author: FOURNET, Justice. PONDER, Justice.

text:
    214 La. 444
    DOLL v. MEYER.
    No. 38882.
    Supreme Court of Louisiana.
    April 26, 1948.
    On Rehearing Nov. 8, 1948.
    Rehearing Denied Dec. 13, 1948.

      C. E. Loeb, of New Orleans, for Joseph T. Meyer, defendant-appellant.
    Baldwin, Haspel & Molony, Emile A. Wagner, Jr., Harold Rouchell, Gauche & Wegener, Rene R. Nicaud, Albert E. Mou-lin, Mark W. Malloy, Johanna Palermo, Allain C. Andry, Jr. and Percival H. Stern, al of New Orleans, amici curiae.
    Marion G. Seeber and Delvaille H. Theard, both of New Orleans, for Warren A. Doll, plaintiff-appellee.
   FOURNET, Justice.

Joseph T. Meyer is appealing from a judgment ordering him to specifically perform his contract to purchase from Warren A. Doll Lots Nos. 1-14 in- Square No. 88, bounded by Tchoupitoulas, Religious, St. James, and Celeste streets in the City of New Orleans, together with the improvements thereon designated by the municipal numbers 1739 Tchoupitoulas Street and 505 Celeste Street.

This case was submitted under Section 8 of Article X of our rules while the court was in recess and the facts pertinent to a decision, according to the agreed stipulations of the parties, reveal that the- property forming the basis of the suit was, in default of individual bidders, adjudicated to the state in 1934 for the nonpayment of the 1932 taxes assessed in the name of Philip Romano. A patent to this property was issued to Warren A. Doll, the successful bidder when it was sold by the state at public auction on September 7, 1946, in accordance with the provisions of Act No. 237 of 1924, as amended by Act No. 296 of 1944. After failing to locate Romano or his heirs in an effort to buy out whatever rights they might have in and to the property, Doll, under the provisions of Act No. 106 of 1934, instituted proceedings that were carried on contradictorily with a curator ad-hoc appointed to represent Philip Romano and/or his heirs and secured a judgment on July 8, 1947, quieting his title to the property. On July 17 following, Meyer, by written contract, agreed to purchase this property. When he later refused to accept title, Doll instituted this suit to compel the specific performance of the contract.

It is conceded by the defendant that no encumbrances or liens have been recorded against this property in the name of Doll. However, he takes the position that the title tendered him is defective and suggestive of litigation, and, therefore, not merchantable.

In Section 11 of Article X of. the Constitution of 1921, providing for the forfeiture and sale of property for the nonpayment of taxes, it is provided: “No sale of property for taxes shall be set aside for any cause, except on proof of payment of the taxes for which the property was sold prior to the date of the sale, unless the proceeding to annul is instituted within six months from service of notice of sale, which notice shall not be served until the time of redemption shall have expired and within five years from the date of the recordation of the tax deed, if no notice is given. * * * The manner of notice and form of proceeding to quiet tax titles shall be provided by law.”

The legislature in following this mandate adopted its Act No. 106 of 1934 providing that the purchaser of property at tax sales can, after the lapse of three (as provided in Section 1) or five years (as provided in Section 3) institute suit by petition and citation as in ordinary actions against the former proprietor or proprietors of the property wherein such .former proprietor is informed, among other things, that title to the property will be quieted and confirmed unless a proceeding to annul is instituted within the required time of six months in the case of three years or ten days, in the case of five years. The act further provides that in the event the former proprietor "be a non-resident of the State, or unknown, or his residence be unknown, the court shall appoint a curator ad hoc to represent him and receive service.”

Obviously the procedure sanctioned by the constitution is for the purpose of quieting titles as to any defects or irregularities in the tax sale, other than prepayment of taxes. See, In re Quaker Realty Co., Ltd., 122 La. 229, 47 So. 536; Folger v. St. Paul, 130 La. 1082, 58 So. 890; Chapman-Storm Lumber Co. v. Board of Commissioners, 196 La. 1039, 200 So. 455; Third Dist. Land Company v. Lassere, 204 La. 451, 15 So.2d 850. It is also clearly contemplated that the suit is to be instituted against the proprietor or owner of the property. See, Slattery v. Kellum, 114 La. 282, 38 So. 170; In re Sheehy, 119 La. 608, 44 So. 315; Webb v. Shiflett, 168 La. 920, 123 So. 620.

Since it does not appear in the agreed statement of fact that Philip Romano was the proprietor or title owner of the property or that there was no dual assessment thereof, it necessarily follows that we cannot say the title being tendered the defendant is not suggestive of litigation and we will not, therefore, exercise the power vested in us to coerce the defendant into specifically performing the contract.

The case of Clayton v. Quaker Realty Company, 128 La. 103, 54 So. 486, relied on by the plaintiff as being decisive of the issues in this case, is authority only for the proposition that tax titles may be confirmed and quieted as to any defects in the tax sale when the suits are carried on contradictorily with the curator ad hoc appointed to represent the owner of the property by the court.

For the reasons assigned the judgment appealed from is annulled and set aside and the suit is dismissed.

O’NIELL, C. J., dissents.

On Rehearing

PONDER, Justice.

The property involved in this suit was adjudicated to the State in 1934 for the nonpayment of the 1932 taxes assessed in the name of Philip Romano, the then registered owner. A patent was issued conveying this property to Warren A. Doll, who successfully bid it in at public auction on September 7, 1946 in accordance with the provisions of Act No'. 237 of 1924, as amended. A suit was instituted and carried on contradictorily with a curator ad hoc, appointed to represent Romano and his heirs, under the provisions of Act No. 106 of 1934 and a judgment was rendered on July 8, 1947 purporting to quiet Doll’s title to the property. Shortly thereafter Joseph T. Meyer agreed to purchase this property from Doll. Upon the refusal of> Meyer to accept the title, this suit was instituted by Doll to compel the specific performance of the contract. Upon trial the lower court gave judgment ordering Meyer to specifically perform his contract. Meyer appealed from the judgment to this Court and, on hearing of the appeal, this Court annulled the judgment and dismissed the plaintiff’s suit. A rehearing was granted on the application of the plaintiff, appellee, and the matter has been submitted for our determination.

The only question urged by the plaintiff, appellee, as stated in his first' supplemental brief on rehearing, is whether or not the judgment of the trial court confirming Doll’s title to the property is res judicata as to all questions which were raised or could have been raised in the confirmation suit thereby forever debarring the former proprietor and his heirs from making any attack on the title .should they ever reappear.

The confirmation suit was brought under the provisions of Act No. 106 of 1934, which is designed to quiet tax titles in accordance with Section 11 of Article 10 of the Constitution of 1921. We pointed out in the case of Police Jury of Jefferson Davis Parish v. Grace, 182 La. 64, 161 So. 22, that the context of Article 10, Section 11 of the Constitution contains no reference to or provisions for sales or adjudications to the State and that this section of the Constitution has reference only to tax sales to third persons. We have again reviewed this section of the Constitution and are firmly convinced that it has reference only to what is properly termed tax sales, i. e., tax sales to persons other than the State. Act No. 106 of 1934 is designed to quiet tax titles in accordance with this section of the Constitution and its context leaves no doubt that it refers to tax sales properly and not to adjudications made to the State for want of a bidder. The judgment of the lower court purporting to quiet the title is of no effect because it is not authorized by law.

• Counsel for the plaintiff, appellee, has cited several decisions of this Court rendered before the adoption of the Constitution of 1921 which he claims are pertinent and contrary to the views expressed herein. These decisions were handed down prior to the adoption of the Constitution of 1921 and the passage of Act No. 105 of 1934. We see no necessity to review the articles of the prior Constitutions and the various acts of the Legislature in effect at the time these decisions were handed down for the reason that the constitutional provision, Section 11, Article 10 of the Constitution of 1921, which governs the present suit, was correctly interpreted in the Grace case and Act No. 106 of 1934 merely provides for the quieting of titles in accordance with, this provision of the Constitution.

It is contended that our holding in the case of Westwego Canal & Terminal Co., Inc., v. Lafourche Basin Levee District, 206 La. 270, 19 So.2d 133, in effect overruled our pronouncement in the Grace case. We have carefully reviewed the case relied on and do not find anything therein inconsistent with the interpretation placed on Section 11, Article 10 of the Constitution of 1921 in the Grace case or with the views expressed herein.

For the reasons assigned, our original judgment is reinstated and affirmed at the cost of plaintiff, appellee.

