author: ELLIS, Judge.

text:
    O’CONNOR v. CHICAGO, R. I. & P. RY. CO. et al.
    No. 3103.
    Court of Appeal of Louisiana. First Circuit.
    May 19, 1949.
    Rehearing Denied June 30, 1949.
    A. B. Guthrie, Ruston, for appellant.
    Allen R. Fontenot, New Orleans, for appellees.
   ELLIS, Judge.

This suit arose out of an accident between a truck owned by Ville Platte ConCrete Company and being- driven by LeRoy O’Connor, who was killed immediately, and a train of the Chicago, Rock Island and Pacific Railway Company, on January 16, 1947 in the community of Tuiicey Creek, Louisiana. Riding in .the truck as a guest was John W. Walker who lived approximately 16 days after the accident. The widow of LeRoy O’Connor and of John W. Walker filed separate suits for damages on account of the death of their husbands, and the Ville Platte Concrete Company filed suit for the value of its truck which was demolished as a result of the accident. The three cases were consolidated for the purpose of trial, but separate judgments were rendered. We will discuss the question of liability as to all three cases in this opinion. The original petitions named the Chicago, Rock Island and Pacific Railway Company as defendants but supplemental petitions were filed and the defendants, Chicago, Rock Island and Pacific Railroad Company were substituted. The defendants filed exceptions of no right or cause of action which were referred to the merits. The defendants also filed pleas of prescription in all suits. Neither the.exceptions nor the plea of prescription is urged by defendants on appeal so it is presumed that they have been abandoned. All three of -the petitions set forth the same facts aliening that O’Connor, the driver of the truck was free of negligence and that the crew of the train was negligent by failing to give the warning signal by bell or whistle and that they did not, prior to the accident, keep the look-out required of them and that their negligence was the proximate cause of the accident, and, in the alternative, that if it should be found that O’Connor was negligent in driving upon the tracks, then, in that event, the defendants’ crewmen did become aware of the perilous situation of the plaintiffs, O’Con-nor and Walker, in ample time to avoid the accident by the use of due care and reasonable action upon the part of the train . crew, thus invoking the last clear chance doctrine. The defendants deny any negligence on the part of the train crew and ¿allege that the sole and proximate cause of *rhe accident was the negligence of the driver of the truck, O’Connor, and that Walker was guilty of contributory negligence in not seeing the approaching train and warning O’Connor thereof.

-After trial, there was judgment in favor of the plaintiffs in the following amounts:

Mrs. Marjorie Fontenot, widow of Le-Roy O’Connor, $7,985, same being subro-gated by. preference to the claim of the intervenor, Hartford Accident and Indemnity Company up to the amount of compensation paid and too be paid by inter-venor to plaintiff at the rate of $7.80 per week from January 16, 1947 plus $250 funeral expenses and $50 attorney fees;

Judgment in favor of Mrs. Eliza Russell Walker, $5,075;

Judgment in favor of Ville.Platte Concrete Company, $1,450 for loss of truck.

Defendants have appealed and the plaintiffs, O’Connor and Walker, have answered the appeal asking that the judgment's be amended by increasing the amounts therein to $30,485 and $13,575, respectively.

The preponderance of the testimony establishes the fact that the defendant train, a local freight composed of the engine, coal tender, fifteen cars and a caboose, was travelling north at a speed of approximately 18 miles per hour, and a dump truck loaded with sand, belonging to the Ville Platte Concrete Company and being driven by Leroy O’Connor, and in the truck with him as a guest was John-W. Walker, was travelling east at a speed of approximately 12 miles per hour. The'accident occurred at about 9 a. m. on January 16, 1947. The weather was cloudy but not foggy or rainy and the visibility was good. Seventy-six feet west of the tracks and 12 feet south of the road there was situated a dwelling house. The testimony in no wise describes the house except that the fireman and brakeman on the locomotive testified that it obstructed the view of the truck until after it had passed the house. The windows of the cab of the truck were both closed and, according to the testimony of the train crew, were soiled but they did not know whether the dirt was on the glasses before the accident or whether it was caused by the sand with which the truck was loaded being dumped out of the truck as the result of the accident.

We do not think there is any question but that the testimony establishes the fact that the driver of the truck and the guest Walker were grossly negligent. The evidence shows that the windows of the truck were closed and the truck did not stop nor did it slow down or even give any indication of stopping or slowing down for the railroad track even though the whistle was blown and the bell rung1. There is nothing to even indicate that Walker warned O’Connor. We do not believe that either ever was aware of the train until they were struck. It was established by the testimony that the trains using this particular track did not run on schedule. The guest, Walker,' had lived in the immediate neighborhood of the crossing for many' years, and aside from the railroad sign which had the usual “Louisiana Law Stop, Look and Listen” painted on it, he, of course, knew that the railroad track was there and should have been and probably was familiar enough with the local conditions to be put on guard that there was a likelihood that a train might be coming. Walker lived some 16 days after the accident. The evidence establishes the fact that Walker was also grossly negligent. It is practically admitted by counsel for the plaintiffs that the driver and guest were both grossly negligent, but they have plead the doctrine of last clear chance and contend that the only serious issue between the appellants and appellees is whether the defendant-appellant had the last clear chance to prevent the accident and the resulting injuries.

Justice Hamiter, when a member of the Second Circuit Court of Appeal, as the organ of that Court, thoroughly reviewed the law as to the doctrine of last clear chance in the case of Eggleston v. Louisiana & A. Ry. Co., La.App., 192 So. 774, 779. The Court stated: “Recent jurisprudence of this state relating to the doctrine of the last clear chance or discovered peril is found in Rottman v. Beverly, 183 La. 947, 165 So. 153; Monk v. Crowell & Spencer Lumber Co., La.App., 168 So. 360; Hicks v. Texas & N. O. Ry. Co., 186 La. 1008, 173 So. 745; Iglesias v. Campbell, La.App., 170 So. 265; Id., La. App., 175 So. 145; Russo v. Texas & Pacific Ry. Co., 189 La. 1042, 181 So. 485; Jackson v. Cook, 189 La. 860, 181 So. 195; and Clark v. De Beer, La.App., 188 So. 517. The rule furnished by those authorities is that where a person negligently places himself in a perilous situation and his negligence and peril are actually discovered by the operator of the offending vehicle, or by the use of reasonable care should and could have been discovered, there 'is then a duty on the part of the operator to save that person from -the consequences of the negligent act, if, by the exercise of due diligence, such can be done. If said operator, after the actual or constructive discovery of the existing peril, could have prevented the occurrence of an accident by the exercise of due diligence and failed to do so, such failure constitutes negligence and is considered the proximate and immediate cause of the accident .and resulting injury, and the person’s negligence the remote cause; and said person may recover, although his negligence continued to the moment of the accident.”

It would therefore be. well to consider the instant case in the light of the stated law.

The evidence is to the effect that the engineer of the locomotive was on -the right or east side of the cab and, therefore, never saw the truck until after the accident. On the left or west- side of the cab was the fireman, Myrick, and “sitting on the leg of the tank which is between the cab and the water tank fight back of the fireman” was the brakeman, Barnard. Therefore, as the truck was approaching from the west, it could clearly have been seen by Myrick and Barnard. According to the testimony of Myrick, he first saw the truck when the locomotive was from five to seven car lengths from the crossing, each car length being about fifty feet, or a distance of 250 to 350 feet. He testified that the truck continued on its way and that while he thought it would stop, it gave no sign or indication whatsoever of doing so and that when the locomotive was approximately 150 feet from the crossing and it became apparent to him that the truck would not stop, he “hollered” to the engineer to stop the train.

The Brakeman, Barnard, testified on direct examination that the truck was approximately 38 feet from the crossing when he and the fireman Myrick both “hollered” to the engineer to stop the train, as they realized at that time that the truck was going to continue on to the track, and at this time the locomotive was approximately 125 feet from the crossing but that “when we hollered the engineer was right up to the crossing. When he applied the brakes it went on just a second or two before they hit.” On re-direct examination, this same witness again testified that when he fold the engineer to stop that the truck was approximately 38 feet from the track but he varied his testimony somewhat by stating that the engine of the train at the time that the truck was 38 feet from the track was four or five car lengths from the intersection or crossing, which would be 200 or 250 feet.

The testimony of the engineer, E. H. Mercott, as to when he applied the brakes, being most important to a correct decision in this case, we therefore quote:

“Q. Was it the regular crossing whistle? A. Yes, I applied the brakes. I felt a jar and stuck my hear out. I knew it was coming from the left side.
“Q. You didn’t see the truck? A. I could not see it.
“Q. Why? A. Because the boiler was between me and the truck.
“Q. You have to rely on the man on the left to see on the left side? A. Yes.
“Q. Were your brakes in good condition? A. Yes. They had to be to stop fifteen (15) cars, the caboose and engine in that length.
“Q. How far did you drag the truck? A. We got a tape and measured one hundred and forty-six (146) feet from where I hit the ti;uck to where it stopped. We measured from the middle of the track -to where the building is and there is a seventy-six (76) foot clearance.”
* H{ H* ❖
“Q. You say on this particular occasion the brake caught immediately when you pulled the brake valve ? A. Yes.
“Q. As you reached for the brake you felt the jar? A. Yes.
“Q. Since you were on the right side you did not see anything until the train hit the truck? A. No.
“Q. Did the brakes make a screeching sound when applied? A. They took hold but I do not know if they screeched. I made a good stop in one hundred and forty-six (146) feet. That is a good stop.
“Q. You consider a stop in one hundred and forty-six (146) feet a good stop? A. Yes.”

