author: HAWTHORNE, Justice.

text:
    214 La. 928
    UNITED BROTHERHOOD OF CARPENTERS & JOINERS OF AMERICA, LOCAL NO. 1846, Inc. v. STEPHENS BROADCASTING CO., Inc.
    No. 39110.
    Supreme Court of Louisiana.
    Feb. 14, 1949.
    McLoughlin & West, of New Orleans, for defendant and appellant.
    Bernard J. Fonseca, of New Orleans, for plaintiff and appellee.
   HAWTHORNE, Justice.

Plaintiff, United Brotherhood of Carpenters & Joiners of America, Local No. 1846, Inc., instituted this suit against Stephens Broadcasting Company, Inc., for specific performance of a contract to purchase certain real property designated in the contract as 836 Carondelet Street in the City of New Orleans, fully described in the petition, which is the same property acquired by an unincorporated association designated as United Brotherhood of Carpenters & Joiners of America, Local No. 1846, at sheriff’s sale in the matter entitled James J. Plauche, E. Lawrence Butler, and Robert R. Rainold v. Knights of Columbus Benevolent Association, as per sheriff’s deed dated May 29, 1941.

After trial on the merits, the lower court rendered judgment as prayed for, and defendant has appealed.

Defendant-appellant, in refusing to accept title, takes the position that a good, valid, and merchantable title cannot be transferred to it for the reason that the United Brotherhood of Carpenters & Joiners of America, Local No. 1846, a labor union, at the time the contract was made was an unincorporated association; that each and every member thereof acquired an undivided interest in the property by virtue of membership in the association, and that this undivided interest could not and cannot be divested without the written consent of the members, evidenced by an act of sale or other instrument in writing signed by each of such members and reciting a valid consideration.

On May 6, 1914, the United Brotherhood of Carpenters & Joiners of America issued a charter to Carpenters Union No. 1846 of New Orleans, Louisiana, and in this charter the local organization agreed by the acceptance of the charter to conform to the constitution, rules, and regulations of the United Brotherhood.

On May 29, 1941, the property in question was adjudicated to the United Brotherhood of Carpenters & Joiners of America, Local No. 1846, at sheriff’s sale, as set out herein-above. On September 17, 1947, this association accepted the offer of Stephens Broadcasting Company, Inc., to purchase the property so acquired by the association, and this is the contract of which plaintiff herein now seeks specific performance.

Thereafter, on January 20, 1948, this association became incorporated as a non-trading corporation under the provisions of Act No. 254 of 1914, as amended, under the name of United Brotherhood of Carpenters & Joiners of America, Local No. 1846, Inc., and this corporation is the plaintiff in the instant suit. The articles of incorporation, among other things, provided that the corporation was created for the purpose of acquiring the property in question. Subsequently to the incorporation, on April 5, 1948, at a meeting of the membership of the unincorporated association a resolution, reciting that it was unanimously adopted, authorized and empowered certain designated officers of the association to execute for and on behalf of the membership of the association an act transferring to the corporation so - formed the property which the Stephens Broadcasting Company, Inc., had contracted to purchase, standing at that time in the name of the association. Pursuant thereto, on April 6 the officers so authorized conveyed the property to the corporation by notarial act. This act recites that these officers were acting under, and by virtue of, and pursuant to, the resolution adopted by the membership of the unincorporated association at its meeting held on April 5, 1948, and a copy of this resolution was attached to the deed.

At the time the association acquired the property, as well as on the date on which the corporation was formed, the association had over 2000 members, each one of whom, according to the-testimony, was required to pay dues and all of whom paid initiation fees with the' exception of ex-servicemen.

Under the general rule at common law, a voluntary, unincorporated association, such as the association which acquired the property at sheriff’s sale in the instant case, prior to its incorporation has no legal existence and is unable to hold title to real property. This rule is well stated in Popovich et al. v. Yugoslav Nat. Home Soc., Inc., et al., 106 Ind.App. 195, 18 N.E.2d 948, 951, as follows:

“Unincorporated associations, clubs, and societies, unless recognized by statute, have no legal existence. * * * Accordingly, in the absence of statutory authorizations, such organizations cannot take or hold property in the associate name, either by way of gift or purchase. * * * ”

Dangel and Shriber, Labor Unions, 1941, sec. 226, p. 249, sets out the rule in the following language:

“It is a general rule, that, unless a statute provides otherwise, a grant or devise of realty to an unincorporated labor union conveys no legal title, since as a body a labor union is not a legal entity, and it is not intended that the individual members take title as individuals. * * * ”

To the same effect, see Shenango Pottery Workers Ass’n et al. v. Crawford et al., 1947, 6 Lawrence 91, 59 Pa. Dist. & C. 426; 4 Am.Jur., Associations and Clubs, sec. 35, p. 477 ; 7 C.J.S., Associations, § 14(a), page 38; Patton on Titles, 1938, sec. 228, p. 749; Note, 46 Mich. L.Rev. 824 (1948).

In some common-law jurisdictions it has been held that, when title to real property is taken in the name of such an organization, title vests jointly in the members of the association. See Popovich et al. v. Yugoslav Nat. Home Soc., Inc., et al., supra; Dangel and Shriber, op. cit. supra; 4 Am.Jur., op. cit. supra; 7 C.J.S., op. cit. supra.

The common-law rule that such an organization is unable to hold title to real property does not prevail in this state. Article 446 of the Civil Code especially provides that such associations may acquire and possess estates and have common interests. That article reads:

“Corporations unauthorized by law or by an act of the Legislature, enjoy no public character, and can not appear in a court of justice, but in the individual name of all the members who compose it, and not as a political body; although these corporations may acquire and possess estates, and have common interests as w.ett as other private societies.” (Italics ours.)

In Le Blanc et al. v. Lemaire et al., 105 La. 539, 30 So. 135, 136, a minority group of the members of an unincorporated church association sought to have partitioned real property belonging to the church association. In that case this court in referring to Article 446 of the Code made the statement that “Our law speaks of unauthorized corporations and private societies, and refers to them as capable of acquiring and possessing estates and having common interests.”

In that case, plaintiffs, a minority group, alleging themselves to be members- of the association and as such common owners of the real estate belonging to the church, sought a partition by licitation. This court, in rejecting the demands of plaintiffs for a partition, recognized that such an association did possess at least a limited legal status, and that, though those comprising the minority group might perhaps have certain property rights in the church holdings, they were not considered such owners in indivisión as would have a standing in court to provoke against the will of the majority a partition of that which by common understanding was intended to remain intact for the purposes of religious worship; that the rule that the will of the majority must prevail applies as well to religious as to secular societies so long as the former conform to the faith and the forms of worship of the church to which they pertain, and that this is so unless the church government or articles of agreement otherwise provide.

Although an unincorporated association may take title to real estate in its association name, under our jurisprudence it has been recognized that the members thereof by virtue of their membership have a joint or common interest in the property. Ebenezer Baptist Church, Inc., v. Banks, La.App., 140 So. 815; Monroe et al. v. Krause & Managan Lumber Co., Limited, et al., La.App., 24 So.2d 501.

Under our law, was it necessary in the instant case for every member of the unincorporated association to consent in writing to the conveyance of the property to the corporation? In other words, what is the nature of the members’ rights and interests with reference to the particular property?

In Harris ex rel. Carpenters Union No. 2573, of Marshfield, Oregon Lumber & Sawmill Workers et al. v. Backman et al., 160 Or. 520, 86 P.2d 456, 458-459, the Supreme Court of Oregon had this to say with reference to ■ the rights and interests of members of an unincorporated association, which in that case, as here, was a local labor union:

. “ * * * Local Union No. 2573, it not having been incorporated, was a voluntary association having no legal entity separate and apart from its own members. Like all other unincorporated voluntary associations by becoming a member unless the articles or laws of the association provide otherwise a person acquires not a severable right to any of its property or funds but merely a right to the joint use and enjoyment thereof so long as he continues to be a member. * , * * * * *
“The charter, constitution and general laws of the Brotherhood, together with the local constitution and laws, constitute a contract which all members of the union who have assented thereto are bound to obey so long as they remain members of the union and, upon ceasing to be members of the union, they forfeit all right to the property and funds of the union and have no more right to control the disposition of such property and funds than if they had never been members thereof. * * *”

In the recent case of Shenango Pottery Workers Ass’n et al. v. Crawford et al., 6 Lawrence 91, 59 Pa. Dist. & C. 426, 431, decided by the Court of Common Pleas of Lawrence County, Pennsylvania, the question before the court pertained to the ownership of certain property belonging to an unincorporated association, and in the course of the opinion the court stated:

“In the case before us the association already has the property. It was contributed by the members. To whom does it belong? Here the absence of bylaws or a constitution is important. The constitution and bylaws of an unincorporated association form a contract among those who became members * * *. Bylaws may provide how a fund may be distributed within the bounds of the original purpose. * * * ”

In 4 Am.Jur., Associations and Clubs, secs. 13 and 15, pp. 462, 464, the rule is given thus:

“The members of an association may prescribe rules of conduct for themselves during their membership * * *. This they usually do by the adoption of a constitution and by-laws, which constitute the contract between the members and the association and govern and limit the rights and liabilities of both members and association. It is generally held that by becoming a member of a voluntary association, one -engages to be bound by its rules, subjects himself to its discipline, and assumes, of necessity, such obligations as are incident to membership * *
* * * * * *
“ * * * as the rule is generally stated, each member of an unincorporated association has an interest in its assets so long as he remains a member, which interest is prima facie equal or proportionate, but which is subject, of course, to the right of the trustees, governing committee, or other board of control to dispose of as provided by the constitution and by-laws which form the contract between the member and the association. * * * See also 7 C.J.S., Associations, § 27(a), page 69.

