author: FOURNET, Justice. HAWTHORNE, Justice

text:
    215 La. 567
    HUMPHREYS v. ROYAL.
    No. 38657.
    Supreme Court of Louisiana.
    Feb. 14, 1949.
    Rehearing Denied June 16, 1949.
    Lee & Emery, Shreveport, for plaintiff-appellee.
    Cook, Clark & Egan, Shreveport, for defendant-appellant.
    Blanchard, Goldstein, Walker & O’Quin, Wilson, Abramson & Maroun, and W. D. Goff, Jr., Shreveport, amici curiae.
   FOURNET, Justice.

This is a petitory action wherein the plaintiff, L. T. Humphreys, seeks to recover a half interest in the NW}4 of the SE % of Section 7, T. 20 N., R. 12 W., Bossier Parish, Louisiana, acquired by him from Gertrude Fields Payne, divorced wife of Isiah Payne, and now in the possession of the defendant, Joe Webb Royal, under a deed executed by Payne subsequent to the divorce.

The record shows that Isiah Payne was married to Gertrude Fields in the County of Leflore, Mississippi, on October IS, 1911, and that he moved to Louisiana after his return from World War I, probably in 1919, when he and his wife separated. On October 8, 1936, he purchased, by authentic act, duly recorded, and for a consideration of $600, $140 of which was paid in cash and a mortgage given for the remaining $460, the land involved in this controversy. In this act is contained the stipulation that the Federal Land Bank of New Orleans is conveying all of its rights in and to the property unto “Isiah Payne, a single mm, resident of Caddo Parish, State of Louisiana.” (Italics ours). The defendant, Joe Webb Royal, having been informed by Mr. H. M. Gatti, agent of the Federal Land Bank of New Orleans that the bank had no property for sale but that he might take over the Payne property by assuming the unpaid mortgage and thereby avoid the expenses incidental to foreclosure proceedings since the bank was compelled to institute such proceedings because of Payne’s failure to meet his obligations, acquired the property from Payne on November 10, 1941, by authentic act for the assumption of the mortgage and a cash consideration of $30. In this deed Payne declared that he was a single mm. In the meanwhile, during 1938, Payne had instituted suit for divorce against his absentee wife and had, on December 2, 1938, obtained a judgment of divorce, which judgment, however, was never recorded in the Conveyance Office of Bossier Parish. Soon after the development of the Benton Oil Field, in which area this property lies, the plaintiff, obviously with a knowledge of all of the facts, sought out Gertrude Fields Payne at her residence in Mississippi, and, on April 26, 1946, purchased from her an undivided half interest in and to the property hereinabove described. Within the month he instituted this suit seeking to be recognized as the owner of this half interest. The defendant, relying on the law of registry, denied the plaintiff’s ownership, pleading, in the alternative, that in the event the court finds the plaintiff does own such an interest, that he be given judgment in reconvention in the sum of $630.35, representing half of the expenses incurred by him in repairing and improving the property and in making scheduled payments to the Federal Land Bank and in paying taxes thereon.

There was judgment in the lower court recognizing the plaintiff to be the owner of an undivided half interest in this property, and awarding the defendant, as the plaintiff in reconvention, the sum of $224.28, but non-suiting his reconventional demand for the value of the improvements placed on the property; reserving to him, however, the right to urge his claim to half of the enhanced value thereof because of such improvements. From this judgment the defendant has appealed. Answering the appeal, the plaintiff asks that all of the demands of the defendant under his reconventional demand be rejected.

Under our Civil law system, the property above described, acquired by Payne during the existence of his marriage to Gertrude Fields Payne, belongs to the community of acquets and gains that existed between them at the time it was acquired, of which community Payne was the head and master and, as such, vested with the exclusive right to sell or otherwise alienate and encumber it. Articles 2399, 2402, and 2404 of the Revised Civil Code. This right, however, terminated upon the dissolution of the marriage when Payne divorced his wife and she was, thereafter, vested with an unrestricted title to an undivided half interest in the property. Article 2406. The only question that is to be determined, therefore, is whether the wife or her transferee here can prevail in this case in view of the public policy of this state that in order to affect third parties all sales of, transactions, or judgments touching upon or affecting real rights or immovable property-must be recorded.

This public policy is based upon the pronouncements to be found in our Revised Civil Code of 1870 providing that “No notarial act concerning immovable property shall have any effect against third persons, until the same shall have been deposited in the office of the parish recorder, or register of conveyances of the parish where such immovable property is situated.” Article 2264. The same rule applies to all sales made by sheriffs or other officers by virtue of any execution or other order of court, to all marriage contracts and all final judgments affecting real property. Articles 2265 and 2266. In the latter article it is declared that contracts, sales, and judgments not so recorded are "utterly null and void, except between the parties thereto ” and, as was very aptly pointed out in the case of Schneidau v. New Orleans Land Co., 132 La. 264, 61 So. 225, 230, the lawmakers thus provided “a method intended to be simple, sure, and inflexible, whereby those who desire to invest their money in real estate may be able to find, upon the public records, the evidence, and all the evidence, needed to establish or defend the title thereto.” (Italics ours.)

These articles are clear and free from any ambiguity and are subject to no exceptions other than that they do not apply “between the parties thereto.” It therefore follows that the unrecorded divorce judgment affecting the immovable property in controversy is utterly null and void as to the defendant here, a third party.

We do not think the decision of this court in the case of Succession of James, 147 La. 944, 86 So. 403, is controlling here, as contended by the plaintiff. In that case the court, after the death of the wife, denied a creditor’s right to enforce a mortgage against the community to the prejudice of the husband’s interest therein on a debt that had been contracted by the wife in her own name as a femme sole during the existence of the marriage- in the husband’s absence and without his knowledge. Consequently Articles 2265 and 2266 had no application. No judgment had been obtained in that case, as in the case at bar, affecting the immovable property.

For the reasons assigned the judgment appealed from is annulled and set aside and it is now ordered that the plaintiff’s suit be dismissed, at his cost.

PONDER, J., absent.

HAWTHORNE, J., dissents and assigns written reasons.

HAWTHORNE, Justice

(dissenting).

In Successsion of James, 147 La. 944, 86 So. 403, 405, the wife during her marriage acquired in her maiden name and as femme sole certain immovable property, which under our'law was property of the community which existed between her and her husband. Subsequently she mortgaged the property, and again she used her maiden name and represented herself as femme sole. After her death a mortgagee named in a mortgage- which she had so granted sought to satisfy his claim in the succession, to the prejudice of the husband’s one-half interest in the property, relying on the law of registry that no sale or encumbrance of immovable property shall affect third persons unless recorded in the proper office. In denying to the mortgage creditor the right to satisfy his claim from the husband’s interest, this court said: “If, then, it is the period of time when the purchase was made, which is ‘alone to be attended to,’ and not the name of the purchaser, the only question remaining is whether it devolves upon a person who deals with a purchaser of immovable property to find out whether he or she was married or single at the date of the p^wchase, and we must hold in the affirmative on that question, or reverse a long-established jurisprudence to the effect that one cannot acquire a title to the interest of a deceased wife, to the prejudice of her heirs, by a purchase from the surviving husband, even though the title to the entire property stands in his name.” (Italics mine.)

This court recognized in that case that the rule that the time of the purchase alone is attended to in determining whether property is community may conflict in many instances with the law of registry, and the conflict was resolved in favor of the community owner rather than in favor of the one relying on the registry. To me no sufficient or satisfactory reasons have been advanced in the instant case which warrant resolving the conflict the other way.

The judgment of divorce in this case does not describe or make any reference to any property whatsoever, and contains nothing to contradict the declaration in the husband’s deed of acquisition that he was a single man at that time. Therefore, if we assume as a fact that this judgment was recorded in the conveyance records of the parish wherein the property was located prior to the sale made to the defendant herein — which the majority opinion holds was necessary — , the defendant would still acquire a valid title as to the wife’s interest in the property, because he could rely on the statement in his vendor’s deed of acquisition that he was a single man since there is nothing in the registry to contradict it, and, if this were true, the wife had no interest in the property, for under the law it is the period of time which is alone'to be attended to in determining the character of property, that is, whether it belongs to the community or to the husband’s separate estate.

Upon the dissolution of the community either by death of the husband or by divorce, the wife has a vested interest in one-half of the community property, and the majority holding, by applying the law of registry, has the effect of permitting the husband in this case, by his false and untrue statements made in the deeds that he was a single man, to take away from the wife her vested interest in the property. Likewise, if the wife had died, leaving minor heirs born of the marriage, their interest, inherited from their mother, would also be divested.

In the case at bar, the trial judge informs us in his reasons for judgment that in the divorce suit service was on a curator1 ad hoc, and apparently the wife did not learn of the suit for divorce until 1944, several years after the conveyance by the husband of the property on November 10, 1941, to the defendant herein. How could the wife, who had no actual knowledge of the divorce, record this judgment in time to protect her interest in the community property?

In my opinion, the preservation of the community interest is paramount, and should prevail against the proposition of law dealing with the protection of third persons by registry, and, as stated in the James case, supra, it is the duty of a person who deals with a purchaser of immovable property to find out whether he or she was married or single at the date of such purchase.

For these reasons, I think the judgment of the district court should be affirmed, and accordingly I respectfully dissent from the holding of the majority.

Rehearing denied;

HAMITER and HAWTHORNE, JJ., dissenting.


source: Caselaw Access Project

author: O’NIELL, Chief Justice.

license: Public Domain

text:
    215 La. 577
    STATE v. KEEN et al.
    No. 39274.
    Supreme Court of Louisiana.
    March 21, 1949.
    Rehearing Denied June 16, 1949.

      Eugene Stanley, New Orleans, Fred J. Hcintz, Covington, for defendants and appellants.
    Bolivar E. Kemp, Jr., Atty. Gen., M. E. Culligan, Sp. Asst. Atty. Gen., Jas. T. Burns, Dist. Atty., Covington, for appellee.
   O’NIELL, Chief Justice.

The defendants, Emery A. Keen, Sr. and Jr., were prosecuted in the Parish of St. Tammany, under an indictment charging them with the theft of nine cows of the value of $1125. They were tried by a jury of five members and were convicted and sentenced to imprisonment in the penitentiary for five years. They are appealing from the conviction and sentence.