There is no dispute as to this distance given by the engineer of 146 feet from the railroad crossing to where the locomotive stopped.

Elmer Newsom, who was an eye witness to the accident, testified that the truck was struck by the drawbar of the locomo-motive on its gas tank which is located under the seat of the cab. This drawbar is in the center of the locomotive about 3j4 or 4 feet from the ground. This witness testified that he heard the brakes being applied “a second” before the locomotive struck the truck.

Elbert Carpenter was also an eye witness to this accident as he lived about 52 feet from the railroad crossing where the accident happened. He said that he saw the train when it struck the truck and that it made no attempt to slow down until the collision, and he testified that he heard the brakes applied after the train struck the truck. He fixes the distance that the brakes were applied after it struck the truck at 15 feet.

There is some testimony in the record by Geraldine McDaniel, who was approximately nine years of age on the date of the accident and ten on the date of the trial,, to the effect that the brakeman and fireman were waving to her and her little brother just before the collision and kept on waving until the train struck the truck. This is denied by the trainmen and we believe there is sufficient positive testimony upon which to base the judgment without considering this testimony.

Mrs. Leslie Foreman was another eye witness who testified that she saw the accident and at the time was standing in her door and that she did not know' whether the train slowed down before it struck the truck but that “after the train hit the truck I heard the wheels screeching.”

Mrs. Velma Causey, witness for the defendant, who lived about 75 or 100 feet west of the railroad track and about 350 •or 400 feet'from the crossing, testified that on this date she was on the south side of her house and heard the train coming and the whistle blowing. She then stated, “I heard my children start to cry.' I' heard a hissing sound and the bell ring. I looked when I heard the hissing sound and just as I looked I saw the train hit the truck. It pushed the truck ahead of it for a distance.”

Another witness for the defendant, Miss Virgie Causey, 16 years of age, who was the daughter of Mrs. Velma Causey, testified that she saw the accident and that she heard the hissing sound before the train hit the truck, but her testimony shows that she realized that the truck was not going to stop and that, therefore, -there was going to be an accident.

The fireman and the brakeman 'both testified that it was their duty to keep a lookout as well as the engineer. There is no reason why the fireman and brakeman should not have discovered the negligence and peril of -the occupants of the ■truck in time to have avoided the accident. The testimony as above quoted convinces us that they realized the negligence and peril of the occupants of the truck when ■the locomotive was at least 150 feet from the crossing, and at-that moment “hollered”, •to the engineer to stop the train. A careful reading of the engineer’s testimony will fail to reveal that he testified he ever Reard the warning given at 150 feet. Be this as it may, it was the duty of the fireman and brakeman to warn the engineer in such a manner and method that he would be. certain-to hear such warning. From the testimony, we are of the opinion that the engineer did not apply the brakes until after the moment of impact as he so testified, or at least until within a few feet of the truck, although a warning had been given at a distance of approximately 150 feet. The brakeman Barnard at one time in his testimony stated that the locomotive was within 125 feet of the crossing at the time of the warning. Even if we take this distance, under the testimony in this case we are still of the opinion that had the engineer applied his brakes at that point this accident would have been prevented, for the train would have been slowed down sufficiently by application of ■the brakes for the truck to cross the track as it only needed the distance of the dump-body. Clearly, from the testimony the train could and was stopped within 146 feet from the time the brakes were applied, and had they been applied at 150 or 125 feet there would have been no accident.

We are therefore of the opinion that the defendant railroad is liable, as the negligence and peril of -the occupants of the truck were discovered by the train crew in time to have prevented the accident and that they failed to prevent the accident, that is, they had the last clear chance.

LeRoy O’Connor was 18 years old and his wife was the same age and they had no children, and she had remarried at the date of the trial, June 18, 1948, which was within one year arid five months after •the accident. The record does not show the exact date of her remarriage. However it would seem that her grief was, ■therefore, short-lived and the deep attachment usually formed between those who have been married longer is not reflected by the evidence. O’Connor was earning approximately $24 per week or $1,248 per year and it would therefore appear to us that the judgment of $1,500 for loss of earning capacity, support and maintenance was correct. ■ The item of $485 for funeral expenses is undisputed. As to the judgment ¡for $6,000 for mental anguish, grief, loss of love, affection and companionship, under the scant evidence, we believe, should be reduced to $2,500.

It is, therefore, ordered, adjudged and decreed that there be judgment in favor of Mrs. Marjorie Fontenot O’Connor and against Chicago, Rock Island & Pacific Railroad Company in the full sum of $4,-485 with legal interest from date of judicial demand, defendants to pay all costs.

It is further ordered that this award be and the same is hereby subrogated by preference to -the claim of intervenor, Hartford Accident and Indemnity Company up to the amount of compensation paid and to be paid by intervenor to Mrs. Marjorie Fonte-not O’Connor at the rate of $7.80 per week from January .16, 1947, plus $250 funeral expenses and $50 attorneys fees for Paul C. Reed, attorney-at-law.

As thus amended the judgment is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    WALKER v. CHICAGO, R. I. & P. RY. CO. et al.
    No. 3104.
    Court of Appeal of Louisiana. First Circuit.
    May 19, 1949.
    Rehearing Denied June 30, 1949.
    A. B. Guthrie, Ruston, for appellant.
    Allen R. Fontenot, New Orleans, for appellees.
   ELLIS, Judge.

It is only necessary that we discuss the quantum in this case, all other issues having been decided in the case of O’Connor v. Chicago, Rock Island & Pacific Railway Company et al., La.App., 40 So.2d 663.

The record does not show the age of the plaintiff, Mrs. Eliza Russell Walker, but shows that her husband was 70 years old when he was killed, and they had been married at least 34 years, for they had been living together in the Turkey Creek community for that length of time. The deceased, at the time of his death, was not employed and his only dependent was his wife. The Judge below awarded $500 for funeral expenses and $575 for medical expenses, which are undisputed, and $4,000 for suffering, loss of love, companionship and affection.

While the record is meager as to facts ón which to base judgment as to quantum, taking into consideration the length' of their' married life and the evident' advanced age of plaintiff, there must have existed a deep attachment between plaintiff and deceased and consequently a greater loss by reason thereof. 'The District Judge saw Mrs. Walker and, under the facts, even though meager, we will not disturb the award of $4,000.

The judgment of the District Court is therefore affirmed, defendants to pay all costs.


text:
    VILLE PLATTE CONCRETE CO. v. CHICAGO, R. I. & P. RY. CO. et al.
    No. 3105.
    Court of Appeal of Louisiana. First Circuit.
    May 19, 1949.
    Rehearing Denied June 30, 1949.

      A. B. Guthrie, Ruston, for appellant, .
    Taté & Fusilier, Ville; Platte, for appel-lees.
   ELLIS, Judge.

In this case, as "to the question of liability see our decision this day rendered in the case of O’Connor v. Chicago, Rock Island & Pacific Railway Company et al., 40 So.2d 663.

The testimony is undisputed that the truck of plaintiff which was demolished as a result of the accident had a value prior to the accident of $1,500, and after the acj-cident the salvage value of this truck was only $50.

Therefore, the. judgment of $1,450 rendered by the District Court is correct and is hereby affirmed, defendants to pay all costs.


author: LE BLANC, Judge.

text:
    BROUSSARD v. FRIEDMAN.
    No. 3110.
    Court of Appeal of Louisiana. First Circuit.
    May 19, 1949.

      O. J. Mestayer, New Iberia, for appellant.
    Knowles M. Tucker, New Iberia, for appellee.
   LE BLANC, Judge.

Plaintiff alleges that the defendant is indebted unto him in the sum of $400 for this, to-wit: That during the month of September, 1946, the defendant came to his house inquiring if he had any junk iron to sell and that he pointed out to him two iron .rollers lying in a ditch on the side of the house on Lombard Street in New Iberia, Louisiana. That about four days later, the defendant sent his men, with a truck, to Nathan Broussard's house on French Street, and they took from Nathan Broussard’s yard, one complete sugar mill with three rollers. Nathan Brou'ssard is the plaintiff’s brother. That about a week later, when he found out what had happened, he telephoned the defendant and told him not to use the mill and rollers and return them to him. This, defendant never did. That the rollers were worth the •sum of $400 which defendant has never paid him, despite amicable demand. The prayer of his petition is for a monetary judgment in the sum of $400, with legal interest from judicial demand.

