author: TALIAFERRO, Judge.

text:
    HOLMES v. BORDELON.
    No. 7308.
    Court of Appeal of Louisiana. Second Circuit.
    June 6, 1949.

      Maxwell Bordelon, Marksvillé, for appellant.
    C. E. LaBorde, Jr., Marksville, for ap-pellee.
   TALIAFERRO, Judge.

The issue tendered by the petition and answer in this case is the right, as against the exemption laws of the state, of ah ordinary judgment creditor to seize and have sold in satisfaction of the- judgment a tenant’s undivided three-fourths interest in a crop of corn, ungathered at the time of seizure.

The judgment debtor, Henry Bordelon, Jr., procured the issuance of a temporary restraining order against plaintiff and the sheriff, and a rule to show cause why injunction should not issue to arrest the sale of the seized corn. In the application for this relief, the defendant based his right thereto upon the exemption laws of the state. He alleged that the corn was not subject to seizure and sale under the judgment but was exempt therefrom under Articles 644 and 645 of the Code of Practice and Section 1 of Article XI of the Constitution.

Plaintiff, defendant in writ, contends that the invoked exemption laws are not applicable to the facts of this case because of the undivided ownership of defendant in the corn.

The court, on proper motion, dissolved the temporary restraining order, with damages, dismissed the application therefor, and, of course, sustained the position of defendant in writ. Plaintiff in writ appealed.

In this court the appellee filed and urges exceptions of no cause of action and no right of action. These exceptions are based upon the absence from appellant’s application for the temporary restraining order, etc., allegation that the appellant was the head óf a family or had a person or persons dependent upon him for support.

Article XI, Section 1 of the Constitution exempts from seizure and. sale, with the limitations therein stated, the homestead of not over one hundred sixty (160) acres of “every head of a family, or person having a mother or father or a persón or persons dependent on him or her for support”, and, in addition, certain enumerated personal property; and also there is exempt thereunder from seizure and sale “on a farm, the necessary quantity of corn and fodder, hay and potatoes, for the current year, * * * to the total value of not more than four thousand dollars ($4,000.-00)”.

Article 644 of the Code of Practice has no application to the facts of this case. The language of Article 645 of the Code of Practice is very much like that of Section 1 of Article No. XI of the Constitution. Any difference therein, so far as concerns this case, is unimportant.

Under these unambiguous laws it is clear that one who seeks to prohibit the forced sale of his property for debt asserted by him to be exempt from seizure and sale, must clearly qualify as being entitled to the exemption and the qualifications must be alleged in the petition for injunction in order to fully provide the seizing creditor with the facts and information upon which the debtor relies to have the property declared exempt, and to -admit the necessary proof.

The petition to restrain the seizure and sale herein does not qualify the debtor as being entitled to stop the sale of his property under either the Constitution or Article 645 of the Code of Practice. He does not allege that he is the head of a family, or has a wife, mother or father or other person hr persons dependent upon him for support. Nor is it alleged that the claimant’s other property, exempt from seizure and sale for ordinary debt has a value less than $4,000. The Constitution and the Code of Practice make it quite clear that when exempted property to said value is set apart to the claimant, the remainder may be sold to pay his ordinary debts.

No testimony whatever was offered or adduced to supply the facts and information against which the exceptions are directed.

The petition herein is vulnerable to the' exception of no cause of action which was appropriately filed in this court. It is not so affected by the exception of no right of action. Therefore, for the reasons herein assigned, the judgment from which appealed is annulled and set aside. The exception of no right of action is overruled, the exception of no cause of action is sustained and this suit is dismissed as of non-suit at appellant’s cost.


source: Caselaw Access Project

author: KENNON, Judge.

license: Public Domain

text:
    E. LEVY & CO. v. PIERCE.
    No. 7289.
    Court of Appeal of Louisiana. Second Circuit.
    June 6, 1949.
    J. V. Thompson, Alexandria, for appellant.
    J. B. Nachman, Alexandria, for appel-lee.
   KENNON, Judge.

On July 11, 1946, plaintiff entered into a written contract with defendant to furnish and install on truck owned by defendant a complete sound amplifying system, consisting of amplifier, turntable, microphone with stand, gasoline generator and four sound beam speakers. The contract price was $1450.00. Alleging that there was an unpaid balance of $507.50 (including $50.00 for the installation of a platform and lights, not included in the contract, and $7.50 for work done at defendant’s residence), plaintiff filed suit against defendant for that amount.

The answer in substance admitted the execution of the contract and the installation on defendant’s truck as detailed in the contract, but set forth that the amplifying system did not function; that it was incomplete, defective and totally useless and “that said price agreed upon was contrary to good morals and public policy and in violation of the emergency price control act * * and ended with the prayer that the suit be dismissed at plaintiff’s cost.

From a judgment'of the District Court in favor of plaintiff as prayed for, defendant prosecutes this appeal.

Defendant denied that the extra charge of $30.00 for construction of platform and the extra charge of $20.00 for wiring lights in the truck was due. An examination of the contract disclosed that the building of the platform was specifically excluded from the contract price. The plaintiff installed this platform and the charge of $30.00 is not shown to be an unreasonable one. It is not clear from the record whether the wiring of lights in the truck, for which a charge of $20.00 was made, was performed as an extra service over and above the work incident to the installation of the equipment provided in the contract. Since the burden of proof on this point was on the plaintiff, this item should be disallowed.

The record discloses that plaintiff furnished and installed upon defendant’s truck all the equipment listed in the contract signed by defendant and attached to plaintiff’s petition. The testimony offered by defendant that the system was incomplete, defective and useless was indefinite and inconclusive. The defendant introduced evidence of a general nature that his operator had trouble with the equipment when it was on out-of-town trips and that repairs and maintenance service were needed and that defendant was unable to collect the rentals due from customers who rented the sound equipment by the day. However, no bills for repairs were introduced, nor did any witnesses testify as to the cost of any repairs made. The defendant simply testified that he thought “this equipment cost me in actual dollars and cents in trying to operate it $2000.00,” and that when he submitted his invoices to customers there “was always an argument and as a general rule we received very little trying to rent it.” The record shows that there was trouble with the speakers, but that replacement units were either installed or kept available for installation by the plaintiff.

Defendant, in support of his allegation that the equipment was sold in excess of the OPA price ceiling, asked the manager of the plaintiff company if the price was in accordance with the OPA list and the witness answered that the price was in accordance with the recommended retail price list of the RCA jobber. The questions and answers from other witnesses regarding the OPA ceiling were of a general nature and no evidence was introduced of what the ceiling was on the articles furnished, nor was any proof offered to enable the Court to determine whether or not the price charged was in excess of the OPA ceiling.

There was a conflict of testimony as to whether the turntable and record playing arm installed in the truck was a “mobile” type or not. However, the record establishes that the plaintiff furnished the equipment as listed on the contract and the fact that this equipment was not mobile or proper for use on the truck is not established by the preponderance of the evidence.

The contract provided for the installation of the listed sound amplifying equipment on defendant’s truck. Plaintiff’s witnesses testified that the RCA equipment furnished was the best in the field and priced above other brands. Under these circumstances, and in view of the rule that unless warranty is expressly waived, the vendor warrants the article sold as fit for the purpose intended, the plaintiff was obligated to furnish a unit, including turntable and arm, proper for road and truck use. See Chas. A. Kaufman Co., Ltd. v. Gillman, La.App., 142 So. 159, and cases cited.

Because of the indefinite and inconclusive nature of the evidence introduced by the defendant, we are unable to determine whether or not he is entitled to a reduction on account of the installation of an improper turntable or for the repair bills and other counterclaims set forth in the answer and we deem it equitable to reject all of defendant’s counterclaims, etc., against plaintiff resulting from the purchase and installation of the equipment as of nonsuit.

For the reasons assigned, the judgment appealed from is amended by reducing its amount to $487.50 and by adding the following paragraph:

“The right is reserved to the defendant herein to assert in a separate suit whatever claim he may legally have against plaintiff in connection with the furnishing and installation of the equipment under the contract herein sued upon.”

As amended, the judgment is affirmed. Cost of appeal to be paid by plaintiff, other costs by defendant.


text:
    CONLEY v. DILBECK DOMINEY INS. AGENCY, Inc., et al.
    No. 7294.
    Court of Appeal of Louisiana. Second Circuit.
    June 6, 1949.
    Cyrus A. Greco, Baton Rouge, for appellants.
    Eubank, Richey & Richey, Alexandria, for appellee.
   KENNON, Judge.

Plaintiff filed this suit against the Dil-beck Dominey Insurance Agency, Inc. praying that that company be ordered to pay over to him $827.91, which he alleged was due as a result of the following trans•action: that plaintiff, in connection with his operation of a butane-type gas business, sought to secure compensation insurance through the H. N. Goff Insurance Agency in Alexandria, Louisiana; that in due course two policies were issued by the Keystone Mutual Casualty Company of Pittsburg, Pennsylvania; that the policies were issued on April 17, 1947; that plaintiff paid the Goff agency in full prior to June 9, 1947; that on June 9, 1947, the Goff agency forwarded its check for $827.91 to the Dilbeck Dominey Insurance Company, which check was deposited in the Guaranty Bank & Trust Company by “Dilbeck Domi-ney Insurance Agency;” that this check was issued, received, deposited and paid for the purpose of paying the premiums due the Keystone Mutual Casualty Company; that the defendant failed to forward the funds; that on June 26, 1947, the Keystone Mutual Casualty Company became insolvent and was placed in the hands of a liquidator; that on October 4, 1947 plaintiff received a statement from the liquidator of the Keystone company requesting payment of $216.80, being that portion of the total premium due on the above mentioned policies from the date they were issued to the date of the insolvency of the Keystone company; that no amount is due by him to the Keystone company as he had claims, arising out of the policies issued and unpaid by the company, amounting to more than the premiums due on said policies.