The first bill of exceptions was reserved to an erroneous interpretation given by the trial judge to article 495 of the Code of Criminal Procedure in a ruling limiting the defendants’ right of cross-examination of a witness, Norman Holiday, whose testimony for the state was highly important. The objection made by the district attorney and the judge’s ruling thereon are stated completely in the bill of exceptions, thus:

“Be it remembered that Norman Holiday was duly sworn and testified as a witness on behalf of the State of Louisiana.
“The said Norman Holiday was a material witness for the State, being in the employ of Mr. A. B. Paterson, who claimed ownership of the cattle, with the theft of which the defendants were charged.
“The said Norman Holiday testified that the cattle in question were in the possession of the said A. B. Paterson in February of 1948, and claimed to be able to identify the said cattle.
“The defendant, Mr. Emery A. Keen, Sr., claimed and later testified that he had bought these nine (9) head of cattle, as heifer calves, from the former agents and employees of Mr. A. B. Paterson, and that these nine (9) head of cattle had been raised on the defendant’s pasture from small calves up until the time they were, about three or four years of age, and thaV the said Emery A. Keen, Sr., had sold these cattle to his son [Emery A. Keen, Jr.] who intended to build up a herd on his return from the United States Merchant Marine Service.
“Therefore, the question of the credibility of the said Norman Holiday as a witness became an important factor in the case, the case being one based entirely on circumstantial evidence.
“On cross-examination, the said Norman Holiday was asked by counsel for the defendants if it was not a fact that the said Norman Holiday had been convicted in Indictment No. 7205 of Washington Parish in 1931, of the crime of cattle stealing, and if he had not been sentenced to the Penitentiary to serve a term of one to four years at hard labor for the said offense.
“The said Norman Holiday admitted that he had been so convicted and had gone to the Penitentiary and had served about eleven months of his said sentence when he was released on an indefinite reprieve.
“Counsel for the defendants then asked the said Norman Holiday if it was not a fact that he, the said Norman Holiday, was also under Indictment in the case No. 7204 of the Parish of Washington for the crime of stealing a cow, alleged to have been committed on February 1, 1931, and also if he was not under Indictment in the Parish of St. Tammany in case No. 3187, charged on the' 17th of October 1930, with stealing five rolls of fence wire valued at $50.00, and if he was not under Indictment in the Parish of St. Tammany in Indictment No. 3188, charged with stealing two (2) oxen on October 28, 1930, and if he was also not under Indictment in the Parish of St. Tammany in case No. 3260, charged with the larceny of two (2) cows on November 24, 1930.
“When counsel started to ask the witness Norman Holiday the questions concerning the above four (4) Indictments which are still open and untried, the District Attorney objected to these questions and the Judge ordered the jury retired.
“In the absence of the jury, the above questions were asked the said Norman Hoi-iday by counsel for the defendants, and he admitted that the said Indictments were open and pending against him, as above stated.
“Thereupon, the court ruled on the objection made by the District Attorney and held that counsel for the defendants could ask the said Norman Holiday whether he had not been indicted in the Parish of Washington and whether he had not been three times indicted in the Parish of St. Tammany, as above set out, and that the said indictments were still pending and untried, but that counsel for the defendants could not' bring out from the said Norman Holiday in the presence of the jury the offenses for which the said Norman Holiday had been indicted and had not been tried, but could only bring out the fact that four (^indictments were still pending against the said Norman Holiday, but could not disclose to the jury the nature of the offenses contained in the said Indictments. [The italics are ours.]
“Counsel for the defendants objected to the ruling of the court and reserved a formal Bill of Exceptions, and makes a part of this his said Bill of Exceptions Indictment No. 7204 of the Parish of Washington, and Indictments Nos. 3187, 3188 and 3260 of the Parish of St. Tammany.
“And your defendants, Emery A. Keen, Sr. and Emery A. Keen, Jr., through their counsel, having submitted this their Bills of Exceptions to the District Attorney, now tender the same to the court and pray that the same be signed and sealed by the Judge pursuant to the Statute in such case made and provided, which is done accordingly, this 8th day of November, 1948.”
“(signed): Rob’t D. Jones
Judge”

Article 495 of the Code of Criminal Pro-, cedure makes three separate and distinct provisions concerning the impeachment of a witness who has testified in a criminal prosecution. The first of these provisions is that, for the purpose of impeaching the credibility of the witness, evidence is admissible to prove that the witness was convicted of a crime on a previous occasion, but not to prove merely that he was arrested, indicted or prosecuted for the alleged crime. • The second of these provisions is that before evidence of the previous or former conviction can be adduced from any other source than from the testimony of the witness whose credibility is sought to be impeached, .he must have ’been questioned on cross-examination as to such conviction and must have failed distinctly to admit the previous or former conviction. And the third provision is that the witness, whether he be a defendant or be some other witness in the prosecution, may be compelled to answer on cross-examination whether he has or has not been indicted or arrested theretofore and how many times.

We must bear in mind that to' compel a witness to answer on cross-examination whether he has or has not been previously indicted or arrested — or even to answer whether he was ever convicted of a crime — - is not the same as to compel the witness to answer whether he was guilty of the crime of which he was previously accused or convicted.

In quoting the judge’s ruling from the bill of exceptions we have italicized that part of the ruling which is contrary to the provisions of article 495 of the Code of Criminal Procedure. We refer to the judge’s forbidding the defendant to “bring out” from the witness Norman Holiday in the presence o.f the jury the offenses for which Holiday had been indicted and had not been tried, and allowing him to bring out only the fact that four indictments were still pending against Norman Holiday without disclosing to the jury the nature of the offenses charged or contained in the indictments. So far as the ability of the jury to judge of the veracity or credibility of the witness Holiday was concerned, the questioning of the witness Holiday out of the presence of the jury of course served no purpose. The questioning was done out of the presence of the jury for the purpose only of aiding the judge in his determining whether the evidence that the previous indictments were pending against the witness Holiday might impeach his credibility in the judgment of the jury. It would be unreasonable thereforé to construe this statute as meaning that the jury is entitled to know whether a certain witness who has testified in a criminal prosecution stands indicted and untried for some other crime charged against him but is not entitled to know the nature of the crime charged.

The judge in a per curiam attached to his ruling denying the defendants’ motion for a new trial says that, in view of the holding by the supreme court in the case of State v. Vastine, 172 La. 137, 133 So. 389, he probably erred in limiting the cross-examination of the witness Holiday as he did in ruling upon the state’s objection to the cross-examination of the witness; but that if he did err the error was harmless and would not justify the setting aside of the conviction and the granting of a new trial. By necessary implication, article 557 of the Code of Criminal Procedure requires that an appellate court shall grant a new trial in any case where the judge has allowed an improper admission or rejection of evidence, if the error constitutes a substantial violation of a constitutional or statutory right. Considering how important was the question of credibility or veracity of the witness Holiday, our opinion is that the ruling in this instance did deprive the defendants of a substantial statutory right. We cannot know what effect the error in this instance had upon the jury in their finding of a verdict.

Having concluded that we must set aside the verdict and grant a new trial in this case, we find it unnecessary to pass judgment on any other of the several bills of exception.

The verdict and sentence are annulled and the case is ordered remanded to the district court for a new trial.

FOURNET, McCALEB and MOISE, JJ., concur in the decree.

PONDER, J., dissents.


author: HAMITER, Justice.

text:
    215 La. 585
    DURMEYER et al., v. STREIFFER.
    No. 39044.
    Supreme Court of Louisiana.
    May 31, 1949.

      Willis C. McDonald, New Orleans, L. Julian Samuel, Gretna, for appellants.
    Rosen, Kammer, Wolff, Hopkins & Burke, New Orleans, for appellees.
   HAMITER, Justice.

Plaintiffs are appealing from a judgment which maintained defendant’s plea of res judicata and, as a consequence, dismissed the suit.

According to the allegations of the petition in this action plaintiffs, August P. Dur-meyer, Thomas K. Shepherd, Jr., and Mrs. Elizabeth H. Kingsbury, are the owners of property in Beverly Knoll Subdivision, Metairie, Jefferson Parish. The defendant, Louis L. Streiffer, also owns property in that subdivision, he having acquired it from Forrest B. Collette under two separate deeds dated July 2, 1943, and August 21, 1944, respectively. Included in the title to each of the lots in the named subdivision are certain building restrictions which run with the land, one of which is: “The improvements, if any, erected on the within conveyed property shall cost not less than $4500 and shall he for residential purposes only.”

Plaintiffs further allege that the defendant “is presently constructing on the here-inabove described property a commercial building which he has announced by ad-' vertisement is to be used as a department store, and is presently operating in a ‘temporary location’ on the hereinabove described property as a department and hardware store, all in violation of the aforesaid restrictions and your petitioners are without any adequate remedy at law for the protection of their rights in the premises except through the issuance of an injunction, and that they will suffer and sustain irreparable injury unless a permanent injunction issue herein.

“That the said defendant, Louis L. Streiffer, should be ordered and directed by this Honorable Court to demolish or remove all buildings and structures erected on the above described property utilized in his commercial business and not utilized for residential purposes.”

The prayer of the petition is for judgment in favor of plaintiffs decreeing that the defendant has violated the building restrictions of Beverly Knoll Subdivision, and ordering the issuance of a permanent injunction restraining and enjoining defendant from conducting or operating a hardware and department store, or any other type of business or commercial venture, on his property.

To the petition defendant tendered a plea of res judicata and, alternatively, exceptions of no right and no cause of action and a plea of prescription under Act No. 326 of 1938. Without considering the exceptions of no right and no cause of action or the plea of prescription alternatively urged, the district court sustained the plea of res judicata, after a hearing thereon, and this appeal followed.