Under the above cited authorities, we conclude that the general rule is that an association such as the one with which we are dealing here may, prior to its dissolution, sell or convey property to which it has title in the associate name if such conveyance is made pursuant to the charter,, constitution, by-laws, rules, or regulations under which the association is organized and governed and exists; that each member is bound by such charter, constitution, and by-laws upon becoming a member of such association, as they constitute and are the contract between the members and the association itself, and govern and limit the rights and liabilities of both the members and the association; that, although each member does have certain rights and interests in the property belonging to the association, these rights and interests prior to the dissolution of the association are governed by the constitution, charter, and bylaws, if there be a constitution, charter, or by-laws.

As previously pointed out, the record in this case discloses that a resolution, which recites that it was unanimously adopted, was passed at a meeting of the membership of the unincorporated association authorizing and designating certain officers of the association to execute for and on behalf of the membership an act of sale conveying the property to the corporation. The constitution and by-laws of the Brotherhood or local union, if any exist, are not in the record, and we are unable to determine- whether the conveyance was made under the authority of, and pursuant to, the terms and provisions thereof. For this reason we have concluded to remand the case to the lower court pursuant to the authority found in Article 906 of. the Code of Practice for further proceedings, so that the plaintiff herein may establish, if it can, the existence of a charter, constitution, or by-laws under which the unincorporated association was governed, and establish that the conveyance by the association was made under the authority thereof. Upon such proof,' the district court should grant to the plaintiff' the relief prayed for; otherwise the suit should be dismissed.

Plaintiff-appellee contends that the conveyance of the property to it by the unincorporated association was valid under the terms of Act No. 107 of 1924, which deals with the conveyance of property -acquired by one or more persons acting as trustee, or in any other capacity, for and in the name of any unincorporated association for religious, charitable, or educational purposes upon the incorporation of such an association. We think that this act has no application to the facts of the case here under consideration,

For the reasons assigned, the judgment -appealed from is set aside, and the case is remanded to the district court to be proceeded with according to the views herein expressed. Costs of this appeal are to be borne one-half by appellant and one-half by appellee; all other costs to await the final disposition of the case on the'merits.

O’NIELL, C. J., does not take part.


source: Caselaw Access Project

author: FOURNET, Justice.

license: Public Domain

text:
    214 La. 940
    FABACHER et al. v. FABACHER et al.
    No. 38850.
    Supreme Court of Louisiana.
    Feb. 14, 1949.

      Samuel J. Tennant, Jr., of New Orleans, for plaintiffs-appellees.
    Hugh M. Wilkinson and James Wilkinson, III, both of New Orleans, for defendants-appellants.
   FOURNET, Justice.

This suit was .instituted for the purpose of having partitioned by licitation certain property acquired by Albert Fabacher, Sr., during his marriage to Louise Napp, a 'half interest in which is now owned by Faba-cher’s succession in indivisión .with his children who own the other half interest, share and share alike, as the heirs of his predeceased wife. The five children who instituted these proceedings joined as parties defendant the two children who are opposing the partition. The succession of the decedent through the testamentary executors joined the plaintiffs in prosecuting the matter.

Li resisting the demands of the plaintiffs the defendants first filed exceptions of ho cause and no right of action, of prematurity, and of vagueness. When these exceptions were overruled, they answered. In this court they are contending that the •plaintiffs are attempting to force a partition and sale of some of the property of the succession of their father before the heirs have been sent' into possession and without having an accounting by the executors; it further appearing there are certain assets of the succession omitted from the original inventory that have not as yet been brought under the administration of the executors, all contrary to the holdings in the cases of Montz v. Montz, La.App., 2 So.2d 251, and Robin v. Lob, 204 La. 983, 16 So.2d 541.

Following the death of Mrs. Fabacher, by judgment of the Civil District Court for the Parish of Orleans in her succession proceedings dated January 14, 1937, her seven children — Dr. Ralph W. Faba-cher, Miss Cecile Fabacher, Mrs. Louise Fabacher Caire, Mrs. Stella Fabacher Bosworth, Mrs. Eunice Fabacher Villegas, Mrs. Irma Fabacher Fourcade, and Albert Fabacher, Jr. (the first five are the plaintiffs and the latter two are the defendants in this case) — were recognized as 'her heirs and as such were sent into possession of her half interest in the community, subject to the usufruct of the surviving husband, who died testate on October 20, 1946, naming as his joint executors Ralph and Cecile Fabacher. This will sets out that the decedent advanced $1,000.to one of the children, and calls upon her to collate; calls attention to two mortgage notes given him by two of his daughters, which represent assets of his estate that are to be repaid by them, with the provision, however, that the amounts represented by these notes be remitted in the event the share of these children in the decedent’s estate or in the estate of their mother that has not been already distributed to them is not sufficient to discharge them; and gives to one of the children, as an extra portion, certain property and furniture.- After the testamentary executors, Ralph and Cecile, had caused the property of the decedent to be inventoried the inventory showed that the real estate forming a part of the community amounted to $83,750, Fabacher’s half interest therein being $41,875; -and that the cash, notes, and furniture owned by Fabacher at his death amounted to $20,656.73. After several attempts had been made to sell various parcels of the real estate at private sale for the purpose of paying the debts and for the further purpose of collation under the terms of the will, only to be. met by the opposition of the defendants, • the plaintiffs instituted these proceedings for partition.

It is the jurisprudence of this state, as was very ably pointed out by the Court of Appeal for the Parish of Orleans in the case of Montz v. Montz, cited supra, which decision was- approved by this court in the case of Robin v. Lob, supra, that under the law of this state as found in Chapter 12 of Title 1 of Book III of the Revised Civil Code dealing with the partition of successions, [2 So.2d 253] “so long as the heirs are not sent into possession [of succession property], they remain co-heirs, with the result that, unless all consent, there can be no partition unless it be of the entire estate.”

This rule does not obtain, however, when the heirs have been -recognized as such and sent into possession of the property of the decedent. In such a case the succession ceases to exist at the time the judgment placing the heirs in possession is executed and from that time thenceforth the property becomes the common property of the heirs as co-owners, Freret v. Heirs of Freret, 31 La.Ann. 506; Medicis v. Medicis, 155 La. 171, 99 So. 27; Mitcham v. Mitcham, 186 La. 641, 173 So. 132, and a suit for a partition in such a case does not involve a division of succession property' but is an ordinary suit for a partition between co-owners. Mitcham v. Mitcham, supra; Prichard v. McCranie, 160 La. 605, 107 So. 461.

“ * * * the right of a co-owner to partition property which he holds in common with another is absolute * * * it is not within the province of the court to say when property shall be partitioned * * * ” and “When co-owners cannot agree upon a partition of the property which they own in common, a judicial partition becomes necessary, and if one of them demands it by suit, it then becomes the -duty of the judge before whom the case is tried to determine the method of making it.” Raceland Bank & Trust Co. v. Toups, 173 La. 742, 138 So. 652, 653. See, also, Mitcham v. Mitcham, supra.

Clearly, therefore, when these seven children of -the Fabachers (the plaintiffs and defendants) were sent into possession of the half interest in the community property as the heirs of their deceased mother, they became co-owners of this property in indivisión with their father, subject to his usufruct, and, upon his death, they became and are now co-owners in full ownership of the property with his succession and as such they occupy a position of strangers thereto for the purpose of settling the debts of the succession and of discharging the several legacies provided for in the will. Succession of Dumestre, 42 La.Ann. 411, 7 So. 624; Wilson v. Wilson, 107 La. 139, 31 So. 643, 644. Certainly it cannot be said that if the father, at the time these heirs were sent into possession of the half interest of their mother in the community property, had voluntarily relinquished his right to the usufruct of this property that he could not at that time have sued for a partition of the property held in common with his children as co-owners. Nor can it be said that had the father remarried that these children could not have forced their father to partition this property so that they might enjoy their interest therein. They were co-owners of the entire property in the truest sense of -the word. This being true, that portion of the Lob case holding to the contrary, unsupported by any authority, must be overruled.

