole distance of his property to the rear, which is fourteen acres.

There are sevéral methods under our laws by which a road may become a public road but is seems to be agreed in this case that the only method by which the one in controversy can be said to have become so is by that provision, among others, of Revised Statutes, Section 3368 which was reenacted by Act No. 220 of 1914, which reads in part as follows: “All roads in this State * * * which have been, or shall hereafter be kept up, maintained or worked for a period of three years by authority of the Police Juries in their respective parishes, are hereby declared to be public roads; * * From the testimony adduced before him the district judge concluded that the road in question had been worked and maintained by the Police Jury of the Parish of St. Landry for a period of three years and therefore it had become a public road by “tacit dedication,” as was held by the Supreme Court in the case of Frierson v. Police Jury of Caddo Parish, 160 La. 957, 107 So. 709, 710. He accordingly rendered judgment ordering the defendant to remove the gates or obstructions placed by him on the road and enjoining him from further interfering or disturbing the free and undisturbed passage of the plaintiff and of the public in general over the same. He rejected plaintiff’s demand for the attorney’s fees claimed by him.

From the judgment rendered defendant has taken this appeal and plaintiff has answered asking that it be amended by awarding the sum of $350 originally prayed for by him. In this court, defendant also filed an exception of no right or cause of action.

The exception of no right or cause of action is based on the proposition that there is no allegation nor any testimony in the record showing that proper compensation has been received by the defendant for the taking of his property for public purposes as he was entitled to under the law. In the alternative, it is urged that the Police Jury of the Parish of St. Landry was not, as it should have been, made a party defendant.

In considering the exception we have to assume that the strip of land in controversy is a public road for otherwise no compensation would be due. Conceding that compensation is due however, we don’t see how this defendant can take advantage of the lack of payment for necessarily, if the road became a public road at any time it was many years before he acquired his property from Adolph Guillory in 1944. It is the owner of the property, at the time the road is dedicated to public use, who is entitled to compensation and not a subsequent owner who acquires the property many years after the road existed. That clearly is what is meant by that provision of Section 3368, R.S., which we are concerned with in this case, as it relates to compensation. It reads: “It shall be lawful for any individual through whose land the Police Jury shall cause a public road to be laid out, to claim a compensation of double the assessed value of the said land.” The claim for compensation must be made by the individual who owns the land and to whom it is assesed at the time the Police Jury causes the road to be laid out. As of that date the road became public property and whether compensation was made to the owner or not is a matter of no concern to a subsequent owner.

As for having the Police Jury of St. Landry Parish made a party defendant in the suit, the only reason would be to inquire into the necessity for, or the location of the road, or perhaps also, to have the question of the amount of compensation determined, all of which questions, as far as this case is concerned, have long ago been foreclosed.

We find no merit in the exceptions and they are therefore overruled.

On the merits we cannot agree with the trial judge, that the entire strip of land running from the gravel road to the rear of the property was "kept up, maintained or worked” by authority of the police jury of St. Landry Parish in such manner as is contemplated under the provision of the section of law relied on, to make it a public road. It is twenty five years since the course of the old dirt road was changed by the presently existing gravel road. Up to that time there is no doubt but what the Parish worked and kept up, as part of the old dirt road, that segment of it which joined defendant’s present property on the south line and runs west several acres. That was then definitely part of the public road. We doubt very seriously however that that part of the so-called road extending from that point to the rear of defendant’s present property was worked, kept up and maintained by the police jury as it did the rest of it which was part of the old public dirt road. The testimony does show that the remainder of the strip of land was used as a pathway by a good many people for one or more purposes and it may be that as a matter of convenience to them, the Parish road grader when being used in that area, graded it on a few occasions. Rut we don’t believe that what was done could be said to constitute a working and maintaining of the road within the meaning and intendment of the statute. It has been so long since even anything like that has been done however that whatever it was is of little avail in the matter of having established this as a public road. Rather convincing proof of this is seen in the photographs which are found in the record.

Plaintiff produced several witnesses who testified in a general way that they worked the road while they were employed by the Police Jury of the Parish or by the member of the Jury from the Ward in which the property in question is located. They also testified that they were paid by Police Jury vouchers or checks. We are sure these witnesses were truthful in saying that they were so paid but there wasn’t a voucher or check produced to show that they were paid for work on this particular road. As a matter of fact there wasn’t any record of the Police Jury produced at all. Mr. Abner Roy, President of the Police Jury testified that in his efforts to ascertain whether this road was a public road (meaning, we take it, whether the Police Jury had ever worked it or kept it up) had the records of that body investigated by the Secretary and nothing whatsoever was found to connect the road with the Police Jury in any manner. He admits he can’t say whether the road was ever considered a public road or not.

Plaintiff testified that he worked the road himself from 1912 to 1924, under the orders of Adolph Guillory, then member of the Police Jury from the Ward. That would take us about to the time that the course of the old road was changed and no doubt he did work that part of the old road where it entered defendant’s property and led west to the present gravel road. His testimony is not clear about his having worked the remainder of the road going to the rear but in as much as the road was then being used by Adolph Guillory, who owned the property now owned by the defendant, for his tenant’s use and also by people in the neighborhood as a short cut to reach the Catholic Church not far to the north, it may well be that the road was graded at times, as already stated, for the convenience of these people. In this connection, it seems that Adolph Guillory would have been the one person to give the court the most information on the subject, and yet he was not placed on the witness stand. Counsel for plaintiff complains that defendant did not use him as his witness but plaintiff was the one who had undertaken the task of proving that this road had been kept up, worked and maintained by the Police Jury and Guil-lory’s testimony, had that been the case, would have been far more favorable to him than to the defendant. The presumption arising out of his failure to call Guillory as a witness applies as much, if not more so, to him than it does to the defendant.

According- to the plaintiff’s own testimony it appears that even during that time, Guillory himself, the member of the Police Jury, had placed a gate across the road. That certainly suggests the idea that he must have considered it his private property as no one, not even a member of the Police Jury, has the right to close a public road without the permission or authority of that body. Plaintiff was asked why it was that he did not, at that time, demand that Guillory remove the gate he had erected and he answered he did not because Mr. Guillory had been too good to him. It would seem therefore that his attitude in demanding what he considers his rights under the law against his neighbors depends on his fancy as to whether the neighbor has been good to him or not. Pursuing this matter' of closing the road further, we find from his testimony again that plaintiff himself at one time erected a fence at the place where the road enters his property. This, he says, he did in order to keep cattle out of his field. Surely, it would seem that if he had the right to do that, the road was not a public road at that point and still that is what he claims it is now.

In considering the extent to which work was done by the Police Jury on the entire length of the road, we find it pertinent to refer to the testimony of one of plaintiff’s witnesses who was placed on the stand for that purpose. That is the witness Fremont Dupre. It seems very evident that the work he was referring to was that done on the old dirt road before its course was changed some twenty five years ago because, he states: “I always graded it before they put the gravel. After they put the gravel, I never went in there.” From the testimony of Lawrence Sylvester and Martin Prudhomme both of whom claim they also worked on the road, it is difficult to say whether they referred to the old dirt road only or meant to say that they had worked the entire road. As for the witnesses Joe Reed and Adraste Dupre, all they testify to is having seen men grading the road. Reed speaks of the time when convicts worked on the roads and this as we may take judicial cognizance of, was many, many years ago.

The foregoing constitutes most of the testimony produced by the plaintiff and, as stated before, we don’t find it at all convincing on the point at issue in the case. When considered further in the light of plaintiff’s admitted efforts at buying the strip of land in controversy or another strip from the adjacent owner of the property south of the defendant’s, it impresses us as being of a rather weak character.

The Frierson case cited by the district judge as authority for his holding in this case, presented facts which left no-, doubt on the question that the road in dispute had been worked and kept up by the Police Jury in conformity with the provisions of R.S. Sec. 3368 since the court made the positive statement that “the road-in contest was kept up and maintained as a public road by the police jury, and worked; upon from time to time by road gangs em-. ployed by the police jury, and at times by" prisoners, all under the authority of the - police jury, during a period exceeding 40 years before this suit was filed.” The evidence in this case, as just indicated, is far from showing the existence of such a state of facts. The most reliable testimony shows that whatever Work of that nature was done, was the maintenance and up-keep of the former dirt road which was abandoned as a public road when the new gravel road was laid out some twenty five years ago. The most that can be said to have been done on the remainder of the road leading to the rear, was an occasional brushing up which we don’t believe amounted to a keeping-up of the road as required under the statute, and which, moreover, has not been done for so long a time that the road, if it ever could have been said to be public, has been abandoned as such, with the result that the fee title to the roadbed reverted to the owner of the property. That is the law as embodied in Section 3369 of the Revised Statutes and as indicated by the Supreme Court in the case of Goree v. Midstates Oil Corporation, 205 La. 988, 18 So.2d 591.

In the Goree case it is distinctly held that a “tacit” dedication of a road by. the property owner, such as the establishment of a road under Act No. 220 of 1914 as referred to in the Frierson case, does not deprive the landowner of the fee title to the roadbed. It is stated, as was held also in the Frierson case, that Act No. 220 of 1914, is not a statute of prescription and that if a road which had become public by virtue of having been kept up by the Police Jury for a period of three years, had its course subsequently changed and the old roadbed became abandoned, the fee title to the roadbed reverted to the landowner because Section 3369 of the Revised Statutes provides that nothing- shall “prevent any owner of the soil on which a public road shall pass, to resume the use and possession of such soil whenever the road shall have been abandoned by the public, or shall have been transferred elsewhere with the consent of the owner and with that of the competent authority.” (Italics ours.) The road in contest in this case can, in our opinion, be viewed from either condition stated because a part of it constituted part of an old road which was transferred elsewhere, presumably with the consent of the owner and of the competent authority, and all of it, as we view the testimony, has been abandoned by the public for a good many years.