The sustained plea is predicated on a judgment in a former suit on the docket of the Twenty-fourth Judicial District Court in and for Jefferson Parish, numbered 15,007 and entitled Alcee Philip Neeb v. Forrest B. Collette, — Livingston-Beverly Knoll Improvement Association, Interven- or, the record in which was offered in evidence on the hearing of the instant matter. That suit had as its purpose the enforcement, by means of injunction, of the building restrictions affecting the property involved here, the then owner Collette (the author in title of this defendant) having allegedly erected certain buildings thereon in which he was conducting a florist and nursery business. Intervening in the proceeding, and joining the plaintiff Neeb, was the Livingston-Beverly Knoll Improvement Association, it alleging itself to be a non-trading corporation organized under the provisions of Act No. 254 of 1914. In-tervenor further alleged, among other things, as follows:

“That it is interested in the outcome of this suit and desires to become a party thereto by uniting with the said plaintiff, Alcee Philip Neeb, and in upholding his claim against the said defendant, Forrest B. Collette.
“Petitioner avers that said corporation is composed of one hundred and nine (109) residents and/or property owners of Livingston-Beverly Knoll Subdivision, located in Metairie, Parish of Jefferson, State of Louisiana.
******
“Petitioner avers that among its objects and purposes under its articles of incorporation, it is made its duty and responsibility to strive for the enforcement of building and other restrictions as contained in the titles to the land in Livingston Place and Beverly Knoll and to require prospective builders in said tracts to strictly adhere to the restrictions, and as set out in Article III of this petition.”

In an exception to the petition of intervention, the defendant Collette urged that the intervenor was without right to make iself a party to that action for the reason:

“(a) It is without existence as a corporation, since the provisions of Act No. 254 of the Louisiana Legislature of 1914 (the non-trading corporation Act) do not permit formation of a corporation thereunder for the purposes for which it was attempted to incorporate Livingston-Beverly Knoll Improvement Association, namely protection of the financial investments of its members for their own individual profit and gain by the attempted enforcement of building restrictions.
“(b) Said Act No. 254 of the Louisiana Legislature of 1914 does not authorize or permit suits to be brought by corporations organized thereunder for the financial gain and benefit of its members.”

Also, the defendant therein, Collette, pleaded the prescription of two years under Act No. 326 of 1938, and he answered, averring acquiescence in the alleged violations of the building restrictions.

After trial of the former suit on its merits, there was rendered on June 17, 1942, the judgment which is pleaded in bar of the instant action. It was in favor of the defendant therein dismissing the suit and the intervention, decreeing that defendant’s property be and is forever free from the disputed building restrictions, and declaring such restrictions to be null and void. No appeal was taken therefrom.

In determining whether prosecution of the present action is precluded by the judgment of the former suit, the proceedings in both causes must be considered in the light of the provisions of Revised Civil Code Article 2286 which are:

“The authority of the thing adjudged takes place only with respect to what was the object of the judgment. The thing demanded must be the same; the demand must be founded on the same cause of action; the demand must be between the same parties, and formed by them against each other in the same quality.”

Thus, the plea of res judicata herein is sustainable only if the three prescribed essentials are present.

It is not disputed that in the two suits the thing demanded is substantially identical and both demands are founded on the same cause of action. But plaintiffs herein insist that the third essential is lacking in that they were not parties litigant in the former proceeding. To quote from the brief of their counsel they maintain that, “The parties are certainly not identical, the three appellants in this case being individuals and suing in their individual capacities under a contract which they have with the other property owners owning property in the said subdivision.”

Countering, defendant, as stated in the brief of his counsel, takes the following positions:

“Defendant maintains that the judgment in Neeb v. Collette is in rem and determined that the lots now owned by defendant in the Subdivision are free of the building restrictions. Further, defendant submits that all of the present plaintiffs, while not parties of record in Neeb v. Collette, were virtually parties thereto or, in substance, parties, as they were and are members of the Protective [Improvement] Association, which did intervene; that in reality plaintiffs were represented in Neeb v. Collette through Neeb and the Association; that in addition, Neeb was a member of a class of parties, to which class plaintiffs belong. In effect, the Association was and is the alter ego of the plaintiffs and represented them.” (Brackets ours.^

If it were conclusively shown that plaintiffs herein had duly authorized the Improvement Association to appear for and represent them in the judicial enforcement of their rights, and that it was legally capable of suing, there might be merit in the contention that they are bound by the intervention in the former suit. But the record before us contains no proof that the mentioned organization possessed the legal capacity and the authority to sue and stand in judgment for these pláintiffs. True, the petition of intervention contained the statement that the association had the duty and responsibility to strive for the enforcement of the building restrictions; it, however, was merely an allegation of the pleader. The authority granted the association by its members (assuming that plaintiffs were active members), as well as its legal capacity to sue, could best be shown by the articles of incorporation to which the intervention refers. A copy thereof is not in the record.

Likewise without merit, in our opinion, is defendant’s other position that the in rem character of the earlier judgment rendered it conclusive against these plaintiffs, notwithstanding that they were not parties to the proceeding. In support of that theory counsel refer us to SO C.J.S. verbo Judgments, Section 910, in which the following is said:

* * * Thus, with respect to the res or status within the jurisdiction of the court, a judgment in rem generally has been held to be conclusive and binding ‘upon all the world,’ that is, on all persons who may have or claim any right or interest in the subject matter of the litigation, whether or not they were parties to, or participants in, the action, at least to the extent that it adjudicates or establishes a status, title, or other res constituting the subject matter of the action. * * *”

It is to be noted, however, that such authority, in the same section, further states:

“The rule that a judgment in rem is binding on the whole world has been said to be true only in a restricted sense, and it has been held that a judgment in rem cannot deprive any person of personal or property rights where he was not made a party or where he was given no notice or opportunity to be heard.” "

In Louisiana the doctrine of res judicata is much more restricted than at common law. State ex rel. Puritan Co. v. City of New Orleans, 169 La. 365, 125 So. 273. With us it is of statutory declaration, and its scope is defined and limited by the provisions of Revised Civil Code Article 2286. Woodcock v. Baldwin, 110 La. 270, 34 So. 440; Smith v. Little Pine Lumber Co., 150 La. 720, 91 So. 165. The authority of the thing adjudged, hence, must be tested by the three requisites of that article.

We have been referred to no decisions in our jurisprudence, and we have found none, which announce that an in rem judgment, as such, is to be excepted from that test. True, there are cases, cited and relied on by defense counsel, holding that a final judgment of a court of competent jurisdiction as to the status of a' person is res judicata as to all the world. Bonella v. Maduel, 26 La.Ann. 112; St. Ange v. Carondelet Realty Co., 7 La.App. 161 (Orleans Circuit). But those rulings, assuming them to be sound, obviously are not decisive of the instant action in which plaintiffs are asserting a real right, granted them by contract, affecting defendant’s property. More nearly analogous • are those cases which hold that a person is not bound by a judgment determining title, to . property claimed by him where he was not. party to the action. Gajan v. Patout & Burguieres, 135 La. 156, 65 So. 17; Smith v. Little Pine Lumber Co., supra. Seemingly analogous also is State ex rel. Globe Construction Co., Inc. v. Town of Plaquemine et al., 183 La. 998, 165 So. 180, in which it was held that a judgment in a mandamus proceeding to compel the defendant town to levy an assessment was not binding on property owners who had not been parties to the proceeding.

Counsel for defendant have requested, in the alternative, that we pass upon the exceptions of no right and no cause of action filed in the district court but on which no decision was rendered. Except under certain circumstances, which are not present here, an appellate court may not consider any question which has not been first' determined by the court of original-jurisdiction. State ex rel. Jones, Governor, v. Edwards et al., 203 La. 1039, 14 So.2d 829.

For the reasons assigned the judgment appealed from is reversed and set aside, the plea of res judicata is overruled, and the case is remanded to the district court for further proceedings according to law and not inconsistent with the views herein expressed. Defendant shall pay the costs of this appeal, while all other costs shall await the final determination of the litigation.

O’NIELL, C. J., takes no part.


author: McCALEB, Justice.

text:
    215 La. 597
    SIBLEY et al. v. PETTY REALTY CO., Inc., et al.
    No. 38622.
    Supreme Court of Louisiana.
    May 31, 1949.
    Irion & Switzer, Clifton F. Davis, Shreveport, for defendants and appellants.
    Deutsch, Kerrigan & Stiles and Breard Snellings, New Orleans, for defendants’ call in warranty.
    Albert E. Bryson, Shreveport, for plaintiffs-appellees.
   McCALEB, Justice.

This is a suit for damages. Isaac F. Sib-ley, appearing individually and as administrator of the estates of his six minor children, and his wife, Mildred H. Sibley, allege that, on October 26th 1946, while they were occupying the premises No. Ill Finn Street, Shreveport, Louisiana, as tenants of Petty Realty Co., Inc., its President and General Manager, M. A. Mangham, disconnected the gas line running into their home thereby depriving them of fuel for heat and cooking; that his act which was willful and motivated by a desire to unlawfully force them to vacate the premises, was committed at a time when the weather was very cold; that, as a result, at least three of their children sustained heavy colds, which confined them to bed for two weeks and that Mrs. Sibley contracted influenza from which she suffered for three or four weeks. It is further averred that, in addition to the illnesses suffered by them, they have sustained embarrassment, inconvenience and hardship. Accordingly, they pray for damages against Mangham and the Realty Company in favor of Mr. Sibley for $500 individually and $3000 for the benefit of the six minor children and in favor of Mrs. Sibley for $500.

In due course, the defendants answered denying liability and Petty Realty Co., Inc., alleging that it carried liability insurance for the damages claimed by plaintiffs, called its insurer, Continental Casualty Company, in warranty. The latter answered the call and denied any liability for plaintiffs’ damages under the policy issued by it.

The case was tried before a jury and resulted in a verdict for Mrs. Sibley for $500 and in favor of Mr. Sibley, for the benefit of five of his six children, in the sum of $150 each. The individual demand of Mr. Sibley and that on behalf of his child, Kenneth, was rejected and defendants’ call in warranty against the 'Continental Casualty Company was dismissed. After the overruling of a motion for a new trial, judgment was rendered in conformity with the verdict of the jury and defendants have appealed to this Court from the adverse decision.