O’NIELL, C. J., does not take part.


source: Caselaw Access Project

author: FOURNET, Justice.

license: Public Domain

text:
    214 La. 453
    STATE v. WILDE.
    No. 38667.
    Supreme Court of Louisiana.
    Nov. 8, 1948.
    Rehearing Denied Dec. 13, 1948.

      Maurice B. Gatlin and Harry R. Hill, both of New Orleans, for appellant.

      Fred S. LeBlanc, Atty. Gen., M. E. Cul-ligan, Asst. Atty. Gen., and Herve Raci-vitch, Dist. Atty. and Charles Janvier, Asst. Dist. Atty., both of New Orleans, for ap-pellee.
   FOURNET, Justice.

The defendant, Langburn A. Wilde, is appealing from his conviátion of the crime of forgery on two counts — the first charging him with forging an instrument on October 5, 1946, purporting to be a bill of sale for a Studebaker automobile and the second charging him with issuing the instrument on October 17, 1946, with intent to defraud — as well as his sentence to serve two years at hard labor in the .State Penitentiary on each count, such sentences to run concurrently. He relies, for the reversal of his conviction and sentence, on eight bills reserved during the course of his trial. In order that these bills may be properly understood and disposed of, a brief statement of the facts that were developed during the trial of the case, as reflected by the trial judge’s per curiams, is necessary.

The defendant, operating under the name of the C. & W. Motor Company, was engaged in the business of buying and selling used cars. In order to finance his operations, it was necessary for him, from time to time, to obtain loans from the Mossier Acceptance Company, doing business in New Orleans as the Central Finance Company. These funds were obtained through what is known in the trade as a “floor plan,” whereunder the company loaned him money on individual automobiles as they came into his possession, securing the loan with a chattel mortgage on the automobile. In accordance with the company’s regulations, however, no amounts were loaned until the defendant had produced, as the indi-cia of his ownership of the car on which the money was being advanced, a bill of sale. The sums obtained in this manner were repaid out of the proceeds received as soon as the car was sold.

•On October 5, 1946, Wilde forged what purported to be an act of sale of a 1941 Studebaker automobile from James H. Ra-balais, this being the same car that he had previously sold to Rabalais on July 2. On October 17 thereafter, he presented this forged bill of sale'to the company for the purpose of securing a loan of $650 thereon and he executed the usual chattel mortgage ■as security. Shortly thereafter, in a routine check made by a representative of the finance company, it was found that a number of the cars against which it held chattel mortgages were missing. Becoming suspicious that something had happened to them, •the company filed executory process, seizing the Rabalais car while in his (Raba-lias’s) possession. This prosecution followed.

The first three bills of exceptions -are so interrelated they will be treated and disposed of together, as was done by the trial judge. The first bill was reserved when the judge refused to order the production of all the papers, books, records, and documents of any and all kinds showing all transactions between Wilde and the finance company during the entire year 1946. Bill of Exceptions No. 2 was reserved when the trial judge refused to order the production of the documents (called for in a modified motion for a subpoena duces tecum) that would show the amount held by the finance company to Wilde’s credit and any payments made to Rabalais subsequent to the date on which the information was returned against the defendant. The third was reserved when the trial judge ordered the defendant to trial despite his objection to being tried without the production of these documents.

While it is true that the legislature failed to specially provide for the issuance of the subpoena duces tecum in the adoption of any act dealing with the criminal law and procedure of this state, it is, nevertheless, well within the plenary power of the court, to be exercised in the sound discretion of the trial judge, to order the production of any evidence, including books, documents, or records of a third party that is necessary and material, whether such subpoena, is sought on behalf of the prosecution or the defense. See Article VII of the Constitution of 1921, Sections 28 and 83.

In his per curiams to these bills the trial judge states he refused to order the production of these records because they could 'have served no purpose other than to confuse the issues, encumber the record, and delay the trial by the examination of irrelevant documents; that the defendant did not state what he hoped to prove by these' documents, and, besides, made his request so general it was impossible’ to identify any particular document needed. He states, further, that he made these rulings with the full explanation that if, during the course of the trial, any good reason could be advanced indicating such records should be produced to prevent a miscarriage of justice he would, at that time, order their production; but that it subsequently developed only those documents showing the amount of money deposited with the finance company to the defendant’s credit had any bearing on the case.

The company readily admitted the defendant had the sum of $1,250 to his credit according to its records. In fact, the transcript shows the trial judge, upon this admission, advised counsel fof the defendant that the documents showing these credits would be admitted and they were, in fact, offered in evidence by the defendant.

Under these circumstances the trial judge was well within his discretion in refusing to comply with the defendant’s requests and his rulings in these respects will not be disturbed.

Bill of Exceptions No. 4 was reserved when the judge permitted the state, through the examination of witnesses, to show the party defrauded by the forgery, despite the fact that the judge had previously refused to order the state to set out in a bill of particulars this party’s name.

In his per curiam to this bill, the trial judge points out that the defendant reserved no bill when his motion for á bill of particulars was refused. Furthermore, this court has consistently held that it is not necessary to name the party defrauded or intended to be defrauded in an indictment or bill of information charging forgery and that the defendant is not entitled to such information unless it be necessary to the proper defense of his case. State v. Gaubert, 49 La.Ann. 1692, 22 So. 930; State v. Ducre, 173 La. 438, 137 So. 745. Necessarily, since the gravamen of the offense is that the accused committed the forgery with the intention of defrauding, evidence showing a fraud was perpetrated on a particular party by the utterance of such instrument is relevant.

The next bill was reserved when the judge permitted the state to introduce evidence tending to show the commission of other and unrelated crimes by the accused, and particularly when he permitted the examination of Stephen Van Norman and Landry DeSoto and the introduction of the records in other cases in which this same accused is being prosecuted.

The general' rule that evidence tending to show the accused, who is being prosecuted for a particular crime, has committed another crime wholly independent of and unconnected with that for which he is on trial is irrelevant and inadmissible even though it is a crime of the same sort, is subj ect to a number of exceptions. Such an exception is “When knowledge or intent forms an essential part of the inquiry.” In such case “testimony may be offered of such acts, conduct or declarations of the accused as tend to establish such knowledge or intent and where the offense is one of a system, evidence is admissible to prove the continuity of the offense, and the commission, of similar offenses for the purpose of •showing guilty knowledge and intent, but not to prove the offense charged.” Article 446 of the Code of Criminal Procedure.

The trial judge in his per curiam states he permitted the introduction of this evidence because he considered it necessary not only to show knowledge and intent but also because the evidence disclosed this particular transaction was only one of a system of transactions to defraud the company. It is our opinion that his ruling was correct. This evidence was particularly material in this case. Wilde readily admitted he forged the instrument described in the information, but his defense was that he had not uttered the same with the intention of defrauding any one since there was a sum on deposit to his credit 'at the finance company in excess of the amount he received, in this transaction; besides, that the loan had been made in accordance with the custom of all finance companies. In order to show his intent to defraud, an essential element of the offense of forgery, it therefore became necessary for the state to prove this intent by the surrounding circumstances and in doing so the state elicited from the witnesses testimony showing the accused had, in the short space of three weeks, obtained similar loans from the company — one through a forged bill of sale (this case), another through a stolen 'bill of sale, and the third through a bill of sale that had no legal efficacy — and that these loans together were for an amount far in excess of the sum deposited to his credit at the finance company.

In view of the specific provisions of our law and the jurisprudence thereunder, therefore, the defendant’s elaborate briefing of the law of England and of other jurisdictions in this respect can have no force or effect; and a perusal of the decisions of this court that are relied on will readily reveal they are neither controlling nor pertinent to the particular issues in this case.

’Counsel for the defendant, however, has devoted much space in his brief and much time in oral argument claiming that one of these alleged offenses testified to was not “similar” to forgery and did not “constitute the same offense” for which he was indicted, for this testimony tended to establish the violation of OPA regulations controlling the price ceiling on used cars.

On that phase of the case the record shows testimony was elicited from state witness Landry DeSoto to show that on October 28, 1946, he purchased a 1941 Ford car from the defendant for-the sum of $1,-350 in cash and that he held a bill of sale in evidence of -such purchase showing the consideration to be $1,087. Defendant’s counsel objected to this evidence on the ground that it was immaterial and irrelevant since it was .an attempt to show a crime which is not a part of these proceedings,. — an OPA violation. DeSoto’s testimony was not sought for the purpose of showing an OPA violation, but in order to establish the date and the time of his acquisition of the car and the further fact that after Wilde had sold it to him he (Wilde), on the same day, obtained a loan from the. company, giving this car as security.