The defendant filed an exception of non-joinder praying that the liquidator of the Keystone Mutual Casualty Company be cited to appear and assert his claim.

Plaintiff filed a supplemental petition, making the Louisiana receiver of the Keystone Company a party to the suit and set-, ting forth the details of the transfer by J. Austin Dilbeck and Daniel D. Dominey of their interest in the partnership known as Dilbeck Dominey Insurance Agency to the defendant corporation, Dilbeck Dominey Insurance Agency, Inc.; further that all of the capital stock in this corporation was later acquired by Daniel D. Dominey, who in turn transferred all the stock of the corporation to Arthur K. Ammen, and prayed that a writ of attachment be issued and that Arthur K. Ammen be made garnishee. Subsequently, Daniel D. Dominey, individually, filed an answer in which he admitted that the Dilbeck Dominey Insurance Company, or Dilbeck Dominey Insurance Agency, had come into possession of the sum of $827.91 by receipt of that amount from H. N. Goff Insurance Agency in payment for two policies of insurance issued by the Keystone Mutual Casualty Company and accepted by their licensed agent, Miss Clara Brown, an employee of the Dilbeck Dominey Insurance Agency. The answer further set forth that this sum of money was due either 'to the plaintiff, Armstrong R. Conley, or to Compton R. Hummel, in his capacity as receiver for the Keystone Mutual Casualty Company, and that he deposited same in the registry of the Court, praying that the two claimants be cited to assert their claims under the provisions of Act 123 of 1922.

After this deposit was made, the .attachment and garnishment proceedings were dismissed.

Compton R. Hummel, ancillary receiver of the Keystone Mutual Casualty Company, by appointment óf the Nineteenth. Judicial District Court, Parish of East Baton Rouge, Louisiana, filed an exception to the jurisdiction. Subsequently, he came into the Ninth Judicial District Court, waived his exception to the jurisdiction, and joined with the attorney for plaintiff in submitting the case for decision under a stipulation of fact, which set forth that plaintiff, in March, 1947, applied for certain workmen’s compensation policies from the Goff agency, which in turn contacted the Dominey agency and was advised that the policies could be written through the Keystone company. The stipulation further set forth that the two policies were written on April 17th and that “at the time the policies were written neither Dilbeck Dominey Insurance Agency, Inc., nor Daniel D. Dominey nor J. Austin Dilbeck were licensed as agents of Keystone Mutual Casualty Company. At the time the policies were written the only licensed agent for the company was Clara Brown doing business as Southeastern Insurance Service and it was through this agent that the two policies were written;” that the plaintiff (on June 9, 1947), paid the $827.91 to the Goff agency, whose check for that amount was forwarded to the “Dil-beck Dominey Insurance Company” and deposited to the credit of “Dilbeck Dominey Insurance Agency” on June 11th; that on June 26, 1947, the Keystone Mutual Casualty Company was declared insolvent and placed in the hands of a receiver and an ancillary receiver was appointed in Louisiana; that on September 30th, plaintiff received a statement from the Pennsylvania 'liquidator of the Keystone company requesting the payment of the earned premiums amounting to $216.80; that, upon learning that none of the premium had been forwarded, plaintiff instituted suit to recover $827.91, first against the Dilbeck Dominey Insurance Agency, Inc., and, by amended petition, against the Louisiana receiver of the Keystone company and Daniel D. Dominey.

The last paragraph of the stipulation signed by counsel for plaintiff and for the ancillary receiver reads as follows:

“The questions before the Court are:
“Is Armstrong R. Conley entitled to the money deposited in the registry of the court by Daniel D. Dominey?
“Did payment to Dilbeck Dominey Insurance Agency constitute payment to the company so as to entitle the receiver of Keystone Mutual Casualty Company to the money deposited in the registry of the court ?
“In the event the Court holds that payment to Dilbeck Dominey Insurance Agency did not amount to payment to the company and therefore the money deposited in the registry of the court should be paid to Armstrong R. Conley, is the receiver enti-tied ¡to receive out of the sum so deposited the earned premium on the two policies?”

The District Court rendered judgment ordering the Clerk to pay the earned premium of $216.80 to the ancillary receiver and the remaining $611.11 to plaintiff. The receiver asked for and perfected a devolu-tive appeal. The plaintiff, after the time delay for a suspensive appeal, collected the $611.11 awarded him by judgment of the District Court, and answered the appeal, praying that the judgment be amended by awarding the plaintiff the entire $827.91.

The filing of the stipulation in the District Court by counsel, for plaintiff and the ancillary receiver makes it unnecessary to consider the bulle of the pleadings antecedent to the answer filed by Daniel D. Dominey, in which he deposited $827.91 in the registry of the Court with the request that the ancillary receiver and tire plaintiff assert their respective claims and that he be relieved of payment of costs as provided by Act No. 123 of 1922.

Under the stipulation, the questions before us are whether plaintiff is entitled to the return of all the money on the theory that it had not yet reached the Keystone company or its agent, or whether the ancillary receiver of the Keystone company is entitled to all the money on the theory that its delivery to the Dilbeck Dominey agency constituted a delivery to the Keystone’s Louisiana agent, or whether the circumstances of the deposit were such as to make the Dilbeck Dominey agency (or Daniel D. Dominey) a mandatary with a duty to both parties.

The Revised Civil Code, Articles 3016 and 3017, defines a broker or intermediary and describes his obligations. We quote those two articles:

“3016. Broker or intermediary defined. —The broker or intermediary is he who is employed to negotiate a matter between two parties, and who, for that reason, is considered as the mandatory of both.”
“3017. Obligations of broker. — The obligations of a broker are similar to those of an ordinary mandatory, with this difference, that his engagement is double, and requires that he should observe the same fidelity towards all parties, and not favor one more than another.”

According to the stipulation in the record', the H. N. Goff Insurance Agency (agent of plaintiff) contacted the Dilbeck Dominey agency and requested that this agency assist in securing a policy of compensation insurance for plaintiff. This agency — acting as a broker or intermediary — contacted Miss Clara Brown, who issued the policies on behalf of her principal, the Keystone-Mutual Casualty Company. Under these-circumstances, the Dilbeck Dominey agency became the broker or intermediary between the agent of plaintiff and the representative of the Keystone company and the money received by it from the Goff agency was in-its capacity as broker or intermediary between the assured and the insurer. By directing that the broker deliver the earned' premium to the company issuing the policies, and that he return the remainder of the-funds to the ■ plaintiff, the District Court judgment gave effect to- the requirement of' Article 3017, above quoted, that the broker observe the same fidelity to all parties.

The stipulation contained no reference to the liability of the Keystone Mutual Casualty Company by virtue of alleged accidents to workmen employed by plaintiff while the policies were in force. The District Court judgment made no reference to thes-e claims, which therefore are not affected one way or the other by the judgment.

The judgment appealed from is affirmed. Costs to be divided equally between plaintiff and the ancillary receiver.


text:
    DOTSON v. MALONE et al.
    No. 7353.
    Court of Appeal of Louisiana. Second Circuit.
    June 6, 1949.
    Peterman & Burden, Alexandria,, for .-appellant.
    Stafford & Pitts, Alexandria, John R. Hunter & Son, Alexandria, for appellees.
   TALIAFERRO, Judge.

Plaintiff’s Pontiac coach automobile, being driven by him, collided with a Dodge army-style truck, driven by Jesse Williams, one of the defendants, on the PackingHouse Road, near the City of Alexandria, Louisiana, at about the hour of eleven o’clock P. M., July 18, 1948. He instituted suit against Williams, Bert Dennis and G. L. Malone, residents of Rapides Parish, Louisiana, to recover the amount expended by him to repair his car from the damages sustained in the collision. Dennis and Malone were impleaded on the theory that ■they owned the truck; that Williams was at the time of the collision their agent and was on a mission for them.

By amended petition the Associated Employers Lloyds of Ft. Worth, Texas, was made defendant under the allegation that that company carried public liability and property damage insurance, on the truck for Malone.

For a cause of action against Williams, plaintiff alleged that he left his own side of the highway, after zigzagging across the road several times, and ran the truck into the front portion of plaintiff’s car, which was at the time entirely on its side thereof, in fact, almost m the ditch, in an effort to avoid the collision.

By its answer, the insurance company articulately denied the allegations of the petition save that at the time of the accident it did carry on said truck insurance of the character alleged in the amended petition, but it affirmatively alleged that the conditions of the policy had been breached by not giving notice of the accident to it until after the lapse of some four months, whereas the policy required that such notice be given as soon as practicable, which was not done, and for this reason no liability attached. Other defenses are set up but in view of the ■ opinion we have reached on the merits of the case, we deem it unnecessary to narrate same here.

Dennis admits that Williams was his employee but denies that at the time of the accident he was on a mission or was in any manner acting for him. Malone denies that Williams has ever been in his employ, and, of course, was not his agent when the collision occurred.-

Williams, in his answer, charges that the accident happened because- of the negligence of the plaintiff in that his car was being operated without headlights, was driven by plaintiff from his own side of the road and across the center thereof and then collided with the truck.

There was judgment against Williams in plaintiff’s favor but the demand against the other three defendants was rejected. Plaintiff appealed from the judgment insofar as it rejected his demand. The corr rectness of the judgment against Williams is not before us.

Williams was an employee of defendant, Dennis. Dennis was engaged in converting timber into pulp wood and selling same to Malone. The truck in question had been entrusted by Dennis to Williams for the purpose of picking up each morning other employees of Dennis and transporting them to the scene of their work and returning them to their homes each afternoon. Williams was allowed to keep the truck in his possession each night.

Appellant invokes the omnibus clause of the policy, and but for some facts that developed on trial, which we shall hereinafter discuss, would have had a better chance to hold the insurer..