For the reasons stated it is ordered that the judgment appealed from be and the same is now reversed, set aside and annulled, and

It is further ordered, adjudged and decreed that there be judgment in favor of the defendant and against the plaintiff rejecting the latter’s demands and dismissing his suit at his costs.


source: Caselaw Access Project

author: HARDY, Judge.

license: Public Domain

text:
    ROY et ux. v. GAUTHIER et ux.
    No. 7099.
    Court of Appeal of Louisiana. Second Circuit.
    Dec. 17, 1947.
    Riddle & Riddle, of Marksville, for apr pellants.
    Philo Coco, of Marksville, for appellees.
   HARDY, Judge.

This is a suit by Moses Roy and wife against Newman Gauthier and wife in which plaintiffs seek to recover damages resulting from an automobile collision alleged to have been due to the fault and negligence of Mrs. Gauthier, who was driving her husband’s truck while on a community errand. ■ There was judgment in favor of defendants rejecting plaintiffs’ demands, from which judgment plaintiffs have brought this appeal.

The facts are relatively simple, and, despite the usual contradictions in the testimony of the witnesses on behalf of the respective parties, there is no serious disagreement as to the material facts.

On or about July 8, 1946, the plaintiff, Moses Roy, accompanied by his wife, was driving his 1946 Ford Tudor Sedan along the Marksville-Hessmer black-top highway in the direction of Hessmer. At a point near the mid-portion of the left-hand curve of the highway a half-ton 1942 model Chevrolet truck driven by the defendant, Theresa Gauthier, who was accompanied by her brother-in-law, Raymond Gauthier, overtook and passed plaintiffs’ automobile and pulled over into the right-hand lane immediately in front of same. After the two cars, both of which were being driven at a moderate rate of speed, about 20 miles per hour for defendants’ vehicle and a slightly faster rate on the part of the truck, had proceeded some 400 feet or more, and were separated by a distance of some 40 feet, the defendant brought her truck to a stop on or near the right-hand edge of the blacktop portion of the highway. Defendants’ car crashed into the rear of plaintiffs’ truck, which collision was the cause of the damages sustained by plaintiffs’ automobile and personal injuries alleged to have been sustained by Mrs. Roy.

Plaintiffs’ petition alleged that defendants’ truck was brought to a complete and sudden stop immediately in front of his automobile, and that the driver of the truck immediately placed the same in reverse and backed toward defendants’ car. Neither of these contentions is sustained by a preponderance of the evidence and it appears from a study of the brief of plaintiffs’ able counsel that the theory of the reverse movement of the truck has in effect been abandoned. Plaintiffs’ position is that the driver of defendants’ truck brought the vehicle-to a complete and sudden stop and in so doing violated two provisions of the Highway Regulatory Act by failing (a) to give a signal warning drivers of other vehicles of the intention to stop, and (b) to leave a clearance of not less than 15 feet upon the main traveled portion of the highway opposite the vehicle. Act No. 286 of 1938, § 3, rules 10, 15.

Upon the basis of these contentions it is argued that defendants’ negligence in these particulars was the direct and proximate cause of the accident.

Considerable attention was given in argument in brief on behalf of plaintiffs to the point that defendants had failed to plead contributory negligence and that the opinion of the District Judge was in error in rejecting plaintiffs’ demands on the grounds of contributory negligence. To our minds this point has no bearing upon the findings of fact as assigned by the District Judge, in which we fully concur.

Neither the failure of Mrs. Gauthier to give a signal of her intention to stop nor her failure to leave a 15-foot clearance were responsible for the accident. On the contrary, "we find no difficulty in concluding that plaintiffs’ negligence was the direct and proximate cause of the accident.

The gist of the testimony of the plaintiff, Moses Roy, indicates that despite the fact that he was driving his car at a speed of only 20 miles per hour some 40 feet behind plaintiffs’ truck and was watching the truck at the time, he was nevertheless unable to avoid crashing into the rear of said vehicle. We can only conclude that plaintiff is in error in his belief that he was maintaining a proper lookout for, in such event, even conceding that the leading vehicle was brought to a sudden stop, which we do not find to have been the fact, certainly plaintiff’s automobile should have been under such control as to enable him to have brought it to a stop in sufficient time to. avoid the collision. This is the same conclusion which was reached by the District Judge as expressed in these words in his opinion: “* * * if he had been looking ahead as he says he was, he should have seen what he was expected to see especially so since there was nothing ahead of him but defendant’s truck parked at the spot where the collision took place.”

In view of our finding of fact, which is in complete accord with that of the lower Court, we deem it unnecessary to enter into a discussion of the numerous authorities cited in behalf of plaintiffs, which are clearly not applicable under the facts existing in this case.

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

KENNON, J., absent.


author: DORE, Judge.

text:
    DODGE v. BITUMINOUS CASUALTY CORPORATION.
    No. 2961.
    Court of Appeal of Louisiana. First Circuit.
    Dec. 30, 1947.
    Rehearing Denied Feb. 2, 1948.
    Writ of Certiorari Granted March 22,1948.
    Durrett & Hardin, of Baton Rouge, and Seth Lewis, of Opelousas, for appellant.
    A. V. Pavy, of Opelousas, for appellee.
   DORE, Judge.

This is a case arising out of a collision occurring on December 6, 1945, at about seven o’clock, P.M., between a Studebaker Champion automobile, 1942 Model, and a Chevrolet lV^-ton truck, at a point on Louisiana Highway No. 5, approximately three-quarter mile west of the corporate limits of the Village of Sunset, in St. Landry Parish, Louisiana. The Studebaker automobile was being driven by its owner, Lee Roy Dodge, plaintiff herein, travelling west on the said highway, and the truck belonging to E. Menard was in the hands of Mrs. E. Menard, with her husband’s knowledge and consent. It is alleged by the plaintiff that the said truck was parked by Mrs. Menard at a driveway on the north side of the highway and that the rear of the truck protruded some four or five feet on the paved portion of said highway and that it was parked without any lights or flares of any kind; that at the time of the accident it was quite dark and that plaintiff driving at a moderate rate of speed, did not perceive the truck, which was parked partly in his lane of travel, until he was almost upon it and that since cars were coming from the other direction', he was unable to go to his left and that consequently he collided with the truck, resulting in damage to his Studebaker automobile in the alleged amount of $957.40. For these alleged damages this suit was filed against the insurer of E. Menard, on the allegations that the accident was caused solely by the gross negligence of Mrs. Menard, in parking the truck without lights or flares, as set forth, while the truck was in her charge with the knowledge and consent of her husband.

The defendant admits that it is the insurer of E. Menard, and that the truck was in the custody of Mrs. Menard with her husband’s knowledge and consent, and that its liability coverage is in excess of the amount of damages claimed; but it denies that there was any negligence on the part of Mrs. Menard or anyone for whom Mr. Menard could be responsible, and, in the alternative, alleges that if any negligence should be found on the part of Mrs. Menard which was a proximate cause of the accident, then it avers that the plaintiff was guilty of contributory negligence barring his recovery. Assuming the position of plaintiff in reconvention, defendant avers that the sole proximate cause of the accident was the gross negligence of the plaintiff, and prays for judgment in' the sum of $60, • representing the amount paid by it to the truck owner under a collision insurance policy, plus interest and costs. The acts of negligence relied upon by the defendant in its alternative plea of contributory negligence, and in its reconventional demand are (a) that plaintiff .was driving at an excessive rate of speed; (b) that he was not keeping a proper lookout; (c) that he failed to see the Chevrolet truck parked, or if he did see it, he failed to heed the presence, of said truck on the highway; (d) that the young son of Mr. and Mrs. Menard was signaling with a flashlight in the rear of the unlighted truck, and that plaintiff failed to heed his signal, and, (e) that if plaintiff should claim that he was blinded by any oncoming automobiles, he failed to slacken his speed so as to avoid any unforeseen obstruction.

After filing its answer, containing the defenses set forth hereinabove the defendant filed an exception of no cause of action, which-exception, by ageement of both parties, was referred to the merits.

After hearing the case, the trial court overruled the exception of no cause of action, and rendered judgment in favor of the plaintiff, for written reasons assigned. The record shows that in concluding his written reasons, the trial judge ordered that there be judgment in favor of the plaintiff in the sum of $864.20, and then, on May 28, 1947, he signed a formal judgment for the sum of $957.40. From this judgment the defendant has appealed.

The exception of no right and no cause of action is again urged before this Court by the defendant who contends that the petition affirmatively shows that plaintiff was himself guilty of contributory negligence which was a proximate cause of the accident. It is contended that plaintiff has not alleged any unusual circumstances which could have prevented him from having the accident. In effect, defendant claims that the plaintiff should have at least alleged that he was blinded by the headlights of oncoming cars, or at least alleged the reason why he could not and did not see the parked truck in time to avoid the accident.

In support of its contention, defendant relies on the rule that the driver of an automobile at night shall have his car under such control as to be able to stop it within the distance projected by his headlights in front of him. We have discussed this rule in the recent case of Cole v. Burgess, 31 So.2d 450. The first syllabus of the reported decision correctly states our view of the rule thusly: “One driving [an] automobile at night who does not have automobile under such control as to be able to stop within the distance of projection by his headlights in front of him is not guilty of contributory negligence as a matter of law, but can only be found negligent upon the trial of the case on the merits.”

