author: PONDER, Justice. McCALEB, Justice HAMITER, Justice MOISE, Justice. HAMITER, Justice HAWTHORNE, Justice McCALEB, Justice

text:
    215 La. 1007
    STATE ex rel. MURTAGH v. DEPARTMENT OF CITY CIVIL SERVICE et al.
    No. 38662.
    Supreme Court of Louisiana.
    March 21, 1949.
    On Rehearing June 30, 1949.

      Henry G. McCall, City Atty., Henry B. Curtis, John F. Connolly, Asst. City Attys., New Orleans, for appellant.
    Charles J. Rivet, New Orleans, for ap-pellee.
   PONDER, Justice.

In this case we are adopting the written reasons handed down by the trial judge as a part of our opinion because he has so aptly stated the facts and properly disposed of the issues presented. His reasons for judgment are, as follows:

“The relator, James H. Murtagh, seeks the issuance of a writ of mandamus directing the City Civil Service Commission for the City of New Orleans, the City Director of Personnel of the City of New Orleans, and the Mayor of the City of New Orleans, to reinstate him in the employment of the Civil Service of the City of New Orleans as a clerk in the Permit Division and to give him the necessary certification of facts which would entitled him to payment of his salary as provided by the City Civil Service Act, Act No. 171 of 1940, as amended, since his discharge by the Mayor of the City of New Orleans on September 9, 1946.
“The relator has been in the employ of the City of New Orleans since 1925. His position at the time of his discharge was that of a clerk in the Permit Division and his duties involved the clerical processing of applications and the issuance of permits required by Ordinance No. 15,510 CCS, as amended, for various street activities. On June 15, 1942, he entered upon defense employment with the Delta Shipbuilding Company, and upon the termination of his defense employment he returned to work for the City of New Orleans on August 20, 1945. It is the relator’s contention that he received an indefinite leave of absence without pay in order that he might assist the war effort by working in a defense plant. The defendants, on the other hand, contend that he resigned his city position. While the relator was in defense employment, the City Civil Service Act went into effect. The City Attorney in office at that time ruled that the chief clerk and employees in the Permit Division were employees of the Mayor and in the unclassified service.
“In the course of its lengthy task of classifying City employees, in which expert assistance was employed, the City Civil Service Department, after a ruling by the Legal Committee, placed all the positions in the Permit Division under the classified service. Accordingly, the relator was classified as Clerk II in the classified service. On June 1, 1946, his salary was reduced from $200 a month to $170 a month to conform to the pay scale for clerk II in the classified service. On June 19, 1946, upon the request of the Mayor for a ruling, the present City Attorney rendered an opinion that the employees of the Permit Division were in the unclassified service. From June 15, 1946, until the relator was discharged by the Mayor on September 9, 1946, his salary was paid at the rate of $200 a month as an unclassified employee rather than $170, the salary to which he would be entitled as a classified civil servant.
“Following his discharge, without cause, on September 9, 1946, the relator sought and obtained a hearing before the Civil Service Commission of the City of New Orleans. In a determination by that Commission, James Hugo Murtagh v. Mayor of the City of New Orleans, No. 26, January 25, 1947, the Commission held that the relator was in the unclassified Civil Service and consequently outside the ambit of protection afforded by the civil service laws. Having exhausted his administrative remedies, the relator now seeks a judicial determination of his rights under the civil service law.
“The defendants have filed an exception of no cause of action founded on the contention that mandamus does not lie. The plea is not well founded, for mandamus is a special writ authorized by the Code of Practice, Articles 828-834, designed to order public officers to perform the mandatory duties which their offices impose upon them. If the petitioner was improperly discharged, he is entitled to the writ he seeks. Mandamus is the most common form of remedy utilized for this type of action throughout the United States. Field, Civil Service Law, 230-35 (1939). This writ has been used on many occasions in the State of Louisiana for the purpose of determining the right of a civil service employee to his employment. State ex rel. Sonnenberg v. Board, 1922, 149 La. 1095, 90 So. 417; State ex rel. Hughes v. Board, 1922, 150 La. 1, 90 So. 410; State ex rel. Tallant v. Board, 1926, 161 La. 361, 108 So. 770; State ex rel. Pepper v. Board, 1933, 177 La. 740, 149 So. 441.
“The first question presented on the merits is whether the petitioner was in the employ of the City on January 1, 1943, and thus blanketed into the Civil Service by Section 11 of Act No. 171 of 1940, as modified by Act No. 368 of 1942. Section 11 of Act No. 171 of 1940 provides:
“ 'Every person who, on the first day of July, 1942, is legally occupying, by permanent appointment thereto, a position placed by this Act in the classified service, shall be entitled to occupy such position, without further tests of fitness for such employment, and shall become subject to the provisions of this Act * *
“Act No. 368 of 1942 suspended the effective date of Section 11 until January 1, 1943.
“The evidence in respect to the relator’s departure from City employment for defense work on July 1, 1942, is confused. The files of the City offered in evidence are not complete; some evidence points toward a leave of absence and some toward a resignation. -The relator has submitted in evidence a carbon copy of a letter, the original of which he has testified he sent to the Mayor. This letter contains a request for an indefinite leave of absence for the purpose of obtaining defense employment. Relator testified that he received an affirmative reply granting this request but that he has lost that letter. However, Mr. Daniel E. Knowles, the Secretary to the Mayor at that time, and originally called as a witness by the defendants, testified that he definitely recalled the letter granting a leave of absence to the relator, because he himself wrote the letter. If any unfavorable inference is to be drawn from the petitioner’s failure to produce the letter, he alleges he received from the Mayor authorizing his request, an even greater unfavorable inference must be drawn from the City’s failure to place in evidence any records signed by the petitioner from the City’s files indicating either a leave of absence or a resignation.
“The City relies upon the relator’s ‘Employee’s Record’ of Delta Shipbuilding Company, in which, in response to a printed question relating to the reason for leaving the applicant’s former employment, there is inserted by typewriter the word ‘resigned’. However, that application is not a city record but an application for work with a private employer. Any applicant filling it out would assume it was designed to reveal whether or not he had left his previous employment voluntarily or had been discharged for cause. His response is nothing more than that he was advising his prospective employer that he had not been involuntarily discharged.
“In passing, it is to be noted that in the hearing before the Civil Service Commission no reference whatsoever was made by the Commission to the relator’s defense employment. The opening paragraph of the Commission’s opinion, which was rendered on January 25,1947, states:
“ ‘Appellant, James Hugo Murtagh, was in the employ of the City of New Orleans from about the year 1925 until September 9, 1946, on which date he was discharged by Mayor de Lesseps S. Morrison.’
“It is also to be noted that the terms ‘resignation’ and ‘leave of absence’ are terms of legal art having legal connotations which describe certain legal results. At the time the relator entered into defense work the City Civil Service Act was not yet effective, consequently these words did not have the connotations that they have today. Thus, when those words were entered on the various personnel and payroll records at that time, such words might well have been used interchangeably and indicated simply that the petitioner was no longer on the payroll of the City. Since they had no legal connotation then, they can not be utilized to-day to the determination of the manner in which the petitioner left his employment.
“The defendants have offered in evidence the rules of the Department of City Civil Service for the purpose of showing the rules in respect to leave. However, these rules were promulgated after the relator entered upon his defense employment and are not determinative of the problem of the type of leave the relator took at the time he commenced his defense employment. Also introduced by the defendants is a Resolution of the Civil Service Commission on Status of Employees on Effective Date of Act, which reads as follows :
“ ‘For purposes of determining which employees shall be entitled to continue to occupy their present positions without further tests of fitness, persons legally occupying, by permanent appointment, positions in the classified service shall include persons who:
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“ ‘(c) were appointed on or prior to January 1, 1943, by a duly constituted appointing authority to positions in the classified service without restriction as to duration or condition of tenure and were listed as employees on that date but were absent from duty by reason of leave of absence with pay, or leave of absence without pay of not more than one year’s duration. * * * ”
“But this resolution is effective only to the extent that it is a correct and reasonable rule interpreting Section 11 of the Civil Service Act, which places no restrictions on leaves of absence. In this respect it must be remembered that January 1, 1943, the controlling date, fell at the height of the war effort. An employee granted a leave of absence for defense work had a right to assume that he was entitled to a leave of absence for the duration of the war. The resolution of the Commission is arbitrary in establishing retroactively a one-year limit on this type of leave where none is established in the Civil Service Law. In spite of the resolution, the Director of Personnel testified that in the case of defense workers they were all readmitted, where it was shown they had obtained leaves of absence, even though their defense work lasted longer than á year.
“A Civil Service employee is presumed not to yield his rights in his employment. This presumption is particularly strong in the case of a career employee of long standing who took defense work, which was obviously of a temporary nature only, and thereafter returned to his position. The City has failed to produce a signed resignation of this employee. The conflicting evidence offered fails to overcome the presumption that he did not intend to resign.
“The principal question to be determined is whether the relator was in the classified or unclassified service. If he was in the latter, he gains no protection from the Act; but if he was a classified employee, his discharge would be invalid in that it was not in accordance with Section 33 of the Act.
“Section 10 provides:
“‘(a) The unclassified service shall include the following positions :
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‘“(8) Officers, Secretaries and employees of the offices of the Mayor and City Attorney, Board of Liquidation City Debt and one member of the Louisiana Bar occupying a position in the City Service as legal counsel to any appointing authority.
******
“ ‘(b) The classified service shall comprise all other positions now existing or hereafter created in the City Service.’
“The defendants contend that the relator is an employee of the office of the Mayor, and is thus in the unclassified service and may be dismissed without cause.
“The defendants point out that by Commission Council Ordinance No. 15,510 CCS, adopted in 1942, it is provided that persons desiring to engage in certain activities on the public streets and in public places
“ ‘Shall first apply to and obtain from the Mayor of the City of New Orleans a permit * * * which permit shall in each instance state the occasion for which it is issued and the length of time for which said permit shall be operated * * * *
and that it is also provided that the Mayor shall have the authority to designate a Director of Permits and such inspectors, clerks and other assistants as may be necessary for the proper conduct of the Permit Division. By Ordinance No. 16,501 CCS. adopted on May 24, 1946, this latter provision was amended to provide that the duties of the Director of Permits are to be performed by the Chief Clerk of the Mayor. These ordinances superceded Ordinance 14,434 CCS, adopted in 1936, which contained substantially similar provisions. The defendants thus argue that by virtue of these ordinances the Mayor is imposed by the Commission Council with the ‘personal’ duty of issuing these permits, which can be done either by himself or by his Chief Clerk and the assistants he appoints to perform these duties, which are ‘personal’ to him. In view of the ‘personal’ duty which is cast upon the Mayor by these ordinances, it is argued that all employees, no matter how numerous they may be or how detailed their duties, employed to perform these duties for the Mayor fall within the ambit of Section 10(a) (8) of the Civil Service Act. The Civil Service Commission founded its determination in the appeal by the relator before that body on this argument. If this conclusion is sound, the Commission Council merely by ordinance may and can declassify almost any classified employment by the simple expedient of placing such employment under the Mayor’s office. The only positions safe from such manipulation would be those placed in other departments by the charter of the City of New Orleans. Thus the Civil Service Commission and the City of New Orleans are in effect contending before this court that the City Civil Service Act contains a provision which practically would authorize the destruction of the very system which it purports to establish. Civil Service Statutes are designed to secure adequate protection to public career employees from political discrimination. Rogers v. City of Buffalo, 1890, 123 N.Y. 173, 25 N.E. 274, 9 L.R.A. Unless the courts protect civil servants in their legislative rights, the civil service system of employment could easily be reduced to a mockery.
“The provisions of Article XIV, Section 15 of the Constitution of 1921 have particular importance in the construction of the City Civil Service Act. Article XIV, Section 15, provides:
“ ‘The Legislature shall provide for civil service in municipalities having a population of one hundred thousand (100,000) or more, and for the recognition and adoption of the merit system in the employment or appointment of all applicants; and shall provide against the discharge of employees or appointees without good and sufficient cause.’
“It will be noted that the constitutional mandate to the Legislature provides for a merit system of employment and a protection from discharge without cause for all employees. There are no exceptions.
“Under such a mandatory provision in the organic law it might well be urged that any exemption whatsoever authorized by statute would be contrary to the solemn declaration contained in the Constitution. However, it has been recognized wherever the merit system is in existence that certain exemptions may be provided for if they are founded upon a substantial reason. But no blanket exemptions may be granted. A similar though not identical provision appears in the Constitution of the State of New York, and in view of that provision the New York Court of Appeals has held that a statute purporting to exclude any group of state employees from the operation of the civil service law must demonstrate that it is impractical to include the excluded group within the Civil Service of State. Friedman v. Finegan, 1935, 268 N.Y. 93, 196 N.E. 755; Ottinger v. Civil Service Commission, 1925, 240 N.Y. 435, 148 N.E. 627, 629. The words of Mr. Justice Cardozo in the Ottinger case are particularly appropriate.
“ ‘A statute which declares in advance of the event that any and all positions now or at any time established in connection with this bureau shall be withdrawn from the jurisdiction of the civil service commission, and filled without examination of any kind, does not enforce the Constitution to the limit of the practicable.’
“In the Friedman case, which also quoted the above words of Mr. Justice Cardozo with approval, it was stated [268 N.Y. 93, 196 N.E. 756]:
“ ‘These exemptions which may be made by the Legislature or by the Civil Service Commission appointed under its authority must have relation to the duties of the office and not simply to the title which is used. In other words, there must be a reasonable exercise of the power given under the Constitution. With liberality in application, it must be that competitive examinations are not practicable for the position or office. There must be something * * * in the nature of the duties which makes the service either one of confidence or else of such importance that personal selection instead of competitive examination is for the best interests of the public and the fulfillment of the particular duties. In other words, the Legislature cannot act arbitrarily and exempt places from competitive examination at will. The duties must have some relationship to the exemption and the classification must be reasonable.’
“Although the decisions of the Court of New York do not have the binding effect of law in this jurisdiction, there is no doubt that the Friedman and Ottinger cases correctly express the law on this subject.
“It is to be noted that at the time the City Civil Service Act was passed the above-quoted provision of the Constitution was the only constitutional declaration upon the entire matter of civil service. However, after the passage of the State Civil Service Law and the City Civil Service Law in 1940, Acts Nos. 172, 171, the Constitution was amended so as to make the provision of the organic law with respect to Civil Service read as follows:
“Article XIV, Section 15:
“‘(a) The Legislature shall provide for civil service in municipalities having a population of one hundred thousand (100,-000) or more, and for the recognition and adoption of the merit system in the employment or appointment of all applicants; and shall provide against the discharge of employees or appointees without good and sufficient cause.
“‘(b) The “State Civil Service Law” * * * and the “City Civil Service Law” * * * are hereby ratified, approved and affirmed. Any bill or bills amending or repealing either of said acts in whole or in part, directly or by implication, may be passed and become laws only when adopted by a two-thirds vote of the members elected in each House of the Legislature of the State of Louisiana.’
“It is not necessary in this proceeding to determine whether this constitutional amendment had the effect of raising the civil service law to the dignity of organic law. For even if the amendment did just that, it must be presumed that the Legislature in enacting the City Civil Service Act intended to carry out the mandate of Article XIV, Section 15 as it existed at that time and that it did not intend to create in either the Act or the constitutional Amendment an illusory civil service law which carried within its very provisions a wholesale power of destruction and avoidance. This is particularly true in light of the fact that the former provision of the Constitution was not stricken therefrom, but was reenacted as Section (a) in the identical language it had previously contained, when it stood as the sole constitutional provision. Rather, the constitutional Amendment taken as a whole is indicative of an intent to give 'further force and vitality to the civil service law and to prevent hasty and ill-considered legislation by requiring a two-thirds vote to make any alterations in the law. When the City Civil Service Act is read in the light of Sections (a) and (b) of Article XIV, Section 15 of the Constitution there can be little doubt that it was the legislative intent to exclude from the classified service only elective, non-municipal, policy-making, and confidential officials and employees.
“Parochial officials and their employees and the employees of the New Orleans City Park Improvement Association, a State Agency under Act No. 104 of 1934, Dart’s Gen.St. Sec. 6245.1, were properly excluded because these are not municipal offices.
“There is another reason why an employee of the Permit Division should not be excluded from the classified service. The charter of the City of New Orleans does not place the Permit Division under the office of the Mayor. In fact, it is silent as to such a division.
“The Permit Division is under the May- or’s office simply by virtue of a delegation of powers by the City Commission Council. The contention that the City Council can, by placing any division under the Office of the Mayor, declassify that position, by virtue of Section 10(a) (8), completely ignore the provision of the City Charter which provides:
“ ‘All other persons (after naming certain appointive officers) engaged in any capacity in connection with any department of the Government of the City of New Orleans shall be chosen in accordance with such Civil Service laws as may now or hereafter be in effect.’ Act No. 301 of 1946, § 1, amending Act No. 159 of 1912, § 12. Compare Sec. 1, Act No. 338 of 1936.
“If the term employees of the office of the Mayor as used in Section 10(a) (8) of the Civil Service Law is not to be confined to employees in confidential positions, it must, in any event, be limited to those employees of the office of the Mayor provided for in the charter of the City of New Orleans and cannot be extended to include employees of division or departments placed under the office of the Mayor for administrative purposes by the Commission Council.
“The argument in relation to the payroll on which the petitioner was carried and his rate of pay need only be mentioned in passing. Any City employee, classified or unclassified, is entitled to pay, and his status in civil service can in no wise be affected by the payroll or account on which' he is carried. The fact that the petitioner was overpaid during a certain period if he was in the classified service does not operate to take him from the protection of the civil service law. It simply gives the City a right of action to recover the overpayment. Otherwise, mere overpayment on the part of the City’s disbursing officials could destroy the merit system. Nor does the argument that the place of employment of employees of the Permit Division was at one time (though not now) within the physical confines of what is known as the Mayor’s office have any bearing in determining his status under Section 10(a) (8). Mere facts of architecture do not create or destroy civil service rights.”