We are convinced from the testimony bathe case that some three weeks prior to the accident, Malone, then the owner of the truck, sold it to Dennis for a price entirely on credit, payable $25.00 per week, and that two payments had been made on the price. This was done by charging each weekly payment to the account of Dennis with Malone, which involved the price of deliveries of pulp wood to the latter. Testimony establishing said sale was given without objection and counsel for the insurance company thereupon announced to the court that this testimony conveyed to him first knowledge that the ownership of the truck had been transferred by Malone, the named insured, to Dennis, and he asked permission to file instanter an amendment to the petition to show that Malone had parted with title to and possession iof the truck prior to the time of the accident, the effect of which he contended, removed the truck from insurance coverage. Plaintiff’s counsel objected to the allowance of the amendment on two grounds, to-wit:

(1) That the policy of insurance is the best evidence of the relationship of the insured and insurer, and

(2) That there was nothing on record to - indicate the transfer of the truck. The court ruled as follows:

“The court sustains the objection for the reason that there is testimony in the record tó thoroughly cover the point made by the request of counsel for the Insurance Company.”

As we interpret the language of said ruling, it means, that the amendment was unnecessary, as the pleadings had been enlarged by the testimony which was admitted without objection. Following this ruling other testimony to prove that the truck had been sold by Malone to Dennis was adduced without objection of any character. It seems clear to us that this testimony enlarged the pleadings and was properly considered by the lower court in determining the ' issues of the case. Of course, since the title and possession of the truck had passed from Malone, the named insured, to Dennis, coverage under the policy automatically ceased, although the insurance company had not been advised of the changes.

It is certain from the testimony that Williams was not acting in the scope of his employment nor was he on a mission for his employer, Dennis, when the accident occurred. He ' had been instructed by Dennis not to drive the truck for his own business or pleasure, and was violating these instructions when the collision occurred.

The judgment is affirmed.

■. KENNON and HARDY, JJ., sitting..


author: HARDY, Judge.

text:
    WOMACK v. DOYLE et al.
    No. 7313.
    Court of Appeal of Louisiana. Second Circuit.
    June 6, 1949.
    K. Hundley, Alexandria, Gist, Thornton & Murchison, Alexandria, for appellants.
    Polk & Culpepper, Alexandria, George M. Foote, Alexandria, for appellee.
   HARDY, Judge.

This is an action in -which plaintiff seeks damages resulting from an automobile collision. The owner of the truck with which defendant’s automobile collided and the owner’s liability insurer are made defend-ants. The accident took place about the hour of 10:30 a. m. on, June 9, 1947, on U, S. Highway. 165 a short distance north of the community of Paradise, Louisiana. Plaintiff, who was employed as the Masonic Service representative to the Veterans’ Hospital at Pineville, Louisiana, was driving his ■Plymouth sedan south along the designated highway at a reasonable speed of some 35 to 40 miles per hour when he observed the approach of a truck driven by one Gib Pre-low, a Negro employee of the defendant, Doyle, which was proceeding north. According to plaintiff’s version of the incident defendant’s truck was being driven on the wrong, that is, on the west, side of the highway, observing which fact plaintiff slackened the speed of his automobile, assuming that the truck driver intended to turn into a service station which was located on the west of the highway. When the vehicles were separated by a distance of only some 90 feet more or less, it then appearing that the truck would not be turned from the highway, plaintiff swerved his automobile sharply to the left, that is, toward the east, and at almost the same moment the driver of the truck attempted to turn back to his proper highway lane. 'The vehicles crashed at a point only slightly east of the center line of the highway, the impact being taken by the right front of plaintiff’s car and the left front portion of the truck.

At the time of the accident plaintiff was accompanied by two young hitch-hikers, whom he had picked up on the road and who were proceeding to Alexandria for the purpose of enlisting in the United States Navy. The briefly stated facts above set forth, which constitute the gist of plaintiff’s claim, are stoutly corroborated by the two youths, who were called as plaintiff’s witnesses.

The facts advanced by defendant are directly opposed to and contradictory of plaintiff’s story. On behalf .of defendant it is claimed that his driver, Prelow, was proceeding north at a moderate rate of speed on his proper side of the highway when plaintiff, ' for some unexplained reason, swerved his car sharply to the left and into defendant’s truck. In support of this contention defendant tendered the testimony of his driver and of two witnesses who were sitting or standing in or near the door of the service station adjoining the highway-on the west. Additionally, the defendant himself and a State trooper, both of whom reached the scene of the accident shortly after the collision, testified as to the position of the cars, marks on the highway and the usual physical circumstances observable at and about the site of an accident.

On only one point is there little, if any, serious dispute or conflict, that is, the fact that plaintiff’s automobile was almost irreparably damaged and that plaintiff himself suffered serious and painful injuries.

After trial there was judgment in favor of plaintiff in the sum of $4,200, from which defendants prosecute this appeal, which has been answered by plaintiff, who seeks an increase in the amount of the judgment.

According to our view, this case involves purely and simply the resolution of questions of fact. Either plaintiff, without reason, turned his vehicle at a sharp angle across the highway to the wrong side thereof, or the driver of defendant’s truck was operating his vehicle on his wrong side of the highway in a manner so grossly negligent as to create an emergency, in the attempt to avoid which plaintiff was forced to take some immediate action.

This is the kind of a case in which appellate courts must accord unusual weight to- the findings of the trial judge, and, in the absence of manifest error, well established custom, attested by the innumerable pronouncements of a long line of authorities, requires the affirmation of the judgment rendered.

It is impossible to reconcile to any degree whatsoever the testimony of the witnesses produced by the opposing parties, and it is therefore necessary to analyze and evaluate in some detail the weight and effect of the evidence producéd.

Plaintiff is obviously an intelligent, settled individual whose credibility is without attack insofar as the record is concerned. His story of the incidents immediately leading up to the accident is straightforward ánd entirely logical, which story is supported in practically every detail by the testimony of the two young men who accompanied him as passengers, neither of whom sustained any injury, and neither of whom appears to have the slightest material interest in the outcome of this litigation.

On the other hand, we find that the testimony of the driver of defendant’s truck is-particularly unsatisfactory and is below even that standard which might be expected of a 34-year old Negro with the fifth grade education which he claimed. This witness,, Gib Prelow, obviously had no adequate conception of either time or distance factors. His answers were vague, indefinite and uncertain. , Making due allowance for the natural confusion and embarrassment of the witness, we are nonetheless unable to accord any great degree of consideration to-his testimony.

It is quite true that the testimony of the witnesses, Brown and Ford, who were at the door of the filling station which adjoined the highway on the west, positively supports the testimony of the truck driver that he was driving in his proper lane.. There is no question as to the good faith and the unquestioned sincerity and integrity of these witnesses, but reference to the photographs taken at the scene of the accident, particularly those introduced by defendant, substantially lessen the weight and' importance of this testimony. These witnesses, located at the door of the filling station, were some distance removed from the-highway; their line of vision was obstructed by the pumps and service apparatus between them and the highway, and the perspective of the highway from the .positions which they occupied at the time obviously did not admit of a definite placing of the vehicles with respect to the occupancy of their respective lanes. Iii consideration of these elements, we can only conclude that these two- witnesses were not by any means-in as advantageous a position with respect to an accurate observation and estimation, of the immediate circumstances as were the two witnesses in plaintiff’s car on the highway. .

There remains for consideration the testimony of the defendant, Doyle, and the State trooper, Lemons, bearing upon the position of the vehicles immediately following the accident. There is no dispute on this point. After the crash the cars came to rest, locked together, left front of truck with right front of passenger car, in a V shape, which made an angle of approximately 45 degrees. The rear ends of both vehicles were thrown to' the west by the force of the impact between the front ends thereof. There was testimony, particularly by the State trooper, as to tire marks of plaintiff’s vehicle, which the witness explained as follows: “I found the mark in the highway that showed that Mr. Womack had undoubtedly lost control, or made an unusual drive—the skid or the mark in the highway was about 30 steps long and it just swerved around and his vehicle cut on his ■opposite side of the road.”

Contrary to the vigorous contention of plaintiffs counsel, we think the above statement tends to corroborate the testimony of plaintiff and his witnesses. Unquestionably he did make “an unusual drive”, and, further, the impression of the tires of plaintiff’s car bears out plaintiff’s insistence that he slowed his speed, applied his brakes slightly, and then finally, in desperation, swerved sharply to his left.

Undoubtedly the point of impact was at ■or about the center of the highway, although, admittedly, there was no definite marking of the center line. This fact in itself further substantiates plaintiff’s version.

On the whole we are convinced that ■plaintiff, by a preponderance of the evidence, has established the negligence of the ■driver of defendant’s truck as being the proximate cause of the accident. The logical sequence of a reconstruction of the incidents leading up to and climaxing in the ■collision is not only easily reconciled with plaintiff’s claims, but would appear to be the only reasonable and acceptable explanation. Obviously, this was the light in which the trial Judge viewed the matter and the conclusion upon which he predicated his judgment, in which finding we heartily concur.

It is urged on behalf of defendant that plaintiff could easily have avoided the accident by turning to the right, instead of the left, into the broad entryway of the service station. Conceding this point, it is too well established by the jurisprudence of this State to necessitate citation that liability does not attach by reason of an error in judgment in the face of an emergency. Nevertheless, we are constrained to observe that plaintiff does not appear to have been guilty of such an error, and his action in attempting to avoid the collision by turning sharply t0‘ the left would indicate the choice of the most likely effort, and one which would have succeeded had not the driver of the truck, suddenly awakening to the dangerous situation, made a belated effort to regain his proper lane of travel.