It is now well settled that a plaintiff need not negative his own negligence in a tort suit in order to disclose a cause of action or recover therein. The exception of no cause of action will be sustained only when the petition recites a state of facts which shows negligence on the part of plaintiff and that such negligence was a proximate cause of the accident. In his petition, plaintiff has not alleged any state of facts showing his negligence. The exception óf no right or cause of action was properly overruled.

The evidence in the case, which consisted only of the testimony of plaintiff and his witnesses, is as follows:

Plaintiff testifies that he was driving to Bellevue on the west side of the Town of Sunset at about 40 or 45 miles pér hour and that he came upon the Menard truck on the highway about one-half mile from the city limits; that the truck was a Chevrolet ton and a half stake body truck, and that the car he was driving was a Studebaker. Plaintiff states that when he saw the truck, which was parked partly in his lane of travel, without any flares or signals or lights of any kind, he threw on his brakes and started to swerve out to miss the truck, but there were some oncoming cars approaching, so, instead of having a head-on collision, he had to hit the truck.

Plaintiff was alone in his Studebaker and Mrs. Menard was alone in the truck, and just as the accident occurred, Mrs. Antoon and Mrs. Monteilh arrived at the scene travelling in the opposite direction from plaintiff, and they witnessed the collision. Mrs. Antoon testified that as they both neared the scene of the collision she could see plaintiff’s car coming from the opposite direction and that all of a sudden she heard the collision; that at that time she did not know what object plaintiff’s car had struck, but after the collision, as they drove closer, they saw the Menard truck, which was unlighted, had no flares, and was parked at a 45 degree angle on the pavement in the same lane in1 which plaintiff was travelling ; that Mrs. Menard was alone in the truck; that after colliding with the truck, plaintiff’s car continued some 40 or 50 feet to the left and came to rest in the left ditch, almost directly in front of them. In effect, she says that their car stopped at just about the point where plaintiff went into the ditch on his left hand side of the highway.

It is stipulated that if Mrs. Monteilh had testified, she would have testified substantially like Mrs. Antoon. When Mrs. Antoon and Mrs. Monteilh arrived at the scene, Mr. Dodge, the plaintiff, requested that they go get an officer in Sunset to have him investigate the accident. Accordingly, Mr. Simon Durio, the Marshal of Sunset, was summoned and he arrived right after the accident and made his investigation. His testimony merely brings out the fact that the road where the accident happened is a paved road of the usual dimensions, with gravel and dirt shoulders on each side, of some 8 or 9 feet, and that at the scene of the accident the road was perfectly straight. He also stated that the truck, when he arrived at the scene, was some four or five feet on the pavement and that the car had traveled some 60 feet west of the truck and landed on the south side of the road which runs east and west.

The only other witness in the case was Mr. Glasscock, Studebaker dealer from Opelousas. Mr. Glasscock testified that the OPA ceiling price for a dealer on a car such as plaintiff’s would be $1080.25; and that in effect a dealer could charge that price for a car like plaintiff’s, in good condition, sold with warranty; that the OPA ceiling price for the car sold without warranty, known as “as is” price was $864.20. He states that the salvage value of plaintiff’s car was $125. The plaintiff claims the dealer’s OPA price, less $125, in other words, $957.40. There is a slight discrepancy in the amount alleged in the petition as to the OPA ceiling and the amount testified by Mr. Glasscock. The petition alleges that OPA ceiling price to be $1082.40 and Mr. Glasscock states that it is $1080.25.

The main contention of the defendant that the plaintiff was guilty of negligence, based on the five contentions set forth here-inabove. It is contended that plaintiff has shown no unusual circumstances which could have prevented him from having the accident, in spite of any negligence of Mrs. Menard. In effect, defendant claims that the plaintiff should have at least testified that he was blinded by the headlights of oncoming cars or should have shown so by the evidence upon the trial of the merits. The fact remains that this truck was a stake body truck parked at a 45° angle and was necessarily not easy to see, and, as testified by all the witnesses, the night was very dark; that plaintiff was not travelling at an excessive speed, for certainly 45 miles per hour on a straight paved highway is not excessive ; that he did not see the truck until he was almost upon it, and that at that time he saw the lights of oncoming cars and consequently could not take the chance of going to his left, and had no reasonable alternative but to collide with the truck. Under these circumstances we can not see any negligence on the part of plaintiff, and feel that the accident was caused solely by the gross negligence of • Mrs. Menard in having the Menard truck parked without lights on a highly traveled paved highway. True, it was alleged by defendant that Mr. and Mrs. Menard's young son had stood behind the truck with a flashlight, but there is no proof of that allegation whatsoever, and it is flatly contradicted by the plaintiff and by Mrs. Antoon.

The petition and the evidence having established the positive negligence of Mr. Menard, it was incumbent upon the defendant to show contributory negligence on the part of plaintiff to extricate itself from liability. The defendant has failed to do so.

As to the measure of damages, we have already called attention to the inconsistency in the two judgments rendered by the lower court. It is our opinion that the proper measure of damages is the OPA ceiling price, which applies to a dealer, because if plaintiff had desired to replace his demolished automobile with the same model, he would ordinarily have gone to a dealer to do so, and that is the price he would have had to pay. We will therefore reform and recast the judgment so as to grant plaintiff a judgment in the amount of $955.25, being the difference between the OPA price of $1080.25, as testified to by Mr. Glasscock, less the salvage value of $125.

For these reasons, it is ordered that the judgment appealed from is hereby reformed so as to read as follows: “It is ordered, adjudged and decreed that there be judgment herein in favor of plaintiff, Lee Roy Dodge, and against the defendant, Bituminous Casualty Corporation, in the full sum of Nine Hundred and Fifty-five and 25/100 ($955.25) Dollars, plus legal interest from judicial demand and all costs of this suit to be taxed.”


author: PER CURIAM.

text:
    ARNOLD et ux. v. ILLINOIS CENT. R. CO.
    No. 2928.
    Court of Appeal of Louisiana. First Circuit.
    Dec. 30, 1947.
    For former opinion, see 33 So.2d 76.
    Lemle, Moreno & Lemle, of New Orleans, for appellant.
    Plauche & Plauche, of Lake Charles, and Homer Stephenson, of Orange, Tex., for appellee.
   PER CURIAM.

Applications for a rehearing were filed by the defendant railroad company and by both plaintiffs.

In the application of the defendant railroad company it is urged that our holding with reference to the duty of a railroad to provide a flagman at a much traveled crossing where visibility is poor on account of a heavy fog will place an undue burden on the railroads of the State. We are not unmindful of the importance of the question involved, however, a careful study of the facts and circumstances in this case and a comparison of these facts and circumstances with those in the case of Squyres v. Baldwin, 191 La. 249, 185 So. 14, made it impossible for us to differentiate the two cases on this point. We therefore felt hound to follow the principle kid down in the Squyres case.

A further study of the question of the contributory negligence of plaintiff, Mrs. Mildred Arnold, does not convince us that she was guilty of such contributory negligence as to bar her recovery.

The majority of the court feel that there was no error in holding plaintiff, Hugh Arnold, guilty of such contributory negligence as to bar his recovery.

For these reasons, both applications for a rehearing are refused.

DORE, J., dissents from the refusal to grant a rehearing to Hugh Arnold.


author: JOSEPH A. LORET, Judge ad hoc.

text:
    GILMORE v. GEORGE W. GARIG TRANSFER, Inc., et al.
    No. 2942.
    Court of Appeal of Louisiana. First Circuit.
    Dec. 30. 1947.
    Rehearing Denied Feb. 2,1948.
    Writ of Certiorari Denied March 22,1948.
    Brezeale, Sachse & Wilson, of Baton Rouge, for appellant.
    Brumfield, Hebert & Rush, of Baton Rouge, for appellee.
   JOSEPH A. LORET, Judge ad hoc.

This is a suit by the plaintiff, Jack Gilmore, against his employer, George W. Ga-rig Transfer, Inc., and the latter’s insurer, American Mutual Liability Insurance Company for workman’s compensation under Act No. 20 of 1914, as amended, for disability of Gilmore resulting from an injury to one of his feet suffered in an accident. At the time of the accident, June 8th, 1945, 65'% of Gilmore’s average weekly wage amounted to $19.50. The District Court rendered judgment in favor of Gilmore and against the defendants, appellants, George W. Garig Transfer, Inc. and American Mutual Liability Insurance Company for workman’s compensation at the rate of $19.50 per week for a period not to exceed 400 weeks, less a credit o-f 36 weeks of compensation admittedly paid by the defendants beginning on the 8th day of June, 1945 with legal interest on each past due installment until paid, plus $20 for medical services rendered by Dr. E. J. Herpich. In its judgment the District Court also condemned the defendants to pay the costs, ordered that the fees of the medical experts Dr. Lawrence J. Kern, Dr. E. J. Herpich, Dr. Charles McVea and Dr. W. Shewen Slaughter be fixed at $20 each and taxed as costs, and that the fee of the plaintiff’s attorneys, Messrs. Brumfield, Hebert & Rush be fixed at 20% of the amount recovered, not to exceed $1,000. From that judgment of the District Court the defendants prosecute this appeal.

