author: TALIAFERRO, Judge. KENNON, Judge

text:
    OGDEN v. THOMAS.
    No. 7367.
    Court of Appeal of Louisiana. Second Circuit.
    June 30, 1949.
    Rehearing Denied Aug. 16, 1949.
    Vernon W. Woods, Shreveport, for appellant.
    Garrett & Pleasant, Shreveport, for ap-pellee.
   TALIAFERRO, Judge.

This is a suit in which plaintiff claims the sum of $4,000.00 damages alleged to have resulted from an unprovoked assault made on him by defendant. After trial there was judgment in favor of defendant rejecting plaintiff’s demands, from which plaintiff brings this appeal.

The facts show that defendant is the operator of a neighborhood coffee shop located on St. Vincent’s Avenue in the City of Shreveport. Plaintiff at the time of the difficulty was employed at a manufacturing concern also located on St. Vincent’s Avenue, almost directly across said street from •defendant’s cafe.

The facts, which are well established, show that on the morning of the day of the 'trouble a little before noon, plaintiff entered defendant’s place of business, purchased and paid for a -package of cigarettes, being served by defendant, then seated himself at the cafe counter, ordered and was served with a coca-cola. Plaintiff stayed in the cafe some little time, during which period he was occupied with consuming one or two drinks of liquor from a pint bottle which he had on his person, as well as the innocuous beverage which he had ordered. In the course of his stay he engaged in some words with defendant’s wife, which, according to the testimony, consisted principally of the statement on his part: “I don’t like you.” And her reply: “I don’t like you either.” This exchange, which was repeated once or twice, was not conducted in a loud tone of voice, and apparently was not disturbing to other patrons of the cafe. During all this time defendant was busy in the kitchen of the cafe, and, according to his testimony, knew nothing either at this time or later of any of these facts with the single exception of the knowledge that plaintiff had left his whiskey bottle, which information was later conveyed to defendant by his wife. Plaintiff placed his pint whiskey bottle under the counter, left the cafe, crossed the street and seated himself on a concrete step in front of his place of employment, assertedly for the purpose of waiting for his employer in order to collect his week’s pay. Another employee of the same establishment was seated on the step at plaintiff’s right side and his testimony, as well as that of plaintiff, is that plaintiff occupied himself with whittling a piece of wood with his pocket knife.

Meanwhile defendant, having been advised by his wife that plaintiff had left his whiskey bottle, picked up the bottle which he grasped by the neck, left his duties as cook, and walked out of his place of business with the announcement that he intended to talk to plaintiff or lecture him. Defendant then proceeded across the street and without uttering a word and without having been observed by plaintiff, closely approached plaintiff’s location.

At this point there is an irreconcilable difference of testimony. Defendant testified that plaintiff drew back his right hand holding the knife. This is denied by plaintiff. The only eyewitness, plaintiff’s fellow employee, seated at his side, testified that he didn’t see it and assigns the strange reason that he was looking away. Regardless of these facts, it is undisputed that without a word being spoken by any party, defendant violently smashed the whiskey bottle in plaintiff’s face, which action was followed with a blow of his fist. It was then for the first time defendant claims to have demanded that plaintiff give up the knife. After the second blow, defendant recovered the knife, permitted plaintiff to rise from the concrete floor of the step, and, still without a word on his part, plaintiff betook himself to the washroom for the purpose of cleansing the blood which was flowing freely as the result of cuts inflicted by the broken bottle. Defendant then called the police, who after arrival on the scene, removed plaintiff to the hospital for attention. Defendant did not prefer any charges.

There is considerable reflection, and justly so, upon plaintiff’s credibility. The conclusion is inescapable after study of plaintiff’s testimony, that he either perjured himself or was intoxicated to such degree that he had no recollection of certain events and incidents to which he testified. Plaintiff’s character is further shattered by evidence of a police record for intoxication and vagrancy. Notwithstanding the unsatisfactory testimony on the part of plaintiff himself, certain material facts are conclusively established.

Concededly the law of Louisiana is well established by an impressive line of jurisprudence that a plaintiff seeking damages for an assault can not recover if he is the aggressor. It follows that if the facts of this particular case justify a holding of aggression the defendant must be exonerated from liability. But we cannot so hold.

Plaintiff’s conduct in the cafe, while obnoxious, was not such as to justify defendant’s subsequent acts. This conclusion is justified on two grounds: First, that defendant knew nothing of plaintiff’s actions with the single exception of his leaving the whiskey bottle, and, second, a consideration of the time element necessitates a finding that whatever difficulty had taken place in the cafe was terminated and at an end prior to the time defendant embarked upon his subsequent action.

Defendant claims that he was motivated in his actions by a number of sound, logical and indeed, praiseworthy reasons. First, he did not permit the imbibing of intoxicants in his cafe; second, he entertained as patrons a number of plaintiff’s fellow employees and other people whose patronage he did not wish to lose, and, third, he felt called upon to lecture plaintiff and to this end was taking back the whiskey bottle which had been left in his place of business. But we are constrained to hold, despite the advancement of these motives, that defendant was actuated by something more than the purposes set forth. One of defendant’s witnesses testified, with respect to his appearance at the time he left the cafe in pursuit of plaintiff: “I would say he was perhaps agitated but not too angry.”

The plain inference to be drawn from this testimony is that defendant was both agitated and angry, which conclusion more comports with his actions than his own explanation. It is difficult to believe that defendant would have left his place of business, in which he was the cook, during the noon lunch rush solely for the purpose of delivering a temperance lecture to a man whom he believed to be intoxicated.

Further, it is only reasonable to conclude that a man, drunk or sober, seated on a step attending to his own business, even though such business at the time consisted merely of whittling a piece of wood, would be considerably disturbed by the appearance before him of an individual grasping a whiskey bottle by the neck. If under such circumstances, further considering that defendant spoke no word to explain his purpose, plaintiff indeed drew back his right hand holding a pocket knife, such action was only instinctive. It must be noted that there is not one whit of testimony to the effect that plaintiff made any motion toward defendant with the knife or indicated that he intended so to do. In our opinion there was no act on the part of plaintiff which justified defendant in smashing a whiskey bottle into his face.

The case of Ponthieu v. Coco, La.App., 18 So.2d 351, 355, is sound authority for our findings in the instant case. In the Ponthieu case the facts showed that there had been a difficulty between plaintiff’s brother and the defendant. This difficulty had been terminated and defendant had entered his car and started to drive away from the place when plaintiff came upon the scene, having left his work some 350 feet away, and by his actions provoked the attack by defendant. The judge of the District Court in the Ponthieu case, whose opinion was quoted by this court, made the following statement appropriate to the matter before us:

“The Court is satisfied if the plaintiff had not come out in the road and called out to defendant to wait, but had remained at his post working on his automobile, the original trouble would have ended.”

So, in the instant case, if defendant had remained in his place of business and had not sought out the plaintiff, the difficulty which is the basis of this action would not have been provoked.

This point was emphasized in the opinion of this court on the Ponthieu case as follows :

“We have carefully studied the record and are convinced, as was the lower Court, that plaintiff was the aggressor. Defendant’s affray with plaintiff’s brother, Wilson, was over and defendant had re-entered his car, turned it around and started towards his home when the plaintiff appeared on the scene and asked him to a stop and discuss the trouble. Defendant did not reply and did not stop (and) when he drove past plaintiff struck at him. The record fails to disclose that defendant had said one word to plaintiff or had done anything to him up until that time.”

Reversing the use of plaintiff and defendant in the above quotation, the identical reasons may be assigned in this case.

Reverting to the proposition which is strenuously advanced on behalf of defendant, we call attention to the fact that the burden was on defendant to establish some overt or threatening act on the part of plaintiff. Under our appreciation of the facts we think that in this he has signally failed.

Notwithstanding the fact that plaintiff sued for a substantial amount, we find little evidence in the record which would justify any large award. Plaintiff finally reduced his claim for loss of wages to an amount of $52.00 and his medical expenses a total of $21.00. We do not believe plaintiff is entitled to any allowance for humiliation and embarrassment, and the only additional item for which he deserves compensation would be with respect to pain and suffering, which is not shown to have been of any considerable degree.

Under these circumstances we think a nominal allowance of Two Hundred Fifty and No/100 ($250.00) Dollars would be adequate.

For the reasons herein assigned, the judgment from which appealed is reversed and set aside and there is now judgment in favor of plaintiff, William M. Ogden, and against the -defendant, Gus Thomas, in the full sum of Two Hundred Fifty and No/100 ($250.00) Dollars, with interest thereon at the legal rate from date of judicial demand until paid, and for all costs.

KENNON, Judge

(dissenting).

I believe, under the finding of fact disclosed by the majority opinion, that the following paragraph from the First Circuit Court of Appeal case of Landry v. Himel, La.App., 176 So. 627, 629, is applicable:

“Where a plaintiff provokes a difficulty by insults, abuse, threats, or other conduct calculated to arouse resentment or fear on the part of the defendant, the plaintiff cannot recover for an assault and -battery, although the defendant may not have been justified in law in his conduct. Finkelstein et al. v. Naihaus, et al., La.App., 151 So. 686; Walsh v. Schriner, La.App., 168 So. 345; Massett v. Keff, 116 La. 1107, 41 So. 330; Johns v. Brinker, 30 La.Ann. 241.” (Emphasis mine.)