The only matter remaining for determination is with respect to the quantum. As we have observed there is no question as to the serious and painful nature of plaintiff’s injuries, but we are not convinced that he has suffered a disability which will prevent him from carrying out the duties required of him in his present occupation. Admittedly plaintiff has sustained no loss nor diminution of salary as the result of the accident, and we think the allowance made by the District Judge was adequate under a consideration of the facts established.

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


text:
    WILLSON v. COOPER.
    No. 7321.
    Court of Appeal of Louisiana. Second Circuit.
    June 6, 1949.
    Eubank, Richey & Richey, Alexandria, for appellant.
    Provosty, Sadler & Scott, Alexandria, for appellee.
   KENNON, Judge.

Plaintiff (hereinafter referred to as owner) leased to defendant (hereinafter referred to as tenant) a parcel of pasture land owned by her near the City of Alexandria in Rapides Parish, Louisiana. The written lease provided that thé tenant should have the use of the dairy barn and hay barn as well as'the water well located on the owner’s property. The lease further provided that the tenant would “repair any damage done to said barns.”

Alleging that the tenant at her request had vacated her property on November 1, 1947, the owner filed this suit claiming $448.80 to be due her by the tenant for damage done to her property in violation of the lease agreement. The petition asserted that the tenant, by virtue of his contract, was obligated to replace eight pieces of siding, two doors, four window panes, two shed posts and to pay the expenses of cleaning out and washing down the walls and ceilings of the three rooms in, the dairy-barn; of leveling up the shed roof; of hauling dirt and filling in the holes around the watering tank and on each side of the shed.

The tenant, after the Court overruled an exception of vagueness, filed an answer admitting his occupancy of the premises under the lease, but set fortji that his use of the property — including the slaughtering of animals complained of in the petition— had been an ordinary use of the property under the terms of the lease, and, assuming the position of plaintiff in, reconventio.n, prayed that .the owner be-ordered to .refund $200.00 paid by him -for water used on -the premises which the owner was obligated to furnish under the agreement.

The District Court gave judgment in fav- or of the owner for $400.00 as damages and rejected the «conventional demands of the tenant, whose appeal is now before us.

The tenant has not urged in this Court his reconventional demand for $200.00 allegedly paid on the water bill. The evidence shows that the tenant paid the amounts due for water used on the -premises over and above the minimum charge. This was done without protest and there is no proof of any agreement for reimbursement.. The claim was therefore correctly disallowed.

The contention of the tenant in this Court •is that the repairs listed in plaintiff’s petition were such that are the responsibility of the owner or lessor under Article 2693 of the Revised Civil Code, and - not -those listed -under Article 2716, Revised Civil Code, quoted below:

“Repairs lessee required to make. — The repairs, which must be made at the expense of the tenant, are those which, during the lease, it becomes-necessary tq make:
“To the hearth, to -the back of -chimneys and chimney casing. ■ i -
“To the plastering of the lower part of interior walls.
“To the pavement -of rooms, when it is but partially broken, but not when it is in a state of decay.
“For replacing window glass, when broken accidentally, but not when broken either in whole or in their greatest part -by a hail storm or by any other inevitable accident.
“To windows, shutters, -partitions, shop windows, locks and hinges, and everything of that kind, according to -the custom of the place.” '

In addition to — and-possibly in conformity with — the applicable articles .of the Civil Code, the tenant was obligated by provision of the lease to repair “any damage.done to said barns,” which were located on the leased premises.

There is considerable -conflict as to whether the tenant was authorized to use the dairy barn, which included a washing room, cooling room and milking room, as a slaughter house. The lease specifically provided that -the tenant should have the use ■of the buildings on the premises. Since there was- no prohibition against the use of the dairy barn as a slaughter house, and particularly since the tenant had so used it prior to November 1, 1946 — -and -to the knowledge of the owner — we conclude that the use of the dairy ’barn as a slaughter house was not forbidden under the terms of the lease. However, the record discloses that the -tenant did not leave the dairy barn in a usable condition, but instead left same with dirty and stained walls and with piles of refuse salt in the room used for the salting down of raw hides. The record •further discloses -that the tenant’s use of the premises resulted in damage, including the dissipation -of -the supports under the posts holding'up the hay -barn shed, resulting in some of these posts being knocked down by the tenant’s cattle. This, under the circumstances, .constituted a “damage done to said barn,” which the tenant was obligated to- repair under the terms of the lease.

The list of estimated repairs submitted by plaintiff includes: “Painting, $170.00.” The evidence discloses that this is for cleaning and washing the walls and ceilings and inside painting of the -three rooms included in the dairy barn. Since the evidence discloses that the tenant’s careless use of the dairy barn in the slaughtering operations resulted in the staining of the lower walls and floors, and in view of the provisions of Article 2716 of the Revised Civil Code, holding the tenant responsible for such items as the plastering of the “lower part of interior walls,” it is proper that the expense of cleaning and painting the lower portion of the walls should be .borne by the tenant. The testimony shows that the condition of the upper walls and ceiling was due to normal deterioration, including the presence of dirt dauber nests. The remedying of conditions due to such natural causes is not a responsibility of the tenant. A division of this expense between the owner and tenant is proper.

Included in the estimate of repairs claimed by the owner was the replacement of ten pieces of siding (material $3.00, labor $3.00), allegedly removed by the tenant. The evidence discloses that this siding was removed when the owner removed a frigid-aire, used in connection with dairying operations, from the building and hence its replacement is not a responsibility of this tenant.

No useful purpose would be served by further detailing the conflicting testimony regarding the condition of the premises on November 1, 1946 and on November 1, 1947 and the details concerning each of the one dozen specific repairs listed in the lumber and supply company’s estimate of repairs introduced in evidence by the owner.

Having found that much of the repair work was made necessary by a combination of natural causes or fair “wear and tear,” and the misuse of the premises by the tenant, we are faced with a difficult task in determining the amount due as damages by the tenant, and, after a careful study of the record, have concluded that an award to plaintiff of $250.00 would do substantial justice between the parties.

The judgment appealed from is reduced to $250.00 and as amended, it is affirmed. Costs of appeal to be borne by plaintiff; other costs by the defendant.


text:
    FUTCH v. GREGORY.
    No. 7298.
    Court of Appeal of Louisiana. Second Circuit.
    June 6, 1949.
    R. D. Cantwell, Winnfield, for appellant.
    Beck & Wright, Winnfield, for appellee.
   TALIAFERRO, Judge.

There is tendered in this case the right of plaintiff to a deficiency judgment against the defendant. The court denied such right by sustaining exceptions of no cause and no right of action, and dismissed the suit. Plaintiff appealed.

The facts of the case as disclosed by the petition and attached documents, are these:

Plaintiff, doing business as Independent Finance Company, for value, took from the defendant his promissory note for $371.-00 and to secure the same, on April 24, 1948, defendant executed to plaintiff a mortgage on a used automobile. Four days thereafter, to-wit April 28th, defendant surrendered possession of the car to plaintiff at which time he executed a document of which the following is a copy:

“Winnfield, La., April 28th, 1948
“Having defaulted in the terms of the chattel mortgage on my 1937 Ford Sedan, motor number 54334894, serial number -, and wishing to liquidate my account, I voluntarily surrender possession of said automobile and consent to its sale and the application of the net proceeds upon my indebtedness in accordance w-ith the provisions of the chattel mortgage."

Following this transaction, plaintiff did repairs on the car, the cost of which was $132.76, and thereafter, by private sale, sold the same for $250.00 cash. This suit is for the mortgage note of $371.00, plus the repair bill, less the $250.00, or $253.76, plus interest and attorney’s fee.

A decision of the case hinges upon the real meaning and effect of the quoted surrender agreement when considered in conjunction with Act No. 28 of 1934, which reads as follows:

“Be it enacted by the Legislature of Louisiana, That in any case where any mortgage or other creditor takes advantage of the waiver of appraisement of the debt- or and provokes a judicial sale, without the benefit of appraisement, of the encumbered property, whether the same be real or personal, or of both characters; and the proceeds of such sale are insufficient to satisfy the debt for which said property is sold, said debt shall nevertheless stand fully satisfied and discharged, and such mortgage or other creditor shall not thereafter have the right to proceed against the debtor or any other of his property for such deficiency, in no manner whatsoever.
“That this Act declares a public policy and the provisions thereof can not, and shall not be waived by a debtor, but it shall only apply to mortgages, contracts, debts or other obligations made, or arising, after this Act becomes effective.”

Defendant expressly invokes the provisions of this act as a basis of his exceptions.

While the surrender agreement (on a printed form) declares that the mortgagor has defaulted on his obligations as fixed in the chattel mortgage, this is not strictly true. No part of the note was then due. In brief, appellant’s counsel states that the car had failed to give the sort of service expected of it and for this reason defendant desired to surrender the same.

The surrender agreement is free of ambiguity. It simply says that the possession of the car was voluntarily surrendered; that defendant consented to its sale “in accordance with the provisions of the chattel mortgage” and that the net proceeds of the sale be credited upon the mortgage note. By this agreement defendant did not divest himself of title to the car, nor did he authorize repairs thereto, as were done, nor did he consent to its sale except as provided by the terms of the mortgage itself. The act of mortgage is not in the record but both sides agree that it contains the usual and customary waiver of appraisement in the event the car should be sold through foreclosure proceedings. And, to sell the car in accordance with the terms of this mortgage meant without appraisement and at public auction at the end of foreclosure proceedings. It is contended by appellee that since plaintiff sold the car in the manner stated, the 1934 act is applicable; that plaintiff is seeking to accomplish indirectly that which he is legally inhibited by the act from doing directly.

The case of Home Finance Service v. Walmsley, 176 So. 415, decided by the Orleans Court of Appeal, and Southland Investment Company, Inc., v. Lofton, 194 So. 125, decided by this court, sustain defendant’s position herein.