At inception, we question our appellate jurisdiction of this case. Section 10 of Article VII of the Constitution, which defines the jurisdiction of this Court, declares, in part:

“It shall have appellate jurisdiction in civil suits where the amount in dispute * * * shall exceed two thousand dollars exclusive ’ of interest, except in suits for damages for physical injuries to, or for the death of a person, or for other damages sustained by such person or his heirs or legal representatives, arising oiit .of the same circumstances; * * (Italics ours.)

Inasmuch as a portion of plaintiffs’ claim is for damages for physical injuries, i. e., the illness of Mrs. Sibley and her children allegedly resulting from defendants’ act, it seems manifest that the Court of Appeal, Second Circuit, is vested with appellate jurisdiction under Section 29 of Article VII of the Constitution.

In Spearman v. Toye Bros. Auto & Taxicab Co., 164 La. 677, 114 So. 591, 592, the plaintiff charged that, while she was riding in a sightseeing car operated by the defendant, the chauffeur humiliated and mortified her by grasping and squeezing her left thigh and she claimed $15,000 damages for the mental anguish, pain and suffering she endured “as the result of the insult and outrage.” She was awarded judgment for $2500 and the defendant appealed to the Court of Appeal for the Parish of Orleans which transferred, on its own motion, the case here for want of jurisdiction. The appellant insisted in this Court that appellate jurisdiction was in the Court of Appeal and that the case should be retransferred. However, the Court upheld its jurisdiction on the ground that there was no claim for damages for physical injury. In speaking of the exception contained in Section 10 of Article VII of the Constitution relative to suits for damages involving physical injuries, the opinion observed:

“This case, however, is not within the exception, for it is not a suit for damages for physical injuries or for damages caused by or resulting from an act which caused also a physical injury. As far as the allegations and the proof go, there was no more of a physical injury to the plaintiff than there would have been if she had been insulted verbally by the chauffeur. The purpose of excepting from the jurisdiction of this Court suits ‘for other damages * * * arising out of the same circumstances’ as those causing physical injuries was to confer upon one and the same appellate court jurisdiction over a suit for the damages of every character resulting from a wrongful act or negligence causing physical injury to a person. As the wrong complained of in this case, if it occurred, did not cause physical injury to the plaintiff, and as the amount in dispute exceeds $2000, exclusive of interest, the appeal is within the jurisdiction of ■this court, and not of the Court of Appeal.”

The foregoing reasoning, when fitted to this case, demonstrates our lack of jurisdiction — for here, there is a claim for damages for physical injury which places the matter squarely within the exception contained in Section 10 of Article VII of the Constitution quoted above.

It is therefore ordered that this case be transferred to the Court of Appeal, Second Circuit,'the transfer to be made within 30 days after this decree' has become final, otherwise, the appeal is to be dismissed. Defendants are to pay the costs of appeal to this Court and those incident to effecting the transfer,

O’NIELL, C. J., does not take part.

      The section provides that the Courts of Appeal shall have appellate jurisdiction of all cases “of which the Supreme Court is not given jurisdiction, * *

       Eor a comprehensive discussion of this question see Jumonville v. Frey’s, Inc., La.App., 171 So, 590, writ of cer-tiorari refused February 1, 1937, where the Court of Appeal for the Parish of Orleans distinguished our decision in Spearman v. Toye Bros. Auto & Taxicab Co., supra, on the same predicate which controls the decision in the instant case.


text:
    215 La. 602
    STATE v. RICKS et al.
    No. 39335.
    Supreme Court of Louisiana.
    May 31, 1949.
    John D. Schilleci, New Orleans, for appellants. ■
    Bolivar E. Kemp, Jr., Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Herve Raci-vitch, Dist. Atty., Guy Johnson, First Asst. Dist. Atty., New Orleans, for appellee.
   McCALEB, Justice.

Appellants were charged, tried and found guilty of the crime of gambling as defined by Article 90 of the Criminal Code “in that each did unlawfully and intentionally conduct and directly assist in the conducting, as a business, at Number 2223 Tulane Avenue (New Orleans), of a game, contest, lottery and contrivance by having and permitting in said premises the operation, use and playing of a mechanical device known as a slot machine whereby a person risked the loss of a thing of value in order to realize a profit * * * ”. No bills of exception were reserved during the hearing but, after the verdict, appellants filed a motion for a new trial in which they contended that the State had failed to submit any evidence to sustain the charge. Upon the overruling of this motion,-a bill of exceptions was reserved and all of the evidence taken at the trial was annexed to the bill. Subsequent to the trial, the State moved for the destruction of a slot machine which had been seized at the time of the arrest of one of the appellants. This was alignment opposed by appellants. After a hearing, the motion was granted and the Criminal Sheriff ordered to destroy the machine under the provisions of Act No. 231 of 1928. Following imposition of ap-pealable sentences, appellants sought relief here.

On the motion for a new trial, it is maintained that there is no proof whatever to support appellants’ conviction. A review of the record has demonstrated that this contention is devoid of ' substance. The evidence adduced by the State reveals that appellant, Wolfe, kept on display in his place of business a' slot machine of the common type and dimensions, containing cylinders picturing cherries, bells, oranges and other symbols and also indicating certain winning combinations. A State witness testified that, after placing six five cent pieces in the machine, the cylinders, on stoppage, exhibited two cherries and a bell; that he directed this fact to the attention of Wolfe and that the latter gave him five pieces of peppermint candy which he took from under his counter. This evidence alone authorized a conviction.

As to appellant, Ricks, it is shown that he is the owner of the machine and that he placed it in Wolfe’s establishment with the understanding that he would collect 50% of the money deposited therein by players. His absence at the time of the commission of the offense is unimportant in view of Article 24 of the Criminal Code which treats aiders and abettors as principals. In this Court, we are concerned only with whether there is any evidence at all to sustain the conviction; it is not within our province to inquire into the sufficiency of the proof. State v. Martinez, 201 La. 949, 10 So.2d 712 and cases there cited.

Appellants challenge the right of the Judge to order the destruction of the slot machine under Act No. 231 of 1928. Their attack is based on two grounds (1) that the machine “is not of such a character as to be included in the intent of Act No. 231 of 1928 * * * ” and (2) that the statute is unconstitutional in that it deprives á person of his property without due process of law in violation of Article I, Section 2, of the Louisiana Constitution and the Fifth ánd Fourteenth Amendments of the Constitution of the United States.

The first point that the slot machine is not of the type described by Act No. 231 of 1928 is predicated upon the notion that, because the machine is mechanically arranged so that it does not automatically eject the prizes that may be won by the player, it is not per se a gambling device.

The argument cannot be sustained. The evidence shows that the machine was used for gambling; that it has all of the characteristics of a slot machine, other than the automatic ejection of money or tokens redeemable in money or property, or rather, it has been so fixed that it cannot pay off automatically (but it may be converted into an automatic pay-off machine within a short space of time by a qualified mechanic). The statute has for its purpose the immediate confiscation of “all gambling devices known as slot machines * * * ”. It is difficult to discern that the plugging of the automatic pay off has the magical effect of placing the machine beyond the pale of the law.

This leaves for consideration the question of the validity of Act No. 231 of 1928, which appellants say effectively takes property without due process of law by making it the mandatory duty of all State Officers “to confiscate and immediately destroy all gambling devices known as slot machines that may come to their attention, or that they may find in operation”. It is, of course, obvious that appellants have had due process of law in this case as the destruction of the machine was not ordered until after a full hearing and determination of the Court that it was, a gambling device.. However, since appellants are adversely affected by the statute, they are entitled to challenge its validity as they .claim that it is wholly unconstitutional. Mongogna v. O’Dwyer, 204 La. 1030, 16 So.2d 829, 152 A.L.R. 162; State v. Baggott, 212 La. 795, 801, 33 So.2d 523 and Cornman v. Conway, 178 La. 357, 151 So. 620.

Primarily, it is to be noted that the statute neither provides for nor envisions any notice or hearing but orders the summary destruction of “all gambling devices known as slot machines” by all State Officers. Accordingly, if gambling slot machines are property susceptible of ownership, the statute unquestionably is violative of the constitutional guarantee of due process. Finance Sec. Co. v. Conway, 176 La. 456, 146 So. 22 and Cornman v. Conway, supra. But if they are things 'obnoxious to the public health or safety or to. the public morals, they are contraband and proper subjects for summary confiscation and destruction under the police power of the State. 16 C.J.S. Verbum “Constitutional Law” Section 645; Steiner v. City of New Orleans, 173 La. 275, 136 So. 596; State v. Jackson, 152 La. 656, 94 So. 150; Enloe v. Lawson, 146 Or. 621, 31 P.2d 171; Clark v. Holden, 191 Miss. 7, 2 So.2d 570; J. B. Mullen & Co. v. Mosely, 13 Idaho 457, 90 P. 986, 12 L.R.A., N.S., 394, 121 Am.St.Rep. 277, 13 Ann.Cas. 450; Durant v. Bennett, D.C., 54 F.2d 634; State ex rel. Daniel v. Kizer, 164 S.C. 383, 162 S.E. 444, 81 A.L.R. 722; Lawton v. Steele, 152 U.S. 133, 14 S.Ct. 499, 38 L.Ed. 385 and Samuels v. McCurdy, 267 U.S. 188, 45 S.Ct. 264, 69 L.Ed. 568, 37 L.R.A. 1378.

Section 8 of Article XIX of our Constitution declares that gambling is a vice and commands the Legislature to pass laws to suppress it. It would be superfluous here to engage in a dissertation on the reasons prompting the Legislature to provide, by Act No. 231 of 1928, for the summary confiscation of gambling slot machines. Suffice it to say that the legislative intent is clear that gambling devices of that character are outlawed as contraband and their summary confiscation is ordered as an effective means of carrying out the mandate of the Constitution for the suppression of gambling.