The above paragraph was cited and followed by the First Circuit Court of Appeal in the case of Manuel v. Ardoin, La.App., 16 So.2d 72.

In the case of Ponthieu v. Coco, La.App., 18 So.2d 351, this Court approved the statement that, under the Louisiana jurisprudence, “one provoking a difficulty with another cannot recover damages from him for assault, though the assault was not legally justified.” The Court of Appeal reproduced, with approval, the following from the District Court’s opinion in the Ponthieu case:

“ ‘The courts of Louisiana have consistently held that before a plaintiff can recover damages under such circumstances, it must be affirmatively shown that the plaintiff did not provoke the difficulty or was not at fault in provoking it, * * *.’ ”

Assuming for the sake of argument that Thomas’ purpose in crossing the street with the whiskey bottle in his hand was hostile and that Ogden did not make the threatening gesture, the fact remains that plaintiff’s conduct in defendant’s cafe and his leaving the whiskey bottle in a place where the drinking of intoxicating liquor was not permitted was calculated to cause resentment on the part of Thomas.

Under the rule above announced, for plaintiff to recover, the record must show that he did not provoke the difficulty, and was not at fault in provoking it. In my opinion the record does not show that plaintiff was without fault. My further belief is that, accepting the facts as found in the majority opinion, defendant, as a matter of law, is not responsible to plaintiff.

For these reasons, I respectfully record this dissent.


source: Caselaw Access Project

author: MOISE, Justice.

license: Public Domain

text:
    215 La. 795
    CITY OF NEW ORLEANS v. DUPUY STORAGE & FORWARDING CORPORATION.
    No. 39437.
    Supreme Court of Louisiana.
    June 30, 1949.
    Robert L. Hickerson, New Orleans, for defendant and appellant.
    Michel Provosty, New Orleans, for plaintiff and appellee.
   MOISE, Justice.

This is an action to compel the defendant, Dupuy Storage and Forwarding Corporation, to carry out an agreement to purchase from the plaintiff, at a stipulated price of $11,215.20 cash, certain lots of ground described in the petition. It is admitted that the land is vacant, that it is not taxable, nor dedicated for a public use; and it is alleged that the property is not needed by the Public Belt Railroad System for use in the operation thereof, either presently or in the future. The defendant admits that it is obligated to buy the property at the price stated but questions the authority of the plaintiff to sell the property and convey a good and merchantable title. There was judgment in the district court compelling the defendant to specifically perform, and from this judgment the defendant appeals.

The Public Belt Railroad System is of municipal origin, Ordinance No. 2683 NCS, with constitutional recognition, Art. 14, Sec. 26, Const. 1921. With its creation, an additional facility to promote commerce and establish a mode of handling freight and railroad cars throughout the territorial jurisdiction of the port, as well as the transportation of railroad freight cars to all points within and without the City, was provided. Its objective is to prevent discrimination, to afford to all users of its service the same equality of right as to timely movement of cars and freight, as well as a uniformity of service charges. The land in question was bought by the plaintiff some twenty years ago in contemplation of using it for public purposes. The Commission, finding that the property is not suitable for the purpose for which it was bought and is, therefore, an idle investment, is desirous of disposing of it. The opportunity is now presented to use the property for a purpose germane to the development of the Public Belt System. In the proposed act of sale to the defendant there is contained the covenant that the vendee shall construct an industrial plant within one year from the date of the sale, to be serviced by the Public Belt, the tracks to be built for such service at the expense of the vendee. The writing in of this covenant of necessity forms a component part of the development of the system by bringing about an increase of revenues and by taking idle property out of commerce. An increase in revenues is “a consummation devotedly to be wished for” because this utility is supported in the main by its own revenues.

The defendant contends that the provisions of the Constitution and the laws providing for the creation and operation of the Public Belt Railroad Commission do not authorize the sale of real estate belonging to it, except in certain stipulated cases; that the proposed sale by plaintiff to defendant would be an ultra vires act of the plaintiff’s representatives, and therefore, defendant would not acquire a good and merchantable title; and that, if plaintiff is authorized to sell the land, there is no provision for the method of sale.

The pertinent part of Article XIV, Sec. 26 of the Constitution of 1921 provides :

“It shall be the duty of the City of New Orleans to continue the operation of a Public Belt Railroad by and through a commission to be known as the Public Belt Railroad Commission for the City of New Orleans. * * * The control, operation, management and development of the Public Belt Railroad system shall be exclusively vested in said commission, which shall always be separate and distinct from that of any railroad. * * * Said Public Belt Railroad system shall be and remain the sole property of the people of the City of New Orleans at all times, and shall in no way or manner ever be hypothecated or alienated.”

Defendant argues that the provisions of this article prohibit the Commission from disposing of the property. The above language, however, is clear and free from ambiguity and shows conclusively that the hypothecation or alienation therein referred to affects and applies specifically to the Public Belt Railroad System. Certainly, there is no provision in the law prohibiting the Commission from disposing of an idle investment. This land, as shown by the admitted statement of facts, forms no part of the Public Belt System, has never been dedicated as a part thereof, and the constitutional framers never intended that the right to develop should be construed to hamper a business administration from converting a public liability into an asset, thereby insuring a greater development in the operation of the system itself.

This suit is controlled by the doctrine announced in the cases of Board of Port Commissioners v. New Orleans Public Service, Inc., 161 La. 741, 745, 109 So. 408 and Henderson v. City of Shreveport et al., 160 La. 360, 107 So. 139. The facts in the Board of Port Commissioners’ case fit the facts in the instant case with the exception that here the reasons for a sale are stronger because of the covenant written in the act of sale, which is germane to the future development of the Public Belt System. On page 745 of the Port Commissioners’ opinion, 109 So. at page 409, the Court held:

“ * ’ * * The reason why the board has no statutory authority to sell real estate is that all of the real estate owned by the board must be dedicated to public use, and the board has no authority or right to buy land except what is necessary to be administered by the board for public use. To say that the board has no right or authority to sell real estate is merely to state the corollary of the proposition that the board has no right or authority to buy real estate except what is necessary to be held and administered by the Board for public use. But, if the hoard makes the mistake of buying property that is afterwards found to be not necessary or suitable for any public use, the hoard is obliged and therefore has the right to dispose of it.” (Italics mine.)

The Port Commissioner’s decision was based on the doctrine announced in the case of Henderson v. City of Shreveport et al., 160 La. 360, 107 So. 139. The reasoning in that decision is well stated in the Port Commissioner’s case from which we quote at page 743, 109 So. at page 409:

“ * * * the plaintiffs, as resident taxpayers of the City of Shreveport, sought to enjoin the school board from selling and the city from buying a vacant lot which the school board had bought with funds that were dedicated to the purchase of sites for school buildings, but which was afterwards found to be not suitable and not needed for such purpose. There was no statutory authority for a school board to sell real estate, except to ‘change the location of a schoolhouse, sell or dispose of the old site, and use the proceeds thereof toward procuring a new one.’ The lot which the school board was about to sell to the city had never been used as a schoolhouse site, and the proceeds of the sale were not intended to be invested then or immediately in a new site. Nevertheless, it was held that, as the school board had no right to hold the vacant lot, and could be compelled by mandamus to dispose of it, after it was known to be of no use for school purposes, the board had the necessary authority to sell it. The court said:
“ ‘Manifestly the school board has no right to acquire lands for any other than school purposes, and, since it has no right to acquire lands for any other than school purposes, it follows that it cannot hold lands indefinitely for other than school purposes ; and hence it is the plain duty of the school board to divest itself of any land which admittedly, according to the judgment of the board itself, is unnecessary or unsuitable for school purposes; and mandamus would certainly lie to compel the board to divest itself of land so held’ (Italics mine.)
“The doctrine is stated more broadly in one of the headnotes of the decision thus:
“ ‘Public boards and officers must be authorized to do voluntarily that which they could by mandamus be compelled to do, though not being specially authorized so to do.’ ”

The defendant bases its contention of lack of authority on the part of the Commission to sell the propery involved on the provision in Section 28 of Article XIV of the Constitution, as amended by Act No. 154 of the Legislature for the year 1928, Const. Amendment, No. 6, 1928, to-wit:

“(b) * * *
“Said bridge, its approaches and appurtenances, and the lands and other things required in the construction, operation or maintenance thereof, shall be exempt from every form of taxation, and shall in no manner be hypothecated, leased or alienated by the City of New Orleans except as herein set forth; provided, that lands acquired, which by a three-fourths vote of all the members of said Commission are declared not necessary for the construction of said bridge and appurtenances, or for use in the operation thereof, may be leased or sold. The proceeds of any such lease or sale shall be applied to the payment of the obligations issued hereunder or to other purposes of the New Orleans Public Belt Railroad. * * * ”

The possible reason for the specific grant of authority to the public Belt to sell idle lands acquired in the building of the bridge across the Mississippi River will be found in the first paragraph of the constitutional amendment of 1928, above referred to, which, in part reads:

“The City of New Orleans, acting through the Public Belt Railroad Commission, shall have the power to acquire, construct, maintain and operate across the Mississippi River, at or near New Orleans, a bridge for railroad, railway and highway uses, together with all approaches, railroad, railway and highway connections and appurtenances, and such power, insofar as a bridge for railroad and railway uses is concerned, shall be exclusive; * * (Italics mine.)