The trial judge gave judgment in favor of the plaintiff based on the reasons set forth above and the defendants have appealed. While we think the trial judge’s reasons for judgment are adequate, there are additional reasons why the judgment should be affirmed.

From our examination of the jurisprudence of other states, we find that appointments without examination are usually based on the confidential nature of the position or the impracticability of ascertaining the fitness of an employee by an examination. The position held by the plaintiff is not, in our opinion, one of a confidential nature or one that an examination would be impractical as a mode of ascertaining the fitness of an applicant for such position. Something more than the mere performance of official duties of a clerical nature under the direction of another is required in a position of a confidential nature.

Ordinance 15,510 CCS is nothing more than a license statute. It regulates and fixes the cost of permits for engaging in various businesses in and on the public streets of the city. The fact that the Commission Council placed this department under the supervision of the Mayor and designated the funds derived from the permits to be a contingent fund to be expended by the Mayor at his discretion does not change the nature of this department.

The Legislature undoubtedly contemplated what is strictly speaking the officers, secretaries and employees of the Mayor’s office when it placed the provision, under consideration, in the statute. In other words, it contemplated what is generally accepted as the office force of a Mayor and not employees of other departments placed under his supervision.

The fundamental purpose running through civil service laws is that positions shall be filled by competitive examinations. Appointments without examination are the exceptions and not the rule. Friedman v. Finegan, 268 N.Y. 93, 96, 196 N.E. 755; Andresen v. Rice, 277 N.Y. 271, 14 N.E.2d 65; Neary v. O’Connor, 173 Misc. 696, 18 N.Y.S.2d 634, 639.