Clearly the evidence was admissible under the exception to the general rule just above discussed. It is immaterial that the facts as testified to by the witness may have established a different and distinct crime. And if the defendant’s cause was prejudiced by the jury’s attention being called to the fact that this transaction was a violation of the OPA regulations, it was brought to their attention by the defendant’s counsel and he cannot now be heard to complain.

¿Bill of Exceptions No. 6 is levelled at the trial judge’s refusal to permit the defendant to question witnesses with respect to a suit pending in the civil district court between the finance company and H. A. Denmark, while Bill of Exceptions No. 7 was reserved when he refused to permit the defendant to introduce the records in a number of criminal cases involving other defendants.

The trial judge points out in -his per curiam that he refused the introduction of this evidence -because none of the defendants or witnesses involved in the cases were in any way connected with the crime for which the defendant was being tried. Other than the mere statement made by defense counsel in argument that these criminal cases proved the criminal court was being used as a collection agency, the defendant has failed to show what possible connection these other cases have with his case. We think the trial judge correctly excluded such evidence, regardless of the motives that may have prompted the prosecution of the defendants in the other cases.

The last bill was reserved to the trial judge’s refusal to grant the defendant’s motion for a new trial. Since this motion is based on the errors alleged to have occurred in the rulings with respect to the bills just disposed of, this last bill presents nothing new for our consideration.

For the reasons assigned, the conviction and -sentence are affirmed.


text:
    214 La. 465
    STATE v. LOWERY.
    No. 39038.
    Supreme Court of Louisiana.
    Nov. 8, 1948.
    Harvey G. Fields, of Farmerville, for defendant-appellant. *
    Bolivar E. Kemp, Jr., Atty. Gen., M. E. Culligan, Asst. Atty. Gen. and Truett L. Scarborough, Dist. Atty., of Ruston, for ap-pellee,
   FOURNET, Justice.

In this appeal by Aubry Lowery from a judgment convicting him of unlawfully handling and storing intoxicating liquor for the. purpose of sale in-the Parish of Union, where the sale of intoxicating liquors is prohibited by an ordinance of the Police Jury, and His sentence thereunder to serve 60 days in the parish jail and to pay a fine of $301 and costs (in default of paying the fine to' serve an additional eight months in jail), it is conceded by the state that the decision of this court in the case of State v. Kimble, 214 La. 58, 36 So.2d 637, where the identical issue here raised was presented and decided adversely to the cause of the state, is controlling, and, accordingly, that the defendant is entitled to a new trial since, contrary to the hearsay rule, the official testifying on behalf of the state was allowed to state over defendant’s objection that while he knew of no sale of intoxicating liquor by the defendant he had received complaints about him selling intoxicating liquor. This evidence was particularly prejudicial since there was no positive testimony of a sale of the liquor by the defendant.

For the reasons assigned, the conviction and sentence are annulled and set aside and the case is remanded for a new trial.


author: ELLIS, Judge.

text:
    VIDRINE v. SOILEAU et al.
    No. 3060.
    Court of Appeal of Louisiana. First Circuit
    Dec. 23, 1948.

      Robt F. Dejean, of Opelousas, for appellant.
    E. Herman Guillory, of Ville Platte, for appellees.
   ELLIS, Judge.

This is a suit brought by the plaintiff Marshall L. Vidrine against the defendant J. Leroy Soileau in which plaintiff is seeking to recover as damages from the defendant the sum of $1300.00 for personal injuries. This suit was originally instituted against plaintiff’s employer, Cabot Carbon Company, and his fellow employee, J. Leroy Soileau, the present defendant, in tort, for damages alleged to have been suffered by the plaintiff while in the course of his employment for Cabot Carbon Company, as a result of being bitten by a dog on the premises of his employer. Plaintiff alleged that he was bitten by the dog after a fellow employee had “siced” the dog on plaintiff. The plaintiff prayed for judgment against the Cabot Carbon Company in the sum of $700.00 and against the co-defendant, J. Leroy Soileau, in the sum of $1300.00, or a total of $2000.00.

Each of the defendants filed separate exceptions of vagueness and no right or cause of action. The minutes of the Court of December 30th, 1946 state that “on motion of counsel for plaintiff, this suit is hereby dismissed in so far as Cabot Carbon Company is concerned and no further.” On March 17th, 1947, the minutes state “The exception of no causé or right of action is sustained as to J. Leroy Soileau.” Again on April 19th, 1948, the minutes of the Court state: “Judgment sustaining exception of no cause or right of action. •See Decree.”

The record discloses that no written judgment was signed by the Court as a result of the exception of no right or cause of action being sustained on March 17, 1947; however, counsel for plaintiff obtained an appeal. This Court, on the 30th day of December, 1947, 33 So.2d 107, dismissed the appeal for the reason “that no judgment was signed.” However, after the judgment of this Court, the Judge of the District Court on the 19th day of April, 1948, signed a written judgment sustaining the exception of no cause or right of action and the exception of vagueness filed by the defendant, J. Leroy Soileau and, accordingly, dismissed plaintiff’s suit at his cost. The minutes show that on June 4th, 1948 counsel obtained an appeal from this signed judgment, suspensive and devolutive, to the First Circuit Court of Appeal.

Counsel for the defendant Soileau states in his brief that:

“On the date fixed -for the argument of the«exception, the plaintiff dismissed his suit against Cabot Carbon Company, one of the co-defendants, and at the same time filed a new and separate suit against Cabot Carbon Company and its insurer, under the Workmen’s Compensation Act, based-on the same cause of action, ancl on June 7, 1948, the District Court rendered judgment in favor of plaintiff awarding his compensation for a period of twelve (12} weeks, at the rate of $20.00 per week, and in addition thereto the sum of Ninety-six & no/100 ($96.00) dollars for medical expenses, and on June 30th, 1948, plaintiff accepted the sum of Two Hundred Sixty & no/100 ($260.00) dollars, plus the sum of Ninety-six ($96.00) Dollars from the defendant in suit, in full, final and complete settlement of all compensation and medical expenses due under the aforesaid judgment, all as more fully appears by reference to the record in said suit, bearing No. 6686 of the docket of the District Court.”

There is nothing in the record to show this other than this statement of counsel, as the record itself has not been introduced. The introduction or non-introduction does not alter our opinion or affect the issues before the Court.

Counsel for defendant states in his brief that the exception of vagueness is based upon the fact that no where in plaintiff’s petition are the damages claimed by him itemized. By a mere reading of the petition, we find this to be true. It is possible that loss of wages, medical expenses or bills, together with pain, suffering, etc., constitute these damages however, ' the defendant is entitled to have this information before being required to answer. For these reasons, we .are of the opinion that the ruling of the trial judge in sustaining the exception of vagueness is correct.

The exception of no cause or right of action as shown by the brief filed on behalf of the defendant, is based upon the proposition, first, that “The plaintiff by alleging in. his original petition that he was injured during the course of his employment for Cabot Carbon Company, and subsequently filing a suit against the Company under the Workmen’s Compensation Act, and accepting a full and final settlement of all compensation due, as above set out in the statement of the case, cannot maintain an action against his fellow employee, J. LeRoy Soileau under Article 2315 of the Civil Code, the general tort law of Louisiana.”

“Section 34 of Act No. 20 of 1914 as amended by Section 1 of Act No. 38 of 1918 (Dart’s Statutes Sec. 4423) provides as follows: ‘Exclusive character of rights and remedies — The rights and remedies herein granted to an employee or his dependent on account of a personal injury for which he is entitled to compensation under this act shall be exclusive of all other rights and remedies of such employee, his personal representatives, dependents, relations, or otherwise, on account of such injury.’
“A causal reading of this Section of the 'Compensation Act discloses that the Act itself, in clear and unequivocal terms provides that the rights and remedies granted by the Act to an employee “Shall be exclusive of all other - rights and remedies of such employee.”

Second, that in the instant case, the petition is devoid of any allegations that the defendant or his employer owned the dog or even that the dog was actually vicious.

Counsel for plaintiff contends that regardless of the provisions of Section 34 of Act 20 of 1914 as amended by Section 1 of Act 38 of 1918 (Dart’s Statutes Section 4423) providing that the .rights and remedies granted to an employee under the Workmen’s Compensation Act shall be exclusive of all other rights of such employee that plaintiff is entitled to maintain this suit against the defendant, a fellow employee, under the theory that he is a “third person” within the meaning of Section 7 of Act 20 of 1914 as amended, Dart’s Statutes Section 4397. This Section reads as follows:

“1. When an injury for which compensation is payable under this Act shall have been sustained under circumstances creating in some other person (in this Section referred to as third person) than the employer a legal liability to pay damages in respect thereto, the injured employee or his dependant may claim compensation under this Act; and the payment or award of compensation hereunder shall not affect the claim or right of action of such injured employee or his dependent against such third person, nor be regarded as establishing a measure of damages for such injury; and such injured employee or his dependent may obtain damages from or proceed at law against such third person to recover damages for such injury.
“2. Any employer having paid or having become obligated to pay compensation under the provisions of thi? Act may bring suit against such third person to recover any amount which he has pgid or become obligated to pay as compensation to any injured employee or his dependent; provided, that if either such employee or his dependent, or such employer, shall bring suit against such third person, he shall forthwith notify the other in writing of such fact and of the name of the Court in which such suit is filed, and such other may intervene as party plaintiff in such suit.”