In the Wilson case one of the questions raised was whether the administrator of Mrs. Wilson’s succession (she having survived her partner in community and a judgment having been previously rendered recognizing the children to be the heirs of their father and placing them in possession of his half of the community subject to their mothers usufruct), which succession was still in progress, could force a partition of the whole of the property before her succession, representing a half thereof, was settled and her heirs had been duly placed in possession. The court quoted Article 1135 of the Revised Civil Code which provides that “If the deceased was in community or partnership with any one who has survived him, the curator of the vacant succession or of absent heirs is bound, immediately after his appointment, to sue for a partition, in order that the part which belonged to the deceased in the community or partnership property, be ascertained”, and made the following pertinent observation:

“Applying this provision of law to a state of facts similar to that here presented, this court held, in Succession of Dumestre, 42 La.Ann. 411, 7 So. 624, that ‘where the surviving member of a community subsequently dies, leaving individual debts unpaid, necessitating an administration, it becomes the duty of the administrator of his succession to institute suit for partition of the property held in indivisión by it and third persons; and the heirs of the predeceased partner, dying without debts, are third persons in that sense.’ See also Smith v. Sinnott, 44 La.Ann. 51, 10 So. 413.
“The fact that the heirs of the predeceased partner of the community, Samuel Wilson, are likewise the heirs of his lately deceased widow, Eliza Jane Caldwell, does not make them, quoad her succession, any the less strangers to its administration undertaken for the purpose of the settlement of debts she' owed, and for which they have not made themselves liable by an acceptance, pure and simple, of her succession. 42 La.Ann. [411], 413, 7 So. 624.
“In other words her succession under administration, and unaccepted as yet by her heirs, is to be held and considered a separate entity distinct from their heir-ship, which, until the succession is settled, or their acceptance avowed, is contingent and remote, in the sense that there devolves upon them as heirs only the remainder left after payment of the debts.”

We think the logic in the foregoing is particularly applicable here, for it is to be observed that under the terms of decedent’s will not only are certain collations to be made by some of the heirs, but there is the further condition that if there is not sufficient money or property coming to these heirs from the decedent’s estate “or out of their share of the estate of my deceased wife which has not already been distributed to them at the time of my death and upon which I have had the usufruct, then I desire as a special bequest to bequeath to each of them sufficient funds to completely extinguish their obligation to my estate, it being my desire that their inheritance from my estate and the distribution after my death of such assets of my wife’s estate shall be sufficient to wipe out these mortgage indebtednesses of my daughters.”

Of necessity, in order to carry out this portion of the will it is imperative that it be determined whether from their share of the succession of their father they are going to have placed in their possession, plus the amount that is to be distributed to them out of their mother’s estate held by their father in usufruct at the time of his death to make this payment, there will be sufficient for these heirs to wipe out the indebtedness due their father’s estate before it can be determined whether these debts are tó be remitted and if so what portions thereof are to be remitted, and also whether and to what extent a collation must take place before the succession can be closed, and inasmuch as the heirs are unable to amicably agree among themselves on the matter of collation and of partitioning the property, we can think of no better remedy than that the property be -partitioned, as is here being sought.

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

O’NIELL, C. J., and HAWTHORNE, J., do not take part.


author: FOURNET, Justice. HAMITER, Justice

text:
    214 La. 951
    COCKRELL v. PENROD DRILLING CO. et al.
    No. 38822.
    Supreme Court of Louisiana.
    Feb. 14, 1949.

      Morelock & Morelock, of Haynesville, for plaintiff-applicant.
    Blanchard, Goldstein, Walker & O’Quin, of Shreveport, Meadors, Shaw & Mead-ors, of Homer,-and Ben C. Dawkins, Jf., of Shreveport, for defendants-respondents.
   FOURNET, Justice.

This is an action by an employee to recover compensation (subject - tó a credit for 18 weekly payments) from- his employer and its insurer for total and permanent disability resulting from an accident that occurred when he lifted certain heavy equipment in the course of his employment, causing a traumatic varicocele of the left spermatic cord.

In their answer the defendants admitted the plaintiff’s employment but denied the occurrence of the alleged accident, contending that the varicocele from which the plaintiff suffers was not traumatic in origin but was due entirely to a congenital or systemic weakness; that such compensation as had been paid him was given in the spirit of generosity only and for the purpose of insuring that he had the benefit of every possible doubt.

There was judgment in the trial court in favor of the plaintiff as- prayed for, the trial judge giving written reasons in support of such judgment wherein he concluded that from the uncontradicted testimony of the; lay witnesses at the trial ‘‘the plaintiff sustained an accident while employed by the defendant and while in the discharge of his duties in connection therewith,” and, after -analyzing at length and discussing .the testimony of the several doctors who testified as experts, both for the plaintiff and for the defendants, concluded that plaintiff’s disability was total and permanent within . the meaning and contemplation of the compensation law of this state.

The Court of Appeal for the Second Circuit in its opinion reviewing the case on an appeal taken by the defendants observed [33 So.2d 537]: “Because of the great weight which is properly accorded to opinions and judgments of trial Courts by appellate -tribunals, we have taken great pains in giving ■ extremely thorough consideration to the record in this case. After exhaustive study we are firm in the belief that our distinguished brother of the District Court permitted himself to be led into manifest error in his determination of this cause.- It is evident from a reading of the learned Judge’s opinion that he erred in basing his conclusions upon a considerable mass of the testimony of witnesses which he extricated and isolated from the substance and .text of the background. Long and detailed extracts of .testimony are set forth in the opinion, which, when taken by themselves; would unquestionably carry great weight in supporting the conclusion reached. But in our opinion when these testimonial extracts are relegated to the' proper position in the whole fabric of the case as presented on trial they become of little importance and yield to the convincing factors which to our minds justify another and opposite conclusion.” And from its appreciation of the testimony of the lay witnesses, when considered in the light of its appreciation of the medical testimony to the effect that there is no such thing as a traumatic varicocele, it concluded the plaintiff was a malingerer, faking the accident and simulating the injury in order to -recover compensation. It therefore reversed the judgment of the lower court and dismissed the plaintiff’s' suit. 33 So.2d 535.

We note with regret the very caustic and severe attack upon the trial judge to be found in the brief of the defendants which charges that in deciding the case he used “unjustified and unjustifiable statements of both fact and law,” in a “studied effort to ‘write the defendants out of court,’ ” characterizing his opinion as “a creature of studied bias and unfairness,” and as being “a masterpiece of animus and ‘excerpt-lifting.’ ”

In the first place, such tactics are not necessary in presenting a meritorious cause, and they should never be indulged in before any of the tribunals of -this state. In the next place, a mere examination of the record demonstrates that this attack is undeserved and most unwarranted. In fact, we are impressed, after a reading o-f the entire record, with the fairness and consideration which the trial judge displayed in his treatment of the litigants, their counsel, and the witnesses throughout the trial; with the painstaking and detailed manner in which he treated of the facts as reflected by the evidence; and with his clear and logical analysis of this evidence in applying it to the law of the case.

It appears from the uncontradic-ted testimony of the lay witnesses that the plaintiff, J. H. Cockrell, who was employed by the Penrod Drilling Company at a salary of approximately $300 a month, late in the afternoon of July 11, 1946, in the performance of his duties as. a rotary helper in the drillirig of the Maddox No. 1 Well in the East Haynesville Field of Claiborne Parish, -while throwing what is' called “a three man slip” weighing between 75 and 100 pounds around the last joint of a casing being used in the operation of the oil rig, suddenly felt a hot stinging sensation run through his left side down near his groin that made him somewhat nauseated. Feeling that the symptoms were temporary and would pass off, he completed the connection ■ and continued to work despite the advice of the driller that he report to the doctor when the driller, observing that his actions indicated -something had happened, summoned him -over. However, he later decided to report to the company doctor, Dr. M. J. Rivenbark, at the hospital, using the driller’s car as suggested, when the organ began to pain him considerably and he observed ‘that it was swelling. After a perfunctory examination the doctor advised him to go home and lie down with his feet elevated so that the swelling might subside somewhat and to report back the next morning for a more thorough .examination, all of which the plaintiff did. Dr. Rivenbark diagnosed the case as a traumatic varicocele and continued to treat the plaintiff for such injury for several months.

In corroboration the plaintiff offered the testimony of J. D. Norris, the driller who was in charge of the operations at the rig at the time of the -accident and who was still in the employ of the drilling company at the time of the trial of this case. He stated, in substance, that upon noticing the plaintiff rubbing his side after the completion of the connection, and observing from his attitude that something was wrong, be motioned for him to come over and asked what was the matter, to which question the plaintiff replied that he didn’t know but that he had a stinging in his side; that he told the plaintiff to lower his pants' and observing from a casual examination that there was a red spot on the plaintiff’s body just above the pubic hair, he advised him to go to the hospital but, instead, saying this sensation might go away, the plaintiff continued to work; that a short time later, though, he did leave in his (the driller’s) car for the hospital.

A fellow employee by the name of H. E. Duvall, also a rotary helper on the well and who was assisting in making the connection at the time of the accident, corroborates the plaintiff’s statement that immediately after the connection the plaintiff came up to where he was and said he thought he had ruptured himself and that upon pulling down his pants he (Duvall) noticed a red spot on the lower left side of plaintiff’s body. He also corroborates the plaintiff’s statement and that of the driller by testifying that the plaintiff immediately thereafter went over to talk to the driller.

The company doctor, Dr. Rivenbark, who testified on behalf ■ of the plaintiff, corroborates his testimony that the plaintiff reported to him for examination and treatment at his hospital and that while he diagnosed the case as a traumatic vari-cocele as the result of .the history given him, having exhausted every other possible cause, he did find as a fact when he examined the plaintiff that the plaintiff was suffering from a varicocele of the left spermatic- cord of moderate size, and that the size of the testicle was much enlarged due to the swelling of the tissues around it.