The provision of the statute, under consideration, should be strictly construed because it is an exception to the general rule laid down in the statute and it should be clearly shown that the position held by the plaintiff comes clearly within the exception. The Civil Service Commission undoubtedly entertained grave doubts as to the classification of this position because it is stated in its reasons for denying the plaintiff’s appeal to be placed in the classified service:

“It is conceded that there is room for differences of opinion in this matter and that very persuasive arguments have been advanced by both sides in favor of their respective contentions. In reaching the conclusion that the appellant’s position is in the unclassified service, this Commission feels that it has adopted the better view.”

Where exceptions are provided for in a statute laying down a general rule, the exceptions must be strictly construed. 50 Am.Jur. 451, par. 431 and 455, par. 434; 59 C.J. 1092, par. 643.

The rule governing the construction of general statutes containing exceptions or exemptions is well stated in Crawford on Statutory Construction, page 609, par. 299, as follows:

“As we have hitherto stated, the appropriate and natural office of the exception is to exempt something from the scope of the general words of a statute, which would otherwise be within the scope and meaning of such “general words. Consequently, the existence of an exception in a statute clarifies the intent that the statute should apply in all cases not excepted.
“Unlike that of the proviso, however, it is apparent that the position of the exception in the statute, is unimportant. But the exception is also subject to the rule of strict construction, that is, any doubt will be resolved in favor of the general provision and against the exception, and anyone claiming to be relieved from the statute’s operation must establish that he comes within the exception. Indeed, the liberal construction of a statute would, in many instances, seem to require that the exception, by which the operation of the statute is limited or abridged, should receive a restricted construction.”

A strict construction of the provision, under consideration herein, carries out the general purpose of the civil service law. A liberal or tax construction of it would have a tendency to avoid the end sought to be attained.

For the reasons assigned, the judgment is affirmed. All legal costs to be paid by the appellants.

O’NIELL, C. J., takes no part.

McCALEB, Justice

(concurring).

While I am unable to subscribe to all of the reasoning in the opinion of the trial judge, which the majority has adopted, I am persuaded that the conclusion reached herein is legally correct — that is, that relator is entitled to civil service status despite his prior inconsistent conduct and successful evasion of the law in order that he could receive a salary greater in amount than that permissible under classified service.

It is my belief that subsection (a) (8) of Section 10 of Act No. 171 of 1940, excepting employees of the Mayor’s office from classified service, refers to those employees engaged in the place where the Mayor conducts his routine duties and who, in various capacities, assist him in the performance of his daily tasks. In short, the retinue of the Mayor’s office. Examination of the civil service law as a whole has convinced me that the Legislature did not intend to exclude from the classified service, employees of a separate governmental department, such as the Permit Department, notwithstanding that it is placed, by law or ordinance, under the control and supervision of the Mayor.

Moreover, in spite of the fact that relator’s testimony, relative to obtaining a “leave of absence” and his receipt of an alleged confirmatory letter from the Mayor, places a great strain upon my credulity, I am satisfied that he did not “resign” in the sense that it was his intention to sever completely his relations with the City at the time he obtained employment in a defense plant.

The truth, as I see it, is that, when relator left his job to enter defense work, he intended to return to the City Hall, where he had been employed 'for almost twenty years, as soon as the war work was concluded. And I have no doubt that the former Mayor anticipated and expected that he would return. In this light, it is evident that relator’s separation from his job is to be viewed as a leave of absence without pay rather than a “resignation” contemplating a severance of the employment forever. Of course, it is manifest that relator did not obtain the leave with the idea of protecting any civil service status which he might later acquire, as it is not disputed that he did everything possible to avoid civil service classification and was successful in his efforts.

But, be this as it may, relator was actually granted a leave of absence and, therefore, was entitled to be placed (and was placed after his return) in the same category as all other city employees who, according to the testimony of the Director of Civil Service Personnel, were givén permanent classified status even though their leaves of absence without pay, while engaged in the war effort, had extended beyond the one year limit set forth in the resolution of the City Civil Service Commission on Status of Employees on Effective Date of Act.

I concur in the decree.

HAMITER, Justice

(dissenting).

If the placing of the Permit Division (in which relator was admittedly employed as a clerk) under the control and supervision of the Mayor had been accomplished by an ordinance adopted subsequent to the passage of the City Civil Service statute, Act No. 171 of 1940, I should agree unhesitatingly that the position in question fell within the classified service; because, if that were the case here, such an ordinance could not effectively declassify a classified employment.

The fact is, however, that the placing of the Permit Division under the control and supervision of the Mayor occurred several years prior to the passage of the City Civil Service statute, specifically on August 14, 1936, through the adoption of Ordinance No. 14,434. It provided, among other things, that every peddler shall secure from the Mayor a permit; that the Mayor shall prescribe rules and regulations as to the form of application for permits and their issuance; that the Mayor may designate a director of permits who, subject to the direction of the Mayor, shall function as the head of the Permit Division and who shall sign all permits; and that the Mayor may also designate such inspectors, clerks and other assistants that may be necessary for the proper conduct of the Permit Division and shall fix their salaries.

That ordinance of 1936, with reference to the powers, functions and authority of the Mayor, was not changed by the ordinances of 1942 and 1946, except to the extent of providing that the duties of the director of permits were to be performed by the chief clerk of the Mayor. Neither has the validity of that ordinance, or of the amending ordinances, been directly attacked in this action.

Therefore, prior to and at the time of the enactment of the City Civil Service law by the Legislature of 1940, the Mayor was charged with the official duty of employing, supervising and controlling all clerks in the Permit Division, including this relator; those clerks, in other words, then were employees of the office of the Mayor. This being true they were and are, in my opinion, governed by the following clear and unambiguous provisions found in Section 10(a) (8) of Act No. 171 of 1940:

“The unclassified service shall include the following positions: * * *
“Officers, Secretaries and employees of the offices of the Mayor * *

The holding of the majority seems to be predicated largely on what is referred to as a strict construction of the statute. But the provisions under consideration, I maintain, need no construction; they are clear and free from all ambiguity. And applicable here are the following observations contained in State v. Maestri, 199 La. 49, 5 So.2d 499, 502:

“If the legislative act is unambiguous, obviously it needs no construction. The words of the act speak for themselves. They alone best declare the intention of the lawmaker.
***** *
“We are admonished by Article 13! lof the Civil Code that ‘when a law is clear and free from all ambiguity, the letter of it is not to be disregarded, under the pretext of pursuing its spirit.’
“Where the meaning of a statute is clear and unequivocal, the Court has nothing to do with its policy or impolicy. The duty of the Court in such a case is to expound and administer the law as it is written. Any other course would require the Court to abandon its judicial function and assume the legislative function which, of course, it can not do.”

See also City of Shreveport v. Southwestern Gas & Electric Company, 140 La. 1078, 74 So. 559 and Hibernia National Bank v. Louisiana Tax Commission, 195 La. 43, 196 So. 15.

I respectfully dissent.

On Rehearing

MOISE, Justice.

We granted a rehearing in this case limited to relator’s right to recover his salary from the date of his discharge to the date of his reinstatement, in order to ascertain with certainty whether this question was raised at any time before the application for rehearing.

There must be an end to litigation and, on rehearing, this Court has consistently declined to consider points not urged or adjudicated upon in the district court nor not raised or argued in the original hearing before us. Sorbe v. Merchants’ Ins. Co., 6 La. 185; Rightor v. Phelps, 1 Rob. 330; Garland v. Holmes, 1 La.Ann. 405; Allen v. Buisson, 35 La.Ann. 108; Stephens v. Duckett et al., 111 La. 979, 36 So. 89; and State of La. ex rel. Lawrence A. Chehardy et al. v. New Orleans Parkway Commission et al., La., 41 So.2d 678.

The defendant argues for the first time on rehearing that even if relator is reinstated to his position, he is not entitled to the loss occasioned by him through his unlawful discharge and is, therefore, estop-ped from claiming lost pay; and that, under the provisions of Sec. 34 of Act No. 171 of 1940, the Civil Service Commission was vested with discretion to award or deny full pay for lost time when ordering relator’s reinstatement. In answering this argument, relator contends:

“In their brief on rehearing the appellants, for the first time, invoke the provisions of Sec. 34 of Act No. 171 of 1940, as authority for the proposition that the Commissions authorized by said act were vested with absolute discretion to award or deny full pay for lost time zvhen ordering the reinstatement of employees discharged or disciplined for other than religious or political reasons. Inasmuch as relator and appellee was denied reinstatement by the Civil Service Commission for the City of New Orleans, said Commission did not have occasion to exercise said arbitrary discretion and the constitutionality vel non of such delegation of power to an administrative board was never an issue in this case. Said obnoxious delegation of powers was not invoked in the trial court nor in this Plonorable Court on original hearing and relator and appellee was never before afforded the occasion or opportunity to plead the unconstitutionality thereof, * * *(Italics mine.)

The defendants did not raise any of these points in their answer nor did they urge them in the district court or in this Court on the original hearing. As a general rule, a rehearing will not be granted on account of matters or questions different from those urged at the original hearing and this rule is departed from only in cases where the refusal of the rehearing would work manifest injustice. We find that this was not the situation here. Therefore, our original holding in this case will not be disturbed because of the following reasons: (1) The original judgment as to back salary follows the jurisprudence of this Court established by many adjudications. State ex rel. Sonnenberg v. Board of Com’rs, 149 La. 1095, 90 So. 417; State ex rel. Hughes v. Board of Com’rs, 150 La. 1, 90 So. 410; State ex rel. Exnicios v. Board of Com’rs, 153 La. 705, 96 So. 539; State ex rel. Charles v. Board of Com’rs, 159 La. 69, 105 So. 228; State ex rel. Caire v. Board of Com’rs, 174 La. 516, 141 So. 46; State ex rel. Pepper v. Sewerage & Water Board, 177 La. 740, 149 So. 441.