While the District Court gave no written reasons for its judgment, its form and amount are appropriate to, and only to, a finding of total permanent disability. Act No. 20 of 1914, § 8(b), as amended by Act No. 120 of 1944 (the amending act in force at the time of the accident). So we assume that the District Court found that at the time of the trial Gilmore was permanently totally disabled, as a result of the injuries suffered by him in the accident, to do work of any reasonable character, and the plaintiff contends that such is the case. On the other hand, the defendants, appellants, contend that the plaintiff’s disability is neither total nor permanent.

The only controversies in the case are over the extent of the plaintiff’s disability and its duration or probable duration.

Section 8 of Act No. 20 of 1914, as amended by Act No. 120 of 1944, insofar as pertinent, reads:

“Section 8. That compensation shall be paid under this act in accordance with the following schedule of payments:
* * * * * *
“(b) For injury producing permanent total disability to do work of any reasonable character, sixty-five per centum of wages during the period of disability, not, however, beyond four hundred weeks.”

Let us first consider the extent of Gilmore’s disability at the time of the trial in the District Court.

The term “disability to do work of any reasonable character,” as used in Act No. 20 of 1914, both in its original and its amended forms, means disability to do the same character of work one was accustomed to and was performing at the time of his injury. Carlino v. United States Fidelity & Guaranty Co., 196 La. 400, 199 So. 228, 232, 233; Ranatza v. Higgins Industries, 208 La. 198, 23 So.2d 45, 46; McKenzie v. Standard Motor Car Co., La.App., 15 So.2d 115, 117.

Prior to the accident the plaintiff was employed as a laborer. He testified that since the accident when he attempts to do the same kind of work he did before the accident he suffers so much pain that he cannot work.

His medical expert Dr. L. J. Kern testified that he was totally disabled.

Dr. E. J. Herpich, who also testified for the plaintiff, was of the opinion that the plaintiff had only a 20'% disability. He said, however, that if he were examining the plaintiff for a prospective employer, he would recommend against his employment.

Dr. W. Shewen Slaughter and Dr. Charles McVea testified for the defendant.

Dr. Slaughter was of the opinion that the plaintiff was suffering from practically no disability.

Dr. McVea said that the plaintiff had a 25% disability. He based that on an opinion that the plaintiff can do the same kind of work he did before, but will suffer pain while doing it.

Such is the evidence on the question of extent of disability. In our opinion a preponderance of the evidence shows that the plaintiff cannot perform the kind of work he did before the accident without suffering considerable physical pain while doing it. Such being the case, he was at the time of the trial totally disabled.

Necessity may compel one to perform work at the expense of considerable pain, but we do not think that the Courts should do so.

In Carlino v. United States Fidelity & Guaranty Co., 196 La. 400, 199 So. 228, supra, the Supreme Court said on rehearing (199 So.233):

“And it has been decided that an injured workman may be deemed totally disabled, within the meaning of the statute, even though the necessity of supporting his family compels him to do work which causes great pain and suffering. Fluitt v. New Orleans T. & M. R. Co., 187 La. 87, 174 So. 163. See also Stieffel v. Valentine Sugars, 189 La. 1091, 179 So. 6.”

In Lee v. International Paper Co., La. App., 16 So.2d 679, the Court of Appeal for the Second Circuit said (16 So.2d 681) :

“Our law does not require a man to work after having been injured if working causes him pain due to that injury and to do so would be abolish in part, at least, the humane theory of the Compensation Act.”

To the same effect is the decision of the latter Court in Brown v. Furr, La.App., 19 So.2d 283, 285. And in Rigsby v. John W. Clark Lumber Co., La.App., 28 So.2d 346, this Court said (28 So.2d 350) :

“ * * * the jurisprudence is to the effect that no one is called on to perform work while suffering pain in order to recover compensation.”

So, one who, as a result of injuries, suffers considerable pain while performing the character of work he was accustomed to and was performing at the time he received the injuries, is as a result of the injuries totally disabled to do work of any reasonable character. And such was the plaintiff’s condition at the time of the trial. Therefore, at the time of the trial, as a result of the accident and injuries, the plaintiff was totally disabled to do work of any reasonable character.

This brings us to the question of the duration or probable duration of the plaintiff’s disability.

Drs. Herpich and Kem were of the opinion that the plaintiff’s condition would not improve. Dr. McVea thought it would improve some, but fixed no time when it might do so. In view of this, the trial Court was correct in fixing the plaintiff’s compensation as for permanent disability under the ruling of this Court in Vilce v. Travelers Ins. Co., La.App., 25 So.2d 256, expressed in the following language:

“It is too well settled to require citation of authority that where a claimant is shown to be partially or totally disabled at the time of trial and there is no evidence on which to fix a definite period for the continuance of the disability, compensation should be fixed so as not to exceed the maximum number of weeks.”

It is, therefore, our opinion that the plaintiff is permanently totally disabled to do work of any reasonable character as a result of the injuries suffered by him in the accident.

Consequently, the judgment appealed from is hereby affirmed, the defendants to pay all costs in both Courts,


text:
    NATIONAL LIFE & ACCIDENT INS. CO., Inc., v. Mrs. Lillie VAUGHAN and George J. Vaughan.
    Court of Appeal of Louisiana. First Circuit.
    No. 2953.
    Dec. 30, 1947.
    For former opinion, see 32 So.2d 490.
    Taylor, Porter, Brooks & Fuller and Wm. G. Randolph, all of Baton Rouge, for appellant.
    Cecil N. Bankston, of Baton Rouge, for appellee.
   PER CURIAM.

Apparently a part of the testimony of Dr. T. C. Oliver was misquoted in the original opinion handed down herein. 32 So.2d 490. He was quoted as saying that he did not consider a duodenal ulcer an ailment of a serious nature, whereas it appears that he said he did so consider it.

His opinion in that respect does not cause us to alter our views in the case as the issue on which it was decided was not governed by his testimony.

We have carefully considered all other points raised in the application and still feel that they were correctly disposed of.

Rehearing is refused.


author: OTT, Judge.

text:
    MANUEL v. VIDRINE et al.
    No. 2957.
    Court of Appeal of Louisiana. First Circuit.
    Dec. 30, 1947.
    Atlee P. Steckler, of Ville Platte, for appellant.
    Isom J. Guillory and Isom J. Guillory Jr., both of Eunice, and Roland B. Reed, of Ville Platte, for appellees.
   OTT, Judge.

Plaintiff seeks a mandatory and prohibitory injunction against the defendant, J. Duise Vidrine and Roy Fontenot, to compel them to remove a da-m from a ditch or canal used by plaintiff to flow water from his well to the rice fields of certain persons owning property in the neighborhood, and to enjoin them from obstructing the canal through which the water flows over the land owned by defendant Fontenot. The record is made up of long and complicated pleadings, and it it unnecessary to give a detailed statement of all the pleadings in order to pass on the main points involved in the case.

Plaintiff alleges that he is the owner of a deep water well located on his property, from which well water runs through a canal in various directions to supply water for the owners of rice farms in the neighborhood; that defendant Fonte-not owns a 6S acre tract of land which was at one time owned by Helaire Guil-lory who sold said property to John E. Guillory; that the Federal Land Bank acquired said tract from John E. Guil-lory, and defendant Fontenot acquired the tract from the Federal Land Bank, all as of record in Evangeline Parish; that at the time Helaire Guillory owned said property which is now owned by said Roy Fontenot, the said Guillory executed a written agreement with the Guillory Well Company on February 5, 1920, wherein the said Well Company argued to • construct a ditch or canal through his land to that of his neighbor for the purpose of irrigating crops of rice in that area, which ditch or canal was to remain unobstructed and without any rent charge during the time the well was pumping, and in accordance with said agreement the canal was constructed some 28 years ago, and has been used ever since, receiving the flowing water from wells for irrigation purposes from the Guillory Well Company, and subsequently, the right having been acquired by plaintiff and continuing to the present time. After making further allegations concerning his entering upon the land of defendant Fonte-not, with his consent, in 1946, to clean out the canal, and an agreement concerning the use of the canal by the other defendant Vidrine, the allegation is made that the two defendants dammed up the canal on Fon-tenot’s property and prevented the flow of water through the canal, thereby depriving plaintiff of the right to furnish water to certain persons owning rice crops beyond the point at which the canal was obstructed.

Defendants filed a prayer for oyer of a plat referred to in plaintiff’s petition and certain acts of transfer. The prayer was sustained to the extent of requiring plaintiff to produce the plat showing the canal and the various tracts of land through which it passed, and also the contract between the Guillory Well Company and Helaire Guillory. These documents were filed and the defendants thereafter filed exception of vagueness and no cause or right of action, both of these exceptions being based on much the same grounds, the principal of these grounds being that plaintiff did not allege the title or right which he acquired from the Guillory Well Company; that he did not allege that the various transfers referred to were by proper acts; that the plaintiff did not allege that he had complied with all the terms in the contract between Helaire Guillory and the Guillory Well Company, and the plat which was filed in compliance with the prayer for oyer is inconsistent with the location and direction of the canal as described in the petition.

The exception of vagueness was overruled, and the exception of no cause or right of action was referred to the merits. The defendants then filed an answer, making a general denial of the allegations of plaintiff’s petition, and setting up in minute detail a long list of transactions to show that the defendant Vid-rine had constructed a well in the neighborhood and was supplying water to rice farmers, and had a right to use a canal over the land of the other defendant. As alternative pleas, the defendants allege that if plaintiff ever acquired a servitude over the lands of Fontenot as he claims, plaintiff has abandoned the servitude; that he is estopped to claim the servitude, or in the further alternative, the said servitude has prescribed.