Counsel for defendant states that the authorities cited under Revised Civil Code Article 2315 and Dart’s Statutes Section 4423 are numerous and all in accord that an injured employee has no option to sue in tort, but must recover under the compensation statute and cites in support of this proposition Colorado v. Johnson Iron Works, 146 La. 68, 83 So. 381; Thaxton v. Louisiana R. & Nav. Co., 153 La. 292, 95 So. 773; Daigle v. Moody, La.App., 140 So. 842; Labourdette v. Doullut & Williams Shipbuilding Co., 156 La. 412, 100 So. 547; Roy v. Mutual Rice Co., 177 La. 883, 149 So. 508; Burson v. Ohio Oil Co., 6 La.App. 739; Spanja v. Thibodeaux Boiler Works, Inc., La.App., 2 So.2d 668; Dandridge v. Fidelity & Casualty Co., La.App., 192 So. 887.

In the last named case, a suit was filed by the widow and minor child of Dand-ridge against two' of his co-employees, Watkins and Hines, and against his' employer, United Gas Public Service Company and its public liability insurer, under the provisions of Article 2315 for damages. However, we find in this case that a non-suit w-as entered as to the two co-employees which left it a suit against the employer and the public liability insurer. An examination of the other authorities cited will show that the cause of action was brought against the employer and not a co-employee and that where the cause of action came under the compensation act, the remedy was exclusive as to the employer and the injured employee could only file suit under this act against the employer.

We are of the opinion that the case of Kimbro v. Holladay, La.App., 154 So. 369, 370, is on the point at issue. This was a suit for damages by Kimbro in which he sought to recover for injuries sustained in an automobile accident. Robert R. Holla-day and his insurer were made the defendants. The plaintiff was riding with Holla-.day, his co-employee, who was the local manager of the Louisiana Power & Light Company, on business of the company. Thus the employee, Kimbro, sued his co-employee, and an exception of no cause or right of action was filed, based upon the claim that plaintiff’s injuries were covered by the Workmen’s Compensation Act and that his remedies under the Act are exclusive, the same defense that has been made in the case at bar.

In the Kimbro case, the Court said:

“* * * That would be true if he were suing his employer. He is not suing his employer, but is suing the man who was driving the car,at the time of the accident. The man driving the car was the manager of plaintiff’s employer and they were both at the time on a mission of their employer, the plaintiff, by instruction of his superior officer.
“Plaintiff was an ordinary laborer holding the position of lineman for the Louisiana Power & Light Company, subject to and under the superinteridency of the manager of said company, the defendant herein. Defendant contends that, under these facts, defendant Holladay could not be ■classed as a ‘third person’ under Section 7 of Act No. 20 of 1914, as amended by Act No. 38 of 1918 and Act No. 247 of 1920, which provide that an employee may claim compensation under the act and still bring suit for tort against a ‘third person’ causing the damage. We are of the opinion .that Holladay is a ‘third person’ within the intendment of the act. While it is true that plaintiff, an employee, cannot sue his employer in a tort action, there is no reason why he cannot sue another employee of his employer. The 'Compensation Law ext pressly excludes the employer from being sued in tort for the injuries an employee receives through the negligence of another employee. However, it places another burden on the employer by making it liable for compensation in case of any accident arising out of and in the course of the employee’s employment. It does not specifically relieve a fellow employee of his liability in tort and, under no circumstances, does it make a fellow employee liable for compensation. There is no contractual relation between the two employees and no reason, we can see, for exempting one employee from liability for his torts causing damage to another employee.
“Article 2315 of the Revised Civil Code provides: ‘Every act whatever of man that causes damage to another, obliges him by those fault it happened to repair it.’
“The liability of the tort-feasor is fixed by this law and the fact that the party injured is an employee of the tort-feasor’s employer who is obliged to compensate him to the extent and manner prescribed by the compensation statute, and as agreed between the employer and employee, does not change the duties and obligations of the one committing the tort. The contractual relationship existing between the employer and his employee, who is injured and damaged through the fault of a fellow employee, has nothing whatever to do with the injured employee’s right to recover from his fellow employee who committed the tort.”

In the instant case, we are of the opinion that the defendant is a “third person” within the meaning of Section 7 of Act 20 of 1914, as amended (Dart’s Statutes, Section 4397). The reasoning and judgment in the Kimbro v. Holladay case, supra, is applicable to the case at bar.

We are of the opinion that the judgment of the District Court in sustaining the exception of no cause or right of action on this ground should be reversed and ordered overruled.

As to defendant’s second contention, that is, that the petition does not contain any allegations that the defendant or his employer owned the dog or even that the dog was actually vicious, we are of the opinion that there is no merit in this contention as the petition charges the defendant with peremptorily ordering or “sicing” the dog on the plaintiff, which makes it immaterial whether the, dog was vicious under ordinary circumstances. As stated by counsel for plaintiff, this cause of action is based on an act of commission of man — not an act of commission by the owner of the dog.

It is therefore ordered that the exception of vagueness be sustained and that the plaintiff be ordered to amend its petition by alleging and itemizing the nature of the damages which he alleges amounted to $1300.00, within fifteen days from the finality of this judgment, else his demand to be dismissed.

It is further ordered, adjudged and decreed that the exception of no cause or right of action be and the same is hereby overruled


author: DORE, Judge.

text:
    AUCOIN v. MARCEL.
    No. 3062.
    Court of Appeal of Louisiana. First Circuit.
    Dec. 23, 1948.
    Rehearing Denied Feb. 2, 1949.
    Writ of Certiorari Denied March 21, 1949.

      Emmet Alpha, of New Orleans, for appellant.
    Leonard C. Wise, of Morgan City, for appellee.
   DORE, Judge.

This is a petitory action in which plaintiff is allegedly claiming title to a “certain triangular shaped tract of land lying and being situated on the west side of Bayou Boeuf, in the Parish of St. Mary, lying between the main paved highway at said point and a certain tract of land sold by the Police Jury of the Parish of St. Mary to C. I. Gathright on November 30th, 1927, by act of sale recorded in the Parish of St. Mary, under Entry No. 53,233; said triangular tract of land beginning at the western boundary of the forty foot shell road extending along Bayou Boeuf North and South, and extending a distance of approximately thirteen hundred and twenty-eight (1328),feet, and is more particularly bounded on the North by property now or formerly of C. I. Gathright, on the East by the aforesaid shell road, on the South by the main paved highway and on the West -by property of unknown owners; said tract being the same property which was acquired by your petitioner from Osis Young et al., by title dated May 11, 1938, and recorded in the Conveyance Records of the Parish of St. Mary, Louisiana, on May 18, 1938, in C. O. B. 5-0, Entry No. 63,286, of the records of that Parish.” Title to this property is claimed also by the defendant as being embraced within specific boundaries of property allegedly acquired and owned by him and of which he is in the actual possession. From a judgment, with written reasons assigned, dismissing plaintiff’s .suit and recognizing defendant as the true and lawful owner of all the property situated within specific boundaries as given in his act of acquisition, plaintiff prosecutes this appeal.

A correct resume of the sequence of events leading up to this litigation is given by the trial judge in his reasons for judgment, viz.:

“Prior to 1927 the only vehicular means of communications with that area along Bayou Boeuf to Morgan City was-the meandering forty foot (40’) shell road paral-lelling, in most instances, the course of Bayou Boeuf. For the purpose of extending U. S. Highway 90 from the East towards Morgan City and Westward, the State of Louisiana, through its Highway Department, proposed to take measures for the construction of a bridge across Bayou Boeuf and of a paved highway leading from said bridge westward towards Morgan City, with the understanding that the Parish of St. Mary would provide the necessary right of \vay from the Western limits of said bridge towards Morgan City. Accordingly, the Police Jury of the Parish of St. Mary on May 4th, 1927, and finally on July 6th, 1927, through committees appointed for said purposes, agreed to purchase from Napoleon Young the right of way so needed.
“On September 5th, 1927, Napoleon Young conveyed to the Parish of St. Mary for a cash consideration the fee simple title of a strip of land fronting on the West side of Bayou Boeuf and extending Westward a distance of approximately two thousand ninety one feet (2,091) with a varying width Of ninety eight feet (98’) on the West bank of Bayou Boeuf and that of one hundred eighty five feet (185’) at its western limits. On the same date mentioned above the Police Jury acquired from one Dora Moore two strips of property, adjoining and being contiguous to the strip of land acquired from Napoleon Young, thus completing the area thought necessary for the construction of said Highway.”