To the petition, the defendant first filed exceptions of vagueness and of.no right or .cause of action. Plaintiff evidently realized that the exception of no cause of action may have been good because he .shortly thereafter filed a supplemental petition in which he alleged that the complete sugar mill with the three rollers which he had alleged were taken from his brother, Nathan Broussard’s yard, was his property .and that he had never agreed to sell it to the defendant. '

The defendant in his answer denies all the allegations contained in both the original and the supplemental petitions of the plaintiff with the exception that demand for the sum claimed was made on him, which he denies owing, and then, assuming the position of a plaintiff in reconvention he sets out that in the early part of the year 1946, the plaintiff, on numerous occasions called him and requested that he go to his brother’s place and there pick up some scrap iron which he desired to sell him. Accordingly, on or about March 8, 1946, he sent 'some of his men to Nathan Broussard’s house on French Street, and they did pick up certain scrap metal pointed out to them by persons 'living in the house as being the junk which he had been requested to pick up. This junk consisted of an old, broken, hand operated sugar mill which was of no value except as ’scrap metal. It was picked up by his men and found to weigh 1470 pounds and had a value as scrap cast iron, on the current market, of $7.35. This amount he admits he owes the plaintiff but he alleges that plaintiff is indebted unto him in a far greater sum for the reason that between the dates of September 24 and October 27, 1946, 'he sold and delivered to him certain items of merchandise amounting to the sum of $72.80, which amount is still due and owing him by the plaintiff and for which he is entitled to judgment, subject to the credit of $7.35 which he admits owing him for the scrap metal. He accordingly prays for judgment against the plaintiff, on 'his reconventional demand, for the difference between the two amounts stated.

In his written reasons for judgment, the trial judge stated that in his opinion, the suit was one sounding in tort. He held that plaintiff intended to sell the defendant one article and the defendant understood him to mean another, and therefore if plaintiff has suffered 'any damage in this transaction, it was through their misunderstanding. He then states that ■ a liability in tort is always 'controlled by negligence and in order for -plaintiff to have recovered, it wa-s necessary for him to prove that whatever damage he ’sustained was occasioned by the negligence of the defendant. This, he 'holds, the defendant has failed to do and as the only value the defendant received from the property was for junk, all that -the plaintiff is entitled to recover is that valu'e which is the sum of $7,35. The plaintiff did not contest the demand made by the defendant in reconvention and' the judgment therefore was one in favor of plaintiff on the original demand in the sum of $7.35 and then in favor of the defendant on his reconventional demand in the sum of $72.80. The trial judge divided the costs taxing the plaintiff with those of the trial of his original demand and the defendant with those of the trial of the re-conventional demand. From the judgment so rendered, plaintiff has taken this appeal.

We entertain some doubt as to the cause of action being ex delicto. We are of the opinion rather that plaintiff’s demand is based on a quasi-contract as in effect he charges the defendant with receiving property which was not due him. His liability under such circumstances is fixed by the terms of Article 2301 of the Civil Code, which obliges the one who has received “what is not due to him, whether he receives it through error or knowingly * * * to restore it to him from whom he has unduly received it.” Articles 2312 and 2313 we believe also to be pertinent to the issue involved. The first o-f these two articles as far as it applies, reads as follows: “If the thing unduly received is an immovable property or -a corporeal movable, he who has received it, is bound to restore it in kind, if it remain., or its value, if it be destroyed or injured by his fault; * * The second provides that “if he who has. received bona fide, has sold the thing, he is bound to re-tore only the price of the sale. If he has received in bad faith, he is bound besides this restitution to indemnify fully the person who has.paid.”

Nowhere in his petition does plaintiff charge the defendant with having wilfully done anything wrong or illegally caused him injury or damage. He does not allege 'bad faith or even a lack of good faith on his part in having sent his men to his brother’s property to pick; up the roller mill. The bona fides of the one receiving the property seems to be an important factor in applying the provisions of the various articles of the Civil Code which we have cited. The-gist of plaintiff’s cause of action is found'in- paragraph 3 of his supplemental petition -in. which he alleges that defendant -sent his men to Nathan Broussard’s yard and took from that yard the three roller mill which was his property and which he had never agreed to sell him. The defendant denies this allegation and then avers affirmatively that plaintiff had requested him to go to his brother’s place 'and there pick up some scrap iron which he desired to sell him, and that accordingly, on March 8, 1946, he did send his men there and they picked up certain scrap metal which was pointed out to them by persons living on the property as being the junk which plaintiff had requested him to buy. There we have the issue joined between these parties with the result, at most, of some misunderstanding between them. If the defendant received this roller mill from someone when it was not due him, he received it through error, as far as the pleadings show, and his obligation under Article 2301 of the Civil Code is to restore it to the one from whom he unjustly .received it. If he was. u'nable to restore it in kind, then by the terms of Article 2312, he had to restore fault and if he sold it he has to .restore the fault and if he sold it he has to rstore the-price of the sale if he received it bona fide; and if he received it in bad faith, besides the restitution, he has to indemnify the person who has paid. Article 2313.

Although, as we have already stated, plaintiff did not allege bad faith on the part of defendant, in view of the provisions of the. Articles of the Code cited from which his obligation may vary, depending on the question of his good or bad faith, it may be proper to view the evidence with that consideration in mind. The burden, we ¡believe -was on the plaintiff to show at least a lack of good faith by the defendant in doing what he is charged with having done.

We cannot say that plaintiff’s testimony impresses us very strongly. In the first place he had alleged that during the month of September, 1946, the defendant .came to his house to inquire if he had any junk1 iron to sell and that he pointed out to him two iron rollers which were lying in a ditch on the side of his house on Lombard Street. When asked on cross-examination if that was correct, he says,, "No, sir, I don’t think he knew where I lived because he would have sent his men home instead of at my brother’s.” Then on being asked whether he had pointed out to defendant the iron rollers' lying in the ditch, as he had also alleged, he says that he did, but that was when he was living at 624 French Street, although in his petition he had alleged that that was on Lombard Street. Then apparently, in order to straighten himself out on this, he says that it was on the corner of Lombard and French Streets. It seems that after making these specific allegations plaintiff could have been a bit more ■definite in his testimony on this important point which he would make it appear opened the negotiations between him and the defendant.

Then on the question of the time of the year when all of this took place, he 'had alleged that it was in September, 1946. When he testifies, however, he is not certain as to which month it was. On being asked if it could have been in March, 1946, he 'says, “No, it was later than that; it was later in the summertime.” In this connection, it is important to note that the ■defendant, as he testified, made slips of all of his purchases of scrap iron for his own record and he offered and introduced in evidence a record dated March 8, 1946, involving the purchase of 1470 pounds of scrap cast iron for $7.35. This record, he testified, is the one covering the transaction involving this roller mill. It corroborates his contention that instead of September, it was in March of 1946 that he hauled it from Nathan Brou'ssard’s yard. As plaintiff had alleged that it was in September of 1946, and that it was about one week later that he learned what had happened and called defendant to complain •about the matter, it would seem that again he was mistaken and that instead •of it being only one week after defendant had taken the mill that he complained to him, it was more than six months later.

Another circumstance worth noting arises from the fact that it was during the months of September, October, and November of that year that plaintiff admitted purchasing merchandise from the defendant amounting to the sum of $72.80 and it’ was only then, for the first time, after the defendant had requested payment for that amount that -he told him he owed him more than that for the mill he had taken. ■ This: belated claim of an off-set strikes us as being s'omewhat of an afterthought on his part.

We believe that in receiving the property in the manner he did, defendant acted in perfect good' faith. He sent his men in open daylight to get the mill, and even though these men are negroes, their testimony is to the effect that before taking the mill they spoke - to a white lady who occupied the house and she pointed out ■the property to them. Their testimony is not contradicted nor is it disputed in any way. There is nothing in the record to indicate that this lady was not available as a witness ■ and yet she was not called on to testify.

With regard to the value of the property taken, we think that the plaintiff has failed -to prove the value of $400 which he claims. On-the contrary, we find that the defendant, through his witnesses, has shown that this mill was 'broken and that it was absolutely -no more than cast iron junk. If it had a greater value, certainly it would have been to his interest as a dealer in salvaged goods to try to sell it as an article that could still be used, rather ■than to throw it in a railroad car which he was loading up' with other scrap metal.

We have concluded therefore that the judgment appealed from properly allowed the plaintiff the scrap valu’e of the mill as 'proven and also correctly allowed the defendant his claim in reconvention. There is some point raised by plaintiff’s counsel in their brief to the effect that the value which' the defendant should have been made to pay is the sum of $10.58 instead of $7.35. This amounts to the difference ■between fifty cents which counsel for plaintiff stated is the rate at which the defendant paid for the scrap iron and the sum of seventy two cents which he states the defendant received for it. There isn’t sufficient proof to justify that change in the judgment which amounts to the sum of $3.23. The only testimony on this point is that of the defendant who, when he was asked how. mu'ch he got for the syrup mill that he took from Nathan Broussard’s yard, answers, “At that time I paid fifty cents a hundred and paid seventy two cents a 'hundred.” Frankly we do not understand what that means and it is by no means sufficient testimony on which to base an amendment to the judgment.