The plaintiff’s wife, Gladys Cockrell, in corroboration of her husband, testified that up until he suffered the accident in July he had never been ill and had never been in the hospital; that since that time he has been unable to stand on his feet without getting pains and becoming nervous; that he was compelled to take “rest tablets” to alleviate the pain; and that except for four days when he tried to return to his regular work under doctor’s orders, he has been able to do nothing more than “piddle” around the house. Mrs. Cockrell’s father, Sam Jennings,- with whom the plaintiff and his family lived for about two months after the accident, testified that at times the plaintiff’s testicle swelled up and had a knot.

The record further shows that the doctor, after having treated the plaintiff for a month,.on August 12, 1946, wrote a letter to the defendant insurance company advising that while there was no- evidence of a hernia as the result of- the plaintiff’s accident, he did have a -traumatic varicocele. He. stated further that if it should become larger he would not advise operation “as the tendency towards hydrocele following varicocele operation is so great.” He advised the company that with -the aid of a light “suspensory” the plaintiff could return to work doing light work after a rest of a week or so.

Nevertheless the plaintiff did not return to work until some time in January of 1947, when he was again employed by the same drilling company but doing lighter work with the aid of a suspensory, as suggested and recommended by Dr. Riven-bark. On the fourth day of this work he quit because of the recurring pains- and swelling of the injured organ and, failing to locate the company doctor at -the time he left his job, he went to a local doctor who gave him a hypodermic to alleviate his suffering. The plaintiff later reported to the hospital where Dr. Rivenbark found the vein enlarged and ordered him to bed. He remained in -bed- for about two days and when the swelling had subsided he advised the plaintiff to go home and rest in bed for a week or ten days, but, according to the testimony of Dr. Rivenbark on the day of the trial (in April of 1947) the plaintiff’s condition was such that he had advised him no-t to undertake any heavy work or work of a nature similar to that he had been doing in the condition in which he then was.

We think from the foregoing testimony, as did the trial judge, particularly when it is considered in connection with the medical testimony that will hereafter be discussed, that the plaintiff did suffer an injury within the meaning and contemplation of the compensation law of this state. To hold otherwise we would have to assume -that these several witnesses, including the company doctor who treated the plaintiff, perjured themselves. This we cannot do for it is the accepted rule that courts will not impute perjury to apparently credible witnesses, Miller v. Hartford Live Stock Ins. Co., 165 La. 777, 116 So. 182;. Fogleman v. Interurban Transportation Co., 192 La. 115, 187 So. 73, particularly in the absence-of any evidence in the record to indicate that the evidence was false or unreliable. Bonanno v. Decedue, 186 La. 1041, 173 So. 756. Not only is there no countervailing evidence whatever to impute perjury to these witnesses insofar as the occurrence of the accident is concerned, hut the un-controverted evidence shows the plaintiff, who at the time of the trial was 39 years old and had been for 20 years engaged in oil field work as a “rough neck,” an occupation recognized to be Very hard, had never had any illness requiring a doctor’s treatment except on one or two occasions when he had chills and fever. And despite the fact that he had upon numerous occasions been examined by physicians when obtaining employment and had thereafter subjected himself to examination periodically for check-ups as required by his employers, he was never informed that he had a varicocele and he never experienced any of the symptoms or pain thereof prior to the time of the injury: His fellow employees testified as to his ability and willingness to work. It would, therefore, be most unreasonable to assume that the injury that occurred as stated by the plaintiff and his witnesses would have caused sudden swelling and pain, required continuous treatment for so long a period of time, and rendered him unable to return to his former job or to do any other work of a similar nature, had it been faked and simulated.

In reviewing the medical testimony, however, we find a marked conflict between the opinions given by the experts offered by the plaintiff and those offered by the defendants as to the cause of plaintiff’s injury and the extent of his disability. This conflict seems to stem primarily from their disagreement as to whether a varico-cele can be caused or aggravated by strain or trauma. It is, however, conceded by all of the medical experts that a large percentage of men, because of their physical constitution, are afflicted with the potentialities of varicocele, particularly on the left side, and that the condition is, as a rule congenital in origin or develops over a long period of time and is infrequently disabling when accompanied by swelling and pain..

In order to determine the origin and extent of plaintiff’s disability the trial judge analyzed the testimony of these experts as follows:

“Dr. M. J. Rivenbark of Haynesville, La., a graduate of Tulane University Medical School, a physician and surgeon for 21 years, and a physician who usually does work for the defendant and other industrial companies such as examinations, treatments and hospitalizations, treated plaintiff in this case. As he made no notation and record of plaintiff’s visit on the 11th day of July, 1946, the doctor had no recollection thereof, but his record and notations begin with the return of the plaintiff to the hospital on the 12th of July, 1946. ' I think the discrepancy between plaintiff’s testimony and the doctor’s in this respect is fully explained. It is common knowledge that doctors have been over-worked in the past few years and it is no wonder that they do not recall events without a proper record and notation to that effect.
“On the doctor’s examination on July 12th, he said thft he diagnosed his trouble as ‘varicocele’; it was varicocele veins brought on probably by strain, and that in his diagnosis he said it was ‘traumatic varicocele’, and that traumatic means an injury brought on as a matter of trauma, force, or injury. Plaintiff had an enlarged or swollen cord, the left spermatic cord and that the doctor advised treatment as follows:
“ ‘Cessation of work and suspension of the testicle.’ The doctor treated him from July 12th, 1946 to January 30th, 1947 and several times since then. (Ev. 30, 31).
“On the four days’ work in January, 1947 the doctor testified that plaintiff came in and had a dose of morphine from Dr. Lannie Waller and then reported to him about 7:10 P.M. Plaintiff was hospitalized for a few days and the swelling subsided and he sent him home to rest again. The doctor was then asked this question:
“■‘When will Mr. Cockrell recover from this injury and be able to do heavy work?’ and he answered as follows:
“ ‘That depends on a good many factors. Most of these conditions occur in patients where the nervous system is not so stable, and they worry about it. Then they are usually in a weakened state physically. Insofar as heavy work is concerned, like rough-necking, I would not advise it. But there are lots of occupations he could follow to earn a living- and still not be disabled.’ (Ev. 33).
“Then the court asked the doctor this question:
“ ‘What do you say his condition is now with reference to rough-necking work?’

and the doctor answered:

“ ‘Your Honor, under his present condition roughnecking would not be satisfactory because he lets the little discomfort and swelling he has there worry him. That would still have, to be tested out further, as to whether he would carry out suggestions by keeping the scrotum suspended at the time of work, as to just how he actually improves on the job.’ (Ev. 36).
“Then, defendant’s counsel asked this question:
“ ‘If he wore the proper type of sus-pensory to support himself, Doctor, you think he could go ahead and do the same type work?’

and the doctor answered:

“ ‘Well, it is possible. Of course, some of these patients still have pain even after operation. Still have pain.’ Ev. 36, 37.
“Another significant portion of Dr. Riv-enbark’s testimony is found on page 41 of the Evidence in this series of questions and answers:
“ ‘Q. Take a man who was perfectly normal, whose veins were perfectly normal, not weakened in any respect, congenital or otherwise, could he bring about varicocele by straining himself? A. Yes, he could do it by straining.
“‘Q. Before he was ruptured? A. Before he was ruptured?’
“ ‘Q. Before he was ruptured and caused hernia he could get varicocele? A. Yes, if he has a tight ring, inguinal ring, then clamping down on that ring will make very acute pressure on the ring.
“ ‘Q. Did you examine his ring ? A. Yes, he has a small ring on that side.’
“Therefore, by this testimony the doctor explains that the injury could have happened and occurred in the manner in which plaintiff and his witnesses testified that it happened — that is, that it occurred as a result of the strain, lifting and throwing the slips weighing approximately 100 pounds.
“Counsel read to the doctor excerpts from medical books one of which was entitled ‘Principles and Practice of Urology’, copyrighted in 1935 or 12 years ago, and on page 45 of the Evidence this statement :
“‘Trauma probably has no causative influence,’ speaking of varicoceles, .to which he had been previously -asked if he agreed with those statements and the doctor answered :
“ ‘That is a statement with reference to which you can get various opinions from different urologists. Just like the old argument about hernias. They usually did not think they were traumatic.
“The doctor was further asked if his examination included causes that might have contributed to varicocele, such as tumors in the kidneys, hemorrhoids and things of that kind and he answered .that it did and that he found no evidence of those, Ev. 47, and that it was not due to any inflammatory condition of the urethral tract. Ev. 48. On page 49 of the Evidence he was asked about the size of the left testicle when he first examined him and he answered as follows:
“ ‘Of course, there was no way I could tell because when I first saw him everything was swollen. When the swelling subsided naturally I noticed it was smaller.’
“As to plaintiff suffering pain, the doctor said:
“ ‘Well, it was just fairly acute pain. It was not cutting pain. It was just aching ■and throbbing. However, in January, his pain was very acute then and we gave him a hypo of morphine to relieve it. Up to that time no narcotics were used.’ Ev. 50.
“Dr. Campbell of Homer testified on behalf of the plaintiff and testified that he examined him the morning he testified and found plaintiff with a varicocele, a lit-tie enlarged, especially higher up towards the inguinal canal. Ev. 67. This .corroborates or substantiates Dr. Rivenbark’s testimony to the effect that a pressure from the ring would cause this condition and who testified that the ring was small, and he further said that plaintiff’s condition could be painful. Ev. 68. Dr. Campbell also said that varicoceles could be caused by trauma but more often occur naturally, and that if this varicocele caused plaintiff pain he would advise that he not work. Ev. 69. And that as a rule varicocele did not disable a normal person but it could do it. Ev. 70. And as to this the doctor was asked if it would not be the pain and not the varicocele, and he said:
“ ‘Well, I would say it was varicocele that caused it because you can have pain from varicocele, all right. ■ Especially where there is a suspensory worn- and maybe you have pressure from the ring, where it maybe becomes congested. That could happen.’ Ev. 70, 71.
“And as to the enlargement, or varico-cele, higher up, the doctor testified that likely -there would be more pain because those things getting larger higher up might cause the ring to clamp down on them a little harder and cause more pa-in. Ev. 73, 74.
“Dr. L. G. Fincher, of El Dorado, Arkansas, in testifying for the defense testified that about % of all men have varico-celes, and as to plaintiff he says that he found no evidence of hernia, but that plaintiff had a very strong ring and possibly a little smaller than average normally. Ev. 78.
“Thus, the fact that the ring is smaller and very strong corroborates the statements of Dr. Rivenbark and Dr. Campbell that the ring could and was in position due to a strain clamp down on the spermatic vein and cause the varicocele which likelihood is borne out by the enlargement higher up next to the ring itself.
“The doctor further testified that in his opinion a varicocele could not be caused by trauma of any kind and that the plaintiff is fully able for -doing oil field work. And, too, that when he examined, him several years ago, plaintiff had a vari-cocele then. However, if that be true that he had a varicocele previous to his accident and the accident aggravated the condition, plaintiff’s case would still be com-pensable under the law and the decisions of the courts of this State.
“But, the doctor somewhat qualifies his statement in his testimony on page 83 of the Evidence when asked his opinion as to whether or not plaintiff could have sustained a traumatic hernia so as to dissable him from performing his work, by saying:
" T could not render an opinion on that. If I could have seen him right then I could have told you definitely. It is my opinion-that that is rather rare. I haven’t ever seen one. I have never seen one. I wouldn’t say that it just positively could not be done but I have never seen one that was caused by a single injury.’
“Then, the doctor says: ‘He has no disability, whatever.’ But, if -there is an acute varicocele, that is, one that would come on instantly with swelling, the doctor says that it would take about four weeks for him to recover to return to work. Ev. 86. So, therefore, this doctor agrees that vari-coceles in some form .are disabling as he points out this One.
“Dr. T. J. Smith called to testify on behalf of the defendants is of the opinion that a varicocele is not traumatic. Ev. 89. He thinks the condition is congenital but that it could be aggravated by standing on the feet a long time such as a motorman on a street car and when asked about his ability to do oil field work with a vari-cocele, he stated he could not definitely state that he would not have pain. Ev. 90. If a 'person had an acute varicocele, he says it would be his opinion that the person had suffered a -direct blow to the veins. Ev. 91, 92.
“He is further of the opinion -that an account of the difference in the size of the testicles that -the varicocele may be of long standing. Ev. 92, 93. And, he states that if he examined a man exactly in Mr. Cockrell’s condition, before he would pass him as fit for work for a company, he would want proof of the absence of pain and suffering. Ev. 94. In other words, if Mr. Cockrell suffers pain he indicates that he too would not approve him for work. Remembering Dr. Rivenbark’s testimony that in January, 1947 he was suffering pain acutely that he had to give him a hypo of morphine to ease him, the conclusion is that this doctor is also of the opinion plaintiff is unable to work. The doctor thinks varicoceles are not traumatic and that plaintiff's case is .no exception. Ev. 97. But, as to lifting, or straining, in cases of hernias, while he is of the opinion there would have to be a natural weakness in the area yet the lifting, that is, the straining, might be the straw that broke the camel’s back, and, therefore, might be the cause of .the hernia indirectly, Ev. 97, which is difficult in my opinion to distinguish from directly causing the hernia. The doctor says that varicocele may or may not be disabling depending upon the, degree, and that it could cause nervousness. Ev. 99.
“Dr. J. R. Stamper, a urologist of Shreveport, was called to testify on behalf of the defendants. This witness went into details as to the anatomy of the body in the area complained of by plaintiff and he says that an acute varicocele might be caused by something in the abdomen that would compress the return of the venous blood. Ev. 104. Any tissue that is full of venous blood is going to begin feeling hot and full due to the fact it needs fresh arterial blood. He says that 54 of all men have varicoceles and that men of that 'type could do a day’s work in the old field ‘unless he had complications.’ Ev. IOS. The doctor is of the opinion that as a rule varicoceles are not caused by trauma, he could not think of any condition of trauma that could cause the condition, but that the condition developed over a long period of time. He testified too that at first men with varicoceles were not accepted in the army but were later accepted as the war went on. Ev. 109. He admitted, however, that varicocele makes a man nervous and gets him in condition that he cannot stand, or tolerate, pain very well and that pain he does have is exaggerated. Ev. 115. Dr. Hilton as well as Dr. Stamper was of the opinion that the plaintiff was able to go back to work and that it was the accepted medical opinion that varicocele was not traumatic. Dr. Stamper and Dr. ■ Hilton
were also of the opinion that sexual excitement, constipation and nervousness would cause pain to a person with varicocele. Ev. 121.”
Here the judge noted that the testimony of Dr. W. S. Harmon had not been filed in the record but that it had been stated by counsel that his testimony would be in line with the testimony of the other experts presented by the defendants. (This testimony is now in the record and is substantially in accord with this other medical testimony of the defendants. Dr. Harmon stated he did not believe varicoceles were traumatic in origin, most of them being congenital and developing over a long period of time; that as a rule varicoceles do not cause pain in any marked degree; that the only cure is an operation. Neither does Dr. Harmon believe that a hernia is traumatic). Continuing the trial judge says:
“After a careful consideration of the evidence in this case, I am of the opinion that it has been established by legal and competent and convincing evidence that plaintiff sustained an injury on July 11th, 1946, while performing labor and discharging his duties of his employment with the Penrod Drilling Company, as a roughneck; that plaintiff immediately went to Dr. Rivenbark at the Haynesville Hospital for examination and treatment on that ■afternoon, and that he returned as per the doctor’s instructions on the following morning where a more thorough examination was made; and that plaintiff remained under the care and treatment of Dr. Riven-bark continually from that time to at least January 30th, 1947, and who treated him on several subsequent occasions. The evidence also shows that plaintiff endeavored to work during January, 1947, as per the doctor’s instructions, that he did work four days, and became unable to work any further and returned to the hospital where Dr. Rivenbark hospitalized him for some three, or four days.
“Whatever the injury, I am convinced that plaintiff is totally and permanently incapacitated from performing any work of a reasonable character and especially his usual and regular work as a rough-neck and the only work he had experience or
training in and knew how to perform.' The fact that plaintiff endeavored to work under the doctor’s orders and failed and then the doctor had to hospitalize him on account thereof is rather convincing evidence that plaintiff was unable .to work and this is especially true since his effort to work was more than seven (7) months following the date of the accident.
“Dr. Rivenbark is an examiner and physician and surgeon for the defendant and other industrial and insurance corporations; he was not plaintiff’s regular physician or that of his family — it does not appear that plaintiff himself had needed the services of the doctor’s profession for many years previously. I think Dr. Riven-bark was especially in position to know and observe plaintiff and his injuries as he says he treated him some 25 to 30 times at • least, more so than any other physician who obtained their knowledge and information relative to his injuries from mere examinations. Dr. Rivenbark’s testimony was extremely fair, unbiased and unprejudiced as would appear fr.om the whole thereof and the court was impressed with the honesty and sincerity thereof. The other physicians and experts in the case, of course, did not have the opportunity in merely making superficial examinations to learn about plaintiff’s condition as much as Dr. Rivenbark, and by the former statement no reflection is intended toward the other experts whose knowledge of plaintiff and his condition the court recognizes as somewhat limited as they did not have the opportunity to treat, see, examine and observe plaintiff as Dr. Rivenbark did.”

From the foregoing it will be seen that the trial judge’s analysis of the.medical testimony was most thorough and studied, reflecting his aptitude in the proper application of the well-recognized rule that wherever witnesses differ the court should reconcile the apparent contradictions their testimony presents, if possible, and that, if this cannot be done, then consider the probabilities or improbabilities of their respective statements in the light of their capacity, opportunity or incentive for observation, the amount of corroboration, if any, and the degree of' proof required. Fridge v. Talbert, 180 La. 937, 158 So. 209.

■ The Court of Appeal, without analyzing the medical testimony, concluded that according to the vastly preponderating weight of the medical testimony “there is no such thing as a traumatic varicocele” [33 So.2d 538], and from this premise apparently deduced the further conclusion that the plaintiff had faked the accident and simulated the'injury.

Many of the deductions and conclusions of the Court of Appeal, in our opinion, were neither sound nor logical, not being in accord with the rules applied generally in analyzing testimony in an effort to determine the . sufficiency and weight to be given it, and, in. some instances, these conclusions are not supported by the record. To illustrate: We find the following statement in the opinion of the Court of Appeal: “We observe with some amazement the effort which the able Judge of the District Court has made in his written opinion to justify the conclusion that plaintiff went, to Dr. Rivenbark immediately after the ‘accident.’ In doing this he has been forced to write out of consideration the positive testimony of Dr. Rivenbark himself which was based upon his office records.”