The following is a sketch of the property acquired by the Police Jury from Napoleon Young and Dora Moore:

The Police Jury, on November 9, 1927, by resolution duly adopted, authorized its President to sell, “either at private sale or at public sale as required by law”, the surplus of property purchased by it from Young and Moore appearing as not needed by the Highway Department.

In pursuance of the said resolution, the Police Jury, acting through its president, Harry P. Williams, on November 30, 1927, sold and conveyed what it considered to be the surplus' as appearing as not being needed by the Highway Department, by authentic act, for a consideration of $125.00, to Miss Carrie I. Gathright, the said property being described as follows:

“First: — That certain piece of property lying and being situated in the Parish of St. Mary, State of Louisiana, known, designated and described as measuring Ninety Eight Feet (98’) front along the west side of Bayou Boeuf, and on the North side and adjoining the Public Highway just West of the Bayou Boeuf Highway bridge, and extending back and West between Diverging lines, a distance of Six Hundred Feet (600’), the West line running parallel with the East line along Bayou Boeuf, measuring - Feet ( ). Bounded North by property of Albert N. Aucoin; East by Bayou Boeuf, South by the Public Highway; and West by property of Dora Moore, and property herein secondly described. This being part of the same property purchased by the Police Jury of the Parish of St. Mary, Louisiana, from Dora Moore by Cash Sale before Walter T. Gilmore, Notary Public, on the 5th day of September A. D. 1927, firstly described in said Act, which Act is of record in Conveyance Book 4-0, entry No. 53,083 of the Recorder’s Office of the Parish of St. Mary, Louisiana; and also a part of the same property as firstly described in an Act of Cash Sale by the Police Jury of the Parish of St. Mary, Louisiana, from Napoleon Young, before Walter T. Gilmore, a Notary Public, on the 5th day of September,-A. D. 1927; which act of Sale is of
record in Book 4-0, Entry No. 53,082 of the Recorder’s Office of the Parish of St. Mary, State of Louisiana.
“Second: — That certain piece of property lying and being situated in the Parish of St. Mary, State of Louisiana, known, designated and described as measuring Thirty Five feet (35’) in width by Ten Hundred, Twenty Five Feet (1025’) in length, excepting therefrom a Forty foot (40’) public road now being between Amelia, Louisiana and Morgan City, Louisiana; said property being bounded on the North by property of Dora Moore; East by the property herein firstly described; South by the' Louisiana Highway; and, West by property herein thirdly described. Being a part of the property purchased from Napoleon Young by the Police Jury of the Parish of St. Mary, State of Louisiana, as firstly and secondly described in an Act of Cash Sale before Walter T. Gilmore, Notary Public, in and for the Parish of St. Mary, on September 5th, 1927, which said Act is of record in Conveyance Book 4-0, Entry No. 53,082 of the Recorder’s Office of the Parish of-St. Mary, Louisiana.
“Third: — That certain piece of property lying and being situated in the Parish of St. Mary, Louisiana, known, designated and described as measuring Fifty Feet (50’) in width by Five Hundred, Six Feet (506’) in length. Bounded on the North by property of Dora Moore; Fast by property herein secondly described and by the property of Dora Moore; South by the Louisiana Highway; '-and West by unknown owners. This being part of the same property as was purchased by the Police Jury of the Parish of St. Mary, State of Louisiana, from Napoleon Young, as thirdly described in an Act of Cash Sale before Walter T. Gilmore, Notary Public, on September 5th, 1927, which said Act is of record in Conveyance Book 4-0, Entry No. 53,082, and by Act of Sale from Dora Moore, as secondly therein described, before Walter T. Gilmore, Notary Public, on September 5th, 1927, of record in record book Conveyance 4-0, Entry No. 53,082 both Acts of record in the Recorder’s Office of the Parish of St. Mary, Louisiana.
“Fourth: — That certain piece of property lying and being situated, and described as measuring Fifty Feet (500 in Width by Five Hundred Six Feet (506’) in length.' Bounded on the North by Public highway; East and South by property of Napoleon Young; and West by unknown- owners.' This being part of the property purchased by the Police Jury of the Parish of St. Mary from'Napoleon Young, described in an Act of Cash Sale before Walter T. Gilmore, Notary Public, on September 5th, 1927 of record in Conveyance Book 4-0, Entry No. 53,082, of the Recorder’s Office of the Parish of St. Mary, Louisiana.”

On December 7, 1927, the Police Jury ratified and approved the action of its president “in selling for $125.00 the' land left over from the right of way purchased by the Parish near Amelia.”

'It is to be noted that the second and third items conveyed by the Police Jury to Miss Gathright are described as being bounded on the south by “Louisiana Highway” while the fourth item is described as being bounded on the north by “public highway”, which would tend to show that the proposed route of the road was tentatively understood. In fact, there is filed in evidence a sketch by Mr. Blakewood, an engineer of the Highway Department, of date of 8/31/27, showing the property purchased by the Police Jury and the tentative' prop'erty needed for the construction of the proposed road, which very probably was used in the description of the property in the act of sale by the Police Jury to Miss Gathright.

In between the purchase by the Police Jury — and in turn, the purchase by Miss Gathright,. it appears that the propo.sed road bed over the right of way was changed so as to follow a true course rather than that originally proposed. In so doing, the State of Louisiana, -through the Highway Department, acquired, on April 30, 1930, from Napoleon Young, a right of way of 80 feet from the center line to the left side of said right of way. On the same day and date, the State of Louisiana, through the Highway Department, acquired from Napoleon Young a right of way “having a width of 50 feet from the center line to the right side of sai'd right of ■way and 50 feet from the center line to the left side of said right of way, or a total right of way of 100 feet.” In this deed the provision is made “that what portion of old R. W. remaining is an exchange of property between Grantor and Grantee”. These two deeds have no bearing on the asserted title of the plaintiff; in fact, he concedes that his title, if any, is predicated upon his acquisition from Osie Young et al. on May 16, 1938. Furthermore, the Parish of St. Mary had acquired the property in fee simple, subject to the right of servitude for road purposes of whatever nature or quantity needed by. the Highway Department. The Parish did not transfer any property to the Highway Department. If these deeds are relevant to this case, they are more in favor of defendant, upon which we will comment later herein. ,

On January 22, 1930, by authentic act, Miss Gathright sold and transferred to David C. Walsh an undivided half interest in the property acquired by her from the 'Police Jury, the description of the property being the samé as contained in the deed of acquisition.

Prior to his acquisition, the defendant employed Mr. Walter Y. Kemper, a very competent civil engineer and surveyor, to survey and fix the property of Miss Gath-right and Mr. Walsh. Mr. Kemper testified that prior to his undertaking his work, he checked the offices of the Police Jury and the Clerk of Court and had informed himself of the various transactions recited supra. Afterwards he proceeded to survey and set out the property intended to be purchased by the defendant, making, a" plat of survey setting out fully the sev.eral transactions, including the two right of way deeds of Young to the Highway Department and the paved highway. Acting upon the report of Mr. Kemper, Miss Gathright and Mr. Walsh, by authentic act, on December 15, 1927, sold to defendant all of their right, title and interest in and to the property acquired by them from the Police Jury, using the same description as their respective acquisition. To this act of acquisition, a plat or map and survey made by Mr. Kemper showing the land acquired is annexed and made a part thereof.

On May 9, 1938, by a deed under private signature, by virtue of a resolution of the Police Jury of date of April 13, 1938, the Police Jury, through its President, quit-claimed and transferred, without warranty, unto Napoleon Young and his children, issue of his pre-deceased wife, whatever rights, if any, it had in and to triangular tracts of land, the first of which is not involved herein, and the second under the description heretofore given and which is involved in this suit.

On May 18, 1938, Napoleon Young and his children, by private act, duly acknowledged, sold to the defendant, the property acquired by them as recited hereinabove.