Section 2 of the 1934 act, in effect, declares that the act establishes a rule of public policy and that a mortgagor may not waive the benefits designed to be conferred upon him thereby; and, by the same token a mortgagee should not be permitted to profit from his own wilful efforts at circumvention thereof. Of course, this act was not designed to affect the freedom of a mortgagor and a mortgagee, with respect to the surrender of the mortgaged chattel to the latter in satisfaction, in whole or part, of the mortgage indebtedness, as they shall in good faith agree. In that case the title to the property would pass unconditionally to the mortgagee who would be free to sell the chattel for such price as he desired without the duty of accounting to the mortgagor therefor. But this is not the case before us.

In the Walmsley case, supra, the mortgagor executed a lengthy collateral agreement at the time he signed the mortgage on his car, and in keeping with its terms, after defaulting in payments, surrendered the car to the mortgagee who in the collateral agreement was authorized to sell it for such price as it could obtain and to credit the net proceeds on the mortgagor’s note. This was done. The suit was instituted to recover judgment for the balance due on the mortgage note. In this case the 1934 act received first judicial consideration, and in the course of the court’s discussion thereof, it is said [176 So. 417] : “While the statute under consideration refers particularly to judicial sales without appraisement, we are of the opinion that the statement of the public policy therein is sufficiently broad to disclose that it was the intention of the lawmakers to place a stamp of disapproval on any practice whereby encumbered property is sold without judicial appraisement, and to sanction the type of agreement, such as the one before us, would be to allow the employment of a device calculated to defeat the underlying purposes which prompted the passage of the law.”

In the Lofton case, supra, the collateral agreement signed by the mortgagor is identical in language with that involved in the present case. The opinion of the court does not clearly disclose if this agreement was signed the day the mortgage was executed or thereafter, but the date of the agreement was not of controlling influence. The mortgagee sold the car at private sale and perforce without any appraisement thereof. He credited the net proceeds on the mortgage note. Lofton was sued for the balance due on the note. Exceptions of no cause and no right of action were sustained by the District Court and the ruling was affirmed here. The Walmsley case was followed.

These two decisions hold that the 1934 act has application to a private sale of the mortgaged property by the mortgagee, which, of course, is always effected without the benefit of appraisement; and these holdings are based upon the public policy rule declared in the act. They fix a rule that when it appears that the surrender of possession of the mortgaged chattel, with authority given the mortgagee to sell same, as was done in the case at bar, such action, presumably is but a step in the effort to circumvent the law. This, of course, should and will be thwarted by the courts. If this should not be done the beneficent provisions of the 1934 act would virtually be rendered ineffective and the law would be as it was prior to the passage of the 1934 act. The cited decisions announce a sane and reasonable construction of the pertinent law, and no good reason has been assigned why they should not be followed in the instant case, and they will be.

For the reasons herein assigned, the judgment from which appealed is affirmed with costs.


author: HAWTHORNE, Justice.

text:
    215 La. 451
    BURKE v. LOUISIANA PUBLIC SERVICE COMMISSION et al.
    No. 39178.
    Supreme Court of Louisiana.
    April 25, 1949.
    Rehearing Denied May 31, 1949.
    Helm & Simon, New Iberia, Sanders, Miller, Downing & Rubin,'- -Baton .Rouge, for plaintiff-appellant.
    Milling, Godchaux, Saal & Saunders, M. Truman Woodward, Jr., New Orleans, for Guy A. Thompson,-Trustee, New Iberia & Northern R. Co., and of Guy A. Thompson, Trustee, Iberia, St. Mary & Eastern R. Co. , ■
    Bolivar E. Kemp, Jr., Carroll Buck, 1st Asst. Atty. Gen., Wm. A. Porteous, Jr., 2nd Asst. Atty. Gen., Provost & Ernest, New Iberia, and Breazeale, Sachse & Wilson, Baton Rouge, for, appellee.
   HAWTHORNE, Justice.

This is an .appeal to this court from a judgment of the Nineteenth Judicial District Court for the Parish of East Baton Rouge, affirming Order No. 4721 rendered by the Louisiana Public Service Commission under date of December 10, 1947, which denied to appellant, Perry J. Burke, his application to the Louisiana Public Service Commission for an order directing Guy A. Thompson, trustee for the New Iberia & Northern Railroad Company and the Iberia, St. Mary ‘ & Eastern Railroad Company, common 'carriers subject to the rules and regulations of the Public Service Commission and the statutes and laws of this state (to which we shall hereafter refer as "the railroad”), to furnish to appellant facilities for the transportation of commodities over a certain spur track situated in the City of New Iberia, and to construct, maintain, and operate a switch connection on and across appellant’s land to connect with such spur track, and for such other orders as the Commission might deem necessary in the premises.

On March 4, 1946, Perry J. Burke, appellant herein, filed a complaint with the Louisiana Public Service Commission, alleging that the defendant railroad was refusing to extend to him freight service on the spur in question, and praying for the order as set forth above. Edgar P. Folse, Inc., an industry owning property abutting the spur and .being served thereby, intervened in the proceedings, praying for the rejection of complainant’s demands.

On November 6, 1946, the Commission issued its Order No. 4426 dismissing Burke’s complaint and application for.the reason that the spur over which complainant sought service was a private industrial spur over which the general public had no right to demand service, and that complainant had no right 'or cause of action. Burke appealed to the district court from this order,-and on July 31, 1947, that court overruled the exception of no cause and no right of action; avoided, vacated, and set aside' the order of the Commission, and remanded the case to the Commission for further proceedings. The court in its reasons for judgment concluded that the ruling of the Commission holding the spur in question to be a private industrial spur over which the general public had not the right to demand service was erroneous.

Pursuant to this decree, the Commission then heard the case on its merits, and "on December 10, 1947, issued its Order No. 4721 rejecting the demands of the complainant Burke and dismissing the proceedings. From this order of the Commission Burke again appealed to the district court, and that court on September 10, 1948, affirmed the order of the Commission and dismissed plaintiff’s suit. From this judgment Burke has appealed to this court.

The railroad spur over which appellant Burke seeks freight service traverses two blocks of land situated in New Iberia, Louisiana, being designated as Blocks 193 and 198, and the street or highway which lies between them. Block 193 lies soinewhat northeast of Block 198, and these two blocks are bounded on the southeast, respectively, by Block 194 and Block 197. . But, for the,’ purpose of clarity and simplification, we shall discuss and consider these blocks as if Blocks 198 and 197 were directly south of Blocks 193 and 194. . Accordingly, Blocks 193 and 194 are bounded on the north by Bayou Teche, and Blocks 198 and 197 are bounded on the south by the main tracks of the defendant railroad, and Blocks 193 and 194 are separated from Blocks 198 and 197 by Main Street, or.U. S. Highway 90." ' ' '

The spur, after leaving the main tracks on the south side of Block 198, proceeds in an approximately northerly "direction near the east boundary of Block 198, crosses Main Street, and continues near the east boundary of Block 193 to a point near Bayou Teche.

The history and background surrounding the building and construction of the spur track are as follows: •

On March 18, 1918, ■ Julius Scharff, the owner at that time of Blocks 193 and 198, conveyed to William H. Carver a tract of land out of the northern portion of Block 193 fronting 340 feet more-.or less on Bayou Teche. (This property is hereafter referred to as “the rice mill property”.) This act of sale .provides that -the property conveyed is bounded on one side by a strip of land 44 feet in width, running from Bayou Teche back to the right-of-way of the Iberia, St. Mary & Eastern Railroad, “which vendor hereby dedicates for the benefit of the property herein conveyed as well as for the use and benefit of vendor’s other property for the construction of railroad spur or spurs”.

This dedication, 44 feet in width, running from Bayou Teche to the main line of the defendant railroad, comprises what we have designated as the eastern 44 feet of Blocks 193 and 198.

On May 2, 1918, a little over" two months after the deed containing this dedication was executed, Julius Scharff conveyed directly to the Iberia, St. Mary & Eastern Railroad Company a strip of land 17 feet wide, eight and one-half feet on each side of the center line of a proposed spur track across Lots 198 and 193 in the City of New Iberia, which center line was "particularly located and described in this deed. In this instrument we find the following language: “It is understood and agreed that the strip of land herein conveyed is to be used upon which to construct a switch or spur-track to connect the main line of said railroad company with the rice mill; and should the said strip of land cease to be used in the future for the purposes herein conveyed, then in that event, the said strip of land shall revert to the vendor herein or to his heirs or assigns.”

Although the vendor in the act of sale of March 18, 1918, designated the 44-foot strip as a dedication for the construction of railroad spur or spurs, counsel for the railroad in brief before the Commission stated that there was serious doubt whether this grant was effective, since it did not refer to any named grantee, that they knew of no way in which such a dedication could be made to the public for a railroad spur, and that there was no method by which a spur could be built into this strip as it met. the railroad at almost a right angle, and. apparently it was 'for these reasons that the grant' of May 2, 1918, to the railroad was executed. To us this explanation seems to be reasonable.

After the execution of this right-of-way deed, the railroad, the grantee named therein, constructed a spur track from its main lines to the rice mill along and over the 17-foot right of way acquired by the railroad from Scharff on May 2, 1918, and this strip on which the railroad spur is situated constitutes the western 17 feet of the 44-foot strip mentioned in the dedication of March - 18, except for a curved portion where the spur joins the main track in the southern part of Block 198.

By mesne conveyances, intervenor, Edgar P. Folse, Inc., acquired all of. Block 193 west of the 17-foot right of way granted to the railroad, which included the rice mill property on which a rice mill had been operated for a good many years, and by mesne conveyances also acquired practically .all of Block 198 lying west of the 17-foot right of way conveyed to the' railroad, and, subject to the railroad’s right of way, also acquired the 44-foot strip in that block as well as 'a triangular plot of ground formed by the angle of the spur track as it ieaves the main track and joins the 44-foot strip.