For the reasons stated, the judgment appealed from is affirmed at the costs of the plaintiff, appellant herein.


text:
    SAVOIE v. DUPUY et al.
    No. 3114.
    Court of Appeal of Louisiana. First Circuit.
    May 19, 1949.
    Harvey Peltier, Thibodaux, for appellant.
    Hammett & Bertel, New Orleans, for ap-pellees.
   ELLIS, Judge.

On May 26, 1947 at about 7 a. m. plaintiff was driving his 1942 Chevrolet Fleet-line two door sedan in -a northerly direction o!n Highway 78 which parallels Bayou Lafourche, going in the direction of La-rose, Louisiana, and the' defendant was driving a truck and trailer approaching plaintiff from the opposite direction and, therefore, traveling in a' southerly direction on 'said highway. When the car and the truck were passing they sideswiped or came in contact and, as a result, the plaintiff sufféred a severe and permanent injury to his left arm.

Plaintiff alleged that on the morning in question while driving on Highway No. 78 he observed a truck and trailer approaching him from the opposite direction and that said truck and trailer at that time was on its right hand side of the highway; that the truck tractor and plaintiff’s car passed each other without difficulty, but that the trailer portion of the unit swung to its left over the center of the highway and towards plaintiff’s car, and that. as a result of the trailer swinging or crossing over the center of the highway into plaintiff’s lane of traffic the' rear end of the trailer struck plaintiff’s car just to the front of the left door and scraped the left side of his car from that point to its rear end; that the trailer swung so quickly and suddenly that plaintiff was unable to avoid the collision.

Plaintiff alleged that as a result of the accident he sustained extreme compound, comminuted fractures of the left arm and forearm in the elbow joint and, in addition, a fracture of the humerus, both bones of the forearm were fractured and many bones in plaintiff’s left hand. The plaintiff itemized his damages which totalled $84,898.68 for which sum he prayed.

Plaintiff has also joined the insurer of the defendant Roy Dupuy which was the Lumbermen’s Mutual Casualty Company. The General Insurance Corporation, which company was the insurer of the plaintiff, had paid the plaintiff the sum of $293.85, the amount of damage caused to plaintiff’s car in the collision, and the sum of $250 for medical expenses and had obtained from plaintiff a written subrogation and, accordingly, has intervened in this suit and prays for a judgment for these amounts should plaintiff recover. Plaintiff admitted the allegations of the petition of intervention.

The defendants filed a general denial to the petition of intervention and also a general denial to plaintiff’s petition and further alleged that plaintiff’s car was being operated on its wrong side of the road and, as a result, plaintiff struck the truck and trailer.

The case was duly tried and the judge of the district court, in a well-reasoned oral opinion which was -taken by the court stenographer and is in the record, found that both were equally negligent, that is, that the accident was caused, by the combined negligence of both plaintiff and defendant, and consequently rendered judgment in favor of the defendant dismissing plaintiff’s suit at his cost.

Plaintiff and intervenor have appealed from the judgment of the District Court.

Plaintiff’s main contention before this Court, although not specifically set forth in his petition, is based upon the Highway Regulatory Act 286 of 1938, § 3 Rule 7, Title 2, Paragraphs (c) and (d), which are as follows:

“(c) The driver of a vehicle shall not drive to the left side of the center line of the highway in overtaking and passing another vehicle travelling in the same direction, unless such left side is clearly visible and free from oncoming traffic for a sufficient distance ahead to permit such overtaking and passing to be made in perfect safety; provided, - that whenever an accident occurs under such circumstances, the responsibility therefor shall rest prima facie upon the driver of the vehicle doing the overtaking or passing.
“(d) The driver of a vehicle shall not overtake and pass another vehicle proceeding in the same direction, approaching the crest of a hill or substantial grade, or upon a curve in the highway or elsewhere, where the view of the driver doing the overtaking or passing is obstructed within a distance of five hundred (500) feet.”

Just prior to the accident it is established by the testimony that there was a truck driven by the witness Cheramie, referred to as the Esso truck, proceeding in a southerly direction on Highway 78, which highway is rather winding as it follows the course of Bayou Lafourche. Immediately behind the Esso truck was the truck of the defendant, being operated by the defendant Roy Dupuy, and referred to as the Dupuy truck. Behind the defendant’s truck was a Plymouth automobile being driven by the witness Brinsum. His wife, Mrs. Brinsum, who was also a witness in the case was in the car with him.

Plaintiff contended that at the time of the accident the Dupuy truck had just passed or was still in the act of passing another truck and, therefore, a portion of the trailer was in the truck’s wrong lane of traffic, that is, over the center line of the highway, and that in passing at the time he did he violated both Paragraphs (c) and (d) as above 'set forth.

The District Judge has correctly summed up the testimony and reached a proper conclusion in answer to the contention of the plaintiff that there was negligence on the part of Dupuy in attempting to pass the Esso truck in a curve, and, therefore, we quote from his reasons as follows: “The first point that was raised was that there was negligence on the part of Dupuy in attempting to pass the Esso truck in a curve. Let’s examine all of the circumstances surrounding the passage of the Esso truck by the Dupuy truck. One of plaintiff’s witnesses, Mr. Cheramie, who was driving the Esso truck, says that he first noticed the Dupuy truck in his rear view mirror while both trucks were in a curve; that Mr. Dupuy, in the manner of a careful driver, pulled up behind him and did not attempt to pass him in that curve; that they got to a straightaway, which Mr. Cheramie estimated to be about five hundred feet in length, that is, he says there was a distance of about five hundred feet between the two curves referred to in the testimony. The first curve was the curve in which the Esso truck, driven by Cheramie, was proceeding when the Dupuy truck approached from the rear. At the time that Dupuy was five hundred feet away from the curve where his truck made impact with Savoie’s car, Savoie’s car must have been some distance away from that curve, and, therefore, it could not have been in view so as to give warning to Dupuy that he should not venture a passage of the Esso truck in the straightaway. Cheramie testified that Dupuy waited until both trucks had entered the straightaway then ventured to pass the Esso truck; that Dupuy passed the Esso truck about midway of the straightaway, at a point about two hundred and fifty feet from each of the curves; that is, Dupuy was passing the Esso truck while there was still two hundred and fifty feet ahead of him before he reached the next curve. The fact that he waited until he reached a straightaway indicates, as Cheramie’s testimony avers, that Dupuy attempted to exercise care and caution in passing the Esso truck. Now, the fact that Dupuy actually did have time to pass the Esso truck before reaching the next curve is confirmed by the further testimony of the Brinsums. The testimony indicated that not only did Dupuy have sufficient time to pass the Esso truck before entering the next curve, but even Brinsum estimated that his car also, which car was travelling behind the Dupuy truck, had time to pass the Esso truck before entering the next curve. The testimony shows that both the Dupuy truck and the Brinsum car did negotiate the passage of the Esso truck before the next curve was reached.”

“All those circumstances convince me, and it is my belief, that there was no negligence on Dupuy’s part in venturing a passage of the Esso truck on the straightaway that was described in some detail by Mr. Cheramie. I believe that Mr. Cher-amie was in a good position to describe the approximate distance of that straigtaway and of the surrounding curves because of the fact that he passes there so often. He undertook to draw, with his own hand a substantially long stretch of highway at which time he mentioned that he passed there, as I recall it, not less than four times a day and sometimes as often as twelve times a day, indicating a very thorough knowledge of the highway in that general area. Therefore, I am disposed to believe that the approximate measurements which Mr. Cheramie gave are correct.”

“Now, if there was no negligence at that point, at the time that the Dupuy truck passed the Esso truck in the straightaway, then the negligence, if there was any, must necessarily have occurred at some other point.”

Plaintiff further contended that a portion of the trailer of the Dupuy truck protruded over the center line of the highway. Although this was an 18 foot blaclctopped highway at the point of the accident, it had no definitely marked center line and, therefore, the testimony of the witnesses as to the center of the highway is approximate and to the best of their judgment.

This accident occurred just as the Dupuy truck reached the beginning of the second curve and just as the plaintiff was coming out of the curve into the straightaway. Plaintiff denies that he ever crossed over the center of the highway to the left hand side, and, on the contrary, testified that the defendant’s truck “must have been a couple of feet, two or three feet on my side the highway.” The defendant Dupuy is as firm in his testimony that his truck did not cross the center line but that he was in his proper lane of traffic at the -time of the collision and that he even pulled further to his right as he saw plaintiff coming out of the curve on to Dupuy’s side of the road, and he testified that plaintiff struck the trailer portion of his truck. Dupuy testified that he first saw the plaintiff’s car about 200 feet in front of him and that at that time he was on his proper side of the road but that “as he kept coming on me he gradually was getting on his left side of the road which was on my side, because it was in a graudual curve where we met.”

Although Dupuy testified that the plaintiff was traveling 60 or 65 miles per hour, we believe that the District Judge is correct in stating that the “plaintiff was trav-elling approximately 40 or 45 miles per hour, and the defendant 30 or 35.”