In addition, it is plain that the Legislature, in the exercise of its police power, had the right to declare that gambling slot machines should be confiscated. Mugler v. Kansas, 123 U.S. 623, 8 S.Ct. 273, 31 L.Ed. 205. In State v. Jackson, supra, this court, in recognition of this power, said [152 La. 656, 94 So. 152]: “The contention of the defendant that the Hood Act (State prohibition law) is unconstitutional, in that said act deprives a person of his property without due process of law, is not well founded, as a state may in the proper exercise of its police power, authorize the destruction of such property as has become a public nuisance, or Ims an unlawful existence or is obnoxious b0‘ the public health, public morals, or public safety, without compensation and without judicial inquiry, not withstanding that prohibition in section 1, art. 14, of the Amendments to the Constitution of the United States. Fischer v. St. Louis, 194 U.S. 361, 24 S.Ct. 673, 48 L.Ed. 1018; City of New Orleans v. Charouleau, 121 La. 890, 46 So. 911, 18 L.R.A., N.S., 368, 126 Am.St.Rep. 332, 15 Ann.Cas. 46; Houston v. State, 98 Wis. 481, 74 N.W. 111, 42 L.R.A. 39.” (Italics and words in parenthesis ours.)

And the fact that destruction of the slot machine is ordered without notice or hearing does not render the statute unconstitutional as depriving any claimant thereto of due process — as he cannot have or acquire property rights in the condemned article.

In Lawton v. Steele, supra, the Supreme Court of the United States was asked to consider whether a statute of the State of New York, providing that all nets and other devices for taking or capturing fish which are found or maintained in or upon any of the waters of the State, in violation of a statute enacted for the protection of fish, are hereby declared to be [152 N.S. 133, 14 S.Ct. 500] “a public nuisance, and may be abated and summarily destroyed by any person, and it shall be the duty of each and every * * * game constable to seize and remove and forthwith destroy the same”, was violative of the Fourteenth Amendment in that it ordered the confiscation of the property without a hearing. It was there argued that: “ * * * the nets are not in themselves a nuisance, but are perfectly lawful acts of manufacture, and are ordinarily used for a lawful purpose.”

But the Court said: “This is, however, by no means a conclusive answer. Many articles — such, for instance, as cards, dice, and other articles used for gambling purposes — are perfectly harmless in themselves, but may become nuisances by being put to an illegal use, and in such cases fall within the ’ban of the law, and may be summarily destroyed.”

The Court further held that: “ * * * the summary abatement of nuisances without judicial process or proceeding was well known to the common law long prior to the adoption of the constitution, and it has never been supposed that the constitutional provision in question in this case was intended to interfere with the established principles in that regard.”

Again, in Samuels v. McCurdy, supra, the Supreme Court had before it the constitutionality of a statute of Georgia authorizing the destruction of intoxicating liquor which had been purchased prior to the enactment of prohibition and which was kept in the home for personal uses. The law provided for an order of destruction by a Court but did not provide for notice or a hearing prior thereto. In upholding the validity of the Statute, the Court said [267 U.S. 188, 45 S.Ct. 267]: “If he desired to try the validity of the seizure or the existence of the exception by which his possession could be made to appear legal, he could resort to suit to obtain possession and to enjoin the destruction under the Georgia law, as he has done in this case. This under the circumstances, it seems to us, constitutes sufficient process of law under the Federal Constitution as respects one in his situation. Lawton v. Steele, 152 U.S. 133, 142, 14 S.Ct. 499, 38 L.Ed. 385, [390],

It has been suggested that, since Act No. 231 of 1928 orders the enforcement officers, to destroy gambling slot machines on sight, the owner of a slot machine not fitted or intended for gambling purposes would be remediless if his property should be seized and destroyed by an overzealous officer.

The answers to this suggestion are manifold. In the first place, there cannot be any mistake about the type of device declared contraband by the statute and it is not to be presumed that any officer would seize and destroy anything other than the gambling slot machines condemned by the Legislature. But, should he do so, his act would not render the statute unconstitutional. In such case the offending officer would be amenable to prosecution for violation of the criminal statutes of the State respecting offenses against property, Articles 56, 59 and 67 of the Criminal Code, and would also be civilly liable for his unlawful act. In Lawton v. Steele, supra, the Court said: “Nor is a person whose property is seized under the Act in question without his legal remedy. If, in fact, his property has been used in violation of the act, he has no just reason to complain; if not, he may replevy his nets from the officer seizing them, or, if they have been destroyed, may have his action for their value.”

We hold that Act No. 231 of 1928 is constitutional. Conformably, the trial judge was correct in ordering the destruction of appellants’ slot machine.

The conviction and sentence of appellants and the judgment ordering the Criminal Sheriff to destroy the slot machine are affirmed.

FOURNET, HAMITER and MOISE, JJ., concur in the decree.

O’NIELL, C. J., does not take part.

      The statute has been construed to embrace the destruction of all gambling slot machines, whether they are found to be in operation or not. Schimpf v. Thomas, 204 La. 541, 15 So.2d 880, 882.

       A gambling slot machine or “a one armed bandit”, as it is sometimes referred to in the vernacular of the street, is a device well known to the public and which the police officers can hardly mistake. The machine in the case at bar fits the ordinary description. For years, manufacturers of the devices have, in attempts to evade summary confiscation statutes, engaged in numerous types of camouflage to remove them from the category of contraband. Various methods of deception, such as the ejection of gum from the pay-off slot, have been employed to conceal the true character of the machines and the injunctive processes of the Federal courts have, in most cases, been unsuccessfully resorted to in order to protect claimed property rights from being invaded by police officers. White v. Hesse, 60 App.D.C. 106, 48 F.2d 1018; Chambers v. Bachtel, 5 Cir., 55 F.2d 851; Boynton v. Ellis, 10 Cir., 57 F.2d 665 and O. D. Jennings & Co. v. Maestri, D.C., 22 F.Supp. 980, Aff’d. 5 Cir., 97 F.2d 679.


text:
    215 La. 614
    Succession of SHADDINGER.
    No. 39005.
    Supreme Court of Louisiana.
    May 31, 1949.
    R. A. Dowling, New Orleans, for appellant.
    Ed. J. de Verges, New Orleans, for ap-pellee.
   HAMITER, Justice.

To be determined on this appeal is the correctness of two monetary claims (for services rendered) which the district court ordered paid from the assets of the estate of decedent, Aaron P. Shaddinger.

On June 1, 1943, Mrs. Rose Trascher Shaddinger, the widow in community of decedent and the administratrix of his succession, filed a final account on which the following was listed as remaining:

Assets . $56.10

Debts . 16.00

Amount to be distributed. $40.10

In an opposition tendered thereto Mrs. Ida Thurber Shaddinger, the mother and an heir of decedent, alleged that the ad-ministratrix had failed to account to the court for numerous other described assets, and she prayed that the final account be ordered amended so as to list them.

Subsequently, on a joint motion of counsel for the administratrix and for the named opponent, the district court signed an order appointing Ed. J. de Verges (a certified public accountant) “as an expert to audit the accounts of the administratrix and furnish a written report thereon to the court.” As directed, the appointee made an audit and furnished a report, arid thereafter he moved that his fee for services rendered be fixed at the sum of $725 and taxed as costs in the proceedings.

Meanwhile, an opposition to the final account of the administratrix was also filed by J. F. Brown, he alleging himself to be a creditor of the estate in the sum of $175.

Trial of the oppositions of Mrs. Ida Thurber Shaddinger and of J. F. Brown, as well as of the motion of the certified public ■accountant, was had; and, later, the court rendered judgment ordering the amending of the final account of the administratrix by (1) listing thereon J. F. Brown and Ed. J. de Verges as creditors of the estate for the sum of $175 and $725, respectively, and (2) including assets of $5751.65 for which the administratrix had not previously accounted. In conclusion the judgment recited :

“The final account as thus amended will show assets aggregating the sum of $5807.-75; the proposed debts to be paid will aggregate the sum of $916; and the amount to be distributed to the heirs (on the basis of three-fourths to Rose Trascher Shad-dinger and one-fourth to Mrs. Ida Thurber Shaddinger) will be $4891.75.
“It is further ordered, adjudged and decreed that the final account of the Ad-ministratrix as amended by this judgment be and the same is now ordered homologat-ed.”

This devolutive appeal by the administra-trix was obtained and perfected only from that part of the judgment which ordered payment of the claims of J. F. Brown and Ed. J. de Verges.

' The claim of J. F. Brown, being for services rendered -subsequent to the death of decedent, is itemized as follows:

1.- Assisting in the preparation of an inventory of the estate $100.00

2. Preparing 1940 federal and state income tax returns 50.00

3. Preparing reports on insurance, sales and use taxes affecting the business formerly conducted by decedent 25.00

The record discloses that claimant Brown kept the books of decedent’s business for sometime prior to the latter’s death and for several months thereafter, he having been employed on a parttime ba-sis, for which he was paid $20 per month. However, the services covered by the claim urged here, according to his testimony, were in addition to those required by his bookkeeping duties, and their performance was authorized either by the administratrix or ier attorney. On the completion of them, he further testified, he delivered a statement listing his charge of $175 to that attorney who replied: “Leave it here and I will include it in the next accounting to the court.” The only evidence offered in opposition thereto is the testimony of the ad-ministratrix, and it is somewhat vague and indefinite. We are unable to conclude, therefore, that the district court manifestly erred in sustaining the demand.

On the trial of his claim for services rendered under the court order (for .auditing the accounts of the administra-trix), Ed. J. de Verges testified in detail a-s to what the auditing consisted of and how the charge of $725 was determined. He was not cross examined, and no evidence was offered to refute his testimony. In fact, counsel for Mrs. Ida Thurber Shad-finger (one of the heirs) stated: “I consider the bill very reasonable * * In fixing the compensation of an auditor of accounts for services rendered under judicial appointment the district judge is vested with much discretion. Code of Practice Article 462. There appears no abuse of that discretion with reference to the instant claim.

The judgment appealed from is affirmed.

O’NIELL, C. J., takes no part.


author: FOURNET, Justice.

text:
    215 La. 619
    MESHELL v. BAUER et al.
    No. 39078.
    Supreme Court of Louisiana.
    May 31, 1949.

      ■ J. S. Pickett, Many, for plaintiffs and appellants.
    Fraser & Fraser, Many, for defendants and appellees.
   FOURNET, Justice.