It is, therefore, obvious that this bridge is to be used by two governing authorities— the Public Belt System, municipally owned, and by the ITighway Department of the State, as a necessary link in the chain of public highways of the State. As an abundance of precaution, the constitutional framers evidently gave to one — the Public Belt System, the specific authority to sell the lands and to convert the .proceeds thereof in payment of the bonds issued against the structure as a whole.

The defendant’s last contention that, even though the Public Belt may have the right to sell the vacant, undedi-cated, idle lands, there is no procedure provided by statute or the Constitution for the sale, is likewise unsound. From the very section of the constitutional amendment quoted by defendant, the exclusive power of control and administration has been vested in the Public Belt Commission and the exercise of the right to sell will be effectual under an appropriate resolution duly adopted by the Commission, as has been done in the instant case.

It is, therefore, our opinion that the judgment of the district court, after analyzing all of the facts and circumstances of this case, is correct in maintaining plaintiff’s right to sell the land in question and that judgment will be affirmed.

The judgment appealed from is affirmed, the defendant to pay all costs of court.

O’NIEL, C. J., takes no part.


author: FOURNET, Justice.

text:
    215 La. 805
    VANCE et al. v. HURLEY et al.
    No. 39052.
    Supreme Court of Louisiana.
    June 30, 1949.

      Francis H. Alston, Logansport{ for plaintiffs and appellees.
    Smitherman, Smitherman & Purcell, Blanchard, Goldstein, Walker & O’Quin, Shreveport, for defendants and appellants.
   FOURNET, Justice.

This is a suit for cancellation of a mineral lease on the ground that it had expired under its own terms since the well located on the property is not producing oil and gas in paying quantities; in the alternative, for the non-payment of a production payment due under the terms of the lease in the amount of $9,517.50, as well as for judgment covering this amount and for attorney fees of $5,000.

The defendants denied the well drilled on the leased premises is not producing in paying quantities, averring, in the alternative, that if the lease is cancelled, then that there be judgment in their favor and against the plaintiffs for the cost of drilling the well.

There was judgment in favor of the plaintiffs ordering the cancellation of the lease and awarding them attorney fees of $2,500. The defendants have appealed and the plaintiffs, answering this appeal, reassert their position as set out in their petition but ask that the attorney fees be increased to $5,000.

On July 6, 1944, for a consideration of $2,600 in cash, the plaintiffs, Mrs. Evelyn Vance, Mrs. Eva A. • Price, and Chesley Price, executed a mineral lease in favor of the defendants, Ed E. Hurley and G. H. Vaughn covering 260 acres of land lying in Section 34 of 'De Soto Parish, the lessees obligating themselves thereunder to drill a well on the leased premises during the primary term of six months to pay the plaintiffs a royalty of %th and to pay $10,400 out of 54th °f the remaining %ths production from the well. This lease was recorded in C.O.B. 153, Folio 421 on May 16, 1945. Contemporaneously with the execution of the lease, however, the defendants signed a document agreeing to pay so much of the $10,500 production payment as remained unpaid at the end of three years, provided the well drilled under the terms of the lease were still producing or capable of producing oil, gas, or other minerals in paying quantities at that time.

The lease contained the further stipulation that it would continue in effect after its primary term so long as oil, gas, and other minerals were produced in paying quantities and under the terms of the contract the lessees were authorized to enter into pooling agreements for the unitization of the area if necessarily required to do so. There is also provision in the contract that the lease will be subject to all of the federal and state laws, executive orders, and rules and regulations.

Within the primary term of the lease the lessees began the drilling of a well that was finally completed as a producer in June of 1945, but under orders issued by the Commissioner of Conservation in November of 1944 affecting all of the land lying in Section 34, this property had been included in a 640-acre unit. In compliance with these orders and in conformity with the lease contract, the plaintiffs only received 26%40ths of the y8th royalty provided for in the contract, which amount totalled $504.32 during the 25-month period following the completion of the well. But it appears that during this same period of time they were not paid their pro-rata share of the production payment under the 54th of %ths production clause of the lease, which payment at that time amounted to $882.50. It was only after the lessors addressed a letter to the defendants in July of 1947 demanding full settlement of the production payment of $10,400 that this $882.50 was paid to them, thus leaving a balance due and payable by the lessees personally of $9,-517.50, provided the well is producing or capable of producing in paying quantities. After the plaintiffs had followed up their demands with respect to this production payment with a request for the cancellation of the lease, and following further negotiations, the defendants offered to pay the plaintiffs the balance due on the production payment, but the lessors refused this offer because it was conditioned upon their acknowledgment that the well was producing in paying quantities. This suit followed.

In support of their position the plaintiffs rely on the759 decisions of this court in 'the cases of Caldwell v. Alton Oil Company, Inc., 161 La. 139, 108 So. 314, and Logan v. Tholl Oil Co., Inc., 189 La. 645, 180 So. 473, arguing that since they have received royalty of only $504.32 or approximately $240 a year for a lease covering 260 acres, amounting to 96^ per acre per year, such production can not be said to be in paying quantities within the meaning of the contract.

A study and analysis of the Logan and Caldwell cases will show that the former is based upon the holding in the latter, wherein it was pointed out [189 La. 645, 180 So. 475] : “This court has repeatedly held that the main consideration of such a lease is the development of the land for oil and gas and that the lessee must either develop with reasonable diligence, or give up the lease.” In the course of the opinion there is the further observation: “A development that falls short of a reasonable production which would bring a net profit to the lessee and furnish an adequate consideration to the lessor for the continuance of the lease might well be said to be no development at all within the contemplation of the parties.”

There is no doubt that the production from the well that has been drilled on the leased premises has been a disappointment to both the plaintiffs and the defendants, but there is no suggestion that the development of the lease has not been prosecuted with reasonable diligence. On the contrary, it appears that the defendants have made every reasonable effort that could be expected of them, and at great expense, to increase the production, and that unless oil, gas, or other minerals are discovered in this area from a different strata, or unless this well is abandoned, they will be unable to drill another well within the unit in which this property is situated. So it would appear that the development of this property has been within the contemplation of the parties. Of course, if the lease had not been unitized, the plaintiffs would have received under its terms royalties amounting to approximately $600 a year, or $2.30 per acre per year. The fact that they are only receiving $240 a year is clearly within the terms of the contract itself.

This court, in the case of Knight v. Blackwell Oil & Gas Co., 197 La. 237, 1 So.2d 89, 91, very aptly pointed out that “The words ‘in paying quantities’ can mean the production of oil or gas in such a quantity as will pay a small profit over operation. costs of the well, although the expense drilling and equipping the well may never be paid, and thus, the operation as a whole might result in a loss to the lessee. Under such circumstances, the well might be operated by the lessee, in order to recoup some of the drilling and equipment costs.” of

Under the facts of this case it appears that there was a net profit of $3,926.28 realized from the operation of this well during the 25 months following its completion as a producer. But counsel argues that inasmuch as the defendants only received 20%40ths of this amount under the unitization orders, and prior to the payment of the production payment of $882.50 they showed a net profit of only $1,595.05, if the well is considered as a producer in paying quantities, then the additional amount of $9,517.50 becomes due and payable and, necessarily, the defendants are operating at a loss of $8,804.95.

That such result was never intended nor contemplated by the parties is clearly evidenced by the stipulation in the contract : “It is * * * agreed that this production payment ($10,400) shall not place any added burden on Lessee to drill and develop said land, and said payment is payable out of production only if, as and when prodticed and had.” (Brackets and italics ours.)

Moreover, it is our opinion that this promise was given as an additional consideration for the execution of the lease and should not be considered a part of the cost of production any more than the cash consideration of $2,600. In fact, even considering the amount due and paid .under the terms of the lease out of production ($882.-50) as a part of the cost of production, the lessees, nevertheless, still show a net profit of $702.55. The remainder of the $10,400, or $9,517.50, is due and payable personally by the lessees only because of their personal guarantee and only in the event the well is producing or is capable of producing in paying quantities on the third anniversary of the lease.

The plaintiffs by their own actions showed they never entertained any doubt but that the well was producing in paying quantities, for the record shows although they were not satisfied with the production of the well, they never voiced any serious complaint with respect thereto, but, instead accepted the monthly royalty payments due thereunder during more than two years and that it was only upon the expiration of the third year, and only after they had failed in their effort to collect from their lessees personally under the contemporaneous agreement, that they first entertained the idea of cancelling the lease on this ground.

Furthermore, if the plaintiffs had entertained any doubt that the lease was being properly operated and developed in accordance with the contract and desired its cancellation for this purpose, they overlooked the provision in the contract that “In the event lessor considers that operations are not being conducted in compliance with this contract, lessee shall be notified in writing of the facts relied upon as constituting a breach hereof and lessee shall have sixty (60) days after receipt of such notice to comply with the obligations imposed by virtue of this instrument,” as the record shows they failed to give such notice. As pointed out above, the plaintiffs first demanded by letter the payment of the production payment of $10,400 after the lapse of the three-year period. Upon the failure of the defendants to promptly meet their demand, it was repeated th/ough counsel employed for that purpose and this attorney advised the defendants suit would follow if the amount was not promptly paid. It was only after the negotiations that followed this demand had reached an impasse that the cancellation of the lease was demanded, and then the defendants were notified the demand must be met within 10 days or else suit would follow.