Cheramie, who testified on behalf of the plaintiff, stated that the Dupuy truck passed him first and' then the Brinsum car passed him and just had room to squeeze in between the Dupuy truck and his Esso truck. He stated that he saw Dupuy when he swung sharply to the right, which corroborates Dupuy’s testimony in this respect. However, he testified that after Dupuy had done this, it “put the back-end of his trailer in the center of the road or possibly a foot or two to the left.” He frankly states that that was an estimate on his part.

On the other hand, we have the testimony of Mrs. Brinsum whose car was directly behind the Dupuy truck just prior to and at the time of the accident, who testified that the Dupuy truck passed the Esso truck and got back into its proper lane of travel and that her husband passed around the Esso truck also, and as they passed the Esso truck she noticed the Savoie car coming around the curve and called her husband’s attention to the fact, whereupon he pulled in behind the Dupuy truck. She testified positively that they had time to pull in behind the Dupuy truck and that the Dupuy truck was traveling on its side of the highway; that she paid no more attention and at the time of the impact had her head down as she was crocheting. However, the accident happened immediately after they had taken their' position behind the Dupuy truck. Her husband, Barney Brinsum, corroborates his wife’s testimony and Dupuy’s testimony that Dupuy’s truck had successfully passed the Esso truck and gotten back into its proper lane of traffic, and that he had also passed the Esso truck and gotten in between the Esso truck and Dupuy truck at the time the accident happened. He stated that as he got past the Esso truck his wife called his attention to the fact that there was a car coming around the curve which was the plaintiff’s car. He was directly behind the Dupuy truck and testifies positively that this truck was on its proper side of the road with no part of the truck or trailer protruding over the center line. Brinsum further testified that the Savoie car as it came out of the curve crossed over the center line of the highway into the defendant’s lane of traffic and, at the time of the impact was still a slight distance over, the center -line and that the defendant pulled to his right in an attempt to avoid -the collision.

After the accident it was investigated-by State Trooper Eddie St. Marie who, at the time of the trial, was one of the Deputy Sheriffs of Lafourche parish. He -testified that the accident happened in a gradual curve, however, according to the maps and other testimony in evidence, the accident happened in such a gradual curve that a motor vehicle could clearly see from one end to the other of the gradual curve. It was apparently almost the same as a straightaway. The Chevrolet car belonging to the plaintiff had a spot light on it just to the front of the left front door, and it was from'this spot light all the way to the back of the Savoie car that was damaged. This witness definitely testified that from the center of the trailer all the way to the back it was rubbed clean, and he refers to another “pocket” on the back that protruded an inch and a half out from the trailer, and it was this protrusion which he thought did the most damage to plaintiff’s Chevrolet automobile. He also testified that the left rear wheel and the tire of the trailer were rubbed clean of any dust and that there was a cut on the tire, approximately two inches long. The automobile and the Dupuy truck stopped 400 feet apart, the truck being approximately 95 feet from the point of collision, for at that distance from the truck the Trooper found some glass which he testified was part of the spot light glass from the plaintiff’s car, and also- “there was some shells that was thrown there, little pebbles.* * *.” The glass which he testified- to having-found on the highway was about in the center.

Thus as we view this case, we have the testimony of plaintiff and his witness, Cheramie, which is opposed by the testimony of the defendant and Mr. and Mrs. Brinsum. It would seem that the Brinsums were in a better position to' testify as to who was over the center line than Cher-r-unie who was behind their car. Also, the only physical facts which we have indicate that the accident happened at or near the center of the highway but they do not establish to any certainty that either plaintiff or defendant was over the center line.

Therefore, taking all of the testimony in the case, we are of the opinion that the plaintiff has failed to prove his case by a preponderance of the evidence. The judgment of the District Court is accordingly affirmed.


author: JANVIER, Judge.

text:
    COMMARDO v. CLINGAN.
    No. 19179.
    Court of Appeal of Louisiana. Orleans.
    May 23, 1949.
    Donald P. Conlay, New Orleans, for plaintiff-appellant.
    Harry R. Hill, New Orleans, for defendant-appellee.
   JANVIER, Judge.

In the early part of the year 1947 plaintiff, Tommy Commardo, operated an automobile repair shop in New Orleans, doing business as Jiffy Repair Shop. At that time defendant, Perry Clingan, owned a 1936 • model Ford Convertible automobile, which was in need of various mechanical repairs. He contracted with Commardo for the necessary work and a little later also contracted with him for making necessary repairs to the top of the car. Com-mardo, through his shop, made the repairs, and brought this suit against Clingan for $260.00, alleging that by contract he was to receive this amount for the work; that the said work had been done in a satisfactory manner and that he had not been paid.

Clingan answered, admitting that he had employed Commardo to do the work, but averring that the total contract price was $215.00 and that he had paid on account $100.00, leaving a balance of only $115.00 and that he had offered this amount to Commardo, who had refused it.

There was judgment in the First City Court of New Orleans in favor of Com-mardo for $115.00 only, with interest from judicial demand and for costs. Commardo has appealed. ■

There seems to be no question that the work was done satisfactorily. Consequently, the only issues are, first, whether the contract price was $215.00, as contended by defendant, or $260.00, as maintained by plaintiff; and second, whether defendant paid $100.00 on account.

The burden of showing that he made payment was on Clingan, the defendant. And he produced neither cancelled check nor receipt. He says that he did not make the payment by check, but that he paid to Commardo $100.00 in cash “mostly in ten'-dollar ($10.00)■ bills.” He says-that in order to get this money he made a loan at a “finante” company which had already made a loan on the automobile and that all that the company would let him have was $100.00; that on the very day on which he made this loan, he returned to his place of business, which was immediately in front of the repair shop of Com-mardo, and late in the evening made the payment to Commardo and that Commardo had already closed his place of business and said that he did not want to return to it to obtain a receipt but that he would give him a receipt the next day.

Feeling that it might be advisable to produce corroboration of this testimony, defendant placed on the witness stand Fred Thiemann, who is very certain that he saw Clingan pay to Commardo $100.00 and that the payment was made in ten dollar bills and that at' that time Commardo said to Clingan: “this leaves a balance of 115.-00.”

Thiemann says that: * I reprimanded Perry for not receiving a receipt * *

There are' several features of this conversation which throw grave suspicion on its veracity. In the first place, though Clingan was absolutely certain that he had made the payment late in the evening, Thiemann says that it was at about six o’clock in the morning. In the second place, Thiemann says that at the time he reprimanded Clingan for not insisting on a receipt and yet a little later in his testimony he says that it was two or three days later that he asked Clingan: “ * * * Did you receive a receipt”? and Clingan answered, “no”.

We are convinced from the inconsistencies in the testimony of Clingan and Thiemann that no such payment was actually made. There is other evidence on incidental unimportant matters to which we attribute little importance.

Clingan produced as a witness, J. W. Wallace, who was his father-in-law. Wallace says that on one occasion he overheard parts of a conversation between Clingan and Commardo and that he could hear, through a little window in a wall which separated him from the others, Com-mardo say that Clingan could have his car “when you pay $115.00”. That is all that he heard of the conversation.

Commardo says that the price agreed upon was $190.00 for the mechanical repairs and later $70.00 for the repairs to the top was agreed upon and he produced evidence which tends' to show that those prices would have been about proper. This would make a total of $260.00, and he says that positively no payment was made on account, but that as a matter of fact the finance company instead of lending any additional money to Clingan had indicated an intention of seizing the automobile under the chattel mortgage which it then held on it and that he, Commardo, had prevented this by guaranteeing the obligation of Clingan.

Our conclusion is that Clingan has completely failed to show that he made any payment on account. Since we find his testimony untrue on that issue, we have no difficulty in concluding that it is also untrue on the issue concerning the contract price.

We realize that on these questions of fact the trial court found with the plaintiff, but we think we detect manifest error.

Counsel for plaintiff calls attention to what he asserts was an erroneous ruling of the judge a quo in excluding certain evidence which counsel sought to introduce and which he says would have thrown suspicion upon the testimony of some of defendant’s vyitnesses. These witnesses, when placed on the stand by counsel for defendant, had given evidence damaging to some extent to plaintiff and, on cross-examination, had not been interrogated by counsel for plaintiff on the question of whether they were, for any reason, biased against plaintiff. Nor had any other evidence been offered on the question of possible bias of these witnesses. Later counsel for defendant placed defendant again on the stand to rebut certain testimony, and when defendant was then turned over to counsel for plaintiff for cross-examination, he was asked whether there had not been certain specific occurrences which had prejudiced these other witnesses against plaintiff. This new line of testimony was objected to by counsel for defendant and the objection was sustained. Counsel for plaintiff says that this objection should have been overruled and that he should have been permitted to cross-examine the defendant on the question of the possible bias of those other witnesses.