Intervenor, Edgar P. Folse, Inc. (or its authors in title), has been engaged in the conduct of a mill work, lumber, and building supplies business on the property owned by it in Block 198 since 1922, and on the property acquired by it in Block 193 (the rice mill property) since December, 1941. In connection with this business there have been constructed on the 44-foot strip east of the railroad right of way in Block 198 sheds, offices, storerooms, and various other buildings, and intervenor maintains a planing mill in Block 198, situated on this spur track. In the operation of this business, Edgar P. Folse, Inc.,, has used the spur track continuously, causing shipments to be made; inbound and outbound, over the spur track.

Complainant before the Louisiana Public Service Commission (appellant in this court), Perry J. Burke, is engaged in the business of manufacturing, buying, and selling building materials in New Iberia, and is the owner of practically all of Block 194. On December 8, 1944, Burke also acquired all that portion of Block 193 lying east of the 17-foot right of way granted to the railroad (comprising a part of the 44-foot strip described in the dedication of March 18, 1918), beginning ISO feet from Main Street and extending to Bayou Teche. This strip is adjacent to the property owned by Burke in Block 194, and abuts the railroad, right of way on which the spur track is situated. The act in which this strip was acquired contains a provision that the parties thereto took' cognizance of the fact that the vendee, Burke, was acquiring the strip for the purpose of affording railroad facilities to the tract of land owned by him in Block 194. Since the acquisition of these properties, appellant Burke has established his business thereon, which he alleges requires the use of the spur track.

Complainant and appellant Burke takes, the position that this spur is a public spur track, and that, since he is an abutting property owner, the Public Service Commission should order the railroad to furnish him facilities for the transportation of commodities over the spur track, and, further, should order the railroad to construct, maintain, and operate a switch connection on and across his lands to connect with the spur track.

Intervenor and the defendant railroad take the position that the spur is a private spur, constructed solely for the benefit of the property now owned by Edgar P. Folse, Inc., relying upon the acts and grants made iby Scharff, set out hereinabove.

This spur was constructed .by the rail■road at its own expense. The railroad is the owner of all the material zvhich went into the spztr, including rails, ties, etc., and, since the construction of the spur, has borne the entire cost of its maintenance.

The owner of the rice mill property was not a party to the grant of the railroad’s right of way, and neither he nor Scharff, the grantor and the owner of other abutting property situated in Blocks 193 and 198, had any control, supervision, or authority over the spur track. The railroad had no contract or agreement with the rice mill •owner or Scharff by which either of them ■was to bear any of the cost of construction or have any control or ownership ■ of The spur track. Scharff had' no interest in the strip of land upon which the spur was 'built, other than the reversionary right, •provided in the grant, in favor of him or his heirs or assigns.

In Bedford-Bowling Green Stone Co. et al. v. Oman et al., 115 Ky. 369, 73 S.W. 1038, 1040, the Court of Appeals of Kentucky had before it a case in which one •■quarry company'claimed the exclusive use of a switch leading from the main line of The Louisville & Nashville Railroad Company on the basis of its 'ownership of the switch, whereas another quarry company claimed the right of service over the switch because of a part interest in it, •or in the alternative because the switch ■was a part of the railroad system and the railroad had no right to deny it service. 'The ownership of the switch in that case', .as in this one, was determined by examining the contracts entered into between the various parties having had an interest in the properties over which- it. was built. After setting forth the terms of the last ■contract,, the, court said:

“ * * * This contract, and other evidence in the record bearing upon the question, show that the Louisville & Nashville IRailroad Company, during the continuance of this last contract, has the control and management of the railroad switch. It 'owns, controls, amd operates the engines and other rolling stock which pass over the line. It keeps the roadbed in repair, and owns all of the material which goes into it. So far as this record shows, it exercises the same control and domination over this line that it does over any other part of its system; and we think, by the terms of the contract in question, the switch, during the continuance of the contract, at least, becomes a part of the general system of the Louisville & Nashville Railroad Company. This being so, it can not lawfully refuse to receive and transport freight belonging to appellees to and from such reasonable points along the line at which they may lawfully ship or receive it. * * *» (All italics ours.)

In the case of Alabama Cent. R. Co. v. Alabama Public Service Commission et al., 200 Ala. 536, 76 So. 862, 863, L.R.A. 1918C, 193, a common carrier acquired a license or right to operate its trains over 'the logging road of a sawmill company, but did not own or operate the road, and the sawmill company retained a paramount use of the tracks. Under the contract entered into in that case, the carrier had no right to transport pine lumber over these tracks except for its own use. A shipper applied to the Public Service Commission of Alabama to require the carrier to put "in a side track on this logging road'to serve it in the transportation of pine lumber and other shipments. The Commission -granted such an order, and the railroad applied to the courts of that state for an 'injunction restraining the' enforcement - of the order. The case reached the' Supreme Cohrt of Alabama, and that court concluded that the railroad could not be required to render the service desired- by the shipper, and in the course of its opinion said: ■

. “ * * * If the carrier owner or controlled the logging road under a valid lease, then the Commission coul'd compel -it to serve all the public of the same class alike, and to provide facilities reasonably adequate to accommodate shippers desiring service of the carrier. In such cases, where the carrier owns, or, 'by lease or otherwise, has the control of, the tracks and lines over which it operates its trains, it cári be' required to serve all customers of the same class on equal terms, and thus avoid discriminations,; and the carrier cannot, by contract with some of its customers or with third parties, exempt or excuse itself from thus treating all alike, and thus discharging its duties as common hairier to the public. But where the carrier does not own or control •the track which it uses, hut uses the same as a mere licensee, or under an agreement such as is found in this case, the Commission nor the cou'rts ccmnot authorize, much less compel, the carrier, thus operating under a mere license, to improve or change the main lines, side tracks, or the loading facilities of the line over which it is so operating, without right of control, but with the mere right to repair and keep up the lines, as: in'this cáse.
íjt Sjí í}{ í¡í }{< %
“If the logging road in question were a public highway, or a railroad in which the public had acquired rights by condemnation proceedings or by dedication to a public use,..,and its owners or those who had acquired control of it were common carriers, or were engaged in the business of a public service, then the Public Service Commission or the courts, when authorized by the Legislature, could regulate and control the use of the railroad. so as to serve the public, and do so without discrimination. Here, however, the road involved . is a private road and not a public one, and those who own, and have the exclusive control of it, are private individr uals or corporations, who have merely consented or agreed that appellant, a public service, corporation, may use it under certain restrictions and regulations. * *

The Supreme Court of Arkansas in Conway Oil & Ice Co. v. Gibson Oil Co., 175 Ark. 905, 1 S.W. 2d 60, 62, stated the rule • with • reference to what constitutes private and public spurs in the following language: '

“It will be observed * * * that, where the spur is built for a. shipper and the shipper becomes the owner outright, its ownership 'of that property is like the .ownership of any other property. It does not belong to the railroad'then,'and it is not a part of its system, but, in all cases where the 'railroad company itself owns the switch or spur -and controls it,'it is bound to permit the public to use it if such use is needed by the public. * * *” ■ ' '

The appellant has cited the case of Union Lime Co. v. Chicago & Northwestern Railway Co., 233 U.S. 211, 34 S.Ct. 522, 525, 58 L.Ed. 924, in which the Supreme Court of the United States considered a statute: authorizing the expropriation of property for the .building of a spur -track, Although,-under the.facts, that case is not decisive of the issue, here involved, we think the following statement from that decision is pertinent: . . '

“ * * * A spur may, at the outset, ■lead only to a single industry or establishment ; it may- be constructed to furnish an outlet for the products of a particular plant; its costs may be defrayed by those in special need of its service at the time. But none the less, by virtue of the conditions under which it is ■ provided, the spur may constitute at all times- a part of the transportation facilities ot the carrier- which are operated under the obligations of public service, and are subject to the regulation of -public authority. As was said by this court in Hairston v. Danville & W. R. Co., 208 U.S. 598, 608, 28 S.Ct. 331, 52 L. Ed. 637, 641, 13 Ann.Cas. 1008: 'The uses ;for which the track was desired are not the less public because the motive which dictated its location over this particular land was to, reach a private industry, or because the proprietors of .that industry contributed in any way to the cost.’ , There is a clear distinction between spurs which. are owned and .operated by. a common carrier as a part of its system and under its public obligation and merely private sidings. * * * ”

Under the authorities cited herein-above and under the facts of the case now under consideration, we are of the opinion that the spur in question is a public spur and forms a part of the transportation .facilities and system of the, railroad, and thus is within the contemplation of Article 13, Secton 3, of the Constitution .of this state, which provides that all railroads are declared to be public highways. ,

The' Public Service Commission itself, in- its order of December 10, 1947, recognized the distinction between public and private spur tracks thus :■ (1) Public tracks are for the use of the general public,' are rrs-ua'lly owned outright by the rail carrier, and are generally built upon railroad owned or leased land and not upon land belonging to a private individual. (2) Private industrial spurs are built to serve one par-, ticular industry or business, are not open to the use of the general public, are built as a rule upon land owned by the industry, and their construction cost is apportioned between the rail carrier and the industry.

Since this spur is a public spur track, complainant had a right to request service over it in a proceeding before the Public Service Commission, and in the absence of some valid reason he would be entitled as á matter of right to such -service, but this right is not absolute in all cases.