Under these facts, the lower •court, in his written reasons, states:

“It must be conceded that at the time the Police Jury of said Parish sold the unneeded portion of said right of way that said unneeded portion or strip had as its Southern boundary, as appears from the deed itself, the ‘Louisiana Highway’. The dispute arises as a result of moving further Southward the original location of the road-bed thus leaving unused a .strip of land parallelling said highway and which was in turn subsequently purchased by the plaintiff as aforestated.. .
“Therefore, the issue 'between the litigants is as follows: Plaintiff claims that the unused strip brought about by the change of the road-bed-location did not .enter into the original sale made to Miss Gathright even though her Southern boundary was given as the ‘Louisiana -Pligh-way.’ In other words, plaintiff urges that the original conveyance-to Miss Gathright, the author in title of Defendant, conveyed a strip bordering the original right-of-way and was changed, • leaving an unused strip he, plaintiff, by conveyance became the title owner of said narrow strip which separates the original ’ purchase by Miss Gathright from the present • Highway.
“The Defendant urges 'that having acquired in fee simple all of the surplus o'f land not needed for Highway purposes out of the original' right of way and that his deed and that of his authors in title called as its Southern boundary the ‘Louisiana Highway’, that the boundaries should govern, and irrespective of a change in location of said original road bed, that the intent and purposes of said original conveyance to Mis Gathright of said surplus was to give to the vendee all of the unused land having as its Southern boundary the highway itself. In other words, going further^ the plaintiff contends that defendant’s title must be controlled by the measurements set forth in the deed, which measurements show a fixed width and depth, while the Defendant, on the other hand, contends that the sale must be considered as one by fixed boundaries and should therefore embrace all of said surplus having as its Southern boundary the ‘Louisiana Highway’.
“Although the deed originally made to. Miss Gathright and in turn acquired by Defendant, calls for fixed measurements, it is evident that it also calls for a fixed boundary abutting on ‘La. Highway’. From the resolutions adopted by the Police Jury authorizing the sale of all surplus property not used for highway purposes, and the deed itself, there can be no doubt that it was the intention of the parties that the surplus of property so being conveyed should be sold in its entirety and should abutt and have as its Southern boundary the ‘Louisiana Highway!. Though the road bed was changed as before stated, being moved slightly South of that originally proposed, cannot affect the intention of the parties that the Police Jury intended to sell and Miss Gathright, Defendant’s author in title, to buy not only all of the unused right of way but that said unused strips would abutt the Louisiana Highway. No purpose could be served by the retention by the Police Jury of title to such narrow strips, which certainly could be of no practical value to the Police Jury or for road purposes, whereas it was to the interest of the highway and which would have added substantially 'to its value, commercially speaking.
“In determining boundary lines the law recognizes certain well known guides which are in the order of their importance (1) Natural monuments; (2) artificial monuments; (3) distances; (4) courses and (5) quantity. ‘But the controlling consideration is the intention of the parties’, Meyer v. Comegys, 147 La. 851, 86 So. 307, 309; Dufrene v. Bernstein 190 La. 66, 181 So. 859. Article 854 of the Civil Code provides as follows, viz.: ‘If any one sells or alienates a piece of land, from one fixed boundary to another fixed boundary, the purchaser takes all the land between such bounds, although it give him a greater quantity of land than called for in his title, and though the surplus exceed the twentieth part of the quantity mentioned in his title.’
“Article 2495 of the Civil Code declares that: ‘There can be neither increase nor dimunition of price on account of disagreement in measure, when the object is. designated by the adjoining tenements, and sold from boundary to boundary.’
“Seldom do we find cases which are so clearly analogous as is the instant case to that of Consolidated Co[mpanies] v. Haas Land Co., 179 La. 19, 153 So. 6, both as to facts and the law applicable.
“In the Haas case, supra, the Court, in interpreting the Codal Articles, supra, declared that our Supreme Court has invariably held that ‘a sale in which specific boundaries are given is a sale per aver-sionem, or a sale from one fixed boundary to another, and conveys all the land within the boundaries given, whether the measure be correctly stated in the deed or not, as the designation of the boundaries control the enumeration of the quantity.’ Passera v. City of New Orleans, 167 La. 199, 118 So., 867, and the numerous authorities, therein cited.
“In Whitney v. Saloy, 26 La.Ann. 40, our Supreme Court declared that when streets in a plan and deed are referred to such designation controls as to measurements.
'“In Kirkpatrick v. McMillen, 14 La. 497, our Supreme Court held that where several lots are sold in block, designated by numbers, in a particular square according to a plan, although the number of feet contained in each lot is specified, it is a. sale per aversionem, the reference to the.■plan and boundaries of the streets being; controlling over the measurements of the lots.
“Also see Marigny v. Nivet, et al., 2 La. 498; Brand v. Daunoy, 8 Mart, N.S. 159 [19 Am.Dec. 176]; Standard Oil Co. of Louisiana v. Futral et al., 204 La. 215, 15 So.2d 65.
“The southern boundary of the triangular strips of land originally acquired by Miss Gathright from t'he Police Jury of the Parish of St. Mary and which was in turn conveyed to the Defendant is set forth as being the ‘Louisiana Highway’. I can make no distinction between a highway and that of a street boundary, being the situation presented in the Kirkpatrick Case, or that of a railroad right of way or railway bed as was presented in the ■Consolidated Company’s case, supra.
“In view of the Codal Articles cited above and the jurisprudence to which reference has been made, the Defendant and his authors in title must be held to have acquired and to have ownership and title to the triangular strips of land in question to the limits called for as their Southern boundary, namely the ‘Louisiana Highway’, commonly known as U. S. Highway 90, even though the measurements and distances as to width given in the deed falls short of such boundary. It must be equally held that the title so conveyed embraces all of the area within the boundaries so described, irrespective of the fact that a greater quantity of land is given than is called for by the measurements and distances.”

After a careful reading of the record, the briefs of the litigants and the cases relied upon by the trial judge, we feel that he has correctly applied the law to the facts in the case. Furthermore, we are impressed by the testimony of Mr. Kemper. Besides, being a civil engineer and surveyor, he was offered and was recognized as an able expert in his line. He came to the conclusion that the several resolutions, acts and deeds which he examined clearly showed the intention of the Police Jury to sell to Miss Gathright and she to buy the residue of the property not needed by the Louisiana Highway Department in the construction of the paved route of U. S. #90 from the Bayou Boeuf bridge westward towards Morgan City. He is fully corroborated by the following facts: Although th'e deed of the Police Jury .to Miss Gathright practically transfers the whole of Lot #1 of the Dora Moore acquisition, yet this property was ■used as a barrow pit by the Commission in obtaining necessary dirt to construct the ramp from the bridge to the Shell road. Likewise, the Commission used all of Lot No. 4 of Gathright’s acquisition as the road bed for the road. It would be inequitable to hold otherwise in that the Commission had no other authority to use said properties in the manner in which it did were it not for the fact that it relied upon the acquisition of the Police Jury and the subsequent understanding with Miss Gathright that the properties were to be used by the Commission and she to be the owner of the surplus property. Miss Gathright is not claiming the ownership of the property upon which the route was constructed.

According to Mr. Kemper’s testimony, the Commission found that in locating the road bed it needed additional land to the south of the centerline, and which land belonged to Napoleon Young, hence it acquired a right of way 80 feet from the center line to the south. Looking at his map and plat of survey annexed to defendant’s acquisition, it is easily seen that such is the fact in that property of Napoleon Young to the south of the original acquisition by the Police Jury was needed. According to the second right of way deed, all such land as was not needed reverted back to Napoleon Young. This necessarily means the property to the south of the original acquisition of the Police Jury.

The burden of proof lies with the plaintiff. He must depend upon the strength of his title and not upon the weakness of defendant’s title. The foundation of plaintiff’s title is the transfer and quitclaim, without warranty, by the Police Jury of any rights, if any, it 'had, presumably, in any of the property it had purchased from Napoleon Young. The nature of that acquisition is precarious. The Police Jury, at that time, must have felt that it did not have any residue of the property originally purchased by it. It was cognizant of the fact that it had transferred to Miss Gathright whatever surplus of its original surplus not used by the Louisiana Highway Commission.

It looks to us as though plaintiff’s counsel has pitched his whole argument on the question of fraud; a fraud which is directed not at the defendant but at one of his authors in title, David C. Walsh, who was a member of the police jury at the time of the transactions supra. Yet plaintiff never did allege fraud against anyone. Certainly no fraud was shown on the part of defendant, who had a right to rely on the public records in buying the property. Fraud is never presumed; it must always be alleged and proved. _.