The fact that the lessees have the right under the lease to cap any well drilled when there is a lack of demand or market and yet keep the lease in effect by paying $2,000 per well per year, not, however, exceeding three years, does not mean, as contended by the plaintiffs, that the lease can be cancelled if a well produces in quantities that do not net the lessors royalties amounting to $2,000 per well per year.

Had t!he lessors intended this figure to be the standard royalty return they expected from each well on their property, they would have so stipulated in their contract. Instead, the provision is to the effect that the lease will be kept in force and effect so long as the well is producing oil, gas, or other minerals “in paying quantities,” which clause, in the oil industry and in legal circles, as well as in the jurisprudence of this state, has a well-defined meaning. It is to be observed that according to the allegations of their own petition the wells in the immediate vicinity of plaintiffs’ property are producing approximately 5% times the amount being produced by the well drilled on the leased premises, bringing to their respective lessors a return of $5.40 an acre a year, and even this amount falls short of the $2,000 figure set for the right of the lessees to cap the well drilled by them because of short demand and lack of market.

It is our opinion, therefore, that the well drilled on the property of the plaintiffs is producing in paying quantities within the meaning and comtemplation of the parties as set out in the terms of their contract of lease.

It necessarily follows that since the plaintiffs have only received $882.50 of the $10,400 production payment, the defendants are bound by their personal agreement to pay this remaining balance.

The alternative demand urged for the cancellation of the lease, that is, the failure of the defendants to pay the portion of the production payment unpaid at the end of three years, is equally without merit, for, as above pointed out, the amount due under Clause No. 10 of the lease (% of %ths of the production), which amounted to $882.50 at the time the $9,517.50 balance was demanded, had been paid to and accepted by the plaintiffs and the obligation of the lessees to pay the remaining portion of the $10,400 production payment only became due and payable by them under their personal agreement at the end of three years from the date of the contract, and this agreement was conditioned upon the well producing or being capable of producing in paying quantities at that time, the existence of which fact the plaintiffs declined to acknowledge when the payment of $9,517.50 was proffered to them provided such acknowledgment was made.

In other words, plaintiffs were not entitled to recover this amount unless the well was producing or capable of producing in paying quantities and having declined to acknowledge that it was in order that their lessees might continue its operation unmolested, the lessees were well within their right to refuse to pay until that fact was established.

Moreover, as hereinabove pointed out, the payment of $10,400 out of the portion of the production set aside for that purpose under the terms of the lease was to be paid “if, as, and when” minerals were produced and was not a royalty in the true sense of the word but was, as stated in the contract, a “production payment” given as-an added consideration for the execution of the lease. Necessarily, when the defendants personally bound themselves for the payment of this amount under the conditions above referred to, their failure to-make payment in the absence of acknowledgment on the part of the plaintiffs that the well was producing in paying quantities, could not, under the very terms of the contract, afford them ground for the cancellation of the lease but could only serve as the basis for a judgment against them individually.

Since the basis for the claim for attorney fees is the cancellation of the lease, it necessarily follows that this claim mu'st be denied under our conclusion that they are not entitled to that relief.

For the reasons assigned, the judgment appealed from is annulled and set aside and it is now ordered, adjudged, and decreed that there be judgment in favor of the plaintiffs, Mrs. Evelyn Vance, Mrs. Eva A.. Price, and Chesley Price, and against the defendants, Ed E. Hurley and G. H. Vaughn, in the sum of $9,517.50, with 5% interest from judicial demand. Plaintiffs’' main demand for cancellation of the lease executed in favor of the defendants on July 6, 1944, and recorded in Conveyance Records of De Soto Parish, Louisiana, in C. (X B. 153 Folio 421 on May 16, 1945 is denied. All costs in the lower court are to be paid by the defendants; all costs incurred on appeal here are to be paid by the plaintiffs.

O’NIELL, €. J., takes no part


author: HAWTHORNE, Justice.

text:
    215 La. 819
    Succession of CONWAY.
    No. 38499.
    Supreme Court of Louisiana.
    May 31, 1949.
    Rehearing Denied June 30, 1949.

      Frederick G. Veith, Robert J. Lacey, Jr., New Orleans, for Mrs. Gertrude Mollegan, Widow of Edward John Conway, plaintiff in rule-appellant.
    Edward Rightor and Edwin J. Prinz, New Orleans, for Vivian Clara .Miller Ragan, testamentary executrix.
    Louis A. Schwartz and Harold M. Rou-chell, New Orleans, for John George Miller and Edna B. Condon, defendants-appellants.
   HAWTHORNE, Justice.

On November 30, 1942, Edward J. Conway, Miss Edna B. Condon, and John George Miller formed the partnership of Edward J. Conway Company, in which Edward J. Conway received a five-sixths interest and Miss Condon and Miller the other undivided one-sixth interest, or two-thirtieths to Miller and three-thirtieths to Miss Condon. The partnership agreement provided that the partnership was to continue for a term of 10 years. This partnership was formed for the purpose of continuing the business which had belonged to Mr. Conway’s brother, Albert Conway, and which Mr. Conway had been operating since shortly after his brother’s death. This business was, in general, that of salvaging, reconditioning, and warehousing all classes of goods and other commodities damaged in rail or water traffic.

Article 9 of the articles of partnership' reads as follows: “In the event of death, of any partner, an account and statement shall be taken and made out of his or her share of the capital and effects of the partnership, and all unpaid interest and profits belonging to him or her at the time of death, a valuation shall be made of any of said assets or effects requiring valuation, and the amount so ascertained to be due and owing to the deceased partner shall be paid by the surviving partners to his or her representatives within six (6) calendar months from the date of death of said partner, with interest thereon from his- or her decease until payment at the rate of five per centum (5%) per annum; and on such payment the shares of the deceased partner in the partnership property and' effects shall go and belong to the surviving partners in the proportion in which they shall have contributed to the purchase' thereof.”

On December 22, 1944, Edward J. Conway, who was the general manager of the partnership, died, and the surviving partners, Miss Condon and Miller, continued the business under the same name and at the same location, using all its property,, assets, books, and records. Although the name of the business was changed in June, 1945, from Edward J. Conway Company to-Miller-Condon Company, the business was carried on after Conway’s death as it had been prior thereto.

In due course the succession of Edward'. J. Conway was opened in the Civil District Court for the Parish of Orleans, and Mrs-Vivian Clara Miller Ragan was appointed testamentary executrix. In an inventory made in the succession proceedings, the interest of the decedent in the partnership, of Edward J. Conway Company was appraised at the sum of $6,655.77, according to the valuation determined by a certified public accountant who made an audit of the partnership business under an order of court. The surviving partners, Miller and Miss Condon, filed a motion in the succession proceedings within six months from the date of Mr. Conway’s death, alleging that the executrix and the surviving spouse were unwilling to accept the appraised valuation, and seeking, under Article 9, to purchase the deceased’s interest in the partnership by depositing in the registry of the court the amount of the appraised valuation. This order was granted, and they deposited in the registry of the court as the purchase price of decedent’s interest the sum set out above, plus 5 per cent per annum interest, less a debit for income tax •paid by the partnership, pending such further orders as the court might render in the premises.

Both the executrix and the widow in ■community, by proceedings filed in the succession, contended, among other things, that the amount so deposited for the interest of the deceased partner was incorrect in that the value of the good will of the business was not taken into account in computing the valuation. The trial court was of the opinion that the good will should have been taken into account, .and rendered judgment fixing the valuation . •of the good will of the partnership of Edward J. Conway Company, as of the date •of decedent’s death, at $6,000, and fixing ;the interest therein of the deceased or his succession at five-sixth thereof, or $5,000, and ordering the deposit of this additional amount in the registry of the court. From this judgment all parties have appealed.

John George Miller and Miss Edna B. Condon take the position in this court that, •under Article 9 of the partnership agreement itself, it was never intended that good will, as such, was to be included in .a valuation of a deceased partner’s interest in the purchase thereof by his surviving partners, and that' by its very terms the agreement did not include any consideration for good will as among the partners as ■distinguished from a sale to a third person, but intended payment by the surviving partners for the interest of the deceased to be based on book value and physical ^‘effects” and not on all the assets of the partnership; that, unless good will is expressly included as a factor to be considered in arriving at the deceased partner’s interest, under the jurisprudence of this state it is to be excluded. In the alternative they contend that, if this court should find that the surviving partners have to account to the surviving spouse and the representatives of the decedent for the item of good will in computing the valuation of the decedent’s interest in the partnership, then, due to the particular nature of this business, good will as such has no value insofar as a transfer to the surviving partners is concerned.