A case in which such right was held not to be absolute is that of Louisville & N. R. Co. v. Pittsburg & K. Coal Co., 111 Ky. 960, 64 S.W. 969, 971, 55 L.R.A. 601, 98 Am.St.Rep. 447. In.that case a shipper, sought a mandatory injunction to compel a railroad to extend service on a railroad switch which had been built from the main line into the City of Newport for the purpose of facilitating the, business of various enterprises fronting on Lowell Street. The railroad had refused this service because of a contract which it had made with a coal company, another shipper, from which the railroad had secured a part of the right of way for -the switch, and in the contract the railroad had agreed not to ship coal from any other company except the one granting the right of-way. The court held that such a contract impaired the obligation of the railroad to the general public and was contrary to public policy in that it gave to one company the exclusive use of the switch, and consequently was null and void. After concluding that the contract was null, and that the plaintiff had a right to service over the switch, the court nevertheless denied to the plaintiff a mandatory injunction, stating:

“But there is another feature presented by, this case which remains to. be considered. Appellee has no spur or side track from Lowell street into its grounds, and seeks in thi-s proceeding to compel the railroad company to stand the freight cars on their track in the center of Lowell street in front -of their property, and to be loaded, and it does not appear ■ -that the city has ever authorized such a . use of the street. It is manifest, .that if appellant is required to halt cars on its track in front of appellee’s place, and leave them there to be loaded and unloaded, it will materially obstruct the use of the switch track by parties living beyond appellee’s yard, and might subject appellant to prosecution by the city for unlawfully obstructing a public street and converting it into a private coal yard. In the absence of express authority from the city of Newport authorizing1 such use of the street, and conclusive testimony that it would not be'prejudicial to the use of such switch by the appellant’s other patrons, we think the court erred in granting the injunction'.”

This brings us to the question of whether the Public Service Commission , had the authority under, the laws of this state to deny to appellant Burke the service requested, notwithstanding the fact that this is a public spur -track, and, if so, whether the Commission’s ruling denying such service was unreasonable, arbitrary, ■ and discriminatory.

Article 6, Section 4, of the Constitution of this state provides that the Public Service Commission shall have-and exercise all necessary power .and authority- to supervise, govern, regulate, and ton-trol all common carrier railroads, and that the povuer and duty of such 'Commission shall affect and include dll, matters and things connected with, concerning, and growing out of the service to .be given or rendered, by common carriers.

Under this-express grant of power, the Commission had full’ authority to enter the order of which appellant complains. There thus remains for our consideration the sole question of whether the order was unreasonable, arbitrary, or discriminatory, and, in the absence of any such -showing, under the well established jurisprudence of this state it should not be disturbed. Empire Rice Milling Co. et al. v. Railroad Commission of Louisiana, 143 La. 1036, 79 So. 833; Vicksburg, S. & P. Ry. Co. v. Railroad Commission of Louisiana, 153 La. 983, 96 So. 832. See also Lake Charles Ry., Light & Water Co., Inc., v. Reid, Sheriff, etc., et al., 152 La. 476, 93 So. 743; 44 Am.Jur., “Public Administrative Law”, sec. 216, p. 641.

The Commission stated in the course of its written reasons for rejecting appellant’s demand that:

“To consider the more pragmatic aspects of the question; the Commission has found in its long experience that it is virtually impossible for two industries to be served, in tandem, by one spur; for in order to spot or pull out cars ait the farther industry, it is necessary for the switch engine to pull out the cars already spotted: at the nearer industry and thus interrupt the loading and unloading operations of the industry nearer the main line. This disturbance not only creates serious difficulties for the industry but is extremely burdensome to the carrier in its switching operations, particularly where the spur branches directly from the main line and there is no intermediate sidetrack.
# # * * m= *
, * * If the complainant’s contention should prevail, then any party who happened to own a tract of land contiguous to that of the Standard Oil Company at Baton Rouge, for example, could demand service over the Standard Oil spurs; and should this doctrine spread, the industrial organization of this átate would be thrown into unimaginable chaos. The Commission, being mindful of its constitutional duties and responsibilities, cannot and will not voluntarily promulgate any order which would envisage, or- contribute to, such catastrophic results. * * * ”

The trial judge in refusing to disturb the order of the Commission said in his reasons for judgment:

“The trial on the merits revealed that the plaintiff’s business is presently being served by another spur track in which he has an interest and which is operated by the Southern Pacific and Missouri Pacific railroads jointly. -Although the plaintiff testified that the service furnished by this spur track is not adequate and that he needs additional railroad spur facilities to enlarge and properly conduct his business, nevertheless, he is able to conduct his business and apparently is prospering in doing so. Plaintiff also pointed out that if other industries start using this spur, and that there is a likelihood that this may happen, then he would be in a very difficult position to continue operating. Plowever, the Commission found that if the intervenor, Folse, was required to share this spur with the plaintiff, then he would be greatly inconvenienced and the spur track 'in question would be made practically useless to him. In such cases the Commission must necessarily take all of the factors into consideration and weigh the rights and equities of the parties and exercise their great power judiciously and to the best interest of all concerned.”

Appellant Burke does not make any showing that the order of the.Commission is unreasonable, arbitrary, or discriminatory, but relies solely on the contention that the spur is a public one and that, as an abutting property owner, he is entitled to service thereon; nor does he make any effort to rebut or contradict the showing of the in-tervenor, Edgar P.. Folse, Inc., that the use of the spur track by Burke would greatly interfere with its business. Under these circumstances we do not think that the judgment of the district court affirming the order entered in this matter by the Public Service Commission should be disturbed.

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

O’NIELL, C. J., takes-no part.


author: HAMITER, Justice.

text:
    215 La. 472
    Successions of SCARDINO et al.
    No. 38811.
    Supreme Court of Louisiana.
    April 25, 1949.
    Rehearing Denied May 31, 1949.
    Henry J. Voss, Henry L. Oulliber, Jr., and Robert J. Pitard, New Orleans, for plaintiffs-appellees.

      Geo. Montgomery, New Orleans, for defendant-appellant.
   HAMITER, Justice.

Defendant, Mrsi Rose Milazzo Saladino, is appealing from a judgment which recognized her and the four plaintiffs (John Mil-azzo, Mrs. Jennie Milazzo Cardar-o, Mrs. Catherine Milazzo Maniglia and, Mrs. .Annie Milazzo Sullivan) -to be the sole heirs of their deceased parents, Nice olo- Milazzo and Mrs. Frances Scardino Milazzo, each entitled as such to an undivided pne-ftfth of the estates of decedents; which decreed a -partition by licitation of the properties of the successions; and which ordered the defendant to collate to the succession of the mother the sum of $3,000 by taking less in the settlement thereof. Appellant’s.'complaint concerns primarily the collation order.

On January 20,. 1943, plaintiffs opened the mentioned successions by applying for the appointment of John Milazzo as administrator. The petition alleged that the parents died intestate, the father on February 26, 1936, and the mother on August 4, 1942, and that there were debts -due by the estates. The application wás " dismissed, the court having concluded on a hearing of an opposition tendered by defendant that an administration was unnecessary.

Subsequently, and in the same proceeding, plaintiffs filed another petition seeking a partition of the properties of the two successions and demanding collation by defendant in the sum of $3,000. Therein, it was alleged that the plaintiffs and the defendant were co-owners in indivisión of the properties. Following defendant’s filing of certain exceptions, particularly exceptions of no right and no cause of action, this petition was dismissed as of voluntary non-suit.

In a later petition, filed in the same proceeding, plaintiffs made similar demands but alleged that they and defendant were co-heirs (not co-owners) in indivisión. The allegations of this petition were ultimately placed at issue through an answer tendered by defendant, and, after trial, the court rendered the judgment from which the instant appeal was taken.

At the outset appellant (defendant) urges, under an exception filed in limine and overruled, that Division “D” of the Civil District Court of Orleans Parish was without jurisdiction to entertain the last petition presented by plaintiffs. It is argued that such petition should not have been filed in and as a part of the original proceeding (allotted to Division “D”), because it represented a new action which, under the rules of the district court, should have been given a new number and regularly allotted. Since the last petition contained demands "for a partition of the successions’ properties and for collation by one of the heirs, the filing of it in the original proceeding in which the successions were opened seems proper.' Whether the rules of the district court provide otherwise we are unable to determine; those rules are not a part of the record before us and we can not take judicial notice of them. Bowman v. Flowers, 2 Mart., N.S., 267; Herring v. Price (La. Court of Appeal, Second Circuit), 169 So. 349.

On the merits of the case all of the litigants agree that the properties left by decedents should be sold to effect a partition. The dispute concerns only appellees’ demand that appellant collate to the mother’s succession the sum of $3,000.

In resisting this demand appellant insists (1) that the -five litigants are co-owners. (not co-heirs) in indivisión and consequently, under our jurisprudence, collation cannot be compelled; and (2) that she did not, receive from the mother the sum of $3,000 for which collation is demanded.

As a basis for the first proposition appellant’s counsel invokes the well Settled doctrine that collation cannot be exacted in-partitions among co-owners. Mitcham et al. v. Mitcham et al., 186 La. 641, 173 So. 132; Prichard v. McCranie, 160 La. 605, 107 So. 461; Duffourc v. Duffourc, 154 La. 174, 97 So. 391. Then he directs attention to the allegation made by plaintiffs in their voluntarily nori-suited petition that they and the defendant are co-owners in indivisión of the properties'; and he argues, to quote from his brief, that “Any admissions they may have made in this first suit were binding on them and could not be withdrawn to the prejudice of the defendant.” The withdrawn allegation was merely a" conclusion of law which "in no manner prejudiced " the rights of this defendant. And, being non-prejudicial, it could not and did not serve to estop plaintiffs in assuming their present position that the litigants are co-heirs. Janney v. Calmes et al., 212 La. 756, 33 So.2d 510, and cases therein cited.

Again, defense counsel shows that the parties admittedly. divided the furniture and other movable effects o'f the successions and that they also signed an agreement to sell all of the real estate thereof (obviously the sale was not consummated); and he conténds that these were acts which could only be exercised by co-owners and constituted the tacit acceptance contemplated by Revised Civil. Code Article 988, reading: . .