The sole question for our determination in reviewing the judgment of the Court of Appeal, Second Circuit, affirming the judgment of the district court decreeing the defendants to be the owners of the property in controversy, is whether or not ■the plaintiff, who was the owner thereof by virtue of his actual physical possession for more than thirty years, lost his title when 'the property was sold by the state to enforce the payment of delinquent taxes assessed against the property.'

The Court of Appeal correctly states the pleadings and the facts and in our opinion properly disposes of the issue. We therefore quote the same with approval [25 So.2d 772, 773]:

“Joe P. Meshell, alleging himself to be the owner by virtue of actual, physical possession for more than thirty years of the SW V4 of SW %, Section 19, Township 8 North, Range 12 West, in Sabine Parish, Louisiana, instituted this suit against J. E. Bauer and W. H. Barthold, non-residents of Louisiana, to have his alleged superior title thereto recognized and his possession of the same quieted, etc.
“Defendants denied Meshell’s alleged ownership of the land and asserted title in themselves, by and through a valid tax sale thereof to Bauer in the name of the ■record owner, The Bradley Drilling Company, on June 13, 1940, for due and delinquent taxes under an assessment for the year 1939; and sale of one-half interest therein by Bauer to Barthold. Defendants prayed that plaintiff’s demand be rejected and that their title to the land be recognized and possession thereof be ordered delivered to them by the plaintiff.
“A few days prior to the trial of the case, plaintiff died intestate. His heirs were judicially recognized and placed in possession of all of his property. On written motion, they were substituted as parties plaintiff.
“Plaintiffs’ demand was rejected and there was judgment for the defendants •as prayed for by them. Plaintiffs appealed.
“It is shown beyond question that Joe P. Meshell actually and physically, through enclosures and cultivation, possessed the entirety of the land in dispute, for more •than thirty years prior to his death. It is also equally well shown that he did not have a record title of any character to the land, nor did he return same for assessment purposes or pay any taxes thereon for anjr part of said thirty years. On the contrary, it is shown that a regular chain ■of title, consisting of several conventional transfers of the land, ended in The Bradley Drilling' Company in 1930, and that under a valid assessment of this land and. many other tracts to that company, for delinquent taxes of 1939, all of said tracts were sold and adjudicated by the sheriff and tax collector of Sabine Parish, to defendant, Bauer. He thereafter sold one-half interest therein to defendant, Barthold.
“In 1944, by appropriate proceedings against the tax debtor in the District Court of Sabine Parish, the tax deed to Bauer was quieted and confirmed.
“Plaintiffs’ counsel, in brief, while championing the prescriptive title of Me-shell to the land, does not therein, nor in the petition, assail the efficacy of the tax deed to Bauer nor offer any reason why it should not be given the force and effect that instruments of that character, under the Constitution and Laws of this State, are entitled. In .the absence of direct attack upon the tax deed, we assume that no valid ground exists therefor. We would be warranted in simply affirming the judgment with the foregoing statements, but shall ■briefly discuss the pertinent law and legal principles.
“The law governing cases, the facts of which are as they uncontradictedly appear herein, is very clear. The tax assessor is required by statute to assess real estate to the last -record owner. Act No. 170 of 1898, Sections 25 and 53; Section 11, Article X of the Constitution of 1921. And a tax deed under such assessment is prima facie evidence of a valid sale. It may not be set aside for any cause, except on proof of payment of the taxes for which the property was sold prior to date of the sale. Section 11, Article X of the Constitution of 1921. However, the courts of this state, uniformly, since the adoption of the Constitution of 1898, have held that the effectiveness of the peremption contained therein, and in subsequent constitutions, in favor of tax sales of real property, was suspended so long as the tax debtor or his heirs and/or legal representatives or his or their vendee or vendees held actual, physical possession of the property. Of course, the referred to peremption has application only to tax sales that were made without strict observance of all legal requirements and formalities.- It was designed to -cure tax sales affected with legal infirmities. A tax sale, legally valid a'b initio does not need the aid of this peremption at all. It is beyond attack and becomes indefeasible after the period of redemption (now three years) has expired.
“Meshell was not the tax debtor. He had not the least semblance of record title to the land and for this reason neither his possession thereof nor that of his heirs could be pleaded successfully against the efficacy of the tax sale that was made in the name of the record owner, the true tax debtor, to whom, presumably, the required notices, precedent to the sale, were given. Pertinent to this discussion, see Gilmer et al. v. Stinson et al., La.App., 197 So. 299.
“For the reasons herein given, the judgment appealed from is affirmed; and, accordingly, defendants, J. E. Bauer and W. H. Barthold, as against the heirs of Joe P: Meshell, deceased named in this suit, are recognized and decreed to be the legal owners of the land in controversy, to-wit: SW % of SW Section 19, Township 8 North, Range 12 West, situated in the Parish of Sabine, Louisiana, and entitled to the undisturbed possession thereof. Substituted plaintiffs are hereby cast for all costs of suit.”

This case was submitted on briefs, no appearance being made for the purpose of arguing the case on behalf of the plaintiffs and appellants, and the authorities relied on in brief in support of their position, from which certain excerpts are. quoted—Fishel v. Stark, 49 La.Ann. 855, 21 So. 595; Thomas & Bullis v. Stricker Land & Timber Co., Inc., 181 La. 784, 160 So. 413; Dyer v. Wilson, La.App., 190 So. 851; and 61 C.J. 1307 — are .inapplicable to the issues presented here for our decision and are, therefoie, not controlling.

The judgment is affirmed.

O’NIELL, C. J., takes no part.


author: HARDY, Judge.

text:
    PETTEWAY v. SHREVEPORT RYS. CO.
    No. 7357.
    Court of Appeal of Louisiana. Second Circuit.
    June 30, 1949.
    Freyer, Goode, Nelson & Freyer, Shreveport, for appellant.
    Stephens & Allen, Bryan E. Bush, Jos. H. Stephens, Jr., Shreveport, for appellee.
   HARDY, Judge.

This is a suit for damages by plaintiff, who seeks to recover individually and for the use and benefit of his minor child, Harold Petteway. The case was one of four consolidated cases. Our findings are set forth in the opinion of this Court in suit entitled Moch v. Shreveport Railways Company, 41 So.2d 741.

There was judgment below rejecting the individual demands of plaintiff, together with the reconventional demand of the defendant, but allowing judgment for plaintiff for the use and benefit of his minor son in the sum of $200.00. Plaintiff has answered the appeal, praying for judgment on his individual demands and for an increase in the judgment awarded for the use and benefit of his minor son from the amount of $200.00 to $1,500.00.

For the reasons assigned in our opinion in the above numbered and entitled case, having found plaintiff liable by reason of contributory negligence which was a proximate cause of the accident, it necessarily follows that his individual demands were properly rejected.

Examination of the record, in our opinion, fails to establish the fact that the 14 year old minor suffered injuries of a severe, serious or permanent nature. Our appreciation of the facts does not justify an increase in the amount awarded by the lower court, which appears to us to be adequate.

Accordingly, the judgment appealed from is affirmed at appellant’s cost.


text:
    SALONE v. SHREVEPORT RYS. CO.
    No. 7358.
    Court of Appeal of Louisiana. Second Circuit.
    June 30, 1949.

      Freyer, Goode, Nelson & Freyer, Shreveport, for appellant.
    Stephens & Allen, Bryan E. Bush, Jos. H. Stephens, Jr., Shreveport, for appellee.
   HARDY, Judge.

Plaintiff in this cause, one of four consolidated suits, seeks to recover damages in the sum of $17,825.00 arising from the death of his minor child, an 18 year old son. After trial there was judgment in favor of plaintiff in the sum of $3,825.00, from which judgment defendant has appealed, which appeal has been answered by plaintiff praying for an increase in the judgment to the full amount stated above.

In addition to the points covered in our opinion in Moch v. Shreveport Railways Company, 41 So.2d 741, there is one point which is peculiar to this suit.

At the time of the accident the decedent was riding on the left running board in a position near the rear fender, in violation of an ordinance of the City of Shreveport making unlawful the act of riding on the fenders, running board, hood or any other place on the outside of an au-tomobile. This is urged as an additional defense in this particular case.

There is no evidence in the record which indicates that the position of the decedent, Ardis Salone, on the running board of the car driven by Petteway was a Contributing cause in any degree whatsoever to the happening of the accident. It is well established that the negligent act of a person riding on a running board is not sufficient to preclude recovery. Robinson v. Miller, La.App., 177 So. 440. This is true even in cases where the probabilities are that plaintiff would not have been injured had he been inside the car. Stout v. Lewis, 11 La.App. 503, 123 So. 346.

As to the quantum, we are convinced that the award of the District Court was inadequate. Plaintiff established, without' any serious controversy, that he received weekly financial assistance of some $7.00 to $10.00 from the decedent, and that his deceased son was accustomed to help him with his farming operations on his days off. In consideration of the contributions of financial support and services, and the loss of the companionship and filial devotion of a good son, we think the award should be increased.

'For the reasons assigned the judgment appealed from is amended by increasing the amount of judgment in favor of plaintiff to the sum of $5,325.00, and as amended, the judgment is affirmed.


text:
    TAYLOR v. SHREVEPORT RYS. CO.
    No. 7359.
    Court of Appeal of Louisiana. Second Circuit.
    June 30, 1949.

      Ereyer, Goode, Nelson & Freyer, Shreveport, for appellant.
    Stephens & Allen, Bryan E. Bush, Jos. H. Stephens, Jr., Shreveport, for appellee.
   HARDY, Judge.

Plaintiff in this suit is the tutor of the minor, Bennie Ruth Sherouse, who was also a passenger in the automobile driven by B. E. Petteway. After trial there was judgment in favor of plaintiff for the use and' benefit of his minor ward in the sum of $1,000.00, from which judgment defendant has appealed. Plaintiff has answered the appeal, praying for an increase in the amount of the judgment to $5,000.00. Additionally, plaintiff complains of that part of the judgment allowing the intervention of Shreveport Charity Hospital and decreeing the payment of hospital expenses to the extent of $116.00 out of the judgment awarded plaintiff.