The executrix contends that, under the provisions of Article 9 of the partnership agreement, good will must be included in fixing the valuation of the partnership, and she and the surviving spouse contend that the valuation of good will fixed by the lower court at $6,000 is incorrect, and that under the evidence such valuation should be increased. The surviving spouse, in brief filed in this court, does not question the right of the partners to have entered into this agreement for a term of 10 years and to have stipulated that the shares of a deceased partner should go and belong to the surviving partners upon the payment to the representatives of the deceased of the amount ascertained to be due and owing, but denies “that the surviving partners had the right to use the property of the widow in community for a period of six months after the death of her husband without having to account to her for the amount of profit her shares earned during this period”; for she contends that, if such agreement is construed otherwise, it is vi-olative of her vested rights in her share of the community which existed between,her and her deceased husband. > V

Article 9 of the partnership agreement provides that, in the event of death of any partner, an accounting and statement shall be taken and made of his or her share of the capital and effects of the partnership; that a valuation shall be made of any of said assets or effects requiring valuation, and that upon payment of this amount by the surviving partners the share of the deceased partner in the partnership property and effects shall go and belong to the surviving partners in the proportion in which they shall have contributed to the purchase thereof.

The first question presented is whether, under the language of this article of the partnership agreement, good will should be included in fixing the value of the capital and effects belonging to the partnership; or, stated somewhat differently, whether good will is part of the capital and effects of the partnership on which a valuation should be placed in computing the assets and effects belonging to the partnership, and whether it constitutes a part of the property and effects which go to the surviving partners upon payment for the decedent’s interest as required by the article.

The good will of a partnership is as much an asset as the fixtures and any other tangible property belonging to the partnership. It is property, recognized and protected by law as such, and capable of sale and transfer from one owner to another. Ruppe v. Utter, 76 Cal.App. 19, 243 P. 715; Texas & P. Ry. Co. v. Mercer et al., 127 Tex. 220, 90 S.W.2d 557, 93 S.W.2d 376, 106 A.L.R. 1299; Mann et al. v. Fisher et al., D.C., 51 F.Supp. 550; Rowley, Modern Law of Partnership, sec. 315, p. 370.

By the terms of Article 9 of the partnership agreement, good will — being an asset of the partnership and constituting property — was to be considered in determining the value of the property of the partnership, and we conclude from the language used in the article that it was the intention of the parties to this agreement that the good will of the partnership be so considered.

We do not think that there is any merit, therefore, in the contention of counsel for the surviving partners that the agreement indicates clearly that it was the intention of the parties thereto in determining the decedent’s interest in the partnership to consider the book value and the physical effects only.

“The former rule, that the good will of a business goes to the surviving partners and need not be accounted for to the representatives of the deceased, no longer prevails in England or in the United States. The good will of a firm is built up by the combined industry and credit of the partners, and if it can be disposed of— that is, if the firm business can be sold as that of a going concern' — the representatives of the deceased are entitled to have an accounting of the value of the good' will. It frequently happens that the survivors continue the business, and that they buy the share of the deceased partner. In such a case they succeed to the benefits arising from the favor which the business has obtained, and may be compelled to account for those benefits.” Gilmore on Partnership, secs. 49-51, p. 141. See also-Rowley, op.cit. supra, sec. 326, p. 383.

In Tennant et al. v. Dunlop et al., 97 Va. 234, 33 S.E. 620, 624, we find the following:

“As to his claim, as surviving partner,, to the good will and trade-marks as of right, he was clearly mistaken. Whatever may have been the earlier decisions of the courts upon this subject, it is now the settled law that the good will and trade-marks of a business are partnership property, and must be accounted for by the surviving partner, the same as the other assets of the firm. * * *”

The surviving partners cite the case of Liquidators of Nicholson Pub. Co., Ltd., v. E. S. Upton Printing Co., 152 La. 270, 93 So. 91, 93, in support of their contention that, unless good will is expressly included' in any agreement, it is to be excluded. In that case this court was considering a sale by the Nicholson Publishing Company of the Picayune Job Shop, together with the good will of the shop, to the defendant E. S. Upton Printing Company. In the course of the opinion the court stated that “In the absence of any express stipulation to' the contrary in the contract [of sale], the Nicholson Publishing Company would not have been precluded from setting up the same kind of business and in the same neighborhood of that of the ‘Picayune Job Shop’ * * * In the instant case we are not dealing with a sale by the partnership to a third party in which no mention is made of good will; the question here is whether the value of the good will1 should be taken into consideration in determining the interest of the deceased partner in the partnership when his interest is purchased by the survivors pursuant to the terms of Article 9 of the partnership agreement. The cited case therefore has no application.

We are of the opinion, from a study of the authorities on the liability of the surviving partners to account to the heirs of the deceased partner for his share of the good will, that the better rule would be that, unless good will is expressly excluded in an agreement such as we have in this case, it is included.

There is no merit in the contention of the surviving spouse that the surviving partners did not have “the right to use the property of the widow in community for a period of six months after the death of her husband without having to account to her for the amount of profit her shares earned during this period”. As pointed out hereinabove, she does not question the legality of the stipulation providing that the share of the deceased might be purchased by the surviving partners. By the very terms of the agreement, the interest of her deceased husband in the partnership was to be determined as of the date of his death, and his legal representatives were to be paid the full amount thereof. The surviving partners were obligated to pay within six months from the date of his death the amount so determined to be due, together with 5 per cent per annum interest of the amount found to be due until paid. The partners as individuals did not own the partnership property; it belonged to the partnership, which had the control and administration thereof. The widow had only the right to receive her community share in the property as of the date of her husband’s death, and had no right to participate in the business after his death. Therefore, under these facts and circumstances, the agreement did not divest the surviving spouse of any of her vested rights in her share of the community.

In the instant case it is somewhat difficult for us to determine the valuation of the good will of the partnership, which the trial judge fixed at $6,000. Two certified public accountants, both qualified as experts, testified in the lower court with reference to the value of the good will. One of these, experts testified that the good will of the partnership had no-value, or, if any, very little, for which he personally would not give $250. He based this valuation principally on the nature or type of the business, stating that it was a service business and to some extent a personal service business, which owned tangible assets of a very nominal value. The other expert valued the good will in excess of $30,000, determined by what he stated was a recognized accounting method and based on what he computed to be the average annual profit of the business with certain adjustments and deductions.

The partnership, of which the deceased owned a five-sixths interest, earned' a net profit of $50,900.03 from its formation to the date of Mr. Conway’s death, a period of about two years and two months, and its net revenue or income for this same period amounted to $236,429.39. After his death, the partnership continued as a going concern. All of its accounts were retained by the surviving partners, who continued to do business at the same location and with most of the same customers, among these being several important railroads. It is significant to note that for the year immediately following Mr. Conway’s death, that is, the year 1945, the business had a gross income of $85,000' and a net profit of $13,000 after payment to the surviving partners of salaries totaling $6,700.

The tangible assets of this partnership had a very nominal value, somewhat in excess of $6,000 according to one of the experts. From this we can reasonably deduce that the large profits of the partnership were not in their entirety a return from its -tangible assets, and that good will was an important element in the earning of these profits.

A report of one of the certified public accountants furnishes us with information as to the salaries of the three partners in this business. One of the ’ surviving partners, Miller, was not actively engaged in the business until August, 1944, although he owned a two-thirtieths interest therein,- and drew a salary of only $25 per month up to the time he began active participation in the business, and of $65 per week thereafter. Miss Condon, on the other hand, had been actively engaged in the business even prior to the formation of the partnership. Her salary up to the year 1944 was $115 per month, and thereafter was fixed at $65 per week plus $100 per month. Edward J. Conway, the deceased, was the principal owner, his interest being five-sixths, and was general manager of the partnership, and prior to the year 1944 drew a salary of $250 per month, and thereafter, until his death, his salary was fixed at $675 per month.

We do not agree with the expert who testified that the good will of this partnership had little if any value, since we are of the opinion from all the facts and circumstances that the good will, as such, had a very substantial value. We cannot, however, accept the valuation of $30,-000 placed on the good will by the other expert. In arriving at this figure, he admitted that he considered the profits realized during this period to be high due to the increase of business during the war years, and, with this factor in mind, arbitrarily deducted an amount therefrom. We do not think his deduction under these circumstances was sufficient, nor do we fully sanction the method used by him in arriving at this figure.

The value of the good will of a business is naturally not susceptible of determination with exactitude but must he determined from all the facts and circumstances in each case as best it can. Commissioner of Corporations and Taxation v. Ford Motor Co., 308 Mass. 558, 33 N.E.2d 318, 139 A.L.R. 936; Schuh Trading Co. et al. v. Commissioner of Internal Revenue, 7 Cir., 95 F.2d 404. In view of all the facts and circumstances of this particular case, a valuation of $12,000 on the good will of the partnership seems to us to be reasonable, equitable, and fair.

For the reasons assigned, the judgment appealed from is amended so as to fix the value of the good will of the partnership of Edward J. Conway Company, as of the date of decedent’s death on December 22, 1944, at $12,000, the interest of the decedent or his succession being five-sixths thereof, or $10,000, and it is ordered that John George Miller and Miss Edna B. Condon deposit this amount in the registry of the court for the account of the Succession of Edward John Conway pursuant to the terms of the judgment appealed from; and as thus amended the judgment is affirmed. Costs of this appeal are to be paid by John George Miller and Miss Edna B. Condon.