In this court, after argument and submission of the case, the plaintiff filed a plea of estoppel. The plea seems to .be based upon a resolution prepared by Miss Gathright’s attorney and which was presented to the Police Jury for action. In this resolution it is declared that the description of the property conveyed by the Police Jury to Miss Gathright on November 30, 1927, was vague and indefinite and it sought to authorize the President of the Police Jury to appear and clarify the description of the property. This resolution, however, was never acted upon by the Police Jury and does not form any part of the Police Jury records. Nowhere in the resolution does Miss Gathright contend that she is not the owner of the property in question. In the record in this case there is no evidence to show that Miss Gathright, or her vendees, did or omitted to do anything which could in anywise cause plaintiff, or his vendors, to be misled in the acquisition of the property.. We find no merit in his plea.

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


author: LeBLANC, Judge.

text:
    BURTRUM BROS. MOTOR CO. v. DRYDEN.
    No. 3070.
    Court of Appeal of Louisiana. First Circuit.
    Dec. 23, 1948.
    Rehearing Granted Feb. 2, 1949.

      Robt. D. Lottinger and Elton A. Darsey, both of Houma, for appellant.
    A. Deutsche O’Neal and Leonard Green-burg, both of Houma, for appellee.
   LeBLANC, Judge.

In this suit, Charles L. Burtrum and Joe H. Burtrum, doing business as Burtrum Brothers Motor Company, automobile dealers of Newton County, Missouri, obtained an order of sequestration in the district •court under which a' 1939 model Oldsmobile ■sedan automobile, in the possession of the •defendant, Theodore F. Dryden, was seized by the sheriff of Terrebonne Parish. The ■sequestration was obtained in an effort to have a mortgage lien, alleged to bear against the automobile, recognized and enforced.

The automobile was allegedly sold by the plaintiffs on January 26, 1946, to a certain Mrs. George Chesney and also one Samuel Abrams. The sale took place in Newton County, Missouri, for an alleged total consideration of $900.00. As also alleged, at the time of the sale, the vendees gave plaintiffs a chattel mortgage, a vendor’s lien and privilege and a lien against the automobile for $636.00. Whilst it is not alleged that a note was given and executed in connection with the act of chattel mortgage, reference is later made in the petition to a note which is said to have become due when the installment of March 26, ^1946, was not paid. Plaintiffs allege that the act of chattel mortgage was recorded within the contemplation of the law of the State of Missouri with respect to recordation of acts of this kind and they annexed a certified copy of the same to their petition.

From the certified copy of the act we note that Mrs. George Chesney alone is named as the mortgagor and Burtrum Brothers Motor Company as mortgagee. According to its contents, the mortgage is given in consideration of a debt in the sum of $632.00 due the mortgagee by the mortgagor and the mortgaged property described is the same automobile that is now under seizure in this proceeding. The act stipulates that failure to pay any of the installments on the debt as they become due will ipso facto mature the remaining installments.

The act of chattel mortgage has two blank lines at the end, one being designated for the signature of the mortgagor and the other for his address. It also has two lines on the left hand side for the signature of witnesses. The line for the signature of the mortgagor bears the signature of Mrs. George Chesney and the one underneath, for the address of the mortgagor, bears the name Samuel Abrams. Two witnesses signed the act in the proper places. It is to be noted that the name of Samuel Abrams nowhere appears in the body of the act itself.

In the petition it is alleged that only one installment was paid at maturity on February 26, 1946, and that failure to pay any subsequently due had the effect of maturing them all.

As set out in the petition, the automobile was in the possession of Samuel Abrams after it liad been bought; he shortly thereafter left the state of Missouri for parts unknown and, in an effort to enforce their alleged mortgage claim, plaintiffs had him ultimately traced to Louisiana where it was learned that he had sold the car to the defendant Dryden who had it in his possession in the city of Houma, in Terrebonne Parish. Abrams was subsequently apprehended and brought back to Missouri where he was prosecuted criminally in connection with the removal of the car, without permission of the mortgagor, and was sentenced to serve a term in the penitentiary of that state. Having made the necessary allegations, supported by the affidavit of their attorney, and having furnished the bond required by the court, the sequestration issued and the car was seized by the sheriff of Terrebonne Parish.

After the seizure the defendant bonded the sequestration and then filed a motion to dissolve on the grounds, first that there was no mortgage or other lien ever granted by Samuel Abrams on the automobile, second, that if ever there was any mortgage given by him .it was never indexed in his name in any county in the State of Missouri and third, that in purchasing the car from Abrams, defendant had the right to rely on the certificate of title showing that there were no mortgages or liens bearing against it. In his motion to dissolve, defendant asked for damages as for attorney’s fees in the sum of $250.00, for the sum of $5.00 per day for the time he was deprived of the use of the automobile while it was under seizure, and $500.00 for humiliation and embarrassment.

Counsel for plaintiffs then moved the court to have the motion to dissolve treated as an answer. Upon this having been ordered, defendant filed an answer in which he denied practically all the allegations of fact contained in plaintiffs’ petition and elaborated on the defenses set out in his motion to dissolve. He then assumed the position of a plaintiff in reconvention and prayed for judgment for the same items of damage as were enumerated in the motion to dissolve.

After submission of the case in the lower court, the trial judge, without written reasons, maintained the sequestration and ordered delivery of the car to the plaintiffs. Defendant has taken this appeal from a judgment so decreeing.

The validity of the chattel mortgage, in so far as Abrams is concerned, is attacked on the ground that despite his signature to the act on the line indicated for the address of the mortgagor, his name nowhere appears in the body of the act and therefore he cannot be considered as a mortgagor thereunder. It seems to be a settled proposition of law, especially in the State of Missouri, according to whose law the act of chattel mortgage in this case has to be construed, that a party whose name does not appear in the body of an instrument, even though it be signed by him, is not bound by any of its provisions. That has been held to be the law in Missouri with regard to deeds and leases. See Golden v. Tyer, 180 Mo. 196, 79 S.W. 143; Hendricks v. Musgrove, 183 Mo. 300, 81 S.W. 1265 and Drzewiecki v. Stock-Daniel Hardware Co., Mo.App., 293 S.W. 441. We can think of no good reason why the same principle should not apply with respect to mortgages and chattel mortgages. If that be so, Samuel Abrams who-held the title certificate issued under the law of Missouri, to the automobile, was not a mortgagor in the act of mortgage sought to be enforced in this case, and anyone dealing with him with respect thereto was not put on notice by that'act in the manner and form in which it appears. And this would be so even though we were to grant plaintiffs their contention that mere filing of the act with the recorder was all that was necessary under the law of Missouri.

But even though we were to assume that there was a valid mortgage in this case, we are of-the opinion that the defendant, purchaser of the automobile, was protected by the certificate of title presented to him by Samuel Abrams, showing that there were-no liens or mortgages bearing against it, and we prefer to rest our decision on that defense.

In Missouri, the certificate of title to a motor vehicle is issued by the Commissioner of Motor Vehicles. That official certifies that application has been made to him by the party who states that he is the own-er of the vehicle and-that it is subject to the chattel mortgage shown on the certificate that is to be issued. Whilst the certificate contains a provision to the effect that the Department does not guarantee the ■statements as to the chattel mortgage, it does state that reasonable diligence has heen used in ascertaining whether the statements in the application for the certificate are true.. As already pointed out, in this case, the space indicated on the •certificate to show what lien the automobile was subject to, is left blank. As far as the certificate showed therefore, there was no lien or chattel mortgage bearing against it. According to the deposition of Charles L. Burtrum who handled the sale for his firm, although the car was purchased jointly by Mrs. Chesney and Samuel Abrams, it was agreeable to all three of them that the title certificate be issued in the name of Abrams, and it was so issued on February 14, 1946, nearly three weeks after the •chattel mortgage had been executed and filed with the recorder of deeds for Newton ■County.

By the law of Missouri, as provided for by Sec. 3488 of the Revised Statutes Annotated of that State, it is made the duty of the recorder of deeds, “on request of the mortgagee, or his assignee, to certify on the certificate of title to the mortgaged motor vehicle, that such chattel mortgage has been filed showing the date, the amount of the mortgage and the name of the payee.” Further, the same section provides that “a mortgage on a motor vehicle shall not be notice to the whole world, unless the record thereof is noted on the certificate of title to the mortgaged vehicle, as herein provided.” (Emphasis supplied.) There being no record of the mortgage noted on the certificate of title in this case, there was therefore no notice of the same given to anyone.

Counsel for plaintiffs contend however that it was not necessary to note the chattel mortgage on the certificate of title because the certificate in this case was governed by ■certain exceptions appearing in the same section of the statute. The exceptions relating to the notation of the mortgage on the certificate appear in the following .clause of the section: Provided, however, that the provisions of this section shall not apply to chattel mortgages given to secure the purchase price or any part thereof or to a motor vehicle sold by the manufacturer or their distributing dealers, or to a chattel mortgage given by dealers to secure loans on the floor plan stock of motor vehicles.” We don’t think that any of the exceptions apply.