It seems to be the opinion of the various textwriters that the bias of a hostile witness may be shown on rebuttal, even though until that time there had been no evidence at all on the subject. Mr. Wig-more, in his work on Evidence, second edition, -sol. IV, page 25, section 1873, says that the trial court has discretion to determine “what is properly rebutting evidence,” and that ordinarily the Court’s determination in this regard “should be respected”. But Mr. Wigmore adds that in some instances the admissibility of certain evidence on rebuttal is clear, and that in these instances “the proponent does not need the trial Court’s express consent to admit it * * Then Mr. Wigmore states: “This will always be the case for evidence offered to impeach the opponent’s witnesses by way of moral character, bias, self-contradiction, or the like. * * * ”

However, it need not be decided by us now that this evidence should have been admitted, because even without it we have concluded, as we have already stated, that the record as it now stands convinces us beyond any doubt of the truth of plaintiff’s version of the controversy.

The judgment appealed from is amended by the increase of the amount awarded to .$260.00. As thus amended, the judgment is affirmed; defendant to pay all costs.

Amended and affirmed.


text:
    MIGUEZ v. GAUTREAUX.
    No. 3111.
    Court of Appeal of Louisiana. First Circuit
    May 19, 1949.
    Provost & Ernest, New Iberia, for appellant.
    O, J. Mestayer, New Iberia, for appellee.
   ELLIS, Judge.

This is a case to have a certain road declared a public road and asking that a preliminary injunction be issued to prohibit the defendant Gautreaux from interfering with the Police Jury or its employees in working or in any manner keeping up or maintaining the said road.

The defendant filed an exception of vagueness and indefiniteness to the original petition on the grounds that, the original petition did not set forth the dates or period of time or by whom and under what person’s authority the road was worked by the Police Jury, whereupon the Plaintiff filed a supplemental petition amending the original and setting forth the allegations requested by the exception. Thereupon, the defendant filed an answer which amounts to a general denial of all the allegations contained in the plaintiff’s petition.

The plaintiff alleges that he is the owner of a certain piece or parcel of land in Section 87, Township 12, South Range 6 East in the southwestern district of Louisiana upon-which he farms, raising cane and other crops, and that the road in' question leads from the property belonging to- Aymar Broussard south to a gravel road, and that he uses said road for the purpose of hauling his crops to market and other general uses customary on a farm; further, that the said road is a public road, and he annexes and makes part of his' petition a deed signed by Mrs. Elizabeth Leleu, dated March .26, 1885, which was recorded on March 16, 1888, in the conveyance records of Iberia Parish. The deed does not describe the property but in lieu of the description shows a map which shows the road as running in a southeasterly direction from the lands of Broussard on the eastern boundary of vendor’s land, who was the author in title of the land now belonging to the defendant. There are no distances shown on the map as to the width or length of the road sought to be dedicated by the said deed, which specifically dedicates the property shown on the map for public road purposes and sells and transfers to the parish of Iberia for the purposes mentioned all rights and titles. The plaintiff further alleges that the Police Jury of Iberia Parish has, from time to time, improved the road by grading it, placing some gravel thereon, and in general working and maintaining the said «road for a period in excess of three years.

The defendant in his answer alleges on the contrary that the deed of dedication is too vague and indefinite to constitute a sale to the parish or a dedication of the property as a public road, and that he made the road and has maintained the road over a period of years as a private road on his property which he uses as a turn-row, but admits that he permits the usage of the road by his neighbors and the public for the convenience of his neighbors; further, that if it should be found that the deed as recorded is sufficient, it appears there is no acceptance of the property in question by the Police Jury or any of its representatives or, as a matter of fact, by anyone.

After the trial of the case, judgment was rendered in favor of the plaintiff, recognizing the road in question as being a public road but denying the injunction on the ground that it was not proved by the evidence- that the defendant had or indicated that he would prohibit the members of the Police Jury from maintaining the road.

An application for rehearing was filed which was overruled for written reasons assigned.

Defendant has appealed from the judgment of the District Court.

The plaintiff filed a plat or map made by John M. Rochel, Civil Engineer, with his petition which he made a part thereof and to which the defendant objected on the ground that the map was not proved nor was the engineer who made the map present for cross examination. This objection was overruled and the map was considered by the court along with the oral testimony of the witnesses for the plaintiff. The defendant also objected to the consideration by the court of the deed filed as part of the petition of the plaintiff on the ground that it was not introduced during the trial as evidence and, therefore, could not be considered by the Judge. This objection was overruled by the Court which cited as its authorities Peters v. Crawford, La.App., 185 So. 716; Feazel v. Peek, 189 La. 61, 179 So. 35. It appears to be clear from the authorities that public documents of this nature which are made part of the petition need not be formally introduced in evidence but are a part of the pleadings and of the record and must be considered by the Court for the purpose for which they are introduced.

The questions in the case are: (1) Is there a sufficient compliance with the law to establish the road in question as being a public road, and (2) should an injunction be issued prohibiting the defendant from interfering with the Police Jufy or its employees from further working or maintaining said road?

First, we have the deed by Elizabeth Leleu transferring to the Parish of Iberia “with the understanding that the same is to be used specifically for public road purposes,” and, while there is no particular description in this deed of dedication,, it is described therein in the following manner:

The lands adjoining the tract owned by Mrs. Leleu, the author in title to the defendant, correspond with the evidence brought out by the testimony of the witnesses who identified the road in question as being the road in contest in this suit There is no doubt that the property transferred to the Parish for public road purposes as shown by the map used as a description in the original deed by Mrs. Leleu is the same road involved in - the present suit. It is true that there does not appear to be any formal acceptance by the Police Jury of this road, however, none is necessary as the acceptance can be tacit.

In the present case, the evidence shows that this road had been open for 60 years and was used by those living in the neighborhood and anyone else who wished to travel it. It was also maintained, we might say regularly, as a public road during the term of Mr. Rufus Mcllhennyas a member of the Police Jury for the Parish of Iberia. While there was some testimony that there was a gate across this road at the northern end, we agree with the District Court that this, of itself, would not change the road from a public to a private road and is only “an affair between the Police Jury and the members of the public who choose to use the road.” Therefore, the testimony in this case and the law which is stated in the casé of City of New Orleans v. Carrollton Land Company, 131 La. 1092, 60 So. 695, 696, that: “A formal acceptance- on the part of the public of property dedicated to the public use is not necessary, or even practicable,” shows the dedication of the strip Of land by Elizabeth Leleu for public road purposes, and it being the same road as the one involved in this suit, to be a valid and binding dedication for the purposes expressed in said deed. See also Brasseaux v. Ducote, La.App., 6 So.2d 769; Cook v. City of Opelousas and Fenelon v. City of Opelousas and Lewis v. City of Opelousas, 4 La.App. 300.

Revised Statute No. 3368 as amended by Act 220 of T914 provides an additional method by which property may become a public road. Specifically it says:

“All roads in this State that have been opened, laid out or appointed by virtue of any act of the Legislature heretofore made, or by virtue of an order of the 'Police Juries in their respective parishes, or which have been, or shall hereafter be kept tap; maintained or zvorked for a period of three years by authority of the Police Juries in their respective parishes, are hereby declared to be public roads.’’ (Italics ours)

A review of the testimony convinces us that the road in question has been worked and maintained by the members of- the Police Jury for the ward in which it is situated for a period of years in excess of the three years required by the Act. The defendant himself testified that the road was there when he bought the place some 30 years ago; that it has. been used by his neighbors and by the public during this period. He also testified that he has requested “all. the members of the Police Jury. -When I needed them I asked them to come and work this piece of road for me.” He further testified that this practice had been going on for a number of years and that the road was worked by employees of the Police. Jury at least once or twice a year.

Mr. Cedotal, a neighbor of the defendant and owner of the property on the eastern side of the road testified that he has lived on this property all of his life and that to his own knowledge the road had been used as a public road for a period of 60 years. The neighbors testified generally that the road has been used by them and, as far as they know, by the public generally, and that there is no barrier or fence at the south end of the road where it leads'into the gravel road, nor has there been any attempt by anyone to deny the public nature of the road in question.

'The defendant’s son testified that while he was an employee of the Police Jury he worked the road with equipment belonging to the Police Jury but does not state the period of time that elapsed from the time he first worked the road until the time he last worked it, but he does establish the fact that as an employee of the- Police Jury he used their equipment and worked the road.

The testimony of the witnesses establishes convincingly that employees of the Police Jury have worked the road. The defendant contends that it is the practice of the Police Jury members, and has been for a number of years, to work private property and to assist farmers of that community in any way they could to facilitate their marketing of farm products. This practice is generally admitted, however, it is of negative probity. The jurisprudence of this State is clear and unmistakable that if the owner of property permits any of his land to be worked as a road by the Police Jury for a period of three years, he tacitly dedicates that portion of his property to public use as a public road, even though the fee simple remains in him. This question was raised in the case of Soileau v. Soileau, 206 La. 243, 19 So.2d 124, 126. The couirt held that the owner of the land “never objected to the police jury improving or working the road, but on the contrary, requested the police jury and highway commission to gravel the road,” and held that the property in question became dedicated as a public 'road. We also' find the case of Frierson v. Police Jury, 160 La. 957, 107 So. 709, which is quoted and approved in all later cases, that 'a road which is worked by employees of the Police Jury or even by prisoners at the behest of the Police Jury for a period of three years becomes a public road or dedication, and that it is not necessary that the property owner actually dedicate the road but that' his mere inaction of allowing the road to be worked is sufficient.