O’NIELL, C. J., does not take part.


text:
    215 La. 835
    CLARK v. CLARK.
    No. 39218.
    Supreme Court of Louisiana.
    May 31, 1949.
    Rehearing Denied June 30, 1949.
    Thos. Arthur Edwards, Lake Charles, 'for plaintiff-appellant.
    William R. Tete, Lake Charles, curator ad hoc and for defendant-appellee.
   HAWTHORNE, Justice.

Plaintiff, John Henry Clark, has appealed from a judgment of the lower court sustaining an exception of no cause and no right of action and dismissing his suit.

Plaintiff instituted this suit for a divorce under Act 430 of 1938, which permits an absolute divorce on proof by either spouse of the continuous living separate and apart of the spouses for a period of two years or more.

The petition, together with the annexed documents, discloses that plaintiff and his wife, who is represented herein by a curator ad hoc, separated because of her insanity; that, at the time she was adjudged insane, they were living together as husband and wife, but that, since the judgment adjudging her insane, she has been confined at the Central Louisiana State Hospital at Pineville, and that they have lived separate and apart and not under the same roof for more than two years and without cohabitation or any marital relations whatsoever.

The decision of the lower court sustaining the exception and dismissing plaintiff’s suit is correct, under the authority of Artigues v. Lalande, No. 26,752 on the docket of this court, decided June 22, 1925, not reported because pending an application for rehearing the plaintiff-appellant died and the appeal was dismissed; Leveque v. Borns, 174 La. 919, 142 So. 126, and Galiano v. Monteleone, 178 La. 567, 152 So. 126. In each of these cases, as in the instant case, there was no voluntary separation because the defendant was insane at the time the separation occurred, and the insanity was the cause of the separation. To maintain plaintiff’s suit, it would be necessary for us to overrule these decisions, and, since we are not convinced that they are erroneous, we do not choose to do so.

In Ridell v. Hyver et al., 215 La. 358, 40 So.2d 785, 787, this court had occasion to distinguish the earlier case of Vincent v. Le Doux, 146 La. 144, 83 So. 439, from the three cases cited héreinabove, and in doing so pointed out that in the case of Vincent v. Le Doux the separation was voluntary at its inception, and that the insanity did not occur until after such voluntary separation, while in the three later cases the insanity existed at the time, and was the cause, of the separation. In the course of the opinion in the Ridell case, the following interpretation was placed upon the statute relied on by the plaintiff herein:

“As we interpret the statute, the separation intended by it is a separation which is voluntary at its inception and which puts at an end the marital association. It must be with the intention of at least one of the parties to live separate and apart, or because one of the parties, with or without the acquiescence of the other, intends to discontinue and sever the marital relationship. In essence, we hold that the separation must be voluntary at its inception and that, if one of the parties becomes insane after such voluntary separation, the insanity does not preclude, prevent or bar the granting of a divorce.”

Even -under the liberal view shown by that opinion, it is obvious that the majority of this court would not sustain a divorce under the facts of this case.

Although the writer of this opinion, who dissented in the Ridell case, is doubtful that the interpretation placed upon the statute by the majority of the court is correct, it is nevertheless clear that, under the Ar-tigues, Leveque, and Galiano cases, cited supra, the plaintiff has no cause of action in the instant case.

For the reasons assigned, the judgment appealed from is affirmed; appellant to pay all costs.

O’NIELL, C. J., does not take part.


text:
    215 La. 839
    WILLIAMS v. WILLIAMS.
    No. 39119.
    Supreme Court of Louisiana.
    June 30, 1949.
    J. S. Pickett, Many, Allen R. Lecompte, De Ridder, for defendant-appellant.
    Kay & Kay, De Ridder, for plaintiff and appellee.
   FOURNET, Justice.

On August 25, 1947, Roily A. Williams, alleging he and his wife, Mable S. Roberts Williams, had been living separate and apart continuously since their separation on June 28, 1945, instituted this suit for divorce in the Parish of Beauregard, where he has been domiciled.

After the trial judge had overruled her exceptions of no cause and no right of action, the wife answered, first denying plaintiff’s allegation that they had been living separate and apart. Answering further, she averred the separation on the date alleged by the plaintiff had been caused through no fault of hers but had resulted from the undue attention her husband showed another woman, much to her humiliation, culminating in his finding fault with and criticizing her to such an extent she became very nervous; that on the date of the alleged separation he “became very abusive, and angry, and told her that he did not love her, and for her to get her things together and get out; that she was so shocked she could not leave at that moment, and had to go to bed; that her said husband returned later and piled up some of her personal apparel on the floor and told her she must leave and in this manner forced her to leave her home and * * * prevented her returning to their home” rendering it necessary for her to make her home in Vernon Parish, thus entitling her to a divorce and to alimony pendente lite and permanently thereafter at the rate of $200 a month, with $500 attorney fees, as well as a partition of the property she lists in her answer as belonging to the community.

There was judgment in the lower court in favor of the plaintiff, granting him a divorce and dismissing the defendant’s claim for alimony. The trial court also decreed all of the real estate acquired by the plaintiff during the existence of the community was his separate and parapher-nal property, but found community funds in the amount of $5,173.80 had been expended in improving his separate property and that it had been enhanced accordingly. The trial judge therefore rendered judgment in favor of the defendant for half of this amount, or $2,586.90. From this judgment the defendant is appealing and the plaintiff, answering the appeal, asks that the amount awarded his wife be reduced to $1,250.

The record shows that this is the fourth marriage of the defendant. The record also shows that the plaintiff and defendant, following their marriage on December 5, 1943, separated on three different occasions, the wife filing suits for separation from bed and board following each separation, the dates of such suits being, respectively, September 20, 1944, December 5, 1944, and July 2, 1945. She voluntarily withdrew her first two suits and the third was decided adversely to her in this court for the reason that she had failed to prove her allegations of cruel treatment. See, Williams v. Williams, 212 La. 334, 31 So.2d 818. Following this third and last separation (that led to the suit for separation and eventually to this suit for divorce) the defendant moved to Leesville, in Vernon Parish, where she continued to reside until the institution of the present suit, despite the fact that she was ordered by the court to return to the matrimonial domicile in 1945 under her husband’s allegations of abandonment in his reconventional demand in the former suit.

The undisputed evidence shows that the separation between the plaintiff and his wife occurred on the date alleged in the petition and that at the time of the filing of the suit they had been living continuously separate and apart for a period of more than two years, he in De Ridder, Beauregard Parish, and she in Leesville, Vernon Parish. Consequently, the plaintiff having instituted these divorce proceedings in the district court having jurisdiction over him, he is entitled to a divorce under the express provisions of Act No. 269 of 1916, as amended by Act No. 430 of 1938. White v. Broussard, 206 La. 25, 18 So.2d 641; Otis v. Bahan, 209 La. 1082, 26 So.2d 146, 166 A.L.R. 494; Donnelly v. Datusch, 213 La. 635, 35 So.2d 413.

The defendant’s allegation in her reconventional demand that the separation had not been caused through any fault of hers but had resulted from the actions of her husband, does not present an issue for determination in a suit for divorce on the ground of two year separation, and evidence in support thereof, is, consequently, not material. Such evidence becomes important only when the wife claims alimony where “the husband has obtained a divorce upon the ground of such living separate and apart, and the wife has not been at fault.” Article 160 of the Revised Civil Code, as amended. In such case the court may allow her, in its discretion and out of the property and earnings of the husband, alimony which shall not exceed one-third of his income. And the trial judge’s findings of fact on that issue will not be disturbed on appeal unless found to be manifestly erroneous. Fletcher v. Fletcher, 212 La. 971, 34 So.2d 43.

The appellant is contending here, however, that the trial judge erred (1) in not granting her alimony pendente lite to which she is entitled as a matter of right under the provisions of Article 148 of the Revised Civil Code; (2) in limiting her proof of the cause of the separation to those events that occurred on the date thereof, June 28, 1945, when he maintained plaintiff’s objection (on the ground that defendant’s allegations were too vague and indefinite to admit of proof) to the introduction of any evidence that would establish the allegations of her reconventional demand as to her husband’s prior treatment and his attentions to another woman, thus making it impossible for her to show that she was free from fault, and (3) in disallowing as irrelevant the copy of the plaintiff’s income tax return for the year 1946 which was sought to be introduced for the purpose of showing the assets of the community.

The issue of alimony pendente lite was apparently abandoned in the lower court as it was never submitted to nor adjudicated upon by the trial judge. It is, therefore, not before us on appeal.

While the allegations of the defendant with respect to her husband’s actions prior to the separation and the actual cause thereof are, as the trial judge states, vague and indefinite, and it may be, as contended by counsel for the appellee, that if we take into consideration her evidence given during the trial of her former separation suit we will find there was no justification for her leaving the matrimonial domicile on June 28, 1945, we think, nevertheless, the trial judge erred in limiting her proof of the cause of the separation to those events that occurred on the day thereof. In support of her claim for alimony she is entitled to show, if she can, that the separation was not caused through any fault on her part.