On this point the plaintiff stated that shoitly after the accident he decided to follow the advice of the driller' and report to the doctor when he noticed his condition and experienced the attendant pain, leaving as soon as he could change his clothes and using the driller’s car for that purpose. Dr. Rivenbark did not positively deny the plaintiff visited him on the-11th. His testimony is, rather, that “according to the [his] record it was the 12th.” (Brackets ours.)

There is certainly nothing about the plaintiff’s testimony that renders it incredible or unworthy of belief and there is, consequently, no reason to impute perjury to him, particularly when we find that Dr. Rivenbark was testifying exclusively from his records as made up and could not remember anything about other matters that were not reflected on these records, as, for example, whether he had ever been paid for the services he rendered the plaintiff.

We think it is more reasonable to assume, as did the trial judge, that because of a press of business the doctor failed to note this late visit of the plaintiff to his office on July 11, at which time he made a superficial examination only, than it is to impute perjury to the plaintiff, especially since so many of the surrounding- circumstances tend to corroborate the plaintiff.

We are further fortified in this conclusion from our examination of the testimony given by the medical experts of the defendant. They, too, in giving their version relied on their records and, in some instances, stated they were not sure of certain facts or incidents because these had not been noted on the records from which they were then testifying.

Because of the conclusion we have reached here, the cases relied on by the defendants, Perkins v. White Grandin Lumber Co., 17 La.App. 47, 135 So. 275; Norris v. Crowell & Spencer Lumber Co., La.App., 157 So. 164; Cunningham v. Louisiana Central Lumber Co., La.App., 8 So.2d 115, are not controlling. An examination of these cases will show that each was decided on the particular evidence before the Court.

The defendants, relying on the case of McClung v. Delta Shipbuilding Co., La.App., 33 So.2d 438, on rehearing at 34 So. 2d 70, have filed in this court a motion to remand the case, which motion is based upon the allegation that they have only recently discovered the plaintiff has, since July of 1948, been employed by the General Geophysical Company of Houston, Texas, as a driller, and the further allegation that they believe he was, prior to that time, employed by other companies in Texas, Louisiana, and Arkansas to do heavy oil field work, probably dating back to the: decision of the Court of Appeal denying his claims in November of 1947, all of which facts they expect to be able to establish as the result of a further investigation now being conducted by them.

In opposing this motion the plaintiff contends defendants’ remedy under Section 20 of the Act No. 20 of 1914, as. amended by Acts No. 38 of 1918 and No. 85 of 1926, is for the employer to apply to the trial court for a modification of its judgment if the facts so warrant, citing the case of Mickley v. T. J. Moss Tie Co., La.App., 189 So. 331.

In the McClung case the Court of Appeal concluded the interest of justice required the case be remanded on the motion of the defendants, to which was attached 16 enlarged prints lifted from a motion picture film taken some two months after the trial of the case showing the plaintiff doing work -that he could not possibly have performed had he been totally permanently disabled, which evidence would impeach his testimony as to his condition at the time of the trial.

While the defendants claim the evidence they hope to introduce if the case is remanded will “definitely show that the disability, which the plaintiff claims, does not exist, all in accordance iffith the vast preponderance of the medical and lay testimony already in the record,” such evidence, in the face of the conclusion we have reached here, would merely tend to show the plaintiff is presently employed as a driller and has been doing oil field work since his case was rejected -by the Court of Appeal, only indicating that his condition is improved and would probably warrant the conclusion he has recovered sufficiently to do the type of work he was engaged in doing at the time of the accident. We do not think it would justify the conclusion that he was never actually disabled, having faked the accident and simulated the injury.

It is our opinion, however, that the ends of justice require that we remand the case to allow the defendants an opportunity to show the extent of the plaintiff’s recovery and his condition from November, 1947, as the remedy accorded them under Section 20 of the act would be inadequate since if the plaintiff is able to- and has been doing work of a nature similar , to that in which he was formerly engaged he would have a judgment for compensation for a period extending beyond November, 1947, to which he is not entitled.

For the reasons assigned, the judgment of the Court of Appeal for the Second ■Circuit is annulled and set aside and the case is remanded to the lower court in order that evidence may be introduced for the purpose of showing the extent of the plaintiff’s disability from and after November, 1947.

O’NIELL, C. J., and HAWTHORNE, J., take no part.

HAMITER, Justice

(concurring in part and dissenting in part).

This case should be remanded, I agree, 'for the introduction of further evidence.That to be received, however, should not be limited to a showing of the extent of plaintiff’s disability from and after November, 1947. In view of the irreconcilable conflict contained in the transcript of testimony before us there should be introduced also on the remand additional evidence relating to the alleged accident and injury and any resulting disability.


author: HAMITER, Justice.

text:
    214 La. 979
    STATE v. MILLS et al.
    No. 39036.
    Supreme Court of Louisiana.
    Feb. 14, 1949.
    W. T. McCain and J. W. Ethridge, both of Colfax, for defendants-appellants.
    Bolivar E. Kemp, Jr., Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Harry Fuller, Associate Counsel, of Winnfield, and Sam L. Wells, Dist. Atty., of Colfax, for ap-pellee.
   HAMITER, Justice.

Jack Mills and George Cooper, the defendants herein, .were tried jointly under an indictment charging that they committed a theft of 20 steel rails of the value of $112. The jury returned a verdict of guilty as charged, and the court sentenced each to a ter-m of 12 months at hard labor in the state penitentiary. Both appealed, and they rely on five hills of exceptions for a reversal of the conviction and sentence.

Under their first bill appellants complain of the court’s permitting a state witness, James Edwards, to testify as to the license number of the truck owned by defendant Jack Mills. While this witness was on horseback in the community where the alleged theft occurred, it appears from the record, he observed -a truck containing steel rails (cut into pieces approximately 10 feet long) and also a blow torch. Becoming suspicious of the actions of. its occupants, he, by using the point of a knife, scratched the truck’s license number on his saddle. Later he transferred it to a piece of paper. When the witness sought to testify as to the license number, employing the piece of paper to refresh his memory, defense counsel objected, urging that the saddle was the best evidence. The court overruled the objection and admitted the testimony. Before the trial was completed, however, the saddle was presented to the members of the jury and they read the number scratched thereon. Hence, there is no merit to this bill. See Code of Criminal Procedure, Article 375.

Bills of exceptions numbers 2 and 3 were reserved to rulings admitting the testimony of Wynn Tison, a state witness, relative to the value of the property in question. The witness testified that on two or more occasions he inquired of different dealers in the Alexandria-Colfax area about the market price of scrap iron, and that, from his investigations, he ascertained that the prices varied, depending on the kind and quality, from $16 to $26 per ton. To -this testimony defense counsel objected on the ground that the witness had not qualified as an expert and that it was mere hearsay. In his per curiam, with reference to these bills, the trial judge states:

“Wynn Tison was the Deputy Sheriff of Grant Parish, who made the investigation of the offense with which defendants are charged and convicted and a part of his investigation was to ascertain the value of the property in' order to make a proper charge and he was permitted to give the result of his investigation as to the value of the property. He did not give any hearsay statements but gave the price of scrap iron as being from $16.00 to $26.00 per ton depending on the grade and quality not only with reference to the charge against defendants but also as a result of his investigation in other similar cases. He found the prices varied depending on the kind of scrap iron and so testified.
“Defendant, George Cooper, who was buying and selling scrap iron at the time this offense was committed testified as to the value and he stated the minimum price was $18.00 and the maximum was $22.00 per ton depending on the kind of scrap iron.
“These facts should be heard by the jury to enable them to determine whether the value fixed in the indictment was in line with the market value at the time of the commission of the offense and Tison’s evidence on this fact, in our opinion was not hearsay and did not prejudice the legal rights of defendant in any manner.”

In view of the admission of the defendant Cooper regarding the property’s value, pointed out by the trial judge and of which we must take notice, it is unnecessary for us to determine the questions posed by the objections forming the basis of the instant bills. Assuming arguendo that the testimony of the witness Tison was hearsay, as defense counsel urge, the defendants were not prejudiced thereby. Certainly the defendant Cooper was bound by his own admission which stated the value to be substantially as that given by Tison. Also the admission was effective as against the jointly tried defendant Jack Mills since no objection on his behalf was offered to it (the record discloses none). To entitle a defendant to a reversal of the conviction it must appear that the complained of ruling was prejudicial to his substantial-rights. State v. Thornhill, 188 La. 762, 178 So. 343, State v. Taylor, 192 La. 653, 188 So. 731; Article 557, Louisiana Code of Criminal Procedure.

Bill of exceptions number 4 was taken to the court’s overruling of a motion for a new trial. In the motion, as we appreciate it, defendants contended that the state failed to prove that the property allegedly stolen belonged to others. As to this contention, which presents primarily ■a question of fact for the jury’s consideration, the trial judge states:

“Defendants denied taking the property. The evidence offered by the state showed that the property did not belong to defendants and they made no claim whatever .to it,
“The evidence showed the steel was used ;to construct a bridge across the bayou to be used for the convenience of the citizens ■of that community and no evidence of. title was in defendants.”

In view of this statement (there is nothing to the contrary in the record) we are unable to conclude that error was committed in the overruling of the motion for •a new trial.