There seems no doubt that this is true in this case. The preponderance of testimony shows that employees of the Police Jury of Iberia Parish used Police Jury machinery and actually worked this road for a period in excess of ten years. Hence, it has become a public road for this reason. The question of whether or not the title and fee simple remains in the owner of the property need not be decided in this case as the plaintiff does not ask that the Police Jury be recognized as the actual owner of the property. The defendant recognized that the road was there when he bought the property and that it was being used by others and himself without objection, and without objection from his author in title, An examination of the conveyance records would have shown him that his author in title at least attempted to dedicate this eastern portion of the land for public road purposes, and the fact that a reservation was not made in his deed does not establish the fact that there is no dedication for public purposes.

The evidence shows without doubt that there is a road as alleged by the plaintiff. There is nothing in the documents or in the testimony of any of the witnesses which establishes the length of the road or its width. However, it is obvious that the physical features of the property will clearly show that part of the defendant’s tract which has, over a period of years, been used as a roadway. It is apparent that the road extends from the property of Aymar Broussard, who bounds the defendant on the north, to the gravel road on the south of defendant’s property. The width should be clearly shown by the physical character of the road for the reason that, according to.the defendant’s testimony, he plowed to the road over a period of years and used it as- a turn-row.

For this reason, we are. of the opinion ■that it should be recognized that a public road exists -as described by the plaintiff, a sufficient width to permit the free passage of vehicles and pedestrians, from the property of Aymar Broussard to the gravel road on the south. The learned Judge of the District Court was also correct in denying the injunctive relief sought herein for the reasons stated.

It is therefore ordered that the judgment of the District Court be affirmed at the cost of the defendant.


text:
    OLIVIER et al. v. MELANCON.
    No. 3107.
    Court of Appeal of Louisiana. First Circuit.
    May 19, 1949.
    Rehearing Denied June 30, 1949.
    Bertrand DeBlanc, Lafayette, for appellant.
    Voorhies & Broussard, St. Martinville, Paul S. Daspit, Jr., St. Martinville, for appellees.
   LE BLANC, Judge.

The plaintiffs and the 'defendant in this case are the owners of two contiguous tracts of land situated on the west side of Bayou Teche in the Parish of St. Martin. The property of the plaintiffs is owned in fee simple by Mrs. Agnes Oreline Moss, wife of Agricole Olivier, who joins her as party plaintiff in his capacity as head and master of the community existing be-tween them. This property is situated south of that of the defendant, Labbe Melancon.

From the allegations contained in the petition of the plaintiffs, it is made to appear that the boundary line between the two properties was wrongfully established and they desire, by this proceeding, “to have the same definitely fixed in the manner prescribed by law.” They allege that since he has acquired his property, the defendant has caused a fence to be erected between them, at the eastern end of the north boundary and that through error the said fence was not placed on the correct boundary-line ; that in addition, defendant -has taken into his possession and is cultivating a strip of their land in the western portion thereof, said strip measuring S1.2 feet on the west and tapering towards Bayou Teche where it measures 12.5 feet, thus comprising an area of 3.36 arpents.

Plaintiffs next allege that they have endeavored to obtain the consent of the defendant to fix the boundary line between their respective properties extrajudicially, but that he refuses to have the matter settled amicably, insisting that the fence as it now stands between the properties is the true dividing line between them. Under the circumstances they further allege that it is necessary to have a judicial fixing of the boundary line, in the manner prescribed by law, and that a sworn surveyor should be appointed by the court for the purpose of making a proper survey of the two tracts of land and of ascertaining the correct limits of each.

The prayer of the petition is that “a surveyor be appointed by the court, and sworn to inspect the premises and make a survey of the land, ascertain their limits, and make a procés verbal of his work, in the presence of two witnesses, and file the same in court, according to' law; and that, after due proceedings had, there be judgment in favor of the petitioner, attd against the said Labbe Melancon, establishing the boundary line between their contiguous properties and ordering the defendant to remove to the said boundary line the fence now encroaching-upon petitioner’s property.” ■

The district judge granted the necessary order, appointed W. K. Frantz, Jr., a sworn surveyor of this State, in accordance with the prayer of the petition. The surveyor 'Frantz, in due course, took the necessary oath and after having given the parties interested the necessary notice, according to law, made a survey of the two properties and established what he found to be the proper boundary line between them. He made the necessary procés verbal, with a sketch of his survey attached thereto, and filed the same in court. According to the - procés verbal it is made to appear that in answer to the notice given to him, the defendant appeared together with the parties plaintiff in the suit, and was present during the time the survey and the fixing of the boundary line was established.

The procés verbal is dated January 15, 1947 and it was filed in court on January 17, 1947. After it had been filed the defendant appeared in court urging that his attorneys had informed him that they had not had sufficient time to examine and study the report of the surveyor and prepare a defense to the suit. He obtained an extension of time in which to file his pleadings. At the expiration of the delay granted the defendant appeared and filed what is labeled a “motion to strike”. In substance, this motion impresses us as being an exception to the form of the action instituted by the plaintiffs in that defendant contends that plaintiffs, having prayed for the recovery of a certain portion of land which they allege defendant had taken into his possession, under a fence, the action is petitory rather than a suit in boundary. Since a petitory action does not provide for the making of a survey, defendant avers that all of the allegations of the petitioners in respect thereto, are wholly irrelevant and should be stricken from the petition, as well as the -order directing the surveyor to inspect the premises, survey the same and make his report to the court.

On the same day, the defendant filed another motion in which he contended that the procés verbal made by the surveyor, and which was filed in court, was null and void and of no effect for the reason that it was not made in the presence of two witnesses, called for that purpose, nor did two witnesses sign it, all as is required by law. Within a very few days, this admitted discrepancy in the procés verbal was corrected by a supplemental one and no further objection seems to have been made on that point.

Thereafter, the surveyor, W. K. Frantz, Jr., filed a motion in court showing that his services, including all of his expenses incurred in making the survey amounted to the sum of $826.17 and he asked that the fee, in that sum, be taxed as costs in the matter. After a rule had been taken on the parties, this was properly ordered by a judgment of court signed on March 20, 1947. In the meantime, defendant had filed an exception of no right or cause of action. On May 27, 1947, the district judge ruled on the motions which had been filed on behalf of’the defendant, dismissing the same. Apparently there was no ruling made on the exception of no right or cause of action. We can only presume that that was because the same issues were involved in the exception as were urged in the motions to strike.

In the reasons for his ruling, filed by the trial judge, we find that he dismissed the contention that the procés verbal was not complete because of failure of witnesses to have attested it, by simply stating that the defects complained of had been cured by the'new procés verbal which was later filed. As just stated, no further mention is made of that point. The reasons assigned by him for overruling the motion on the other grounds presented, we will discuss later.

After all of these preliminary motions had been disposed of, the defendant filed his answer in which, with the exception of admitting the respective ownership of the two tracts of land involved, he denies practically all of the allegations contained in plaintiffs’ petition. He then alleges .that he acquired his property from certain parties who owned the same in indivisión and had had the same partitioned and that the property he owned was described as Lot No. 4 of a plat of survey made by Val. E. Smith, Civil Engineer, on October 26, 1933, which plat is attached to the said act of partition, a copy'of which he attached to his answer. According to that plat, the southwestern boundary of his land is indicated by an iron stake imbedded in an old oak tree and the southern boundary is a line running from that stake at an angle of north 70 degrees, 22 minutes east. He avers that plaintiff, Agricole Olivier, approached him several times requesting that a survey of their properties be made and a boundary line established, but that he pointed out to him the boundary as fixed on the pla? of survey made by Val E. Smith, and that it constituted the boundary line between them. He next alleges that the boundary line established by W. K. Frantz, Jr., the surveyor appointed by the court, is exactly the same line as the line set out by Smith in his survey made on October 26, 1933. In effect therefore, his defense on the merits is that there was no necessity whatever for the court to order a survey and a judicial establishment of the boundary line and he accordingly prays that the suit of plaintiffs be dismissed and their demands rejected at their costs.

The case was finally tried on the merits after which there was judgment in favor of the plaintiffs,’ homologating the • procés verbal of the surveyor appointed by the court and accordingly fixing the 'boundary between the two properties in accordance with the same and with the plat drawn in connection therewith, and ordering that suitable monuments be placed along the boundary line as established. The court cast the defendant with all costs, including the fees and.expenses of the survey which amounted to the sum of $826:17 as already stated. We might mention here that the bone of contention on this appeal, which was taken by the defendant from the judgment so rendered, is with regard to the payment of that fee and those expenses.