While it is the law of this state that property acquired during the existence of the community is presumed to belong to the community, we find in the deeds to the property acquired by the plaintiff during the existence of the community the stipulation that it was his separate property and was purchased by him with his separate and paraphernal funds and the evidence in the record establishes this to be correct. Such being the case, the property clearly forms no part of the community. Kittredge v. Grau, 158 La. 154, 103 So. 723; Sanderson v. Frost, 198 La. 295, 3 So.2d 626; Succession of Farley, 205 La. 972, 18 So.2d 586, and the authorities therein cited.

However, as pointed out by the trial judge in his written reasons for judgment, this property was considerably improved during the community and some of the funds used for this purpose were community funds. Under the settled jurisprudence of this state, such improvements form a part of the separate estate of the spouse, Succession of Singer, 208 La. 463, 23 So. 2d 184, but this spouse must, upon the dissolution of the community, account therefor upon the basis of the enhanced value of the separate property as the result of such improvements. Funderburk v. Funderburk, 214 La. 717, 38 So.2d 502.

There is nothing in the record to show what enhancement in value resulted from the expenditure of community funds in the improvement of this separate property. These improvements were of only recent origin and the greater portion of them was made with the separate funds of the husband. We think, therefore, as did the trial judge, that it is reasonable to assume-the property was enhanced in value at least to the amount of community funds expended in its improvement. After a full and complete detailed analysis of the evidence with respect to the expenditures of community funds, he fixed the amount at $5,173.80, and gave the defendant judgment for half that amount.

The defendant in claiming community funds in the amount of $11,708.46 were expended in making these improvements fails to point out in what respect the trial judge erred in his analysis and conclusions but seeks, rather, to make an analysis of her own which we find most unimpressive.

The plaintiff, on the'other hand, asks in his answer to the appeal that the amount awarded the defendant be reduced to $1,-250, contending the trial judge failed to take into consideration in his calculations two cash items belonging to his separate estate, one for $1,100 and the other for $1,400.

Although we agree with the trial judge’s ruling that the income tax return of 1946 is not relevant to the issue for which it was offered, inasmuch as both the plaintiff and the defendant are complaining about the trial judge’s conclusion with respect to the amount of community funds expended in the improvement of the plaintiff’s separate property and we are remanding the case for the introduction of evidence on another phase of the case, we have concluded that it will be in the interest of justice to permit each side to offer further evidence that will throw light on the status of the community estate.

For the reasons assigned, the judgment of the lower court granting the plaintiff, Roily A. Williams, an absolute divorce against his wife, Mable S. Roberts Williams, and decreeing that all real property acquired during the marriage is his separate and paraphernal property, is affirmed. In all other respects the judgment is annulled and set aside and the case is remanded to the lower court for further consideration, consistent with the views herein expressed. The plaintiff is to pay all costs.

O’NIELL, C. J., takes no part.


author: KENNON, Judge.

text:
    CRAGG v. HANKINS et al.
    No. 7354.
    Court of Appeal of Louisiana. Second Circuit.
    June 30, 1949.
    Rehearing Denied Aug. 16, 1949.
    Irion & Switzer, Harry A. Johnson, Jr., and C. C. Burton, Jr., Shreveport, for appellant.
    Claude B. Prothro and Eugene J. Coen, Shreveport, for appellees.
   KENNON, Judge.

Alleging that she was employed by one Virginia Montgomery Hankins to render nursing and housekeeping services at the rate of $15 a week and that she performed these services continuously from January 5, 1948, until the death of Virginia Montgomery Hankins on August 19, 1948, plaintiff filed this suit against Jeff Henry Han-kins, husband of deceased, and Eugene J. Coen. Plaintiff prayed that there be a separation of patrimony of the property of the defendant Hankins and that of his deceased wife and further prayed that a conveyance from defendant Hankins to defendant Coen of a house and lot belonging to the deceased be declared null and void.

After an exception of vagueness was filed, plaintiff, in a supplemental petition, alleged that her employment by the deceased as nurse was by verbal agreement and that defendant Coen was an attorney at law employed by defendant Hankins to open the succession of the deceased.

The answer denied that plaintiff had any claim against the succession of Virginia Montgomery Hankins and set forth that any services plaintiff may have rendered were gratuitous in nature such as any neighbor would render to another and that she had informed Eugene J. Coen that there were no charges for the • services so rendered. The answer further set forth that Virginia Montgomery Hankins had $400 in cash in her possession and that plaintiff Stella Cragg had converted same to her use and defendant Jeff Henry Hankins prayed for judgment in reconvention for that amount against Stella Cragg.

The District Court found for defendants and the case is before us on plaintiff’s appeal from that judgment.

In corroboration of her testimony that she was employed as a nurse and housekeeper at the rate of $15 per week, plaintiff offered the testimony of several witnesses who had heard the deceased make statements tending to show that Stella Cragg had been employed by the deceased as a nurse. The evidence was admitted by the District Court subject to objection by the defendants. The brief of plaintiff’s counsel contains the following paragraph:

“The District Court, in giving oral reasons for judgment, stated that he reluctantly rejected plaintiff’s claim for the reason that he thought the testimony presented by plaintiff’s witnesses was inadmissible as evidence. He also said that he was not sure that the evidence would be sufficient, if admissible. There was no hint of disbelief of these witnesses, and the District Judge was in error in ruling the evidence inadmissible.”

After carefully studying the record, we conclude that the evidence so introduced was not sufficient to establish that there was any contract of employment between plaintiff and the deceased whereby plaintiff was to receive $15 per week or any other sum certain for serving as nurse and housekeeper. We therefore consider it unnecessary to pass upon the issue as to whether the testimony was or was not admissible.

Defendant Hankins has not appealed from the judgment of the District Court which rejected his reconventional demand, and counsel in brief states that same has been abandoned.

The record does establish that plaintiff did render substantial nursing services to the deceased. These services were rendered in February, 1948, just prior to deceased's entry into Charity Hospital, and again in the summer of 1948 prior to her death on August 19, 1948.

Since the plaintiff has failed to prove a contract of employment and did not make an alternative demand for recovery for services rendered on a quantum meruit basis, we have concluded that the judgment should be recast so as to nonsuit plaintiff as to her claim for nursing services on a quantum meruit basis, and to affirm the principal finding of the District Court rejecting her demands for $15 per week on a contract basis. The judgment appealed from is voided and set aside and judgment is now rendered in favor of the defendants, Jeff Henry Hankins and Eugene J. Coen, and against the plaintiff, Stella Cragg, rejecting plaintiff’s demand for recovery under the contract set up in the original and supplemental petitions.

The right is reserved to plaintiff to file suit, on a quantum meruit basis, for such nursing services as she may have rendered to the deceased, Virginia Montgomery Han-kins. Plaintiff to pay all costs of this suit.


author: HARDY, Judge. ' PER CURIAM.

text:
    MOCH v. SHREVEPORT RYS. CO.
    No. 7356.
    Court of Appeal of Louisiana. Second Circuit.
    June 30, 1949.
    On Rehearing Aug. 16, 1949.
    Freyer, Goode, Nelson & Freyer, Shreveport, for appellant.
    Stephens & Allen, Shreveport, Bryan E. Bush, Shreveport, Jos. FI. Stephens, Jr., Shreveport, for appellee.
   HARDY, Judge. '

This is a suit in which plaintiff claims damages for injuries alleged to have been received as the result of an automobile-trolley bus collision which occurred at the intersection of Pierre and Ashton Avenues in the City of Shreveport at or about the hour of 11:00 o’clock P.M. on July 2, 1948. After trial there was judgment in favor of plaintiff and against the defendant in the principal sum of $1,500.00, and further judgment recognizing the claim of Shreveport Charity Hospital, intervenor, in the amount of $196.00, to be paid out of the amount awarded plaintiff. From this judgment defendant has appealed and plaintiff has answered the appeal, praying an increase in the principal amount to $5,000.00, and further praying that the award made Shreveport Charity Hospital be ordered paid by the defendant.

This case was consolidated for all purposes with three other suits numbered 7357, 7358 and 7359 on the docket of this court. Petteway v. Shreveport Rys. Co., 41 So.2d 240; Salone v. Shreveport Rys. Co., 41 So.2d 240; Taylor v. Shreveport Rys. Co., 41 So.2d 241.

Almost the only definite fact which is established without conflict or dispute is the occurrence of the collision at the place and about the time set forth. All other material facts are violently disputed and the voluminous testimony in the record is marked by irreconcilable differences between the witnesses for the respective parties, and further inconsistencies and discrepancies in the testimony of several of the witnesses which were prejudicial to the party on whose behalf they were tendered.

For these reasons we have found great difficulty in determining the true facts in connection with the accident. After much study, and after according unusual consideration to the physical facts and surrounding circumstances, we have arrived at the following recapitulation of those pertinent and material facts which we hold to have been established by a preponderance of the evidence.