When the case came on for trial, plaintiff offered in evidence the plat referred to showing the location of the canal, and some deeds showing chain of title from Guillory Well Company. Objection was made to the offerings and the objection was sustained. Counsel for plaintiff then offered to prove up the allegations of his petition, but on objection being made, the trial court sustained the objection and dismissed plaintiff’s suit.

From the ruling of the court it appears that the court was of the opinion that the exception of no cause of action was well grounded. The exception and the objection to the evidence offered in proof of plaintiff’s claim raised the same question, that is whether or not the plaintiff has made sufficient allegations to justify proof as to how he acquired the ownership of the rights to the servitude over the land now owned by Fontenot.

It is evident from the allegations of the petition that plaintiff is claiming the right to enforce a servitude over the land formerly owned by Helaire Guillory and now owned by defendant Fontenot. He is claiming this right under the contract between the Guillory Well Company and Helaire Guillory. He alleges that this right was subsequently acquired by him and continues to the present time. Plaintiff did not deraign his title from the Guil-lory Well Company, nor did he allege the nature of the title which he holds from the original grantee of the right of servitude.

A plaintiff who seeks to enforce a right on an immovable must allege his ownership of the right and how he acquired the right. However, a failure on his part to set out a complete chain of title in his petition does not render the petition subject to dismissal on an exception of no cause of action; the remedy of the defendant in such a case is an exception of vagueness, requiring plaintiff to give the chain of title by which he acquired the ownership of the right. Weaver Brothers Realty Corporation v. Voight et al., La. App., 191 So. 580; Weaver Brothers Realty Corporation v. Spence et al., La.App., 197 So. 436.

As before stated, the defendant filed an exception of vagueness in which they sought to obtain certain information regarding plaintiff’s title, from whom he acquired the right of servitude, the nature of the titles, and whether or not he had fulfilled the terms of the contract between Helaire Guillory and the Well Company under which he is now claiming a right of servitude on the land of defendant Fonte-not. We think the trial judge was in error in overruling this exception of vagueness. Defendants were entitled to know the nature of plaintiff’s claim of ownership' of this right of servitude. After plaintiff has set out the full facts as to the manner in which he acquired the right he is now seeking to enforce, the court will then be in a position to determine whether or not a cause of action is set out by plaintiff.

Our conclusion is that the exception of vagueness should be maintained and plaintiff be required to amend his petition within such time as the trial court may fix in order to show the facts on which he bases his right to the servitude on the lands of defendant Fontenot.

For the reasons assigned, the judgment appealed from is annulled and set aside, and it is now ordered that the exception of vagueness filed by the defendants herein be and the same is hereby maintained, and the case is remanded to the district court for the purpose of permitting plaintiff to amend his petition so as to show the facts on which he bases his right to the servitude herein sought to be enforced, within such time as the trial judge may fix, all according to law and the views herein expressed; that the determination of the costs await the final termination of the case.


text:
    BITUMINOUS FIRE & MARINE INS. CO. v. TRAVELERS INDEMNITY CO. et al.
    No. 2960.
    Court of Appeal of Louisiana. First Circuit.
    Dec. 30, 1947.

      Durrett & Hardin, of Baton Rouge, fo> appellant.
    Edward Dubuisson, of Opelousas, for ap-pellees.
   OTT, Judge.

The plaintiff insurance company paid Mrs. Wallace Pomier the sum of $674.40 for damage to her automobile, which damage was incurred in a collision between her car and a taxicab driven by Junior Deville on October 25, 1945, on the paved highway west of Ville Platte.

The taxicab driven by Deville was owned by Alex Chapman, and the defendant insurance company carried liability insurance on the Ford car used as the taxicab and driven by Deville.

The driver and owner of the taxicab, De-ville and Chapman, are joined with the Travelers Indemnity Company as defendants in the suit. The plaintiff insurance company is suing as the subrogee of Mrs. Pomier, the owner of the insured car, to recover from these defendants the amount paid of $674.40.

It is alleged in the petition of the plaintiff that the car of Mrs. Pomier was being driven by Walter Dupre in an easterly direction, and that the taxicab driven by De-ville was going in a westerly direction; that the car of Mrs. Pomier was being driven by Dupre on his right side of the road; that the taxicab was being driven at an excessive rate of speed, and as the Ford taxicab approached the automobile driven by Dupre, the taxicab was driven over to its left or its wrong side of the road and ran into the automobile driven by Dupre; that the collision occurred on the south or Du-pre’s right side of the highway. It is also charged in the petition that Deville had poor vision which prevented him from operating an automobile on the highway in a safe manner. In brief, the negligence charged to Deville is that he pulled his automobile over to his left side of the road and struck the other car while it was being driven on its right side of the road. As an alternative plea, plaintiff alleges that if any one was guilty of negligence for which plaintiff is responsible, the said Deville had the last clear chance to avoid the accident by remaining on his side of the road and slowing down his speed.

' The answer is a general denial of negligence on the part of Deville. It is alleged in the answer that Walter Dupre was driving the automobile of Mrs. Pomier in an intoxicated condition, without lights, at an excessive speed, and without having said automobile under control; that as said Dupre approached the automobile driven by Deville, the said Dupre swerved his car to his left and into the north traffic lane and into the path of the car driven by Deville, forcing Deville in the emergency which Du-pre thus created to pull his car to the left or south side of the highway, in order to avoid a collision with the oncoming car driven by Dupre.

The trial judge rendered a judgment in favor of the defendants, and dismissed plaintiff’s suit. From this judgment the plaintiff has appealed.

The testimony in the case clearly shows that Dupre, the driver of the Pomier car, was intoxicated at the time of the accident. He had just come out from the Evangeline Club where he had taken a drink, in addition to several drinks of beer which he had taken before arriving at this club. He testified that another man by the name of Andrus was in the car with him as he left the club; that it was dark, and he had on his lights; that he drove on his right hand side going east toward Ville Platte, and he was going slow; that the taxicab was coming fast from the opposite direction and tried to pass on his right hand side right in front of him, and the taxicab struck the front of his car. He says the accident happened about 100 yards from the Club. He admits that he had been drinking during the past two hours, but did not admit that he was drunk.

Andrus was called as a witness for plaintiff, and testified that he got in the car with Dupre when he left the Club. He testified that Dupre came out from the Club and got on his right side of the highway; that the taxicab crossed the road in front 'of him, and the collision occurred on Dupre’s right side of the road. The testimony of this witness is not at all impressive. He says that he drinks all the time when he is not working. Evidently he was drunk at the time of the accident. On being asked the question if he remembered where he was when the accident happened, he replied: “I thinkT was in the car.”

Deville testified that he was taking a colored boy named Dean to the Evangeline Club; that he was driving about 35 miles per hour on the right side of the road, and when he was within seven yards of the other car coming from the opposite direction, the other car turned to its left and into his traffic lane, and in order to avoid striking the other car, he pulled his car to the left and the front of his car struck the other car about the center of the highway. He says the accident happened around seven o’clock in the evening and the other car was about a block from him when he first saw it.

The colored boy in the car with Deville testified that Deville' was driving about 30 miles per- hour on his side of the road; that tlie other car was wobbling and coming very fast. He says the other car was about three arpents away when he first saw it and it was then on their side of the road. He could not tell how the accident happened. .

It appears from the evidence that Dupre had. borrowed the car from Mrs. Pomier, his sister, and for this reason plaintiff takes the position that neither she nor her subrogee, the plaintiff insurance company, would be responsible for any negligence of which he might have been guilty. This being the case, plaintiff claims that it is entitled to recover if Deville was guilty of any negligence. It is contended that he was negligent because he did not take proper steps to avoid a collision after he saw or should have seen the negligent manner in which Dupre was driving; that he should have slowed down and turned to his right when he saw Dupre coming toward him with his car on the wrong side of the road and wobbling as it approached.

Dupre and Andrus testified, and plaintiff alleged in its petition, that the car driven by Dupre was on its right side of the road. The only witness who testified that the Du-pre car was coming toward Deville on its left side of the road wobbling as it came was the colored boy Dean. This boy said the other car was about three arpents when he saw it coming on its wrong side of the road, and the other car did not get on its side of the road before the accident.

While Deville did testify that the other car was about a block away when he saw it, he did not say that it was coming on his side of the road for that distance, or that the car was wobbling from one side of the road to the other. From his testimony, it is to be inferred that the other car did not swerve to its left side of the road until it was within seven yards or so from Deville. If this was the situation Deville was faced by an emergency not of his creation, and it could not be said that he was guilty of negligence in attempting to avoid the oncoming car by turning to his left. He did not have time to survey the situation to determine whether or not it was best to go to the right onto the shoulder of the road, or turn left and avoid the collision by getting out of the path of the car.

While the trial judge stated in his opinion that Deville saw the car coming toward him without lights, and on its wrong side of the road for a distance of 300 feet, we fail to find in the record where Deville testified that he saw the other car coming on the wrong side of the road for a distance of á block or 300 feet. He did say that he saw the car coming for about a" block, without lights. Deville said: ‘T seen the car coming and I did not know what he was going to do. When I saw he was coming on my side I got on the left to avoid hitting him.” And a little further on in his testimony he says that he was about seven yards from the other car when he pulled to the left to avoid it. This indicates that the other car did not come onto Deville’s side of the road until it was within a few feet of him.