In defendants’ motion in arrest of judgment, to the overruling of which bill ■of exceptions number 5 was reserved, it is pointed out that the steel rails allegedly taken were part of a bridge across a stream; and the contention is made that they, having been affixed to the realty and being immovable by destination, could not be the subject of theft. “Theft is the misappropriation or taking of anything of value which belongs to another * * Article 67, Louisiana Criminal Code. The term “anything of value,” as said in Article 2 of such Code, “must be given the broadest possible construction, including any conceivable thing of the slightest value, movable or immovable, corporeal or incorporeal, public or private.” The contention and bill, therefore, are without merit. (Italics ours.)

For the reasons assigned the convictioft and sentence are affirmed.

O’NIELL, C. J., does not take part.


author: MOISE, Justice. McCALEB, Justice

text:
    214 La. 985
    H. & H. TRANSP. CO., Inc. v. OWENS et al.
    No. 38582.
    Supreme Court of Louisiana.
    Feb. 14, 1949.

      Meadors, Shaw & Meadors, of Homer, for plaintiff and appellant H. & H. Transp. Co.
    Foster, Hall & Smith and Marlin Ri-singer, Jr., all of Shreveport, for third opponent and appellant Tri-State Drilling Mud Service.
    Smitherman, Smitherman & Purcell, of Shreveport, for intervenor and third opponent Mid Continent Supply Co.
    Seals & Atkins, of Homer, and Lee & Emery, of Shreveport, for third opponent and appellant International Derrick & Equipment Co.
    T. H. McEachern, of Homer, and James H. Trousdale, Jr., of Monroe, for third opponent and appellee Jim McMurrey.
   MOISE, Justice.

This litigation is over the proceeds realized from a sheriff’s sale of a drilling rig and equipment formerly owned by the defendant, H. C. Owens.

On April 30, 1945, H. C. Owens purchased a drilling rig on terms of credit from Jim McMurrey, intervenor and third opponent. For the purchase price of the rig, Owens .executed three promissory notes, each for $5,416.67, dated April 30, 1945, secured by a vendor’s lien and chattel mortgage on the property described as follows: “One 112 foot Parkersburg Steel Drilling Derrick with steel substructure, together with one Rotary Drilling Rig complete.” (The derrick was not delivered and an adjustment was subsequently made.) In this act there is the following in relation to the location of the rig: “The property described presently within the Parish of Catahoula, Louisiana, is to be located and employed by the purchaser in the Parish of Claiborne, Louisiana.” This act was recorded in Claiborne Parish, La., on the following day, May 1, 1945.

Two wells were drilled by the defendant in Claiborne Parish, Creighton No. 1 and Muslow No. 1. Creighton No. 1 was begun sometime in May, 1945, and was abandoned as a dry hole about the end of October, 1945. The rig was then moved to the second location, a little more than a mile away, and the drilling of Muslow No. 1 was started sometime after November 1, 1945. This well was also abandoned as a dry hole after February 9, 1946.

In drilling Creighton No. 1, Owens bought materials and supplies from inter-venor and third opponent, International Derrick and Equipment Company, amounting to $14,626.30. More than ninety days elapsed from the date of this company’s last invoice for supplies to Creighton No. 1 and the filing of its lien on March 8, 1946. No other creditor here involved furnished services, supplies or materials for this first well.

In connection with the drilling of Mus-low No. 1, International Derrick and Equipment Co. furnished materials and supplies amounting to $89.56; H. & H. Transportation Co. (plaintiff) furnished services amounting to $3,300.32; Tri-State Drilling Mud Service (intervenor) furnished materials and supplies amounting to $1,023.13; and Mid Continent Supply Co. (intervenor) furnished materials and supplies amounting to $2,240.67. Material-men’s liens were filed within 90 days of last delivery to Muslow No. 1 by these four companies.

H. & H. Transportation Co., Inc., brought this suit to enforce payment of its claim, obtained judgment and proceeded to execution. The intervening creditors opposed this execution by way of third opposition. Owens did not defend the suit. The property subject to the lien was sold at judicial sale and $7,375 was realized thereon. The contest is between the creditors as to the «distribution of this amount.

Three of the creditors, namely, the H. & H. Transportation Company, Inc. (plaintiff), Tri-State Drilling Mud Service, and Mid Continent Supply Company (interven-ers and third opponents), have recognized the equality of rank of their respective claims and are urging their objections to claims made by intervenors and third opponents Jim McMurrey and International Derrick and Equipment Company. Mc-Murrey is claiming priority over plaintiff as well as intervenors on the basis of a vendor’s lien embraced within the act of mortgage, describing the property as set out above. The International Derrick & Equipment Co. claims that the filing of its lien within ninety (90) days of the last delivery to Muslow No. 1 covered its claim also for materials furnished Creighton No. 1, since both wells were in the same field, were successively drilled, and the furnishing of supplies constituted a continuous transaction.

The trial court recognized the superiority of McMurrey’s vendor’s lien and ordered .that the proceeds from the sale of a portion of the property, separately appraised and’ sold as being subject to said lien, be paid to McMurrey. Plaintiff and the other in-tervenors and third opponents have appealed. McMurrey has answered the appeal, asking that the judgment be amended to assess plaintiff with the costs of court, .and as thus amended, that the judgment be .affirmed.

The materialmen claim by virtue of the provisions of Act No. 68 of 1942, which provides for liens- in favor of laborers and furnishers of supplies for labor done and supplies furnished in connection with the ■drilling of oil, gas and water wells. On this subj ect the pertinent provisions of Act No. 145 of 1934 (later amended by Act 100 of 1940 and Act No. 68 of 1942) read as follows:

“ * * * such lien and privilege shall be superior to all other liens and privileges ■or mortgages against said property, except taxes or a bona fide vendor’s lien and privilege, provided such vendor’s lien and privilege exists and is recorded before the work, labor, service, trucking,, towing, barging, repairing, or the furnishing of fuel, drilling rigs, standard rigs, material or supplies is begun.”

The district judge found that Act No. 68 of 1942 omitted in Section 2 of the general provisions “provided such vendor’s lien and privilege exists and is recorded before the work, labor, service, trucking, towing, barging, repairing, or the furnishing of fuel, drilling rigs, standard rigs, material or supplies is begun”, and in lieu of this broad provision requiring recordation of the vendor’s lien, the following section was added:

“Section 2-B. That as to movable property said vendor’s lien and privilege must exist and be filed for record within seven days after said property, subject to the vendor’s lien and privilege, is delivered to the well or wells. Said vendor’s lien and privilege shall be evidenced by a written instrument signed by the purchaser and when authentic in form or duly acknowledged, shall be filed for record in the records of the parish where the well or wells is located. The effect of said filing shall prevent said movables from becoming immovable by nature or destination. The property shall be described in such a manner as to be reasonably subject to identification and the premises on which the property is located or is to be located shall be stated. Filing, recordation and preservation shall be in the same manner and form and in the same book as now provided for the recordation of chattel mortgages, but the recorder shall enter under the heading ‘Remarks’ the words, ‘Vendor’s Lien.’ ”

The district judge held that Act No. 68 of 1942 did not contemplate nor did it require recordation of a vendor’s lien covering the sale of an entire drilling rig which is moved into a parish for the drilling of wells and that it contemplated only the furnishing of supplies to a well already commenced. We concur with the findings of the trial court.

If the recordation of a vendor’s lien covering an entire drilling rig is not clearly required by Act No. 68 of 1942 then there is no requirement in any such statute for recordation. Article 19, Section 19 of. the Constitution of 1921 provides: * * Privileges on movable property shall exist without registration of same except in such cases as may be prescribed by law.” It is provided in Article 3227 of-the Civil Code that “He who has sold to another any movable property, which is not paid for, has preference on the price of his property, over the other creditors of the purchaser, whether the sale was made on a credit or without, if the property still remains in the possession of the purchaser. So that although the vendor may have taken a note, bond or other acknowledgment from the buyer, he still enjoys the privilege.” It is, therefore, clear that the vendor of movable property retains a first lien and privilege on the property so long as that property remains in possession of the purchaser and can be identified. Registry is not necessary unless a statute so requires.

In Weiss v. Hudson Const. Co., 151 La. 1, 91 So. 525, 526, the court stated:

“The General Assembly has never passed any general or special law by which a vendor’s privilege on movable property is required to be recorded in order to have effect, either as between the parties or as to third persons. Until such a law is passed, a vendor’s privilege once created will continue to exist without being recorded, until it is lost or superseded in some manner provided by law, The Civil Code declares a privilege to be a right, which the nature of a debt gives to a creditor, and which entitles him to be preferred before other creditors, even those who have mortgages. Article 3186. And he who has sold to another any 'movable property, which is not paid for, has a preference on the price of his property, over the other creditors of the purchaser, if the property still remains in the possession ' of the purchaser. C.C. art. 3227.”

We find that Act No. 68 of 1942 did not clearly manifest the recording of a vendor’s lien covering the sale of a drilling rig where the rig is to be moved into a parish for the drilling of oil, gas or water wells. The district judge followed the provisions of the Constitution and the Civil Code set forth above and we conclude that his findings are correct.

The trial judge found that the Creighton No. 1 well and Moslow No. 1 belonged to the same field and that as materials were furnished to Muslow No. 1 and the lien filed within the ninety day period from the last delivery that the International Derrick and Equipment Company should participate in the proration. We see no. error in this finding.