The second is because the doctrine of estoppel urged on rehearing has no foundation in law. The relator received a salary in excess of the salary paid to Civil Service employees. If this is true, the law gives to the City a remedy against relator for this over-payment. The salary came through the regular payrolls. All knew the facts and, having such knowledge but being mistaken as to the application of a remedy at law is no basis for estoppel. Brian v. Bonvillain, 111 La. 441, 35 So. 632; Wells v. Blackman, 121 La. 394, 46 So. 437; Bayard v. Baldwin Lumber Co., 157 La. 994, 103 So. 290; and Wadley v. Gleason, 192 La. 1052, 190 So. 127.

For these reasons, consideration of the question of back salary is denied.

O’NIELL, C. J., takes no part.

HAMITER, Justice

On the original hearing, in a dissenting opinion, I expressed the view that relator is not entitled to reinstatement for the reason that the position which he occupied when discharged was not within the classified service provided for in the City Civil Service statute. To this view I adhere.

It now becomes necessary to decide the question of whether the defendants should be permitted to present and argue on this rehearing an issue which was not raised by them on the original hearing. The jurisprudence of this court, as I appreciate it, compels a negative answer to the question.

For these reasons I respectfully concur in the decree rendered on the rehearing by the majority.

On Rehearing.

HAWTHORNE, Justice

(dissenting).

The effect of the decision of the district court and of this court on original hearing is that a finding by a court that an employee has been erroneously discharged under the City Civil Service Law, Act No. 171 of 1940, and an order of reinstatement automatically entitle the employee to full pay from the date of dismissal. This, in my opinion, is not the law. Act No. 171 of 1940, sec. 34, clearly sets out the law in regard to this matter as follows:

“ * * * After hearing and considering the evidence for and against * * * disciplinary action [including dismissal], the Commission shall approve or disapprove the action. In case of approval the disciplinary action shall be deemed final as ordered. In case of disapproval the Com•<mission shall reinstate the employee under suck conditions as it deems proper, and may order full pay for lost time.
“If the Commission finds that the disciplinary action tttas for religious or political reasons, then the employee shall forthwith be reinstated in his position and be reimbursed for any loss of pay occasioned by such disciplinary action.” (Italics mine.)

On application for rehearing I was doubtful, in view of the above quoted provision, of the propriety of the action of the court in passing on the question of the plaintiff’s pay for lost time, which amounts to approximately $5700.00 to date, for which he has rendered no services, since the commission had not had occasioned to pass on that question. Assuming, however, that the action of the court was proper, I am of the opinion that the refusal of the court to consider on rehearing the question of the plaintiff’s right to pay for lost time works a manifest injustice against the city in this case.

The facts of this case from my examination of them do not disclose that the plaintiff was dismissed for religious or political reasons, so that he would not be entitled automatically to pay for lost time under the act. And, if we presume to exercise the discretion given to the commission in the matter under other circumstances of dismissal by Act No. 171 of 1940, I am of the firm opinion that under the particular facts and circumstances of this case the plaintiff is not entitled to his lost pay, and that to award it to the plaintiff would be most inequitable and unfair to the city.

I respectfully dissent.

McCALEB, Justice

(dissenting).

A rehearing was granted herein in order to consider whether the judgment of the lower court is erroneous insofar as it orders relator’s “reinstatement” as a civil service employee from the time of his discharge instead of from the date of finality of the judgment. Notwithstanding this, the majority decree that the rehearing will not be entertained for the reason that the question (for which the rehearing was granted) was not raised or argued on the original hearing. Yet, in the body of the opinion, it is found

(a) That the judgment of the lower court “reinstating” relator in classified service from the date of his discharge from unclassified service is in accord with the jurisprudence of this court, and

(b) That the doctrine of estoppel urged by the city “has no foundation in law.”

I am not in accord with any of the grounds upon which the refusal to consider the rehearing is pitched.

Initially, I find it difficult to discern why the court decrees that it will not pass on the question for which the rehearing was granted. It is true that it has been said in a number of cases that the court will decline to consider, for the first time on rehearing, points which are not raised in the district court or upon original hearing. But this rule has been breached when the court was inclined to do so, see Harper v. Sid Simmons Drilling Co., 164 La. 767, 114 So. 647, and is, admittedly, not followed in cases “where the refusal of the rehearing would work manifest injustice.” If there ever was a case of palpable inequity, this is it — for here, as a consequence of the order of the court below, the City of New Orleans is being forced to pay relator $170 per month from September 9th 1946 until the date of the finality of this decree; not for any service he has performed; not because he was wrongfully discharged from civil service but because he was discharged from a position in the unclassified service which this court has finally determined to be in classified service. Indeed, the City is being penalized because relator was discharged from an employment which was taken out of civil service by reason of relator’s request in order that he could retain a $200 per month salary instead of the $170 limit for Clerk II under the civil service law.

The majority hold that, under the jurisprudence, the lower court was correct in ordering relator’s “reinstatement” as of the date of his discharge. However, it takes no more than a casual examination of the cited authorities to demonstrate their total inapplicability to the facts presented here. In those cases (Sonnenberg and the like), the employees were admittedly holding positions in civil service and were discharged without cause under various pretexts. In such circumstances, it is only just and meet to restore the employees to their positions with full pay as of the date of their unlawful discharge. This is in keeping with the basic purpose of civil service.

But, in the case at bar, the relator was not in classified service at the time of his discharge; he did not claim to be in such service; in fact, he avoided any such classification. Accordingly, the Mayor had the right to assume that relator could be summarily discharged with or without assigning cause. Relator’s rapid change of face in appealing to the 'Civil Service Commission was not actually a claim for “reinstatement” but, rather, for a determination that his position was within the classified service despite his successful endeavors to evade classification thereunder.

The uncontroverted evidence in the case reveals that, after termination of his work at a defense plant in 1945, relator was reemployed as a clerk in the Permit Department of the City at $200 per month salary. At that time, employees in the Permit Department were not classified in civil service under a ruling of the City Attorney’s office made in 1943. However, in April 1946, just prior to the- induction of the present city administration into office, the heads of various city departments, including the Director of Permits, applied to the City Civil Service Commission for a ruling to determine their status, i. e., whether their particular department and personnel were under the classified service. On April 29th 1946, the Commission ruled that all of the various city departments, including the Permit Department, were in classified service and relator was classified as Clerk II under the Civil Service Act with a reduction in salary from $200 to $170 per month forasmuch as the maximum salary for a Clerk II could not exceed the latter figure. Thereafter, in the early part of May, when the present Mayor took office, relator called upon him and requested that he be declassified so that he would not be forced to take a reduction in salary. The Mayor told relator that it would be all right with him, if relator could obtain a ruling from the City Attorney that employees of the Permit Department were not within the classified service. The desired opinion was obtained and relator was thereafter placed in unclassified service with no reduction in pay. His salary remained at $200 per month until his discharge on September 9th 1946. As soon as that occurred, he immediately reversed his stand claiming that his job was in the classified service, appealed to the Civil Service Commission and then to the courts.

Although the question of whether employees of the Permit Department are within classified service, in view of Section 10(a) (8) of Act No. 171 of 1940, has been the subject of considerable uncertainty that matter has been finally set at rest by our original opinion herein. And, by that decision, relator has been restored to his former position at a reduced salary. But I cannot perceive how this favorable ruling affords any basis whatever for the conclusion that relator is entitled to be paid for services he did not render during the time that he was litigating the present case when the situation in which he found himself at the outset of the suit had been brought about through his own conduct.

But, say the majority, “the doctrine of estoppel urged on rehearing has no foundation in law.” This resolution overlooks the well-established jurisprudence that a mandamus proceeding for reinstatement under a civil service law is an equitable cause in which relief will not be granted, as a matter of right, “but in the exercise of a sound judicial discretion and upon equitable principles.” United States ex rel. Arant v. Lane, 249 U.S. 367, 39 S.Ct. 293, 294, 63 L.Ed. 650 and Duncan Townsite Co. v. Lane, 245 U.S. 308, 38 S.Ct. 99, 62 L.Ed. 309. Accordingly, it is subject to all equitable defenses. United States ex rel. Arant v. Lane, supra; Nicholas v. United States, 257 U.S. 71, 42 S.Ct. 7, 66 L.Ed. 133; State ex rel. McCabe v. Police Board, 107 La. 162, 31 So. 662; Ziemer v. City of New Orleans, 195 La. 1054, 197 So. 754 and authorities there cited.

In the case at bar, one of the defendants, Mayor Morrison, has specially pleaded in his answer that relator is “estopped by his actions and representations, and by the payments, prejudices and detriments induced thereby upon the City of New Orleans, to maintain this suit; to deny his status or to invoke any rights or benefits under the Civil Service, which plea of estoppel respondent invokes and specially asserts as a bar to all relief herein prayed for by relator”. The majority declare that this plea is not well founded because everyone knew the facts and were mistaken only as to the law.

I cannot subscribe to this view. The facts above set forth portray, in my opinion, a clear case for the application of es-toppel resulting from relator’s acceptance of benefits and acquiescence in the ruling of the City Attorney that his position was not within the classified service. See 31 C.J.S., Estoppel, § 107 et seq. See also Magee v. United States, 282 U.S. 432, 51 S.Ct. 195, 75 L.Ed. 442. Under the same title the rule is stated thus, in 19 Am.Jur. Section 64:

“Estoppel is frequently based upon the acceptance and retention by one having knowledge or notice of the facts or benefits from a transaction, contract, instrument, regulation, or statute which he might have rejected or contested. This doctrine is obviously a branch of the rule against assuming inconsistent positions, and it has been said that such cases are referable, when no fraud either actual or constructive is involved, to the principles of election or ratification rather than to those of equitable estoppel. The result produced, however, is clearly the same and the distinction is not usually made. Such estoppel operates to prevent the party thus benefited from questioning the validity and effectiveness of the matter or transaction insofar as it imposes a liability or restriction upon him, or, in other words, it precludes one who accepts the benefits from repudiating the accompanying or resulting obligation.”