Plaintiff’s ward is a young, unmarried female who suffered rather severe lacerations of the left shoulder and arm and a slight cut in the left corner of her upper lip as a result of the accident. The minor was hospitalized for a period of 13 days, and, unquestionably, suffered considerable pain. Particularly it is urged that the laceration of the arm has left a large, ugly, raised scar, impairing the appearance of the girl and causing humiliation and embarrassment. In our opinion the evidence adduced with regard to the injuries suffered and the permanent effect thereof, is inconclusive and unsatisfactory. The only evidence in this particular instance on this point is found in the testimony of the plaintiff and his minor ward. No attempt was made to introduce any expert testimony bearing upon the permanence and effects of the injuries. The District Judge had the opportunity to visually examine the worst of the scars, whieh was on the girl’s arm. Under these circumstances, we do not feel that we would be justified in disturbing the amount of the judgment.

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


author: TALIAFERRO, Judge.

text:
    LEVY v. STEPHENS.
    No. 7330.
    Court of Appeal of Louisiana. Second Circuit.
    June 30, 1949.
    James W. Jones, Jr., Natchitoches, for appellant.
    Russell E. Gahagan, Natchitoches, for appellee.
   TALIAFERRO, Judge.

Plaintiff sued out a rule on E. J. Stephens to show cause, if any he had, why the cost incurred in the suit by her against him on the docket of the Tenth District Court in and for Natchitoches Parish, and decided on appeal to this court the 28th day of June, 1948, as per opinion and decree reported in 36 So.2d 44, should not be fixed at the sum of $214.79, and he be ordered to pay the same. The proceeding is predicated entirely upon the premise that the judgment of this court decreed that Stephens should pay all of the costs of the original suit.

The original suit began as a possessory action but was converted into a petitory action and Stephens called in warranty James W. Jones, Jr., St. Denis Securities Company, Inc. and the Rio Hondo Land Company, Inc.

The defendant herein filed several exceptions to the rule, including that of no right of action, all of which were overruled. The case was tried on its merits after the filing of answer by Stephens and there was judgment in keeping with the prayer of the petition for the rule. Stephens appealed.

On the face of the record the judgment appealed from is patently incorrect. The decree of this court above referred to and cited did not cast Stephens for any part of the cost of the suit, and, this being true, he cannot be held responsible for the payment of any portion thereof. Said judgment cast the warrantors for all of the court costs and to them should plaintiff look for reimbursement thereof.

For the reasons herein assigned, the judgment from which appealed is reversed, the exception of no right of action is sustained, and this proceeding is dismissed at appellee’s cost.


author: KENNON, Judge.

text:
    SIMS v. SMITH.
    No. 7345.
    Court of Appeal of Louisiana. Second Circuit.
    June 30, 1949.
    Rehearing Denied Aug. 16, 1949.
    S. R. Thomas, Natchitoches, for appellant.
    Watson & Williams, Natchitoches, for appellee.
   KENNON, Judge.

Alleging the amputation of the last two fingers of his left hand and other injuries which prevented him from continuing to do work as a manual laborer, all as a result of injuries while in the employ of the defendant, plaintiff sued for a maximum of four hundred weeks compensation.

The answer admitted the employment at the wages stipulated, but set forth that plaintiff was employed solely to carry lumber from the edger table to a place on the yard where it could be stacked and that at the time of the injury, he was engaged in cleaning the debris from underneath this edger and was without the scope of his employment; that the injury could not have accidentally happened as alleged and concluded with the allegation that defendant believed plaintiff’s injuries to be self-inflicted for the purpose of claiming compensation and that the allegation that his injuries resulted in any loss of function of the left hand was “pure fabrication.”

The District Judge found that plaintiff was injured while in the course of his employment with defendant and had lost two phalanges of his little and ring fingers and gave judgment under Article 4398 of Dart’s General Statutes, Act No. 20 of 1914, § 8, as amended, for twenty weeks for each finger, or total of forty weeks compensation. From that judgment, defendant . has appealed.

Defendant’s contention that plaintiff deliberately injured himself and that the injury occurred while he was not acting within the scope of his employment is not borne out by the testimony.

Plaintiff was injured while using a shovel in cleaning under the edger at a time when the sawing operations of the mill were temporarily closed. Defendant himself testified that plaintiff was employed on that day to “tail the edger,” that is, to catch lumber from the saw and place it in the stack as directed. On the day of the accident, Mr. Smith, the operator of the mill, was short one of the workmen who normally assisted in putting the logs on the skidway and rolling them down. Defendant himself was operating the sawing carriage and when the supply of logs ran out, he stopped the sawing operation, and, according to the testimony of plaintiff, his father, and two brothers who constituted four of the eight or nine man crew working at the mill, defendant gave the order for some of the crew to help get in logs and the rest to clean up. Plaintiff’s father testified that it was part of the job of the man who “tailed the edger” to clean up behind the edger, that is to remove the sawdust and stuff from underneath and that his son was so engaged with a shovel when he heard an unusual noise and they brought plaintiff out from underneath the edger with blood streaming from his hand and with his fingers missing. Plaintiff’s brother Louis testified that when defendant stopped the carriage, he went with plaintiff to clean out from underneath the edger; that plaintiff carried the shovel usually used for that purpose.

Defendant testified that an employee by the name of Bloss Moore was running the edger and that it was his place, and not plaintiff’s, to- take -care of all matters pertaining to the edger and that the orders were that clean up was to take place only when the machinery was stopped and that he had told his employees from time to time, “If you see anything go wrong, run, folks, run.” Mr. Moore, when called, testified that it was his job to clean the sawdust and debris from beneath the edger, but when asked whether or not the plaintiff ever did that work, his reply was, -“I don’t know, sir.”

The evidence showed that plaintiff had not worked long for defendant; that his employment prior to the day of the injury had been elsewhere than at the mill. Defendant offered no proof that plaintiff was instructed that it was not his duty to assist in the cleaning up operations underneath and near the equipment upon which he was working. Mr. Moore, the employee in charge of the edger, stated that it was his. custom to clean up under the edger- when the mill shut down at noon or at other times when operation stopped. The business of cleaning up under the edger was a sort of menial task connected with his own employment. It is not illogical, to assume that plaintiff as a “freshman” employee should have been expected to assist in the clean up operation.

The testimony shows that the total crew operating the mill was less than ten men. The record does not show a dear division of the duties of the several employees. In fact, at the time of the injury, the mill was shut down so that some of those engaged in other duties could assist in putting more logs on the skidway and available - for the carriage. The cases cited by defendant where recovery was denied to an employee on the theory that he was injured after leaving his assigned work and unnecessarily exposing himself to dangerous machinery are distinguishable from the present case in that here the plaintiff’s employment was at the edger table and his engaging in the clean up operation during a lull in the sawing was not a leaving of his place of duty and an unnecessary exposure to danger.

Defendant introduced four witnesses for the purpose of showing that the plaintiff could not accidentally have injured himself as alleged. Their testimony is of little .value. The first of these when asked- by counsel for defendant whether th‘e accident could have happened in the way plaintiff alleged, answered, “I just wouldn’t know.” The second when asked whether he had heard plaintiff testify and whether plaintiff could have accidentally injured his hand as he said, answered, “Yes, sir, I believe it could be done accidentally,” and added, “I believe the way he say it happened that it could be done. The shovel hitting the strip and then the strip kicked that shovel in there. I believe it could be done that way.” The third witness when asked by defense counsel whether plaintiff could have been injured in the way he said he was injured, answered, “I couldn’t say. I never have and I have worked there since 1917.” The fourth witness when asked whether plaintiff could have gotten accidentally injured as he stated, answered, “I couldn’t say.” No other testimony was introduced by defendant and his defense that plaintiff wilfully injured himself clearly falls.

Plaintiff in brief has asked that judgment be rendered for four hundred weeks compensation. However, plaintiff neither appealed nor answered the appeal and it is unnecessary for us to consider the authorities cited in brief on this point.

The judgment is affirmed, with costs.


text:
    WIGGINS v. AMERICAN SURETY CO. OF NEW YORK et al.
    No. 7337.
    Court of Appeal of Louisiana. Second Circuit.
    June 30, 1949.
    Boatner, Simon & Carroll, Shreveport, for defendant-appellant.
    Gahagan & Pierson, Natchitoches, for plaintiff-appellant.
    Watson & Williams, Natchitoches, for defendant-appellee.
   HARDY, Judge.

This is an action in which plaintiff seeks recovery of damages resulting from injuries received in an automobile collision. The defendants are the American Surety Company of New York, the insurer of the car in which plaintiff was riding as a guest, and the Employer’s Casualty Company, the liability insurer of the owner of the truck with which the automobile collided. The total amount of damages prayed by plaintiff was the sum of $5,095.00. After trial there was judgment in favor of plaintiff against the defendant, Employer’s Casualty Company, in the sum of $1,595.00, from which judgment the named defendant has appealed. Plaintiff answered the appeal, praying for an increase in the amount of the judgment. The judgment further rejected plaintiff’s demands and dismissed his suit against the other defendant, American Surety Company, and from this part of the judgment, out of an abundance of precaution, plaintiff has appealed.

The accident occurred about the hour of 7:30 or 8:00 o’clock on the evening of November 17, 1947, at which time a misting rain was falling. Plaintiff was riding as a •guest in an automobile driven at the time by the 17-year old son of R. L. Ropp, and the two young men were on their way to a picture show in the City of Natchitoches, Louisiana. Ropp, the driver of the car, turning out of Washington Street into Front Street, finding his progress impeded by a very slowly driven car immediately in front and proceeding in the same direction, turned out to his left in order to pass the said vehicle. As he was engaged in the passing operation he perceived an Army truck which was being driven in the opposite direction by one V. A. Conner. The drivers of the respective vehicles attempted to avoid a collision, Conner by pulling as far as possible to his right almost to the curb of Front Street, and Ropp apparently by applying his brakes. Notwithstanding these actions Ropp, either in his excitement, turned to the left, or his car skidded in that direction, and the left front fenders of the two vehicles met in the resulting crash. The plaintiff, Wiggins, a young man about 22 years of age, was painfully injured, sustaining several wounds about the face and head, and a bad cut on the neck. As a result of the injuries plaintiff lost one front tooth, another was chipped, and the suturing of the cuts and gashes of the face and neck left some scars, none of which seem to be of grave concern with the exception of what is described as a u-shaped cut under the chin.