It is true that Deville was charged with the duty of avoiding a collision of the two cars if he could have done so after he saw, or should have seen, that the driver of the other car was coming over on his side of the road. He could not reasonably anticipate that the other car coming toward him without lights on its side of the road would suddenly swerve to its left when within seven yards of him. In our opinion, the negligence of Dupre was the sole and proximate cause of the accident, and no negligence is shown on the part of Deville.

For the reasons assigned, the judgment appealed from is hereby affirmed at the cost of plaintiff.


text:
    VIDRINE v. SOILEAU et al.
    No. 2956.
    Court of Appeal of Louisiana. First Circuit.
    Dec. 30, 1947.
    Robt. F. Dejean, of Opelousas, for appellant.
    E. Herman Guillory, of Ville Platte, for appellees.
   LE BLANC, Judge.

This is a suit for damages for personal injuries arising out of the act of an alleged malicious dog in having attacked and bitten plaintiff on one of his legs, above the knee, and causing a flesh wound.

Plaintiff and the defendant J. Leroy Soi-leau were both employed by the Cabot Carbon Company. Soileau is sued as the party who is alleged to have incited the dog to the attack and the Cabot Carbon Company is sued on the ground that it permitted the dog to remain on i'ts premises contrary to their regulations and policy and despite the warning it had received to keep the dog under observation because of the possibility of rabies. Judgment is prayed for against the defendant Soileau in the sum of $1300 and against Cabot Carbon Company for $700.

The defendants each filed exceptions of no cause and no right of action and the defendant Soileau also filed an exception of vagueness.

The extract from the minutes of court of December 30, 1946, shows that on that day, on motion of counsel for plaintiff, the suit was dismissed as to the defendant Cabot Carbon Company. From the extract of the minutes of court of March 20, 1947, it appears that an exception of no cause or right of action filed on behalf of the defendant, Soileau, was sustained. The effect of this ruling necessarily led to the dismissal of plaintiff’s suit.

No further action seems to have been taken by the court until April 7, 1947, on which day the minutes show that on motion made in open court, plaintiff was granted a devolutive appeal to this court, which was ¡made returnable on May 7, 1947. Bond for appeal was filed on May 3, 1947.

No mention whatever is made in the extract from the minutes of court about a judgment having been .rendered dismissing plaintiff’s suit and neither do we find any judgment, signed or unsigned, in the record that is before us.

The judgment rendered and signed is what forms the basis of the appeal in any case; in its absence the appeal will not lie and this rule applies to'a judgment on an exception of no cause of action which dismissed the plaintiff’s suit as well as to any other judgment decreeing likewise. See River & Rails Terminals, Inc. v. Louisiana Ry. & Nav. Co., 157 La. 1085, 103 So. 331; Crais v. City of New Orleans, 171 La. 285, 130 So. 867.

For the reasons assigned, the appeal herein is dismissed at the appellant’s costs.


author: LeBLANC, Judge.

text:
    DUOS v. KETTERINGHAM.
    No. 2959.
    Court of Appeal of Louisiana. First Circuit.
    Dec. 30, 1947.
    Rehearing Denied Peb. 2,1948.
    Writ of Certiorari Denied March 22,1948.
    Atlee P'. Steckler, of Ville Platte, for appellant.
    Allen R. Fontenot, of Ville Platte, for appellee.
   LeBLANC, Judge.

This is a suit for the balance which plaintiff claims is due him by the defendant on an alleged verbal contract which is substantially set out by him as follows in his petition:

On a certain day and date which he does not specifically remember, but which was in August, 1945, he and the defendant entered into a contract for the purchase by the defendant of sweet potatoes, delivered at his canning factory in Ville Platte, at the price and sum of $1.80 per one hundred pounds and, in addition, defendant was to pay the sum of ten cents per hundred pounds as hauling charges. The terms of payment were as follows : The price of the potatoes was to be paid twice weekly, based on the amount sold and delivered during the previous half-week and the hauling fee of ten cents per hundred pounds was to be paid at the end of the season, based on the entire amount of potatoes delivered.

Plaintiff alleges that during the season he sold the defendant 743,806 pounds of potatoes, the last delivery having been made on December 4, 1945, and that defendant has paid him the purchase price agreed on but has not paid him the hauling charges amounting to the sum of $743.80. After averring amicable demand without avail, he prays for judgment against defendant in the sum specified with interest at five per cent from December 4, 1945 and costs.

In his answer defendant admits having purchased sweet potatoes from the plaintiff between August, 1945, and December, 1945, to the amount of approximately 740,000 pounds at the price of $1.80 per hundred pounds for which he has paid plaintiff every time a settlement was due, but he: denies that he had any kind of agreement whatsoever with him to pay any additional ten cents per hundred pounds as hauling charges. Further answering he avers that during the potato season of 1944 he purchased potatoes from the plaintiff in the same manner and under the same method as he did in 1945; that he never paid any hauling charges but to the contrary, plaintiff went out into the fields and bought potatoes at the best market price available to him and then in turn sold them to defendant at a fixed price without any additional agreement for the hauling. Defendant further avers that he has followed this cu'stom of buying potatoes since he has been in the canning business; that he has several buyers purchasing for him and they all operate and do business with him in the same manner as just outlined.

The simple matter before the court as evidenced by the pleadings is whether or not there was a contract between these two parties under which defendant was to pay plaintiff the hauling charges claimed by him in addition to the purchase price of the potatoes. As there is no written or documentary evidence concerning the issue in controversy, the case necessarily has to be decided on the oral testimony o.f the plaintiff and that of the defendant as corroborated by that of their respective witnesses and by such other facts and circumstances, if any, which may tend to support them.

Plaintiff being the one who declared on a contract Under which he seeks to recover, naturally assumed the burden of establishing the same and this he had to do by a preponderance of testimony. The trial judge held that he had carried that burden and rendered judgment in his favor. Defendant has taken this appeal.

The testimony of the plaintiff is to the effect that, with the agreement in mind on the part of Ketteringham to pay him for the hauling charges after the potato season was over, he called at the office and demanded the amount due him. Mr. Ketter-ingham was not there at the time and his conversation was with Mrs. Ketteringham who apparently conducted the office business. He says that Mrs. Ketteringham told him that she was ready to pay him, but not the full amount he claimed as during the season, Mr. Ketteringham had told him (plaintiff) that he would stop paying him that extra dime. Shortly thereafter, upon having learned that Mr. Ketteringham had returned to the office, he called back and Mr. Ketteringham then insisted that he owed him the hauling charges for only a part of the season as during the season he had told him that he would not pay for the whole season. There were heated words between them with threats on the part of Ketteringham so he left the office and went to consult an attorney.

Mrs. Ketteringham recalled plaintiff’s visit to the office when he made demand for the hauling charges but she testifies that she told him she knew nothing about any agreement to pay such charges and that she would have to ask Mr. Ketteringham about the matter. She told plaintiff that if they were approved he would receive his check. She denies having told him that it was her understanding that Mr. Ketteringham had notified plaintiff during the season that the hauling charges would no longer be paid and that she was willing to pay for them up to the date of that notice but no more. Plaintiff had also stated that at this point in their conversation, Mrs. Ketteringham had turned to one of the young ladies who worked in the office and asked her if she had a record of the date of the notice of discontinuance. This, Mrs. Ketteringham also denied.

From that part of Mrs. Ketteringham’s testimony that she would ask her husband about the charges plaintiff claimed and that if they were approved he would receive his check, it is urged that we have corroborating proof that there was an agreement to pay this ten cents hauling charge. The weakness of this argument is easily demonstrated however for Mrs. Ketteringham denies most positively that part of the plaintiff’s testimony and even had she told plaintiff what he says she did, it is definitely shown by her testimony and that of Mr. Ketteringham that no one but Mr. Ketter-ingham himself was authorized to make any agreements relative to the price to be paid for potatoes and it would, not have involved either of them had she, as a matter of cou'rtesy, told the plaintiff that she would have to talk to her husband about the matter to find out if he had made such an agreement, and that if he had, the amount would be paid.

Ketteringham of course denies, vehemently, as states the trial judge in his written reasons for judgment, that he had any such agreement with Duos, the plaintiff, or with anyone else. He explains that in operating his canning1 business he always had a set price for any commodity he bought, whether it was beans, potatoes or anything else. He refers to it as a "support price” fixed by the United States Agriculture Department to prohibit buyers from paying too low a price to the farmer for the commodity he sells. For sweet potatoes the price for 1945 was fixed at $1.80 per hundred pounds and that is what he paid. In that year he canned between ten and twelve million pounds of potatoes which he bought from farmers living as far as Sunset, Scott, Eunice and Arnaud-ville as well as from local farmers and he paid the same price to all.

From the testimony of the principals in the case therefore, it can hardly be said that plaintiff has produced a preponderance of proof. The trial judge seems to favor the plaintiff because he says that it is hard for him to “conceive that a man of his standing could hatch a plot to extort money from the defendant in such a manner.” There is nothing that we find in the record which demonstrates the “standing” of the plaintiff. From their conduct at the time of the interview in defendant’s office we would say that both he and the defendant are of a rather impulsive nature or disposition. We may well assume however, that he is a man of good character and standing and yet there is nothing in the record to show that the defendant is not equally so. Judging from the volume of his business and his credit rating he must be quite a substantial and successful business man and there is nothing to suggest that he is a man who would welsh on an obligation of $730 which he has legally contracted to pay.