Pierre Avenue in the City of Shreveport is a paved right-of-way street running generally in a north and south direction, having a width of 30 feet between curb lines, on which traffic, by city ordinance, is accorded a favored status. Ashton Avenue, which runs east and west, intersects Pierre Avenue at right angles, and traffic entering Pierre Avenue from Ashton is, by city ordinance, required to come to a full stop before proceeding into the intersection. At the time noted one of the regularly scheduled trolley busses of the defendant company, approximately 33 feet in length and 98 inches in width, having negotiated a stop at the intersection of Pierre Avenue and Looney Street, some 360 feet north of the intersection with Ashton Avenue, was proceeding south along Pierre Avenue. A 1936 model Ford Tudor sedan driven by one B. E. (Bennie) Petteway, proceeding east on Ashton Avenue, entered the intersection with Pierre, and, at or about the time of beginning a right-hand turn to the south on said thoroughfare, it was struck, practically broadside, by the front of the trolley bus at a point some 4 or 5 feet south of the center line of the intersection of the two streets. The auto was catapulted by the force of the collision diagonally across Pierre Avenue and came to rest facing north at or immediately near the east curb of said street 42.7 feet from the point of the collision. The bus was brought to a stop on Pierre Avenue with the front end slightly south of the south curb line of the Ashton Avenue intersection with the back end of the trolley still occupying some 14 to 16 feet of the intersection.

Plaintiff in this suit was one of five passengers in the automobile driven by Pette-way. This plaintiff specifically alleged the negligence of the driver of the trolley bus as the proximate cause of the accident and set up a number of serious injuries received as the result thereof.

Fronting on Pierre Avenue and set back only 12.5 feet from the curb line is a large two -story brick building, the side of which is 16.5 feet north of the curb line of Ash-ton Avenue. This building represents a distinct hazzard to traffic at and near the intersection and materially obstructs the view of vehicular traffic approaching the intersection from the directions which have been shown above.

One of the seriou's points of contention and violent difference of opinion involved in the instant case is with respect to the speed of the trolley bus, which is described as being excessive by witnesses for plaintiff, variously estimated at 35 to 50 miles per hour, and which is as positively described as “moderate” by witnesses for defendant and estimated in figures at 20 to 25 miles per hour. Admittedly, the automobile was moving very slowly at the time of the collision. One of the few facts conclusively established is that the intersection is upgrade on both streets in the directions which were being traveled by the respective vehicles involved.

Another fact in serious conflict involves the point as to whether Petteway complied with the ordinance and brought his automobile to a full stop before advancing into the intersection. The affirmative is asserted by Petteway and his passengers, and is denied by the driver of the bus and certain passengers occupying that vehicle at the time.

Accepting the testimony of the driver of the defendant’s trolley bus at full value, we think his evidence definitely establishes his negligence as a proximate cause of the accident. This driver testified that he was moving at a speed of 20 to 25 miles per hour; that he saw the Petteway car moving slowly into the intersection -when his bus was at a distance of some 60 feet; that he removed his foot from the accelerator, and placed it on the brake; that he assumed that Petteway was going to come to a stop; that he began to apply his brake only when the bus was within approximately 15 or 16 feet of the Petteway car.

We note some strange omissions or oversights in the evidence. For example, the defendant, questioned on interrogatories on facts and articles, denied categorically that any employee or agent of the said company could fix the braking distance of the trolley bus at various speeds between the limits of 20 and 50 miles per hour. Plaintiff did not meet this point with any proof as to the actual braking or stopping distance of defendant’s bus or a similar vehicle, and the record is therefore barren of any convincing evidence as to whether or not the bus could have been stopped in time to avoid the accident.

However, we think the imputation of negligence to the driver of the bus is inescapable. If, as was evidenced by his testimony, he perceived the automobile entering the intersection when he was within a distance of approximately 60 feet therefrom, and if, he neglected to make any effort to apply the vehicle’s brakes until he had approached within 15 or 16 feet of the automobile, which was obviously proceeding slowly, into the path of his vehicle; and if he failed to timely give any warning .of his approach, certainly, all of these facts were elements of negligence under the circumstances. With respect to .the last observation, it is noted that the record does not contain any shred of testimony to the effect that the driver of the bus sounded any warning signal of any nature.

So far as we can determine there appear to be no facts in connection with the-surrounding circumstances which would justify the assumption of the driver of the trolley bus that Petteway intended to bring his car to a stop. On the contrary, at the time the bus driver, according to his own testimony, observed the Petteway car it was so nearly into the actual intersection that he should have been immediately impressed with the development of a dangerous situation, certainly to the extent of braking his vehicle and attempting to-warn the driver of the automobile by proper signal.

Proceeding to a consideration of contributory negligence on the part of Pet-teway, we find no difficulty in concluding that he was guilty of negligence which contributed to and was a proximate cause of the accident. Again accepting at face value the testimony of Petteway, the driver of the automobile, we note that he claims to have perceived the approach of the trolley bus, which was traveling at an excessive rate of speed, at a time when it was some considerable distance north of the intersection. Despite this observation, and conceding the point that Petteway had brought his car to a stop before proceeding into the intersection, he nevertheless was clearly guilty of negligence in proceeding into the path of a speeding vehicle traveling on a right-of-way street. The record in this case fails to establish any facts which justify the application of the doctrine of last clear chance to the driver, of the bu's.

However, the finding of contributory negligence on the part of Petteway, the driver of the automobile, could not, under the facts established in this case, be imputed to his passengers, and the fact that his recovery is barred by his own contributory negligence does not serve to justify the denial of recovery on the part of his passengers.

The basis of our conclusions being predicated upon the testimony of the two principals, the drivers of the vehicles involved, obviates the necessity of a long, detailed and involved discussion of the unsatisfactory conflicting testimony of the great number of witnesses tendered by the respective parties.

The facts which we have related as bearing upon the determination of this suit are made more impressive and pertinent and are clarified by a survey plat which is in-corporatd in the record. This plat accurately reflects the locus in quo and the positions of the respective vehicles immediately proceeding and at the time of the collision. The physical facts were arrived at by agreement between counsel for the parties through a joining of their respective files, and this plat has proved to be of inestimable value to the Court in its consideration of the case.

On the basis of the above-stated finding of facts there can be, and, indeed, there is little difference of opinion as to the legal principles involved. However, we feel impelled to note a principle, urged on behalf of defendant by its able counsel, quoted from Jefferson v. Caddo Transfer & Warehouse Co., 4 La.App. 377, as follows:

“The plaintiffs carry the burden of making out their case beyond a reasonable doubt.”

This statement, which is found in the body of the opinion of the cited case, is so violently and irreconcilably at variance with the accepted and established general rule to the effect that a plaintiff bears the burden of establishing his case by a preponderance of the evidence that we can only look Upon the pronouncement as having been unintentionally and inadvertently made. In any event, scores of cases have served to correct what was clearly an erroneous and unintended declaration.

The only remaining issue involved in this particular case is with respect to the quantum. Counsel for plaintiff has called attention to Article 27 of plaintiff’s petition which reads as follows:

“Your petitioner now shows that the injuries and the pain and suffering undergone during recovery therefrom, as well as the permanent conditions hereinbefore alleged, have damaged your petitioner to the extent of Five Thousand and No/100 ($5,-000.00) Dollars, which she is entitled to recover in this petition.”

Counsel has further specifically brought to the attention of the Court Article 27 of defendant’s answer, which reads as follows :

“The allegations of Article 27 are admitted.”

In argument in brief before this Court counsel for plaintiff asserts that this point was raised in brief before the lower court and was neither challenged, explained nor controverted by counsel for defendant. We do not find that the point has been noticed or alluded to by defendant’s counsel in any of the proceedings before this Court.

In view of the pleadings noted it appears to us that the amount of recovery has been agreed upon and fixed by the parties, subject, of course, only to the proper establishment of liability of the defendant.

Plaintiff having protected her rights by proper answer to the appeal is accordingly entitled to an increase in the amount of the judgment awarded by the District Court.

For the reasons assigned the judgment appealed from is amended to the extent of increasing the amount awarded the plaintiff, Mattie Moch, to the full sum of $5,-000.00, with legal interest thereon from date of judicial demand until paid, and, as amended, the judgment is affirmed at appellant’s cost.

On Rehearing.

PER CURIAM.

Application for rehearing in this case has been filed on behalf of the defendant, Shreveport Railways Company.

The application specifically complains of error in the quantum allowed in the original judgment of this Court which was based upon an admission in the pleadings filed by defendant. Mover now contends that the said admission was made in error and that a rehearing should be granted for the purpose of permitting a correction of the judgment in this respect.

Contemporaneously with the filing of defendant’s application for rehearing, counsel for plaintiff and defendant filed a stipulation of agreement that a rehearing be granted and the original judgment of this Court amended to the extent of reducing the amount of the judgment allowed plaintiff to the sum of $2,260.00, with the further provision that the claim of the Shreveport Charity Hospital, intervenor, in the amount of $196.00 be paid out of said sum, and that as amended the judgment be affirmed at appellant’s cost.

The stipulation referred to further contains a waiver of all procedural and technical requirements in connection with the pronouncement of final judgment.

In consideration of the agreement of the parties, the motion for rehearing is allowed, and in further consideration of the waiver of formalities, it is now ordered, adjudged and decreed that the judgment of this Court on original hearing in the case of Mattie Moch v. Shreveport Railways Company, No. 7356 on the docket of this Court, be and it is amended to the extent of reducing the amount awarded plaintiff to the sum of $2,260.00, and it is further ordered that out of said sum the Shreveport Charity Hospital, intervenor, be paid the amount of $196.00.

As amended the original judgm'ent of this Court is reinstated and made final, at appellant’s cost.