I respectfully dissent.

       See majority opinion on rehearing.

       State ex rel. Sonnenberg v. Board of Com’rs, 149 La. 1095, 90 So. 417; State ex rel. Hughes v. Board of Com’rs, 150 La. 1, 90 So. 419; State ex rel. Exnicios v. Board of Com’rs, 153 La. 705, 96 So. 539; State ex rel. Charles v. Board of Com’rs, 159 La. 69, 105 So. 228; State ex rel. Caire v. Board of Com’rs, 174 La. 516, 141 So. 46; State ex rel. Pepper v. Sewerage & Water Board, 177 La. 740, 149 So. 441.

       Two opinions of the City Attorney (1943 and 1946), diverse opinions of the City Civil Service Commission and dissenting opinion of Justice Hamiter on original hearing.


source: Caselaw Access Project

author: LE BLANC, Judge.

license: Public Domain

text:
    BEGUE v. LOUISIANA & ARKANSAS RY. CO.
    No. 3135.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 4, 1949.
    F. Louis Gonzales, Baton Rouge, Dudley L. Weber, Baton Rouge, for appellant.
    Milling, Godchaux, Saal & Milling, New Orleans, M. Truman Woodward Jr., New Orleans, for appellee.
   LE BLANC, Judge.

Plaintiff was a guest passenger in the car of Victor Silvio early on the morning of October 17, 1947, and sustained certain physical injuries for which he seeks to recover damages from the defendant railroad company when he was thrown from the automobile as it made a sharp turn to the left in the street in an attempt to avoid a collision with one of the trains of the railroad company.

It was the custom of Silvio to pick up the plaintiff at the postoffice building in Baton Rouge each morning and they drove together to work. On that morning, as usual, they were traveling in a westward direction on Florida Street, and in approaching the railroad crossing at the 1400 block in that street, Silvio, apprehending the danger of running into a train which was about to make the crossing, swerved his car to his left and in doing so it would seem that the right hand front door, next to which the plaintiff was seated, opened in some manner and plaintiff fell on the sidewalk, or at a gate through which the car ran, at the place of business of one Charles S. Stewart, situated on the north side of Florida Street and approximately 35 feet west from the railroad crossing. The Stewart’s office i'S situated in the rear of the office of the Amite Sand and Gravel Company and is. reached by a driveway through the gate that was knocked down by Silvio as he went through. It is not disputed that his car, after knocking the gate down, struck a building on the lot, and proceeded on a distance of about 40 or 50 feet and only came to a rest when it struck a truck which was parked on the lot.

This suit is brought against the railroad company on the alleged negligence of the crew in charge of the train that was making the crossing at the moment, in failing to give a warning or signal of any kind, by blowing of the whistle or ringing of the bell and in addition that it permitted the flasher signal at the crossing to be and remain out of order on the morning of the accident. This flasher signal, also referred to as a wig-wag, consists of two red lights arranged horizontally on a cross bar attached to a post, which operate alternately from the moment the train makes contact with an open circuit some 365 feet south of the crossing and continue flashing as a warning, until the train has completed making the crossing over the street.

The defense on the part of the railroad company is that all proper ¡signals as to blowing of “the whistle and ringing of the bell were given, in accordance with the regulations and such laws as exists with regard to those matters, and that the flasher signal was properly working on that morning. It is affirmatively averred in the answer, that the injuries sustained by the plaintiff in the accident were caused solely and exclusively by the negligence of Silvio, driver and owner of the car, in failing to keep a proper lookout dr to pay heed to the warnings and signals that were given and also in’ driving his car with defective brakes. All negligence charged against the railroad, company is denied and in the alternative it is alleged that plaintiff himself was guilty of contributory' negligence as he had every opportunity to observe the situation as well as did Silvio, the driver of the car, and yet he uttered no protest at the manner in which he approached the crossing arid 'besides he also knew of the defective condition of the brakes on the automobile.'

The demand is for $6,764.50 including physical injury and physical and mental pain and suffering, as well as doctor’s, hospital and other medical expenses.

The trial judge after hearing the case, rendered a written opinion in which he held that the -defendant railroad company was not guilty of any negligence whatever and’ dismissed plaintiff’s suit. From a judgment so decreeing, this appeal was taken.'

The trial judge has carefully analyzed the facts in the case in the opinion he wrote and properly held that the charges of negligence relating to the failure of giving signals by blowing of the whistle ánd ringing of the 'bell had not been supported by ’ the evidence adduced by plaintiff. On this point he held that the positive testimony of the members of the crew in charge of the train that the usual whistle signal was given and that the automatic bell signal was ringing, over-came the more or less negative testimony of the plaintiff and of Silvio and also of a Negro witness by 'the name of Moses Haynes, who was following them in an automobile by' some 50 or 75 feet. The one factor which seemed to give the trial judge concern was whether or not the flasher light signal was operating that morning for, apparently he-seemed to have been of the opinion that if it was not, the railroad company might have been guilty of negligence in that réspect. After reviewing the testimony of the three witnesses for the plaintiff, as well as that of the engineer and fireman who were riding in the cab of the engine, he reached the conclusion that it was operating and that is why he acquitted the railroad company of all negligence, and consequently, of any blame or liability for the accident.

The evidence discloses that this train which consisted of a Deisel motor engine and two passenger coaches leaves the station of the Louisiana and Arkansas Railroad Company in Baton Rouge each morning at about 6:20 o’clock. It is used as a shuttle train to take employees to work at the Standard Oil plant north of Baton Rouge. It is not disputed that in running through the congested area of the city, after leaving the station, it does not run faster than five or six miles per hour as it was doing on the morning in question. On that morning, like every morning, it stopped at North Boulevard 'which is two blocks south of Florida Street to take on more passengers, then crossing over Florida Street and stopped again at Main street,’ two blocks north of Florida Street (for the. same purpose. It is 'hardly probable therefore that it traveled any faster than what the evidence in this case reveals. The crew in charge of the train all testified that the bell, which was operated by opening an air valve, started to ring right after leaving the station and that the valve was left open and the bell kept ringing all the time until the train had passed out of the northern end of the congested area of the city. They all testified also that the crossing whistle signal which consists of two long blasts, one short and another long, was given, and the importance of this is shown by what would happen to a man like the engineer in charge of this particular train who, if he failed to give that signal, would stand the loss of 30 years or more seniority and would not have a job any longer.

The testimony of the engineer and fireman, as well as that of the man in charge of keeping the flasher working, shows that in addition to the red lights which flash in front of the driver of an automobile approaching from either the east or west, it is so constructed that the same bulb which flashes red, also flashes a white light visible to the engineer or the fireman in the cab of the engine and in that manner they know that the system is operating. The testimony of these men is that they observed this white light that morning and that is why they are certain that the system was operating as it should. The defendant, in addition, produced the testimony of the man who keeps the signal in order and judging by his testimony it seems to be almost fool-proof and gets out of order so infrequently that he could not recall but very few occasions over a long period of time and then when the trouble' was reported, it was immediately corrected. As we Understand his testimony when trouble does occur the difficulty is not so much in trying to make the system flash its lights as to keep them from flashing constantly because it seems that when trouble occurs the contact stays on and the lights keep flashing all the time.

Now let us refer to the tesimony that is offered on behalf of the plaintiff on these three important points. Silvio testified that he did not hear any bells and no whistle and he also says that there were no lights, meaning we suppose, the lights in the flasher signal. Plaintiff’s testimony is simply that he heard no bells and he heard no whistle. He says that the signal lights were not flashing, as did Silvio also, and that there was nobody there to flag the crossing. The witness Haynes says that he saw no signal light and that he did not hear any whistle or bell and neither did he see a flagman at the crossing. Looking at their testimony as to the bell and whistle signal as being purely negative, that is that they did not hear a bell or a whistle, and comparing it to the testimony of the witnesses for the defendant and the circumstances on which they rely to prove that the bell was ringing and the whistle blowing, we cannot but agree with the trial judge that this latter testimony must prevail over that offered by the plaintiff. As a matter of fact the point concerning these two warnings is not stressed very much át this time by counsel for plaintiff.

With regard to whether or not the flasher -signal was operating, we see no reason why more weight and importance should be given to the testimony of the plaintiff and Silvio, the owner of the car, than to that of the operators of this train as well as that of the man in charge of the signal. As we look upon it, from the standpoint of interest, it strikes us as though the testimony of the plaintiff and of Silvio, who himself is plaintiff in another suit arising out of this same accident, could be said to be as personal and as biased as is that of the employees of the railroad company and that then would leave us only with the testimony of the witness, Moses Haynes, which the trial judge apparently discounted and which, in the face of that, we do not see why we should accept as the deciding-testimony on this important point. This party was following the Silvio car at a considerable distance and when he saw what was happening in front of him as the Silvio car made this sharp turn to the left, he no doubt became excited and we seriously doubt that he observed as closely as he said he did, that the system was not working at that time.

That leaves us then with the testimony of two other witnesses'with regard to the operation of the wig-wag light system; two ladies who say they also observed, not on the morning of the accident but on the following morning, as they crossed the track, that the lights were not burning. Their testimony of course relates to some other time than the one at which this accident occurred and was adduced in an effort to show that the system does get out of order at times when a train approaches the crossing. Reading the testimony of these two ladies very closely, we doubt whether, when they made their •observation, the contact necessary to put these lights in operation had been made. Neither of them was very definite with regard to the place at which they saw the train or the engine on the track as they crossed over and whether it may not have been that the train or engine was not on the point of contact on the rail where the signal actually operates. We certainly cannot, on the testimony of these two ladies alone, and especially in view of all the other testimony on this point, conclude that the signal was not operating on the morning of the accident.