The trial judge seems to infer the existence of the contract declared on by the plaintiff from what he says is his personal knowledge of similar contracts not only in the potato industry but also in the hauling of cotton to cotton gins, of soy beans to the oil mills, etc., in the 1945 days of keen competition and heavy demand for commodities of this nature. We must bear in mind however, that here plaintiff is relying on a specific verbal contract which he and the defendant personally entered into and not on what is or has been the custom in such matters in this and other related industries. We doubt therefore that the trial judge was within his rights in applying his personal knowledge of such matters even assuming that his knowledge may be correct Besides, we understand from the defendant’s testimony, that he was supplied with all the potatoes he needed to fill the volume of his business and as he seems to have had no keen competition in this immediate area, he did not have any reason, apparently, to pay a premium to any one seller for his potatoes.

Finally, the trial judge, in his written reasons, holds that plaintiff has produced the preponderance of proof by the testimony of three disinterested witnesses who, he says, testified that they had similar contracts with the defendant and that he had refused to pay them also. These three witnesses were Voorhies Lafleur, Kelly Chapman and Edison Lafleur. To obtain the full import of their testimony it is necessary to review that of each separately.

Voorhies Lafleur testified that he hauled potatoes for the defendant in 1945; that he paid him $1.80 for ones and twos and that defendant "said he would give him ten cents for a hundred, for the hauling.” This ten cents arrangement, as we understand him to state, was a sort of secret agreement. He could recall that it took place at the canning factory but was unable to state when it was nor any of the circumstances attending it except he remembered later that Ketteringham was entering his automobile, at the factory, when he told him he would pay him this additional amount for hauling. After the season was over he endeavored to collect but Ketteringham told him that he had forgot to tell him, but he had told Elie Duos that the ten cents agreement had been called off during the season. Nevertheless, Lafleur then says that Ketter-ingham refused to pay him and that seems to have ended the matter as far as he was concerned. He didn’t sell the defendant more than 2000 pounds for which he was paid, and whilst it is true that the amount of ten cents per hundred which he claimed additionally was small, it strikes us that had he had such a contract with the defendant he would have insisted a bit more than he did to be paid. Ketteringham again denies having made any such agreement with this witness and in fact says that he doesn’t even know the man. Mrs. Ketter-ingham, who, the witness says, was in the office when demand was made for the hauling charges, says that she knows him as one who delivered potatoes to the factory at different times but that he never made any demand for hauling charges as he testified about.

The witness Kelly Chapman does not claim that he had an agreement for the extra ten cents with the defendant himself but testifies that Ray Ardoin, who is employed by Ketteringham, offered to pay $1.80 for potatoes and ten cents extra (presumably for hauling.) He, however, did not haul any potatoes at all that season as it seems he had some sort of agreement with Duos, the plaintiff, that either the one or the other would do the hauling.' Ardoin apparently occupied a responsible position at defendant’s canning factory and whilst he was authorized to buy potatoes he was restricted by instructions given him regarding the price he was to pay. He did discu'ss buying potatoes with Chapman and the price agreed on was $1.80 which he states was the same price paid to everybody. He was not authorized to pay any additional amount for hauling. Ardoin’s testimony concerning his authority to buy potatoes is corroborated by Ketteringham who states also that it is limited by the price established by him at the beginning of the season.

The witness Edison Lafleur does not claim to have had any agreement with Ket-teringham regarding hauling charges. He states that he went to the office one day and asked Mrs. Ketteringham if they wanted potatoes and she told him that if he would haul potatoes they would give him ten cents a hundred for hauling and pay him $1.80 per hundred pounds for the potatoes. He hauled one load and then stopped because when he asked for his hauling fee for that load, Mrs. Ketteringham told him they were not paying the hauling any more. Mrs. Ketteringham denies that she told this witness that they would pay him hauling charges and states that she had no authority to tell him that. She further states that upon investigating the files of the office she could find nothing relating to any transaction with this witness.

Against the testimony of these three witnesses, there is found a stipulation in the record to the effect that three other parties, Leon Castille, Augu'st Gonsulin, both of Sunset, and Oscar Cormier of Opelousas, would, if they had been placed on the witness stand, all three testify that during the season o.f 1945, they and each of them sold large quantities of potatoes to the defendant at the fixed price of $1.80 per hundred pounds and that they did not have any agreement to receive an additional ten cents per hundred pounds for hauling them to Ville Platte. It is difficult to understand why plaintiff should have been favored over these sellers when, as shown, his haul was a considerably shorter distance than theirs.

These are the important facts in the case in which we are concerned merely with the application of the rule which requires a plaintiff to prove his case to a legal certainty. It is important too in considering the quality of the proof offered that we keep the provisions of Art. 2277 of the Civil Code in mind. That article requires certain specific proof of contracts relating to movable property when the value exceeds $500. It provides that such contracts must be proved “at least by one credible witness, and other corroborative circumstances.” As the contract declared on is one relating to movable property and the value is in excess of $500, that rule also applies. ’After carefully considering the entire proof in the record we have con-eluded that plaintiff has failed to carry the burden which the law thus imposed on him and his demand therefore has to be rejected.

For the reasons stated it is ordered that the judgment appealed from be and the is hereby reversed and set aside, and

It is further ordered that there be judgment in favor of the defendant and against the plaintiff rejecting the latter⅛ demand and dismissing his suit at his costs.


author: O’NIELL, Chief Justice.

text:
    212 La. 559
    LIONS et al. v. REINE et al.
    No. 38343.
    Supreme Court of Louisiana.
    Dec. 15, 1947.
    Waverly A. Henning, of New Orleans, and Frank H. Langridge, of Gretna, for re-lators.
    Lubin F. Laurent, of New Orleans, for defendants.
   O’NIELL, Chief Justice.

This is a proceeding by certiorari and mandamus to compel the judge of the district court to grant a writ of injunction to prevent the sale of certain property belonging to the Succession of Jules Reine and his wife, Emilie Chauff Reine, deceased, to pay the debts of the succession.

The property of the succession consists of a plantation and another tract of land, both inventoried at $25,235, and movable property inventoried at $7,292.11 and consisting of the agricultural implements and work animals, constituting the equipment of the plantation, and being therefore immovable by destination. The total value of the property of the succession is $32,-527.11. The debts of the succession amount to $10,289.10. On the petition of the ad-ministratrix the judge ordered all of the property sold to pay the debts of the succession. The plaintiffs in this case, who are some of the heirs of the deceased, complained in their petition for an injunction that the court should' not have ordered all of the property sold to pay the debts of the succession, but should order the sale of only the movable property, consisting mainly of the work animals and agricultural implements belonging to the plantation, together with only a sufficient part of the plantation itself to pay the debts of the succession. After the trial of .a rule to show cause why a preliminary injunction should not issue to prevent the sale of any other property than the agricultural implements, work animals and other equipment of the plantation, together with a part of the plantation itself sufficient to pay the debts, the judge concluded that the property could not be sold in that way without diminution of the value of the plantation, equipped as such. Hence he declined to issue the injunction.

The figures on the inventory show that, if the judge had ordered a sale only of the movable property, consisting mainly of the work animals and agricultural implements and other equipment on the plantation, the proceeds would not have been enough to pay the debts, and hence it would have been necessary to sell a part of the land itself. It is possible that a sale of the plantation and its equipment of work animals and agricultural implements would have brought a sufficient price to pay the debts without the necessity of selling the tract of land which does not form a part of the plantation. But the plaintiffs in their petition for an injunction did not demand that the judge should order a sale only of the plantation and its equipment and should refuse to order the sale of the tract which the plaintiffs refer to as being not a part of the plantation. The demand of the plaintiffs — and their entire argument —is that the judge should have ordered a sale only of the movable effects, consisting mainly of the work animals and agricultural implements on the plantation, and sell only a sufficient part of the plantation to realize a sum sufficient to pay the $10,289.10 of debts.

Articles 1165 and 1166 of the Civil Code provide that, if the amount of the debts of a succession indicates that it is necessary to sell either all or a part of the immovable property of the succession the succession representative shall petition the judge for an order for the sale of the immovable property or of so much thereof as may be necessary to pay the debts. But there is nothing in these articles which deprives the judge of his discretion in the matter if the immovable property of the succession consists of a plantation and its equipment, and if, therefore, a dismantling of the plantation would entail a loss to the succession. In such a case the judge must exercise some discretion in determining whether he shall sell the plantation as it is or shall dismantle it; and in this case it does not appear that the judge abused his discretion.

The petition of the relators for a writ of mandamus is denied and this proceeding is dismissed at their cost.


author: McCALEB, Justice.

text:
    212 La. 563
    Succession of RATCLIFF.
    No. 38473.
    Supreme Court of Louisiana.
    Nov. 10, 1947.
    Rehearing Denied Dec. 15, 1947.

      Herold, Cousin & Herold, of Shreveport, for appellant Mrs. Helen L. Ratcliff.
    O. W. & B. D. Bullock and Blanchard, Goldstein, Walker & O’Quin, all of Shreveport, for substituted appellees.
   McCALEB, Justice.

This is the second time this case has come before us for consideration. On the first occasion (see 209 La. 224, 24 So.2d 456) the executors were appealing from a judgment sustaining the opposition of the widow in community, Mrs. Helen L. Rat-cliff, to their first annual account. That account stated the net value of the community estate to be $86,379.65. The effect of the decision in the lower court was to increase the net value of the community estate to $144,736.36. On the appeal, we reversed the judgment insofar as it maintained the opposition to the item of $35,500 charged against the community as interest paid; thus reducing the net value of the community, as fixed by the district court, to the sum of $109,236.36.