“The, simple acceptance may be either express or tacit.
* * * *
“It is tacit, when some act is done by the heir, which necessarily supposes his intention to accept, and which -he would have no right to do but in his -quality of heir.”

The mentioned acts of the litigants, unquestionably, amounted to a tacit and unconditional acceptance of the successions, and in one sense of the word the acceptance was performed by them in the capacity of owners. As a matter of fact, under the fiction of law well known as le mort saisit le vif, they became owners immediately on the deaths of the decedents. Revised Civil Code Article 940, Succession of Blumberg, 148 La. 1030, 88 So. 297. But the unconditional acceptance of the instánt successions alone could not affect appellees’ rights to demand collation by appellant. As said in Revised Civil Code, Article 1228:

“Children ■ or grandchildren, coming to the succession of their fathers, mothers or other ascendants, must collate what they have received from them by donation inter vivos, directly or indirectly, and they can not claim the legacies made, to them by such ascendants unless the donations and legacies have been made to them expressly as an advantage "over their co-lieirs, and besides their portion.'
“This rule takes place whether the children. or their 'descendants succeed to their ascendants as legal or as testamentary heirs, and whether they have accepted the succession unconditionally, or with the 'benefit of inventory.”

Until the heirs are sent and put" into, possession as owners’ by a judgment of court, which effects a closing of the ‘succession, they are to be treated as co-heirs and governed by 'the rules of law relating to the settlement of estates, including the matter of collation. Caraway v. Hebert (La. Court of Appeal, First Circuit), 182 So. 164, Montz v. Montz (La. Court of Appeal, Orleans Circuit), 2 So.2d 251, Fabacher v. Fabacher, 214 La. 940, 39 So.2d 426. When the succession is thus closed the heirs are deemed" co-owners -or" co-proprietors of the property theretofore belonging to the succession, just as if" they had acquired it jointly by purchase. They then come within the contemplation of the doctrine (enunciated by the cases cited and relied on by defense counsel, in each of which the heirs had been sent into possession under a formal judgment) that collation cannot be exacted in partitions -among co-owners. Doll v. Doll, 206 La. 550, 19 So.2d 249. The parties in the instant. case have not been placed judicially in possession of the estates of their parents; hence, a demand for collation is authorized.

Collation is the retfifning to the estate of a deceased person, any gifts or advances which any of the descendant heirs may have received by donation or otherwise1 during the lifetime of the.'decedent. -The obligation to collate is founded upon the 'equality ' which must be maintained among the -lawful decedents who divide the succession of their ancestor. Revised Civil Code Articles 1228 and 1229; Doll v. Doll, supra. The heir should collate that which: he has wrongfully taken from the ancestor, the same as that which he received as a gift or an advance. Succession of Couder, 46 La.Ann. 265, 14 So. 907.

With these principles in mind we approach the remaining question (one of fact) of whether appellant obtained from the mother the sum of $3,000 for which collation is demanded.

It appears that on August 3, 1942, while the mother was desperately ill at the French Hospital in New Orleans (she died the next day), John Milazzo and Mrs. Jennie Cardaro (two of the plaintiffs) and the defendant surrendered certain homestead stock certificates owned by their mother (in accordance with instructions previously given them) to the Commonwealth Homestead Association, and they received therefor a check, payable to the mother, in the amount of $3,505.55. Immediately thereafter they cashed the check at the National Bank of Commerce of New Orleans, Mrs. Cardaro and the defendant having signed their names on the reverse side of the check beneath an X mark which was substituted for the mother’s signature. Then the three journeyed in John Milazzo’s automobile to the Treme Branch of the National Bank of Commerce located at the corner of North Claiborne Avenue and St. Ann Street (in the vicinity of the homes of plaintiffs and the mother) where a safety deposit box was rented in the name of the defendant.

The above recited facts are not disputed. But as to what ultimately became of the obtained proceeds, particularly $3,000 thereof for which collation is demanded, there is a 'hopeless and irreconcilable conflict in the evidence offered by plaintiffs . on the one hand and by defendant on the other.

The testimony of John Milazzo and Mrs. Cardaro is to the effect that after arriving at the Treme Branch, arranging for .the bank box,- and' paying the rental out of the -odd $5.55 of the check’s proceeds, the. three of them, accompanied by the official in charge, repaired to that box and deposited therein the $3,500, consisting of large bank notes and contained in an envelope. Those plaintiffs, as well as plaintiff M-rs. Maniglia, further testified that three or four days after the mother’s death all of the children except Mrs. Sullivan (who was then ill in the hospital) assembled at the -home of the mother to count the money contained in the latter’s purse. On the completion of this task Mrs. Cardaro listed on the back of an envelope the sum found, less an amount deducted for payment of certain current debts of the mother; also she wrote thereon “In Bank Box 3500.00, out 500.00, Bal. in Box 3000.00.” Then, beneath those notations, the signatures of the assembled four, including that of the defendant, were affixed. The balance from the purse plus the mentioned $500, explained the plaintiffs, was to be used in paying funeral expenses ; and the attested memorandum (produced and placed in evidence during the trial) was prepared for the benefit of the ill sister, Mrs. Sullivan.

Some ■ few days later, those witnesses further testified, the defendant delivered to M-rs. Maniglia $500 in bank notes; and with it and the purse balance she on August 16, 1942, paid the mother’s funeral bill.

The testimony of the defendant is that on reaching the Treme Branch of the National Bank of Commerce she personally rented and paid for the safety box and, while John Milazzo and Mrs. Cardaro waited in the bank lobby, she went to the box with the bank official and placed therein $1,200, contained in- an envelope and which was her individual funds. She denied emphatically that the $3,500, obtained that day by the three from the homestead stock surrender, was deposited in that box as her companions assert. The $1,200, she insisted, was left by her first 'husband who died in 1921, and since his death’ it had been kept most of the time at her home. Expecting to be absent for several days because of the mother’s serious illness and 'being afraid that her house might burn, she decided to place the money in a safety box. . Challenging the truthfulness of this testimony, plaintiffs’ counsel show that the bank in question is located in the downtown section of New Orleans, several miles from defendant’s home which is on Toledano Street in the uptown section; and they suggest that if defendant had such funds to safeguard the renting of a box in a bank nearer her home would have moré conveniently served her purpose.

Defendant admitted that she was present when the money in the mqther’s purse was counted and that she signed the memorandum prepared by Mrs. Cardaro. But she does not agree that it contained at that time a notation showing $3,500 to be in the bank box. She directs attention, in this connection, to the fact that the word “Box” is interlined diagonally in both places on the memorandum, and she urges that a subsequent alteration occurred. Mrs. Car-daro, however, stated (and the other plaintiffs present corroborated her testimony) that the interlineation took place before the signatures were affixed.

Defendant also vigorously denied having delivered $500 to Mrs. Maniglia to be used in paying the funeral bill. But Mrs. Sullivan (in corroboration of the testimony of the other plaintiffs) testified that defendant, while visiting in her home after her return from the hospital, admitted having made the delivery to Mrs. Maniglia of the $500 and that it was a part of the original $3,500 obtained from the homestead stock. Too, a colored woman, offered as a witness for plaintiffs, told of being in Mrs. Sullivan’s home during a visit there by defendant and of having heard the latter state that the money was in her name.

For correctly determining an issue of fact such as the instant one, where there exists a glaring irreconcilable conflict in the testimony, it is necessary to pass upon primarily the question of the veracity of the witnesses. To do that the trial judge occupies a much better position than does an appellate court, for he has the opportunity of hearing the witnesses and of observing their demeanor when testifying. And that more advantageous position is the reason for the well recognized doctrine that where the credibility of witnesses is involved the finding of fact of the trial judge must be given great weight and should not be disturbed unless manifestly erroneous.

Applying this doctrine, which is clearly appropriate here, we are unable to conclude that manifest error attends the finding that the defendant received the $3,000 in question. Accordingly, as was correctly held, she must collate that amount to her mother’s succession.

The judgment is affirmed.

O’NIELL, C. J., takes no part.


author: PER CURIAM.

text:
    Ralph CHERIN, suing on behalf of himself and all others similarly situated, Petitioner, v. SOUTHERN STAR LAND AND CATTLE COMPANY, INC., etc. et al., Respondents.
    No. 59918.
    Supreme Court of Florida.
    May 14, 1981.
    Rehearing Denied July 20, 1981.
    Marsha Palmer Niles, Coral Gables, and William S. Frates and R. Thomas Farrar of Frates, Jacobs, Farrar, Novey & Blanton, Miami, for petitioner.
    Gary M. Farmer of Abrams, Anton, Robbins, Resnick, Schneider & Mager, Hollywood, Richard H. Critchlow of Tew, Critch-low, Sonberg, Traum & Friedbauer, Miami, and Edward S. Polk of Becker, Poliakoff & Streitfeld, Fort Lauderdale, for respondents.
   PER CURIAM.

The District Court of Appeal, Third District, in Cherin v. Southern Star Land and Cattle Company, Inc., 390 So.2d 104 (Fla.3d DCA 1980), affirmed an order of the trial court striking the plaintiff’s class action claim for fraud. The district court cited as authority for its affirmance Frankel v. City of Miami Beach, 340 So.2d 463 (Fla.1976), and Osceola Groves, Inc. v. Wiley, 78 So.2d 700 (Fla.1955). Intending to afford this Court a vehicle for review so that we could consider the desirability of continued adherence to the fraud class action rule enunciated in Osceola Groves, the district court certified this case to us as one which passed upon a question of great public importance. After having considered the arguments of counsel, we conclude that the record in this case does not establish sufficient facts for us to adequately respond to the certified question.

Accordingly, we respectfully decline to accept jurisdiction in this case.

It is so ordered.

SUNDBERG, C. J., and ADKINS, BOYD, OVERTON, ALDERMAN and MCDONALD, JJ., concur.

ENGLAND, J., dissents.