Entertaining these views it would seem unnecessary to go any further than to say that the judgment should be affirmed on the ground that the plaintiff has failed to show any negligence against the defendant railroad company hut we think it is proper to refer to certain circumstances mentioned by the trial judge which greatly affect the testimony of the driver of the car, Silvio. After crashing into this gate and damaging a building next to it, he volunteered a statement to Stewart, on whose property this happened, that his 'brakes “went out on him” and mentioned nothing whatever about the flasher light system not operating. He made the same statement to the police officers also who came to the scene of the accident just after it happened. One of the officers, Mr. Clyde Parent, testified that he told ‘both him and Mr. Lockwood, another officer, “that his brakes had failed and to avoid an accident he had to make a left turn into this gate to keep from having an accident with other people”. Again he did not mention a thing to them about the flash lights not operating. It would seem most natural that if the failure of the light signal to operate was in any manner the cause of his having to make this left hand turn in an emergency, that he would almost spontaneously have mentioned that fact as well as the one about his brakes, to all of these men. In addition to that it is shown that he paid Mr. Stewart for the repair to his building and he himself repaired the gate.

This also he certainly would not have done had he thought the railroad company was in the least bit to blame for the damage which he now maintains he had been forced to cause by reason of its negligence as is now alleged by him.

In as much as we conclude, as did the trial judge, that no negligence has been shown against the operators of the railroad train and that the sole cause of the accident was the negligence of the driver of the Silvio car, it is unnecessary to discuss the question of imputation of the latter’s negligence to the plaintiff.

For the reasons stated, it is ordered that the judgment appealed from be, and the same is hereby affirmed at the costs of the plaintiff, appellant herein.


author: PER CURIAM.

text:
    SECARI v. UCHELLO.
    No. 19401.
    Court of Appeal of Louisiana. Orleans.
    Oct. 4, 1949.
    George E. Konrad, Howell Carter, Jr., New Orleans, for plaintiff-appellee.
    James G. Schillin, New Orleans, for defendant-appellant.
   PER CURIAM.

Appellee has moved to dismiss this appeal because of alleged insufficiency in the amount of the appeal bond. No effort was made by appellee in the trial court to call upon appellant to supplement the bond.

Since Act 112 of 1916 was adopted, an appeal may not be dismissed in the appellate court for the reason urged, unless the procedure prescribed in that statute was followed in the trial court. See Succession of Lissa, 194 La. 328, 193 So. 663; Durel v. Buchanan, 147 La. 804, 86 So. 189; Garland v. Keen, 18 La.App. 312, 137 So. 343.

The motion to dismiss the appeal is overruled.

Motion overruled.


text:
    TENNESSEE GAS TRANSMISSION CO. v. WYATT LUMBER CO., Inc. In re WYATT LUMBER CO., Inc.
    No. 7381.
    Court of Appeal of Louisiana. Second Circuit.
    June 20, 1949.
    Rehearing Denied Aug. 18, 1949.
    J. S. Pickett, Many, for petitioner.
    Watson & Williams, Natchitoches, for respondent.
   PER CURIAM.

Writ refused. Under facts set forth, the provisions of Act No. 325 of 1948, and Article 2634 of the Revised Civil Code are applicable, and relator’s application for a suspensive appeal was properly refused.

On Rehearing

Relator has filed in this Court an application for a rehearing with respect to the action of the Court in refusing writs of mandamus ordering the granting of a sus-pensive appeal.

We know of no authority in law or under the rules of this Court authorizing a rehearing of the action of an appellate court in refusing writs in aid of its supervisory jurisdiction. Accordingly, consideration of the application for rehearing is declined on the ground that the action of this Court in refusing writs was final and there is now nothing further before us for action.


author: LeBLANC, Judge.

text:
    KENNEDY v. SOULE et al.
    No. 3150.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 4, 1949.

      Cadwallader & Dameron, Baton Rouge, for appellant.
    Bolivar E. Kemp, Jr., Atty. Gen., Carroll Buck, First Asst. Atty. Gen., Adolph Men-uet, Jr., Asst. Atty. Gen., W. R. Wirtz, Baton Rouge, Aubrey B. Kirsch, Baton Rouge, L. D. Dunbar, Baton Rouge, for ap-pellees.
   LeBLANC, Judge.

Plaintiff, Miss Margaret Sarah Kennedy, was employed by the Division of Employment Security, Department of Labor in the State of Louisiana. She had been employed on June 23, 1936. On February 4, 1949, she was informed by a registered, special delivery letter from the administrator of that division that due to a deficit in the budget, her position as operations analyst was being abolished with the close of business on February 15, 1949, and that her employment would be terminated on that date.

After making allegations to that effect she further alleges in her petition, that she protested to the Director of the Louisiana Merit System Council that her dismissal was improper and in violation of the provisions of Act No. 13 of the Special Extra Session of 1948 and of the rules of the Council adopted in pursuance of its authority under the statute, on December 15, 1948. She then sets out her grievances and the injury which she will sustain by reason of her dismissal and finally avers that in order to protect her interest and her right of employment as guaranteed by law, it is necessary that the district court issue a restraining order and enjoin the Commissioner of the Department of Labor, Edwin I. Soule, made a defendant herein, as well as Marvin E. Thames, Administrator of the Division of Employment Security and R. B. Walden, Director of the Louisiana Merit System, also made defendants, from terminating her employment on February 15, 1949, or at any time thereafter until such termination is effected in accordance with the provisions of law.

She prays for a temporary restraining order and for a rule nisi for a permanent injunction.

The defendants all made appearances in answer to the citation served on them and filed various pleadings and then, under reservation, filed an answer. The principal exception seems to have been a plea of prematurity under which it was contended that the plaintiff had not exhausted all of her remedies before the administrative board in charge of the matters complained of by her, before instituting this proceeding in court. The trial judge disposed of the case by sustaining that plea, and by recalling and dissolving the temporary restraining order which had issued, and dismissing the plaintiff’s suit at her costs. From that judgment the plaintiff took a devolutive appeal to this court.

Pending the appeal, there appeared in the newspapers of the State public information to the effect that Miss Kennedy had been restored to her former employment, and in argument before this court, her counsel admitted that such was the case. When it was suggested that under the circumstances there appeared nothing for the court to pass on and there was only a moot question presented, counsel persisted that we should nevertheless pass on the question at issue and review the point on which the trial judge based his decision, that is that there was no provision in the statute creating the Louisiana Merit System Council, nor any rule promulgated by it, which required the plaintiff to appeal to that Council from her notice of dismissal, and even if there was, the courts of this State are vested with a sort of concurrent jurisdiction with administrative boards in such matters, and she had a right therefore to petition the court for injunctive relief.

We have read the brief submitted by counsel with considerable interest and yet we do not understand why we should be ■called on to consider the many points that are raised just for the purpose of expressing an opinion on what is now, to all intents and purposes, purely an academic question. A ruling in plaintiff’s favor would mean nothing more to her than what she has already obtained, that is a restoration to her former employment with all the benefits and emoluments to be derived therefrom. It might be urged that a decision on the question as presented might establish a judicial policy which could be followed in similar cases, should any come up in the future, but courts are not called upon to perform such functions under circumstances such as are presented in this case.

There being only a moot question before the court, the appeal is dismissed.


text:
    WEBER v. KIECKHEFER CONTAINER CO. et al.
    No. 19342.
    Court of Appeal of Louisiana. Orleans.
    Oct. 4, 1949.
    Connolly & Simoneaux, New Orleans, for plaintiff and appellant.
    Rosen, Kammer, Wolff, Hopkins & Burke, New Orleans, for defendants and appellees.
   PER CURIAM.

Defendant-appellee, Kieckhefer Container Company, moves to dismiss this devolutive appeal, which was taken by plaintiff from a judgment dismissing his suit. The appeal was petitioned for and granted on May 23, 1949. The appeal bond in the amount fixed by the court was filed on the same day the order of appeal was granted.

Shortly thereafter appellee filed a motion in the lower court seeking the dismissal of the appeal, because of certain alleged defects and irregularities in the appeal bond. The court directed appellant to show cause on a fixed day why the appeal should not be dismissed.

On June 6, 1949, which was prior to the return date of the rule, appellant, by supplemental and amended petition, prayed for leave, under Act No. 112 of 1916, as amended, to furnish an additional or substitute bond in lieu of the first bond, and upon the court granting appellant such authority, plaintiff filed a new bond for $200.00, and when the rule to dismiss was subsequently called for trial, it was denied "without prejudice to the right to renew in appellate court.”

In the motion to dismiss now before us, and in the accompanying brief, the sole contention is that appellant’s attempt to furnish a substitute bond was ineffectual and that the appeal should be dismissed because the new bond recites that it was given in connection with a motion of appeal filed June 6, 1949, and is, therefore, not a proper bond and cannot support the appeal of May 23, 1949.

The substitute bond, bearing the date June 6, 1949, recites that it was furnished in connection with “a motion of devolutive appeal” filed by plaintiff “this day.”

Appellant was granted but one appeal, and that on May 23, 1949. In the supplemental and amended petition of June 6, 1949, no request was made for a new appeal. Quite to the contrary, the only belief sought by appellant was that he be accorded the privilege of filing a new appeal bond, and the court’s order merely authorized him to do so.

The purpose and intent of Act No. 112 of 1916, as amended, is to grant any litigant in this state, who has furnished bond in connection with any judicial proceeding, and such bond is insufficient in amount or incorrect by reason of errors or omissions therein, the right to correct such insufficiency, error or omission in the court of original jurisdiction, by furnishing new and additional bond and surety conditioned according to law. When a new bond is so furnished, it shall have the same effect as to principal and surety as if it had been furnished originally.