After the case was remanded to the district couft, the executors filed their final account which contained the basis for settlement of the community estate. In the proposed settlement Mrs. Ratcliff was found to have a 5.82% interest in the net assets of the entire (separate and community) estate. Accordingly, she was charged with that percentage of all expenses of administration of the succession and in the same proportion for her share of the federal estate tax. Mrs. Ratcliff, taking the position that she is a creditor of the succession, filed an opposition to the account claiming interest on the amount of the alleged debt'and asserted that she is not liable for any portion of the expense of administration or of the federal estate tax paid by the executors. In addition, she maintained that, whereas she is indebted to the community estate for the value ($2,-000) of an automobile delivered to her, as well as in the sum of $6,478.40 for improvements to and advances for her separate estate by the community, the executors have wrongfully charged her for the full amount of this indebtedness on their account and that, being the owner of half of the community assets, she should be charged with one-half only.

After a trial of the opposition, the district judge, finding that Mrs. Ratcliff was not a creditor of the estate, held her liable for her just proportion of expenses of administration and the federal estate tax and dismissed her claim for interest. He, however, maintained the opposition with respect to the claim that she should be charged with only one-half of her indebtedness to the community. Thereafter, a rehearing was granted to the executors and the judge, upon reconsideration, dismissed the opposition of Mrs. Ratcliff in all respects and approved and homologated the executors’ account as filed'. Mrs. Ratcliff has appealed from the adverse decision.

The appeal involves questions of law and fact. The question of law is founded upon the contention of Mrs. Ratcliff that she is a creditor of the separate estate of her husband and, hence, entitled to legal interest on the amount which the executors propose to pay and that, being a creditor, she is not liable for any part of the costs of administration based upon the indebtedness due her or for any part of the federal estate tax figured upon such indebtedness. We direct our immediate attention to this proposition.

Counsel for Mrs. Ratcliff open the argument in their brief with this statement: “We cannot too often state or emphasize the fact that at the death of Ernest R. Rat-cliff, the community owned no property other than a miscellaneous lot of household furniture and $1.59 in the hank. The community, however, was a creditor of the separate estate in a large sum, the amount of which had never been liquidated.” (Italics are those of counsel.)

Buttressed by this premise, counsel make a most appealing argument to the effect that Mrs. Ratcliff should not be required to pay any part of the expenses of administration or taxes and that she is entitled to interest on the amount the executors propose to pay her.

In our view, the contention cannot prevail because it is based upon the fallacious notion that Mrs. Ratcliff or the community estate is a creditor of Ratcliff’s separate estate when no such relation (debtor and creditor) actually exists either in law or in fact. When Ratcliff and the opponent were married in 1937, the former was a comparatively wealthy man. The marriage superinduced the existence of a community of acquets and gains, Civil Code, Article 2399, and thereafter all property acquired by either spouse during the marriage formed part of the community, Civil Code, Article 2402. Moreover, under the provisions of Article 2402, the fruits or income of the separate property of the husband fell into the community for the article declares that the community “consists of the profits of all the effects of which the husband has the administration and enjoyment * * See Succession of Goll, 156 La. 910, 101 So. 263, and Peters v. Klein, 161 La. 664, 109 So. 349.

In the instant case the entire community, with the exception of miscellaneous personal property, is composed of the income from Ratcliff’s separate property. There was never an indebtedness by his separate estate to the community estate for the amount of this income. The income from his separate estate became community property from the moment Ratcliff received it. And he received it in his capacity as head and master of the community and not for his separate estate.

Upon dissolution of the marriage by Ratcliff’s death, a presumption arose that all property possessed by either spouse belonged to the community, Civil Code, Ar-tide 2405. However, it is conceded in this case that most of the property belonged to the separate estate of the husband and that, except for miscellaneous personal property, the entire community estate consists of income derived from the separate estate. It is not correct to say that the separate estate is indebted to the community for this income. On the contrary, the community owned it. At the date of death, the community was divided into' two equal portions, Civil Code, Article 2406, and Mrs. Ratcliff became the owner of a one-half interest therein. She was never a creditor in any sense. However, although her interest as an owner in the community attached from the moment of its dissolution, she could not demand delivery until the payment of the community debts. Succession of Dumestre, 42 La.Ann. 411, 7 So. 624; Tugwell v. Tugwell, 32 La.Ann. 848 and Tomme v. Tomme, 174 La. 123, 139 So. 901.

Since Mrs. Ratcliff is the owner of a community interest in her husband’s succession and not a creditor of his separate estate, it follows that she is not entitled to interest on the funds due from the succession and that she is liable for her proportionate share of the expenses of administration. Likewise, inasmuch as her community interest was subject to the federal estate tax under the provisions of section 402(b) of the Revenue Act of 1942, amending section 811(e) (2) of the Internal Revenue Code, 26 U.S.C.A. Int.Rev. Code, 811(e) (2), it seems manifest that she is liable for her proportionate share of the tax paid by the executors.

On this phase of the matter, counsel for Mrs. Ratcliff contend principally that she is not responsible for any part of the federal estate tax because she is a creditor of her husband’s estate. But, above this, they suggest that, since the courts must resort to equitable principles in determining how the tax burden shall be distributed among those who share in the taxed estate, the only just way to evolve the proportion of tax to be borne by the widow in community, in cases where the husband leaves a large separate estate, is to compute the tax which would have been due on the community alone and apportion it equally between the husband and wife. This postulate is best explained by an example given ¡by counsel. They say “suppose a man die, with a separate estate of $1,000,000, and a ■community of $50,000. The total tax upon an estate of $1,000,000 is $251,700. The total tax upon an estate of $1,050,000 would he $19,500 additional, or $271,200. The total tax on $50,000 estate is $4800. The $1,000,000 estate pays a tax of more than 25%; the $50,000 estate a tax of 10%. We are unable to find any semblance of equity in the suggestion that there should be imposed upon one interested in the smaller estate a tax measured by rates applicable to the larger one.”

We think that the failure of counsel to discover the justice in requiring that the tax be shared proportionately by all emanates from their unwillingness to recognize that there is but one estate for federal taxation purposes and that the tax is levied on the whole, i. e. — the community and separate property. This being so, equitable principles demand that the burden be divided between all persons sharing in the estate in accordance with their respective interests. There is no just way to apportion the tax burden by measuring it by different rates. Counsel give illustrations of a small community estate and a large separate estate in their attempt to demonstrate .that it is unfair to load the community estate with the high rate of taxation resulting from the addition of the separate estate. No examples are given, however, of a very large community estate and a small separate estate. What happens in such cases ? May the heirs of the husband’s separate estate deny their liability for their proportionate part of the entire tax on the ground that, if it had not been for the community estate, they would have paid a much smaller tax? We think not. To require the widow in community to bear the larger rate of the tax in such case would be to impose upon her a portion of the tax re-suiting exclusively from the transmission of property to the heirs. The reverse is true in this case. The widow in community cannot require the heirs of her husband to pay more than their just proportion of the increased rate of taxation brought about by the addition of her community interest to the total estate for taxation purposes.

Disposal of the foregoing questions of law leaves only for consideration three disputéd questions of fact which, for purposes of discussion, may be treated as one. One of the assets of the community was an automobile valued at the sum of $2,000. This car was turned over to Mrs. Ratcliff by the executors. In addition, it appears that Mrs. Ratcliff became indebted to the community estate in the sum of $2,478 for certain property purchased during the marriage for her separate estate. She also owes the community $4,000 for payments made on account of a note referred to as the “Roselli” note. These debts are admitted but her counsel maintain that, in the proposed settlement of the community estate, the executors have wrongfully charged her with the full amount of these debts. They claim that she should only be charged with one-half of the total amount of the debts for the reason that, as surviving widow in community, she is owner of one-half.

A perusal of the account satisfies us that the contention is not well founded. In the list of assets which revealed a net community estate of $86,379.55 (subsequently increased to $109,236.36), there is included the Packard automobile valued at $2,000, and the indebtedness of Mrs. Ratcliff of $6,474.80 for payments on the “Roselli” note and the advance for the Cambridge real estate. Hence, she is given credit for a one-half ownership in these assets although they are not actually in the hands of the executors for distribution. Consequently, the executors have properly deducted from Mrs. Ratcliff’s share in the net community estate the total amount of her indebtedness to the estate and also the value of the Packard automobile which she has already received. That the method used by the executors is correct and gives Mrs. Ratcliff all to which she is entitled will be readily seen by use of the following simple example:

A man dies leaving a community estate with cash assets of $150,000. In addition to this, it is disclosed that his widow is indebted to the community in the sum of $50,-000. The inventory of the community estate will be $200,000, i. e., $150,000 cash and $50,000 debt of the widow. Assuming that there are no succession debts, the widow will receive $50,000 for the reason that her share is $100,000, less the $50,000 which she owes to the community estate.

The judgment appealed from is affirmed.

O’NIELL, C. J., concurs in the decree.

       Constitutionality upheld in Fernandez v. Wiener, 326 U.S. 340, 66 S.Ct. 178, 90 L.Ed. 116.

       The federal statute leaves it to the several states to determine how the tax burden shall be distributed among those who share in the taxed estate. Riggs v. Del Drago, 317 U.S. 95, 63 S.Ct. 109, 87 L.Ed. 106, 142 A.L.R. 1131. Since Louisiana has no express law on the subject, the court must apply equitable principles under Article 21 of the Civil Code.