Reverting now to the issue raised by the defendant on his so-called motion to strike, we find that the trial judge, at considerable pain and trouble, differentiated between a petitory action and a suit in boundary, in order to reach the conclusion that this was an action in boundary and not petitory as contended by. the defendant. He also devoted some time to discussing the proposition that the order of the court for the appointment of a surveyor was not premature, as also contended by the defendant, basing his reason bn the fact that the granting of such an order is a matter which rests largely in the discretion of the trial judge. In view of the provisions of Article 837 of the Civil Code, and especially as it was interpreted in a decision of the Supreme Court, we wonder whether the defendant, who as we have already indicated was properly notified by the surveyor appointed by the court, and, according to the procés verbal, was present and actually participated in the survey, had not waived any right he may have had to question the' propriety or impropriety of the court granting such an order.

The article in question reads as follows: “If, before the surveyor has finished the work, or set up the boundaries, the parties interested, or any of them, shall make opposition thereto, the surveyor must desist, and refer the parties to the court, to have a decision on their respective rights, after having made mention of the opposition in his procés verbal, and the reason for the same, if any be alleged.” It seems that one of the purposes of this article is to forestall and avoid an issue such as the one that is now involved in this suit; that is the necessity for a new survey when one of the parties has reason to believe, or ascertains during its progress, that it will result in establishing the same boundary a9 has already been established in a former survey. In other words, just as has happened in this case, the defendant who was present when the survey was being made, with every opportunity then of noticing that the line to be established by the surveyor would be the same line, as he now contends, was established by the Smith survey in 1933, was called on then to make his opposition, without filing any proceedings, and upon the filing of his obj ection, the work would have been , stopped immediately and the parties, would have been referred to the court at that time by the surveyor to have the court pass on his opposition.

The case which we referred to a moment ago in which this article was cited is that of Dufrene v. Bernstein, 190 La. 66, 181 So. 859, 861. There, the court stated that the codal articles governing the making of surveys, whilst requiring the surveyor to notify the owners interested to be present, do not require their actual presence, and, “moreover” says the court, “if the defendant wished to have the survey discontinued, it was his duty to make opposition thereto in accordance with Article 837 of the Revised Civil Code.” The inference seems to be that even if the owner is not present, after he is properly notified, it is his duty to report to the surveyor any objection or opposition before the survey is finished, otherwise, he may be deemed to have waived, any objection or opposition he may want to make. That, it occurs to us, would dispose of the motion to strike in this case and it would be unnecessary to discuss the propositions set out in the district judge’s reasons for over-ruling the motions, although we may state here that .we fully agree with what he has to say. The relief which a pleader seeks in any suit is usually controlled by the demand made in the prayer of his petition. We took the trouble in referring to the petition of the plaintiffs to state in quotation, the relief sought by them and the demand made in their prayer, and we believe that there can be no doubt that the suit is one to have a boundary line established between them and the defendant. It is not a petitory action in any sense of what is meant by such an action. The demand that the defendant be ordered to-remove the fence which allegedly was encroaching upon the property of the plaintiffs was purely incidental and could not in any way control the allegations of the petition that plaintiff had endeavored to obtain the defendant’s consent to fix the boundary line between the parties, extra-judicially, and upon his refusal to do so, it became necessary to have the boundary line judicially fixed.

On the merits of the case it looks-as though we are concerned with a question of fact. That question is whether the defendant had actually refused to have the boundary fixed extrajudicially or not-If he did, and was arbitrary in his refusal, he was properly taxed with the costs of the survey for, according to the decision in the same case of Dufrene v. Bernstein (supra), the Supreme Court held, as it states, had been repeatedly done before, that where a party, “declined to settle the boundary amicably with the adjacent owner and forced him to resort to litigation”, Article 663 of the Civil Code which grants one the right to have the limits of his estate established and boundary stones-placed, at equal expense between him and his neighbor, does not apply and “equity requires that he should bear the burden of the costs if cast.” Several cases are cited in support of its holding.

From the facts it appears that the' two extremities of the line on the southern boundary between the two properties had been generally recognized and was actually recognized by the parties to this suit. The line' had never been marked by monuments of any kind. W‘ her the fence that has been referred to, running along the east end of the southern boundary, had been erected by the defendant himself, or by someone else as he claims, the fact remains that there was a fence there and it was not on the line. There is evidence also to show, that there were some rows of land on the plaintiffs’ side of the line that were being cultivated by the plaintiff. Whether that cultivation was being done for his own benefit or under some form of agreement he had, was immaterial as far as the line was concerned because admittedly the cultivated portion of the land encroached on the plaintiffs’ side of the line. The defendant’s contention seems to be that bfe and the plaintiffs could have fixed the proper line without the necessity of having a survey made by a civil engineer. He says that he suggested to plaintiffs that they get together and draw a line between the two recognized corners by using flags, or poles. In view of the length of the distance between the two corners, which is said to be 15 ar-pents or so, we hardly think this would have been practical. At least the plaintiffs did not think it could be done since they found it necessary to engage a surveyor, Mr. Herman Beinvenue, at their own expense sometime during the year 1946, to establish the correct boundary line. Mr. Bienvenue started his work and in doing so found it necessary to go upon the defendant’s property, and when he did so, the defendant refused to allow him to go on. He accordingly discontinued the work he had undertaken and that is when the plaintiffs found it necessary to go to court and have a surveyor appointed by the court to fix the line.

Under the facts as found by the trial judge, which we believe are clearly revealed by the evidence found in the record, we conclude that he was correct in holding that this defendant acted in bad faith and that accordingly, the provisions of Article 663 of the Civil Code calling for the work to be done by the surveyor, in cases of this kind at the joint expense of the parties, did not apply and that further, under the decision of the Supreme Court in the case of Dufrene v. Bernstein, (supra) equity required that the expenses be borne solely by the defendant.

For the reasons stated the judgment appealed from is affirmed at the costs of the defendant, appellant herein.


author: PER CURIAM.

text:
    STATE ex rel. COKER v. HAMLIN, Judge.
    No. 19285.
    Court of Appeal of Louisiana. Orleans.
    May 9, 1949.
    Normann & Jones and Russell J. Schon-ekas, New Orleans, for plaintifif-relator,
    Joseph M. Bowab, New Orleans, for respondent.
   PER CURIAM.

Raleigh J. Coker filed suit against Supreme Industrial Life Insurance Company, Inc., and Antonia M. Bossier claiming ownership of ten shares of stock of the said insurance company, issued in the name of Antonia M. Bossier, and praying for recognition of that ownership and for an injunction against the defendants restraining the defendant, Bossier, from voting the stock at any regular or special meeting of stockholders and from selling, donating or in any manner disposing of the said stock, and enjoining and prohibiting the defendant corporation from holding the regular annual meeting or any other meetings of stockholders.

Exceptions of no cause and no right of action were filed. When the matter came up for trial on the rule for a preliminary injunction, a judgment was rendered denying the preliminary injunction, maintaining the exceptions and dismissing the suit on the exceptions. Plaintiff filed motion for a devolutive and a suspensive appeal. The district judge granted a devolutive appeal but refused to grant the suspensive appeal.

The plaintiff, as relator, has applied to this court for the necessary orders to require the granting of the suspensive appeal. The respondents and the respondent' judge, in answer to the rule to show cause, assert that there may not be granted a suspensive appeal from a judgment denying a preliminary injunction, and they cite section S of Act 29 of 1924.

Counsel for one of the respondents concedes that in Bujol v. Missouri Pac. R. Co., 207 La. 123, 20 So.2d 608, the Supreme Court considered this contention and held that where the judgment from which the suspensive appeal is sought not only refuses the preliminary injunction but also dismisses the suit in toto, a suspensive appeal may be granted. But he asserts that the Supreme Court was- in error in so holding and that the dissenting opinion of the Chief Justice should have been adopted by the majority of the court and should be followed by us. In his brief, counsel says: “In spite of the jurisprudence established by the Supreme Court in the above matters, the majority Court took a different position in Bujol v. Missouri Pac. R. Co., 207 La. 123, 20 So.2d 608, and Justice Higgins, in support of his reasons, cited the very cases above outlined. Judge O’Niell', in a dissenting opinion, reviews the jurisprudence of the Supreme Court on these points and cites, for his support, the very cases relied upon by Justice Higgins. It is submitted that a dissenting opinion-of Justice O’Niell is the law of this State by every rule of logic and reason and that, if the Judges of the Courts of Appeal are confused as to whether they should decide with the law as laid out before the Bujol case and the error in said case, as pointed out by Justice O’Niell in his dissent, then it is suggested that the matter be certified to the Supreme Court for decision.”

We do not feel that we are privileged to-do anything more then follow what the Supreme Court has plainly held in the Bujol case. In Agricultural Supply Co., Inc., v. Livigne, 177 La. 15, 147 So. 365, the Supreme Court reached the same conclusion. See, also, Baton Rouge Production Credit Ass’n v. Newsom, La.App., 191 So. 154; State ex rel. Lindsay v. Hemenway, La. App., 159 So. 183.

It is therefore ordered that a peremptory writ of mandamus issue herein to the respondent judge, the Honorable Walter B. Hamlin, directing him to grant relator, Raleigh J. Coker, an order for a suspensive appeal to this Court, returnable according to law, from the judgment signed on March 15th, 1949, and to fix the amount of sus-pensive appeal bond.

Alternative writ of mandamus made peremptory.