Bearing in mind the well established rule that the right of appeal is to be favored and fostered, and looking to the substance of things, we do not think that the appeal should be dismissed merely because the second bond recites that it was furnished in connection with a motion of appeal filed “this day.” The bond can unmistakably be identified with the appeal.

The motion to dismiss is denied.

Motion denied.


author: DORE, Judge.

text:
    STRAHAN v. FUSSELL.
    No. 3146.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 4, 1949.
    Ott & Watts, Franklinton, for appellant.
    Ott & Richardson, Bogalusa, for -appel-lee.
   DORE, Judge.

Plaintiff appeals from a judgment dismissing his suit on an exception of no cause or right of action.

On March 9, 1949, and for eight years prior thereto, defendant, Fussell, was a member of the Police Jury -of Washington Parish, from Ward Six. On March 9, 1949, plaintiff was traveling in his automobile on a public road within Ward Six and when attempting to cross a small slough, crossing the road, via a small bridge, which bridge was old, decrepit and in great need of repairs, the wheels of his automobile dropped into a large hole, the automobile ■caught fire and burned, completely destroying the automobile.

Plaintiff seeks to hold the defendant personally liable for the loss of his automobile, which he values at the sum of $1,400, upon the following allegations:

“That the said small bridge, which petitioner attempted to cross, was -old, decrepit and dangerous in its entirety; that o-n the particular part of the said bridge which petitioner’s automobile wheel fell through a large hole, sufficiently large to admit several ordinary automobile wheels, had at some time -in the past, which time petitioner believes, and so avers, to have been approximately two years, -developed and that said hole had been carelessly and negligently repaired in that .instead of re-planking the section of the bridge where the hole was, a runway of planks running with the long length of the bridge, was built over the hole; that such repair constituted negligence in the first instance, and the continued failure of the controlling authority of that section (Ward Six) of Washington Parish to furnish proper repairs, or even to keep the original careless, negligent and insufficient repairs in a satisfactory condition, constitutes gross negligence and a hazard that was the proximate cause of the accident which resulted in the destruction of petitioner’s automobile.
“That the bridge on which the said accident occurred is located in the Sixth Ward of Washington Parish; that the controlling authority referred to in the preceding article is the Police Juror for the Sixth Ward, Arnold W. Fussell; that the said Arnold W. Fussell is vested with the legal authority to institute repairs of the nature required by the instant bridge on his own initiative and without consulting anyone; that it has been the practice of the Police Jury of Washington Parish, Louisiana for many years to allocate to the various Police Jurors the necessary funds to build and maintain’ the roads and. bridges in their respective areas, said funds to be expended entirely in their discretion; that the said Arnold W. Fussell -had been allocated such- funds and had a more than ample sum on hand to effect the repairs needed on said bridge and on all roads, bridges, etc. located within the Sixth Ward of Washington Parish, Louisiana, and to keep all properties, whatever kind or nature, of the Washington Parish Police Jury in said Ward Six in excellent -condition and repair.
“That the said Arnold W. Fussell has for many years followed the practice of directing the expenditure of the funds allocated to him for the roads and bridges in Ward Six; that he has at all times assumed active supervisory authority over the actual work being performed on the roads and bridges of Ward Six; that the road and bridge in question in this .suit are Parish responsibilities and are supposed to be properly maintained by the Parish, and, consequently, are encompassed within the duties and responsibilities -o-f Arnold W. Fussell.
“That said Arnold W. Fussell knew of the generally old, decrepit and dangerous condition of the said bridge; that said Arnold W. Fussell, to the best knowledge and belief of petitioner, caused the careless, negligent repair of the hole in said bridge and supervised same; that Arnold W. Fussell should have known that said repairs were extremely temporary in nature at best and would have to be watched carefully to prevent an extremely dangerous condition from developing; that said Arnold W. Fussell neglected his duties and responsibilities and allowed said temporary repairs to deteriorate until they constituted an extremely -dangerous hazard; that said neglect of his duties and -responsibilities constituted gross negligence on the part of the said Arnold W. Fussell that was the proximate cause of the accident wherein petitioner’s car was destroyed and petitioner damaged in the sum of One Thousand Four Hundred and No/100 ($1400.00) Dollars.”

In short, the question presented is whether defendant, as a member of the Police-Jury of the Parish -of Washington, representing Ward Six, can be held personally responsible in tort under the facts as disclosed by the petition?

Under Revised Statutes, Section 2743, as amended, the police juries throughout the State have the power to make all such regulations as they may deem expedient: As to proportion and direction, the making and repairing of the roads and 'bridges in the respective parishes. This power is not delegated to the member or members of the several wards constituting the Police Jury. The right and the duty of repairing the particular bridge involved in this suit are and were the responsibility of the Police Jury of Washington Parish as a -corporate body, and not the individual responsibility of the separate members who compose the body. There is no statute iir our State which places any responsibility on the individual member or members composing the Police Jury to keep in repair the roads and bridges within the Ward or Wards from which he is or they are elected and represent.

In the case of Monnier v. Godbold et al., 116 La. 165, 166, 40 So. 604, 5 L.R.A.,N.S., 463, 7 Ann.Cas. 768, a case wherein the plaintiff was seeking damages against defendants, as members of the State Board of Pharmacy, 'by reason of t-heir refusal to register him as a pharmacist under the act creating the said board, it was held (Syllabus by the Court) : “A public officer, who is a member of a corporate -body upon which a duty rests, cannot be held liable for the neglect of duty of that body. If there be refusal to exercise the power of such body, it is the refusal of the body, and not of the individuals composing it.. The official action of its different members is merged into the official action of the board itself as an entity.”

Following this decision, and the reasons given in the body of the decision, we would be amply justified in holding that since it was not the legal responsibility of defendant to make the repairs necessary in the upkeep of the bridge in question, he could not be held responsible in damages to plaintiff and stop there. But plaintiff, in his brief, relies on the case of Bankins v. Police Jury of Calcasieu Parish et al., 116 La. 639, 40 So. 925, a later case than the Monnier case supra, wherein our Supreme Court, (syllabus by the Court), stated: “If a highway officer be responsible for a private injury caused by his failure to .repair a defective bridge, it is only in cases where he had requisite funds in hand or under control to make the repairs” and other cases' from other jurisdictions.

In 9 C. J. page 469 (Section 69-b), we find: “According to the weight of authority, the officers charged with the ditty of the maintenance and the repair of bridges' are not personally liable for damages for injuries sustained by an individual by reason of their negligent failure to perform their duty-in this regard, in the absence of some statute specifically imposing this liability (whether or not he has the necessary funds to make the repairs or the means to procure them — our insertion); * * *. The rule stated in the first paragraph of the text, however, has not received universal acceptance. It has been held that, where officers have the requisite fund? in hand or under their control, they are bound to repair 'bridges which are out of repair, and to repair them with reasonable and ordinary care and diligence; and that if they omit the duty they are liable to individuals who sustain damage from such neglect. And it has been held that this liability to an individual suit for negligent failure to repair a bridge exists whether the duty to repair was imposed by statute, by arrangement with other officers, or because they had' assumed and entered on the duty.”

The rule stated in the first paragraph supra is restated in 11 C.J.S., Bridges, § 62, page 1100, as follows: “According ,to one view, the officers charged, with the duty of the maintenance and the repair of ’bridges are not personally liable for damages for injuries sustained by an individual by reason of their negligent faib ure to perform their duty in this regard, in the absence of some statute specifically imposing this liability, -and cannot be held personally responsible to an individual injured by their breach of an administrative duty, their dereliction in respect: of the maintenance or repair of bridges being regarded as a breach of a public duty (or trust) for which no redress can be had by an individual Claimant, and which must be redressed if at all, in some sort of a public prosecution. *’ * *.”

In the case of Bankins v. Police Jury, supra, a case in which the plaintiff sued the Police Jury of Calcasieu Parish and B. E. Miller, an individual member, for damages alleged to have been caused by the giving way of a defective bridge of Miller’s Ward, the Supreme Court of this State recognized the two theories in cases such as this one, stating:

“Courts in other ’ jurisdictions are very much divided on the question of the liability of highway officers to persons injured by the defective condition of the roads and bridges.
“Some courts, and perhaps the majority, hold that in such cases the duty of the officer is to the public, and there is therefore no liability to individuals.
“Other courts maintain the liability of the officer to individuals specially injured when he had requisite funds on hand or under control to make the necessary repairs.”

However, the court found it unnecessary to elect between the two conflicting theories because it found as a fact that the amount of funds placed at the disposal of the defendant Miller was not stated, nor was it alleged that they were not sufficient to keep the road and bridge in good condition.

In the language of the Supreme Court in the case of Bankins v. Police Jury, supra, “The defendant was a police juror, and therefore could not have been a regular road overseer or supervisor appointed by the body, tie therefore must have voluntarily acted as a supervisor in the supposed interest of the people of his ward. It was a thankless task at best”.

Since the Supreme Court has refused to elect ‘between these two conflicting theories, it appears that we must make the election. For our part, we are willing to follow the majority holding as set out in 9 Corpus Juris, 11 Corpus Juris Secundum, and as set out in the case of Bankins v. Police Jury, supra. It would be a dangerous public policy to establish that an individual member of the Police Jury could be held personally liable to an individual suing in tort for damages by reason of the bad condition of a road or bridge.

For these reasons, the judgment appealed from is affirmed.


author: STEWART, Judge.

text:
    FLOWERS v. INDEMNITY INS. CO. OF NORTH AMERICA et al.
    No. 3152.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 4, 1949.
    White & May, Baton Rouge, for appellant.
    Durrett & Hardin, Baton Rouge, for appellees.
   STEWART, Judge.