Whilst plaintiffs did allege, in effect, that the chattel mortgage was given to secure a part of the purchase price of the automobile, they also allege that that was all in accordance with the act of chattel mortgage, a certified copy of which they attached to and made part of their petition. It is a well known rule of pleading that a document which is annexed to and forms part of a petition controls all the allegations which bear reference to it. If there be any conflict between the document and the allegations, the contents of the document must prevail. Under that rule, we have to be guided by the contents of the certified copy of the attached chattel mortgage in this case and when we come to examine it, nowhere do we find any reference to it being a mortgage given to represent the purchase price or part of the purchase price of the automobile described as the property that is mortgaged. The parties are mentioned as mortgagor and mortgagee and nothing is stated in the act which would lead to the knowledge that the debt that is meant to be secured was a part of the purchase price of a car that had been sold by Burtrum Bros. Motor Company to Mrs. George Chesney, and still less to Samuel Abrams.

In answer to certain direct interrogatories propounded to him by counsel for plaintiffs, Charles L. Burtrum stated that the chattel mortgage was given to secure the balance of the purchase price of a car which he had sold to Mrs. Chesney and Samuel Abrams, but objection was timely made to this deposition as well as to one of Mrs. Chesney, of the same import, on the ground that such evidence was an attempt to contradict the terms of a written document by parol proof and might result in an enlargement of the pleadings. The district judge permitted the offer, subject to the objection but specifically ruled that the evidence was not to be construed as enlarging the pleadings. We do not think that the evidence was admissible under the pleadings and are of the opinion that the proof should have been restricted to the contents of the written document itself. When so restricted, there is nothing, as already stated, from which to infer that the mortgage was given to secure part of the purchase price of the automobile and consequently that part of the exception relied on by counsel for plaintiffs'does-not apply.

Neither are the other exceptions found in the section of the statute applicable because this was not a sale of a motor vehicle by a manufacturer and plaintiffs have not shown themselves to be distributing dealers of a manufacturer. We are not concerned with the last exception which ■ applies to loans made on the floor plan stock of motor vehicles.

We conclude therefore that the certificate of title should have had the chattel mortgage noted on its face as provided for by the statute of Missouri and that failure to so note it resulted in failure of notice that it existed and, operated as a lien on the automobile. Under ' the circumstances, and under the law o,f the State of Missouri, as we interpret it, we hold that when defendant, Dryden, bought the automobile on the certificate of title which was presented to him, he was protected against any lien or chattel mortgage which may have then been bearing against it.

Under the views we take of the case it follows that the sequestration was illegally issued and it should have been dissolved 'on counsel’s motion which was ordered to be taken as an answer to the merits. Defendant is entitled to recover, if for none other, at least for the damages claimed as attorney’s fees. The proof does not support any of the other items of dam.age demanded by him.' We think that a reasonable attorney’s fee is the sum of $200.00. Counsel for plaintiffs contend that in as much as the sequestration had already been dissolved on bond when the motion to dissolve was filed, the claim for attorney’s fees is without merit. Several cases are cited which deal strictly with the right to bond a sequestration or, as otherwise expressed, to have the sequestration dissolved on bond. In none of these cases, however, was there involved the right to demand and recover attorney’s fees as .damages for having a sequestration which had illegally issued, dissolved as the result of a trial on a motion to dissolve.

For the reasons stated it is ordered that ■ the -judgment appealed- from be and the same is hereby annulled, reversed and set aside and it is further ordered, adjudged and decreed that there be judgment in favor of the defendant, Theodore F. Dryden, and against the plaintiffs, Burtrum Bros. Motor Company, dissolving the writ of sequestration herein issued and dismissing their suit. It is further ordered that the defendant recover judgment against the plaintiffs in the sum of $200.00 as damages for attorney’s fees in having had the writ of sequestration dissolved. It is further ordered that the plaintiffs, appellees, pay all costs' of these proceedings in both courts.


author: HAWTHORNE, Justice.

text:
    214 La. 467
    GLENS FALLS INS. CO. et al. v. GLOBE INDEMNITY CO. et al.
    No. 38723.
    Supreme Court of Louisiana.
    Dec. 13, 1948.
    Morgan, Baker & Skeels, of Shreveport, for plaintiffs and appellants.
    Cook, Clark & Egan and Irion & Swit-zer, all of Shreveport, for defendants and appellees.
   HAWTHORNE, Justice.

This suit was instituted by three fire insurance companies to recover a large sum of money paid by them to the Brewster Company, Inc., as a result of a fire which destroyed a building covered by fire policies issued by plaintiffs to the Brewster Company, Inc., , and/or C. H. Treadwell, contractor. The defendants are C. PI. Treadwell, Brewster Company’s co-insured, and his liability insurance carrier.

Plaintiffs in their petition allege that they paid the Brewster Company the amount of the fire loss, and that they, as-that company’s subrogees, are entitled to recover from the contractor (the co-insured) and his public liability insurance carrier the amount of 'such payments, alleging that the fire was caused by the negligence of the contractor, Treadwell, his agents or employees.

Plaintiffs’ suit was dismissed in the lower court on an exception of no cause or right of action, and from this judgment they have appealed to this court.

The petition, together with the exhibits —these being the various fire insurance policies and the contract for the construction of the building — , discloses that on September 5, 1944, defendant C. H. Treadwell entered into a contract with the Brewster Company for the construction, on a cost plus basis, of a building in the City of Shreveport. Under this agreement the contractor was required to submit between the first and seventh of each month a statement showing in detail and as completely as possible all moneys paid out by him on account of the cost of the work during the previous month, for which he was to be reimbursed under the contract, and at the same time was to submit a complete statement of all moneys properly due for materials or on account of separate contracts or on account of his fee, which were to be paid directly by the owner under the provisions of the contract.

The contract further provided that fire insurance should be effected and maintained upon the entire structure on which the work of the contract was to be done to 100 per cent of the insurable value, thereof, payable in event of loss to the Brewster Company as trustee for whom it might concern.

The fire insurance policies, to which was attached builder’s risk form, issued by these plaintiffs under date of September 13, 1944, insured “The Brewster Company, Inc., and/or C. H. Treadwell, Contractor,” against all direct loss or damage by fire to the building while it was in course of construction under the contract. These policies provided that in event of loss or damage such loss or damage was to be paid to the insured, Brewster' Company, Inc., and C. H. Treadwell, contractor, as their interests might appear, subject, of course, to the terms and conditions of the policies.

With the above stated provisions of the contract and the fire insurance policies in mind, we now come to a consideration of the petition itself. This petition, after alleging among other things the existence of the contract for the construction of the building and the issuance of the fire insurance policies, sets forth that on May 4, 1945, the building described in the contract was practically ' demolished by fire; that thereafter these plaintiffs paid to the Brewster Company the amount of the loss and damage occasioned by the fire, whereupon this company subrogated to the plaintiffs all its right in and to all claims and demands against any person or persons which it had by reason of the damage to the building; that the damage was caused by the fire which originated because of the negligence of the defendant Treadwell, his agents, servants, and employees.

The petition specifically sets forth in more than one instance that, on the date'the fire occurred, the building was practically completed; that on this date the contractor Treadwell had his employees, servants, agents, and wórkmen engaged in the construction’work pursuant to his contract or agreement with the Brewster Company, and, further, that the insurance policies which were is'sued both to the Brewster Company and to Treadwell by the plaintiffs were to be in force as long as the building covered thereby was under construction.

On May 4, 1945, the date of the fire, according to the petition the work was being done pursuant to the terms and under the contract for the construction of the building. In spite of this, the plaintiffs contend that their petition states a cause and right of action because it contains allegations that, at the time the fire occurred, the building was occupied by the Brewster Company, Inc., and belonged entirely to this company, and that Treadwell owned no interest in it, and that therefore they are not precluded from suing Treadwell, because, if those' allegations are taken as true, he was no longer their insured. These statements, being merely conclusions of the pleaders, cannot prevail over the specific fact, disclosed by a consideration of all the allegations of the petition together with the. contract and the fire insurance policies, that the building was still under construction on the day of the fire. Treadwell therefore had an interest therein and was insured under the terms and provisions of the policies.

These plaintiffs made no effort to amená their petition in the lower court after the exception of no cause or right of action was filed or after it had been sustained by that court, and in argument before this court contend that the petition as drafted .stated a .cause and right of action; therefore :

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

O’NIELL, C. J., absent.