According to the facts which have been definitely established, both the car and the truck were proceeding at a reasonable rate of speed. Casual consideration would appear to indicate that young Ropp was guilty of negligence in attempting to pass another car without ascertaining that the passing' lane was clear of approaching traffic. But. one of the material facts, and the one which, has been most disputed, is the question as to whether the headlights of the truck driven by Conner were burning at the time of the accident. The District Judge found that the truck was being driven without lights, which finding, in.our opinion, is justified by the great preponderance of the testimony. Additionally, it is important to note-that the truck, being a former Army vehicle, was painted the customary olive drab,, which treatment, as established by testimony in the record, was designed for the particular purpose of making such vehicles as nearly invisible as possible. It must therefore be concluded that young Ropp, unwarned by the beam of approaching headlights, was justified in assuming that the passing lane was clear, and, further, by reason of the absence of lights and the neutral camouflage of the vehicle itself, it is obvious, as was found by the District Judge, that he was confronted by an emergency which was not of his own making.

For the reasons set forth we have had no difficulty in concluding that Ropp,. the driver of the automobile in which plaintiff was a passenger at the time, was not guilty of negligence, and the corollary conclusion to the effect that Conner was guilty of negligence necessarily follows. It is clear to us that Conner’s negligence in driving the truck without lights was the sole- and proximate cause of the accident leading to plaintiff’s injury.

Our findings, as above stated, being in complete accord with those of the District Judge disposes of the actual facts in connection with the case, but a serious question has been raised by learned counsel for the defendant, Employer’s Casualty Company.

In his petition plaintiff alleged that the truck involved in the accident was owned by one Claude Dejersey of Winnfield and was being driven at the time by V. A. Conner, “an agent and/or employee of Claude Dejersey”. The petition further alleged that the defendant, Employer’s Casualty Company, had issued a policy of public liability insurance to Claude Dejersey, “insuring him against all claims arising from injuries inflicted on the person of any third person through the operation of his Ford truck which was involved in this accident, which policy was in full force and effect at the time of this accident”. (Emphasis by the Court.)

On trial, counsel for defendant, Employer’s Casualty Company, objected to the introduction of the insurance policy in evidence on the ground that it enlarged the pleadings.

Counsel has elaborated upon his objection in his argument before this Court, and contends that any liability under the omnibus clause contained in the policy should be excluded from consideration.

The facts developed on trial of the case were conclusive on the point that Conner, the driver of the truck, was neither an agent nor an employee of Dejersey, the insured, but was at the time using the truck by express permission of Dejersey.

It is contended on behalf of defendant that plaintiff has failed to bring his case within the terms of his petition; that the policy is not responsive to the allegations above noted, and cannot be received nor considered to the extent of enlarging the pleadings and thus permitting plaintiff to avail himself of the provisions of the omnibus clause. In support of this position the following cases are cited, Britt et al. v. Caldwell-Norton Lumber Co., Ltd., et al., 126 La. 155, 52 So. 251; Engleman v. Traeger et al., 102 Fla. 756, 136 So. 527; Norvell v. Aiavolasiti, La.App., 33 So.2d 434; Jones et al. v. Abercrombie et al,, 178 La. 427, 151 So. 641.

Examination of the cited cases discloses their support of the general rule with respect to enlargement of the pleadings, but fails to reflect any pronouncement apropos of the specific point raised.

This identical question was presented, under slightly different circumstances, to the Orleans Court of Appeal in the case of Burglass v. Burglass et al., La.App., 193 So. 275, 276. In that case the plaintiff’s petition failed to allege that the car was being used by the insured’s son with the permission of the assured. The majority opinion expressed the view that the plaintiff was required to allege the circumstances which brought liability within the terms of the policy. The point was raised on an exception of no cause of action which had been maintained by the District Court. On appeal the case was remanded for the purpose of permitting amendment of plaintiff’s petition in conformity with the requirement above set forth, the right to which amendment had been refused by the lower court.

In the concurring opinion of Judge Mc-Caleb in the above-cited case we find certain very pertinent expressions with which we are in such complete accord that we quote Judge McCaleb’s opinion in full, as follows:

“I fully agree with the reasons given by my colleagues in reversing the judgment appealed from and remanding the case for the purpose of permitting plaintiff to supplement this petition. I am, however, unwilling to concede that the petition is defective or that it fails tó state a cause of action against the General Accident, Fire & Life Assurance Corporation, Ltd.
“The plaintiff alleges, in substance, that the General Accident, Fire and Life Assurance Corporation, Ltd., had issued a policy of liability insurance on the automobile in which he was riding and that, under the terms of that policy, it became liable for the injuries he received as a result of the driver’s negligence. The policy, which was produced in response to a prayer for oyer, exhibits that it was issued to A. Bur-glass, the father of the driver of the automobile, and that the insurer obligated itself to indemnify the named assured and any other person operating the vehicle with permission and consent of the named assured against liability imposed upon them by law for bodily injuries sustained by third persons as a result of the negligent operation and use of the automobile.
“The argument of the insurer on the exception of no cause of action is that, since the policy reveals that it was issued to A. Burglass whereas the petition alleges that the car was being driven by his son, Milton Burglass, at the time of the accident, it is liable to plaintiff only in the event it is alleged and proved that Milton Burglass was driving the car with the consent of his father and that plaintiff’s injuries were due to the negligent operation of the vehicle.
“It seems to me that the question as to whether Milton Burglass had the permission of his father to use the automobile involved in the accident is properly a matter of defense which should be raised by the insurer in its answer. I feel that it is exacting too much of the plaintiff to requiré him to allege that such permission had been granted by A. Burglass to Milton Burglass because he is obviously not in a position to know whether such is or is not the case. If it is incumbent upon the plaintiff to charge that Milton Burglass had the permission of his father to use the automobile in order to state a cause of action against the insurer, it will be necessary for him to submit evidence in proof of that averment to sustain his case. This places him at a serious disadvantage because it does not seem likely that he has or should have any knowledge concerning those facts.
“It strikes me that some reasonable rule should be adopted by the courts with respect to this type of case. Here, the defendant has issued a policy covering the owner of the car against legal liability for injuries received by third persons as a result of the negligent operation of the vehicle. It has also insured, under the omnibus clause of the policy, all persons driving the car with the consent of the owner. Why should a plaintiff, who is injured by the negligence of the driver of a vehicle, be required to allege that the automobile was in charge of a person who had the permission of the owner to use it when the chances are that he has no knowledge whatsoever on that subject? The insurance company in such instance is invariably in possession of the true facts and it is my conviction that any question concerning the lack of permission to the driver of the car from the owner should be set forth by the insurer as a special defense in the case.
“This court has recently had occasion to decide a case which I believe fully demonstrates the soundness of my position in this-matter. In Bates v. Hayden, National Casualty Co., La.App., 188 So. 751, 753, the plaintiff alleged that the automobile, which was being driven by an employee of the defendant Hayden, had been insured against public liability by the General Accident, Fire and Life Assurance Corporation, Ltd. (the same defendant appearing in this suit). The allegations of plaintiff’s petition were denied in the answer of the insurer. On. the trial of the case, the liability policy,, which was produced upon plaintiff’s request, exhibited that it had been issued to. Riverside Lumber Company, Inc., and not to Hayden as charged in the plaintiff’s petition. The insurer, on appeal of the case to this court, sought to be exonerated in the matter on the ground that plaintiff had failed to prove the allegations of his petition. We rejected the contention in the following language:
“ ‘We find no-substance in the argument. Act No. 55 of 1930 permits an injured plaintiff to bring a direct action against the insurer of the vehicle and the latter has the right to assert all lawful conditions contained in the policy in the same manner as if the suit had been filed against it by the named assured. There was no necessity for the plaintiff to join the owner of the truck as a party-defendant and his allegation that the policy was issued to Hayden may be treated as surplusage. The only matter of importance is that the defendant insurer issued a public liability policy by which it agreed to indemnify all persons legally responsible for the negligent operation of the truck. This is its agreement and, as Barrett is an “Additional Assured”" under the omnibus clause of the policy in evidence, it cannot be heard to say that it is being sued on a contract it did not make merely because the plaintiff alleged, on information and belief, that the policy was issued to Hayden when it was made in the name of Riverside Lumber Company, Inc. Moreover, we cannot see that the defendant insurer has been prejudiced in any manner as a result of plaintiffs erroneous averment. After all, it issued the policy and it was in a better position than plaintiff to know the terms and conditions of the contract. It has not only insured the Riverside Lumber Company, Inc., but has also contracted to protect the defendant Barrett who was operating the truck under the instructions, and with the permission, of the named insured.’
“Since it is my opinion that the judge of the lower court was in error in maintaining the exception of no cause of action, I respectfully dissent from the majority opinion maintaining the district court on that point but I concur in the decree which reverses the judgment and gives plaintiff an opportunity to supplement his petition.”

The above presentation and resolution of this vexing question clearly expresses out views, and the conclusion which we have reached independently, that defendant’s claim is supertechnical, and further that the approval of the doctrine urged would result in a grave injustice.

Accordingly, we are firm of the ■opinion that .an allegation to the effect that a defendant insurer issued a policy insuring the holder thereof against claims by third persons for injuries resulting from the operation of the vehicle is sufficiently broad to justify the admission of the policy in evidence in an action by such third person against the insurer. There is no element of surprise nor prejudice involved, and if the insurer, as a matter of defense, can allege and establish any facts which relieve it of liability, he has the unquestioned right and opportunity of so doing.

Plaintiff’s answer to the appeal seeking an increase in the amount awarded has been met by strenuous objection on the part of defendant, who urges .that the award is excessive and, accordingly, should be reduced. Careful examination of the record has served to convince us that the award, under the facts established, is neither excessive nor inadequate.

For the reasons assigned the judgment appealed from in favor of plaintiff and against defendant, Employer’s Casualty Company, is affirmed at appellant’s cost.

■It is further ordered that the judgment in favor of American Surety Company of New York rejecting plaintiff’s demands is also affirmed at the cost of plaintiff-appellant.