Plaintiff brought this suit against the Louisiana, Arkansas and Texas Transportation Company and its public liability carrier, Indemnity Insurance Company of America, to recover damages in the amount of $11,098.33 for personal injuries, loss of wages and medical expenses. These damages were incurred as a result of an automobile collision about noon on January 29, 1948, in one of the suburbs of the City of Baton Rouge, when the light panel truck which plaintiff was driving south on Pontiac Street collided with a heavier truck being driven by an employee of the transportation company west on Winnebago Street. The trial judge rejected the demands of plaintiff against both defendants. The plaintiff has appealed.

The streets intersecting at this point are black-topped and approximately eighteen feet wide on the paved portion. It is established that neither driver could see down the street from which the other approached until near the intersection because of a house facing Pontiac Street, with camphor trees in front of it, on the Northeast corner of this intersection. However, these trees were some few feet back from the ditch at the edge of the street, and the street itself was several feet wider than the paved portion thereof, so that this corner was not wholly a blind one.

The evidence reveals that the left front part of plaintiff’s truck collided with the right front part of the transportation company’s truck in the northwest quarter of this intersection. The force of the impact turned the transportation company’s truck toward the southwest with the front end coming to rest approximately three-fourths across -the intersection. The plaintiff’s vehicle likewise was forced off of its course by the impact, but it continued forward and moved out of the intersection, coming to a standstill facing southwest partially across a ditch on the southerly side of Winnebago Street west of the intersection. The driver of the transportation company’s truck testified that his speed was between fifteen and twenty miles per hour as he approached the intersection. The plaintiff said that, in approaching the intersection, she almost came to a stop and “had shifted into second.” The movements of these two vehicles indicate that, at the moment of the collision, the speed of the transportation company’s truck was slightly less than that of the truck being driven by plaintiff, due perhaps to the application of the brakes thereof after entering the intersection, as stated by its driver. The above indicates that the transportation company’s truck was entering the second half of the intersection at the time that plaintiff’s truck was entering the intersection, as plaintiff was on her right hand side of Pontiac Street as she entered the intersection. But for the application of the brakes by the driver of the transportation company’s truck, its right side would have been struck by plaintiff’s truck, as its front end would have almost exited the intersection at the moment of the impact. Plaintiff did not see the other truck until the moment of the collision, so she could not say which truck entered first. The driver of the transportation company’s truck stated that he was about three feet in the intersection when he first observed the plaintiff, and that plaintiff was then “about the same distance”. The fellow worker of this driver, who was riding in the front seat with him, testified that the truck that he was in entered the intersection first. This testimony of the driver of the transportation company’s truck is not clear itself as to what is referred to as “about the same distance”, moreover, if it meant that the plaintiff was about three feet in the intersection, why then it cannot be reconciled with the physical facts or the testimony of his fellow worker.

The plaintiff contends that, due to the absence of local regulation, and as she approached this intersection from the right, that, under Rule 11 of Section 3 of Act 286 of' 1938, she has the right of way over the transportation company’s truck. Such rule provides in part that “when two vehicles approach or enter an intersection at approximately the same time, the driver approaching from the right shall have the right of way.” The question then presented is what does “approximately the same time” mean. We quote from Vol. 6, Corpus Juris Secundum, page 132, viz: “Approximately. * * * is an elastic, indefinite, and relative word, * * * is not indicative of certainty, and that, while it precludes the idea, of exactness, it operates equally against the idea of a substantial variation * * *. It has been defined as * * * the opposite of precisely or exactly * *

We believe that, from the facts here found, under the statute, the parties approached this intersection at approximately the same time.

The plaintiff further urges that such Rule 11 requires the driver on the left, even though he may reach the intersection first, to yield the right of way to the driver on the right in a situation where the two vehicles would collide were each to continue its course and maintain its rate of speed. However, defendant says that plaintiff's contention, though adopted in many other jurisdictions, Moore v. Kujath, 225 Minn. 107, 29 N.W.2d 883, 175 A.L.R. 1007, is not the accepted jurisprudence of this state, and that the rule in Louisiana is that when two vehicles approach an intersection at right angles, and one of them nearly completes the crossing before the other arrives at the intersection, the one which nearly traverses the intersecting street is entitled to proceed, notwithstanding the fact that the other vehicle has the right of way because it is approaching from the right. Pittman v. Hunter, La.App., 6 So.2d 786 and Id., La.App., 8 So.2d 554; General Exchange Ins. Corp. v. Kean's Inc., et al., La.App., 184 So. 410.

We agree with the defendants’ contention, as far as it goes, but add thereto the condition that such a driver approaching from the left has an obligation to look to his right before entering the intersection, and should only enter the intersection if there is no traffic at such a distance from the intersection as would suggest to the mind of a reasonably prudent person that the crossing might be undertaken without danger of collision. This obligation was not performed by the transportation company’s driver, for, if he had looked, he could have seen plaintiff’s truck, and would have known that there was not a reasonably safe opportunity to proceed. The fact that the transportation company’s truck would have almost crossed the intersection if the driver had not applied his brakes, therefore, does not give defendants the benefit of the jurisprudence relied on by them, as the driver’s negligence, in entering without looking and without sufficient control of his truck to stop it after he entered the intersection and observed plaintiff, wa© a proximate cause of the collision.

The defendants’ answer pleaded in the alternative the negligence of plaintiff in not keeping a proper lookout, in not honoring the transportation company’s driver’s preemption of the intersection, in driving at the excessive speed of approximately 35 miles per hour, and not taking avoiding action.

Inasmuch as we have found here that the two vehicles approached the intersection at approximately the same time, plaintiff had the right of way. This being so, and as she was traveling at a moderate rate of speed on her right side of the street, she had the right in law to assume that the truck approaching from the left would observe the law and let her pass. Meredith v. Arkansas Louisiana Gas Co., La.App., 185 So. 498. But this larger truck did not stop or slow up sufficiently to let plaintiff pass. Certainly plaintiff could have seen the actions of this truck approaching from her left if she had looked, and in law she is chargeable with having looked. It is also clear that plaintiff had ample time to observe such actions of this larger truck and to have taken proper avoiding action, for this was not a wholly blind corner. And though the transportation company’s truck, travelling at approximately the same speed, entered the intersection at approximately the same time, under the statute, nevertheless it actually traversed half the distance of the street, and would have proceeded further but for the application of the brakes thereof, before plaintiff entered the intersection, and it and its movements were in plaintiff’s view for a considerable time before it even entered the intersection.

It is evident that neither plaintiff nor the transportation company’s driver saw what could and .should have been seen. It is further evident that either driver could have avoided the collision by exercising even a normal and reasonable degree of care. We find that the concurring negligence of both drivers caused the collision.

Judgment affirmed.


author: ELLIS, Judge.

text:
    JONES et al. v. MASSACHUSETTS BONDING & INSURANCE CO.
    No. 3132.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 4, 1949.
    C. A. Blanchard, Donaldsonville, for appellants.
    St. Clair Adams & Son, New Orleans, for appellee.
   ELLIS, Judge.

This suit was filed by six persons who were the children, and all majors, of one Ike Jones who was accidentally killed while employed by the Evan-Hall Sugar CoOperative, Inc. The suit was filed against the Massachusetts Bonding and Insurance Company, liability insurer of Evan-Hall Sugar 'Co-Operative, Inc. The plaintiffs alleged that they were the only children of Ike Jones and further allege that the wife of the said Ike Jones had separated froom him several years prior to his death and had secured a divorce and had remarried.

There was an intervention filed on behalf of the American Mutual Liability Insurance Company which was the insurer of Evan-Hall Sugar Co-Operative, Inc. against liability to its employees under the Louisiana Workmen’s Compensation laws. The defendant filed an exception of vagueness and no legal right and no legal cause of action. The plaintiff amended its petition and the defendant filed an answer which was a general denial, and, in the alternative, a plea of contributory negligence.

The minutes show that the case was partially -tried on June 25, 1948 and continued until the October term of Court. On January 20, 1949 the minutes show that the exceptions of no legal right of action and no legal cause of action, having been previously tried and taken under advisement by the Court, for the reasons orally assigned were maintained and the suit of the plaintiffs was ordered dismissed at their cost. The minutes further show that an application for a new trial was filed on January 24, 1949, and on March IS, 1949 the application for the new trial was denied, the 'Court giving short written reasons in which it stated that it was rendering this ruling by virtue of Article 2315 of the Civil Code and the Burthlong v. Huber decision, La.App., 4 So.2d 480, wherein it stated that “the right of action shall accrue to the major children only in those cases where there is no surviving spouse or minor child or children”, and as the evidence shows that decedent left a surviving spouse, the Court is convinced that the plaintiffs, the major heirs of decedent, have no right or cause of action.

The case was accordingly appealed to this Court by the plaintiffs. It is shown by plaintiffs’ and defendant’s briefs that this case was partially tried and when the allegedly divorced wife of the deceased, Ike Jones, was placed on the stand, she testified that she had never been divorced from him, whereupon the defendants objected to any further testimony and at that time filed an exception of no right or cause of action. This is shown by the briefs but there is no note of testimony in this record. Counsel for defendant did not argue the case but counsel for plaintiffs did argue the case and stated that the case was partially tried but the evidence was not in the record and that counsel for defendant would not agree to any stipulation of fact. Counsel for the plaintiffs orally requested this Court to pass on the question presented, even though there is no testimony in the record. We do not see how we could pass upon the question presented by counsel for plaintiff without this evidence. All we have before us are the pleadings which, on their face, state a cause of action, for we must take as true the allegations of plaintiffs’ petition that the wife of Ike Jones prior to his death had secured a divorce and had remarried. However, as the minutes show that the evidence was taken and it is not in the record, it is necessary that the missing testimony be supplied, and it is ordered that this case be remanded to the Twenty-third Judicial District Court of the Parish of Ascension for the completion of the Lranscript.