The suit was provoked by H. & H. Transportation Company. McMurrey was forced into court to protect his interest. The district court assessed him with a part of the costs. Article-402 of the Louisiana Code of Practice provides:

“If the third person has either a privilege of a higher class than that of the party who has made the seizure, or a special hypothe-cation duly registered anterior to that of such party; in such case, the third opponent shall be paid for the amount of his claim, together with the interest and costs,, and the plaintiff in the cause -shall be entitled only to receive the surplus, if there be any.-”

It is our opinion that costs of court should not be assessed against McMurrey, third opponent and appellee herein.

For the reasons assigned, it is "ordered that the claim of Jim McMurrey, interv-enor and third opponent, as to his chattel mortgage and vendor’s lien in the sum of $14,-000 with 6% interest per annum thereon from April 30, 1945, until paid, less a credit of $4,366.67 paid August 1, 1945, together with 10% additional attorney’s fees, should be and the same is hereby recognized as the first privileged and ranking claim on the funds now in the'hands of the sheriff realized from the sale of the property in this case on which the said Jim McMurrey has ■a vendor’s lien and privilege and chattel mortgage and that accordingly the said Jim McMurrey be paid said amount from the proceeds of said separate sale of said property by preference and priority over all other creditors and claimants herein r plaintiff to pay all costs.

It is further ordered that the following claims: IT. & H. Transportation Company, of $3,300.32 (plus 10% attorney’s fees); International Derrick & Equipment Company of $14,715.86 (plus 10% attorney’s-fees and $3 for preparing and filing lien) ; Mid Continent Supply Company of $2,240.-67, less $8.27; and the Tri-State Drilling Mud Service, of $1,023.13 (plus 10% attorney’s fees and $10 for preparing and filing lien), should be and the same are hereby recognized as liens and privileges for services performed and supplies and materials furnished pursuant to the terms of Act No. 68 of 1942 and of equal rank and consequently ordered paid pro rata from the funds realized in this cause and now in the hands of the sheriff of Claiborne Parish, Louisiana, except from the funds realized from the sale of the property on which Jim McMurrey had a vendor’s lien and chattel mortgage as aforesaid, after first deducting from said proceeds this fund’s pro rata part of the court costs in this proceeding.

O’NIELL, C. J., does not take part.

McCALEB, Justice

(concurring.)

I do not subscribe to the view of the district judge, in which the majority concur, that Act No. 68 of 1942 does not provide for the recording of a vendor’s lien and privilege on a drilling rig in order for it to prime the laborers’ and materialmen’s lien covered therein. Section 2-B of the Act appears to be clear and unambiguous. It declares:

“That as to movable property said vendor’s lien and privilege must exist and be filed for record within seven days after said property, subject to the vendor’s lien and privilege, is delivered to the well or wells.

The district judge thought that Section 2-B was inapplicable to a rig because it is usually delivered to the site before the well is drilled and he concluded in his written opinion that it was impossible for the rig to be delivered to a well before the well existed.

For my part, I cannot give the language of the statute such a narrow interpretation. The words “to the well or wells” are broad enough to include the site where the well is to be drilled. In truth, it is evident to me that the underlying purpose of Section 2-B was to accord to a vendor a longer time (i. e. 7 days) within which to record his superior privilege than that given by the law it replaced. Act No. 145 of 1934. At all events, it seems perfectly obvious that the Legislature did not intend to exempt from recordation vendor’s liens on drilling rigs or other movables used in the exploration of oil, gas or water. If it had such a design, it would have been so easy to say so.

'. On the other hand, I am satisfied that Mr. McMurrey has complied in all respects with the provisions of Section 2-B of the Act and that none of the objections raised by the opposing materialmen is well founded.

Accordingly, I concur in the decree.


text:
    214 La. 998
    STATE v. MANUEL.
    No. 39256.
    Supreme Court of Louisiana.
    Feb. 14, 1949.

      Eugene Stanley, of New Orleans, for defendant and appellant.
    Bolivar E. Kemp, Jr., Atty. Gen., M. E. Culligan, Asst. Atty. Gen. and Herve Raci-vitch, Dist. Atty. and Milo B. Williams, Asst. Dist. Atty., both of New Orleans, for appellee.
   HAMITER, Justice.

A hill of information filed on August 19, 1948, charged that the defendant, Edward Manuel, on the 11th day of August, 1948, in the Parish of Orleans “ * * * committed simple burglary of the building and structure No. 3837 Washington Avenue, with intent to commit a theft therein * * *_» On August 23, 1948, defendant pleaded guilty to the charge and on September 8, 1948, he was sentenced to serve a term of three years at hard labor in the state penitentiary.

On September 27, 1948, counsel filed on behalf of defendant in the district court what is styled a motion to revoke and cancel sentence and to set aside plea of guilty. In the motion it is alleged that defendant was without counsel when arraigned and sentenced; that on his arraignment he entered the plea of guilty through error, believing that it was to the offense of simple theft (a misdemeanor) and not to the crime of simple burglary (a felony); that no evidence was heard when the plea was entered or when he was sentenced; that he could not be guilty of simple burglary because he made no unlawful entry into the establishment allegedly burglarized; and that the court, under Article 509 of the Louisiana Code of Criminal Procedure, had the power to set aside the plea of guilty erroneously entered, to annul the sentence, and to grant defendant a new trial.

A hearing on this motion was held on September 30, 1948, at which evidence was adduced, and on November 16, 1948, the trial judge denied the relief sought. Thereupon defense counsel excepted to the ruling, obtained and filed a formal bill of exceptions, and, on November 22, 1948, moved for a suspensive appeal to this court which was granted.

In an assignment of errors filed here defense counsel directs attention to a number of alleged errors of law apparent on the face of the record. But we can not consider any of them for the reason that we are not permitted to entertain the appeal.

“No appeal lies in any criminal case, except as otherwise provided in this Code, from any order, ruling or judgment which does not finally dispose of the case. The prosecution and the defense have each the right in an appealable case to appeal from the final prejudicial judgment.

“A case is finally disposed of by any judgment which dismisses the prosecution, whether before or after verdict, that grants or refuses to grant a new trial, that arrests or refuses to arrest judgment, or that imposes sentence.

“The party desiring to appeal in a criminal case shall make in open court a motion for an appeal verbally or in writing, within ten judicial days after the rendition of the judgment complained of; * * Articles 540, 541 and 542, respectively, of Louisiana Code of Criminal Procedure.

The final prejudicial judgment herein— that which finally disposed of this case— was the judgment of September 8, 1948, imposing sentence, and no motion for an appeal therefrom was made within ten judicial days after its rendition. From which it follows that this appeal, untimely taken, must be dismissed. State v. Rollins, 125 La. 297, 51 So. 204 and State v. Fowler, 133 La. 972, 63 So. 486.

,The motion presented on behalf of defendant on September 27, 1948, from the overruling of which this appeal was taken, can not aid in giving us jurisdiction of the case. It was nothing more than a motion for a new trial which should have been filed and disposed of before sentence. “Every defendant has the right to move for a new trial at any time after verdict, but such motion must be filed and disposed of before sentence.” Louisiana Code of Criminal Procedure, Article SOS.

Our decision in State v. Hebert, 187 La. 318, 174 So. 369, 371, cited by defense counsel, lends no support to the validity of this appeal. Therein the prejudicial judgment was signed on February 16, 1937, and the appeal was not taken until March 5, 1937, more than ten days later. But in the meantime defense counsel applied to this court for writs, and they were denied on March 1, 1937, on the ground that defendant’s remedy was by appeal. In overruling the State’s motion' to dismiss the appeal, we said:

“ * * * The appeal was, therefore, taken in less than ten days after the case was remanded. Under all -the circumstances, the defendant cannot be charged with the delays caused by the application for writs. There is, therefore, no merit in the state’s motion to dismiss the appeal on this ground.”

No circumstances of similar nature are presented by the instant case.

For the reasons assigned the appeal is dismissed.

O’NIELL, C. J., does not take part.


author: PER CURIAM.

text:
    BONNELUCQ v. BERNARD.
    No. 19220.
    Court of Appeal of Louisiana. Orleans.
    March 14, 1949.
    Rehearing Denied April 11, 1949.
    See also 33 So.2d 433.
    Phil Trice, of New Orleans, for plaintiff and appellant.
    Marion Seeber and Delvaille H. Theard, both of New Orleans, for defendant and appellee.
   PER CURIAM.

' This appeal was taken by motion in open court, and the transcript was lodged with us one day prior to February 1, 1949, which was .the return date. On February 9, 1949, appellee moved for a dismissal of the appeal upon the ground that appellant failed to comply with the provisions of Act No. 217 of 1944. It is appellee’s contention that a copy of the motion for the appeal should have been served on his counsel of record in accordance with the provisions of sections 2, 3, and 4 of said act, and that the original motion should ■have been accompanied by a certificate showing that a copy thereof had been so served.

Regardless of whatever merit, if any, the motion to dismiss might have had if timely filed, clearly it comes too late and cannot be considered by us.

A motion to "dismiss an appeal because of a defect, informality, or irregularity which is not jurisdictional, and which does not strike at -the foundation of the right of appeal, must be filed within .three days after the return date. C.P. art. 886; Dart’s La.Dig., Appeal, par. 526.

The motion to dismiss is denied.

Motion denied.