author: HAMITER, Justice.

text:
    215 La. 366
    SOUTHERN AIR TRANSPORT v. GULF AIRWAYS, Inc.
    No. 39207.
    Supreme Court of Louisiana.
    April 25, 1949.

      McCloskey, Moore & Dennery and Moise W. Dennery, all of New Orleans, for defendant and appellant.
    Vosbein & Gruber, Henry C. Vosbein and Alfred J. Bonomo, Jr., all of New Orleans, for plaintiff and appellee.
   HAMITER, Justice.

Southern Air Transport, a commercial partnership composed of J. M. Granberry, Jr., and H. Willard Lewis, seeks in this tort action a judgment for damages arising out of a ground collision at the New Orleans airport during the late afternoon of July 29, 1947, between its airplane and another owned by defendant, Gulf Airways, Incorporated. Each plane is known as a Douglas DC-3 and weighs unloaded approximately 17,000 pounds.

Defendant’s ship had been flown to that airport from Houston, Texas, by the pilot thereof, Louis A. Labe, about a week prior to the accident and parked there on the south side of the army hangar, facing south. A few days thereafter plaintiff’s plane was flown in and parked about 200 feet farther south, but facing north. In these positions both aircraft remained unattended until defendant’s plane, during a rather severe thunder storm containing strong north winds, rolled along the concrete apron or ramp and collided with plaintiff’s motionless ship, resulting in considerable damage to the left wing and appurtenances of the latter. At that time pilot Labe, preponderately shown by the evidence to be an employee or agent of defendant and in charge of its plane, was at the airport but not in the immediate vicinity of the accident.

There was judgment in the district court in favor’ of the plaintiff for $7,864.40, of which amount $6,814.40 represented physical damages and $1,050 loss- of profits as a result of the collision. Defendant appealed, and in this court plaintiff has answered, praying that the award be increased so as to include additional earnings of $6,350. of which it was allegedly deprived.

Appellant, in - resisting appellee’s charge ■of actionable negligence, takes the following positions here :

1. No duty existed. on its part to protect appellee’s airplane from injury.

2. If it owed such a duty there was no failure of performance.

3. Assuming a failure of performance the accident resulted solely from an act of God.

4. If liability has been established the damages awarded are excessive.

With reference to the duty owed by operators of airplanes toward others the general rule of law is given in 6 American Jurisprudence verbo Aviation, Section 23, as follows:

“In the absence of -statutes covering the operation and management of airplanes at the time and place of an accident, specifically applicable to the issue of negligence in the operation thereof, the rules of law applicable to torts — the ordinary rules of negligence and due care — obtain. Thus, the rule of the common law that every person shall use ordinary care not to injure another, that is, such care as the great mass of mankind would use under the same or similar circumstances or such care as the ordinarily prudent person would use under the same or similar circumstances, applies. * *

In Louisiana there appears to be no statute specifically applicable to the issue of .negligence in the operation of aircraft. As to the responsibility for torts generally, however, the Revised Civil Code familiarly provides: “Every act whatever of man that causes damage to another, obliges him by whose fault it happened to repair it * * Article 2315; and, further, “We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody. * * * ” Article 2317.

That a duty devolved upon this defendant to secure its plane during the afternoon of July 29, 1947, so that injury to others would not occur, we entertain no doubt. True, the winds attending the storm had an exceedingly high velocity, estimated at the control tower at the New Orleans Airport at from 60 to 65 mph with gusts up to 70 mph. But even with winds of that strength defendant’s plane could not have rolled, as the evidence conclusively discloses, either if tied down or if the brakes had been set and were functioning properly; and ample time was afforded defendant’s pilot, who was then at the airport, to take these precautionary measures (both of which would require less than 20 minutes), for according to his own testimony he had 25 or 30 minutes’ warning of the storm’s approach. In this connection the record reveals that long prior to the accident (variously estimated at from 25 minutes to more than an hour) development of dark clouds in the north was noticeable and a storm warning was issued by the official in charge of the tower.

When, a-sked what steps they would take in safeguarding a grounded plane in anticipation of a strong blow, numerous aviation experts, offered as witnesses, agreed that they would at least make certain that the parking brakes were locked. Some said that additionally they would tie down the ship, lock the control surfaces and chock or block the wheels. Even defendant’s president admitted that under those circumstances a prudent person in charge of a plane would affix the exterior control locks, set the brakes and chock the wheels. And it is appropriate to observe, that the many other planes on the field did not roll or otherwise move during the storm, indicating that those in charge had realized a duty of safeguarding their respective ships and had discharged it.

We consider now the question of whether there was a failure on the part of this defendant in the performance of that duty. Admittedly its plane was not tied down. Nor does it appear that the wheels were chocked, no pieces of wood ordinarily used for that purpose having been found at or near the parking location following the collision. Furthermore, it is indisputable that at the time of the accident either the plane’s parking brakes were not set or if set they were defective and inoperative. The evidence is conclusive to the effect that immediately thereafter the wheels could be and were rotated with comparative ease, an operation that would have been impossible if the brakes- were set and functioning properly.

Defendant’s pilot, Labe, testified that when he brought the plane from Houston about a week before the storm he parked it, placed chocks under the wheels and set the brakes. A day or two later he entered the cockpit with an aircraft mechanic, P. J. Somerville, for the purpose of having the latter work on the generator circuit, at which time he ran the engine up and noticed that the brakes were operating. At no other time prior to the accident did he visit the plane, although he instructed Somerville that day, as defendant’s president requested him to do, to again check the generator. Several days following the mishap, Labe further testified, he flew the ship to Moisant Airport to have some repairs made on it, and then noticed that the brakes were operating perfectly. When asked whether any fluid had been added to the hydraulic system immediately prior to that flight he replied : “I don’t remember.”

The mechanic Somerville, a witness for plaintiff, - testified that he performed work on the generator of defendant’s plane on several occasions when at the'airport, the last of which was during the afternoon of the storm. While so working he observed a large bulge or defect in one of the lines of the braking system and informed Labe of it. On leaving the plane as the storm was developing, but more than 30 minutes before it struck, he noticed that the wheels were not chocked; and as he passed Labe immediately thereafter at the Moffet Hangar he told the latter that due to the storm’s coming up to "get down and secure the plane.” The reply was that “he would see to it.” Labe denied having received this suggestion; but with Somerville then was his helper, John F. Duke, who corroborated his testimony.

On the day the ship was moved to Moisant Airport, Somerville further testified, he examined the two gauges in the cockpit which disclose the plane’s braking efficiency and noticed that the pressure guage registered zero and that the hydraulic fluid content gauge read empty, an indication of ineffective brakes. Because of this found condition he and others added to the hydraulic-system almost two gallons of fluid.

Defendant insists that the brakes; were not faulty. It advances the theory that the plane rolled during the strong winds-because Somerville, an independent contractor for whose negligence it was not responsible, or his helper, had released the-, brakes (while working on the generator) previously set by Labe and had failed to reset them. We find it unnecessary to pass-upon this theory. For a long time (several days) prior to the accident defendant’s-agent Labe did not visit the plane, yet he-knew that mechanics had been working on. its generator and running the. engines. Under these circumstances clearly it was his duty on the approach of the storm, of which he had timely warning, to inspect the aircraft and make certain that it was secure. Had he made this inspection he could have-reset the brakes if they had been released-by the mechanics or could have tied down-the plane if the brakes were defective. He-failed in this duty, and his failure is attributable" to his principal, the defendant..

The defense that the accident resulted solely froqi an act of God can not be maintained. Of course, the winds during, the afternoon in question were exceedingly strong — 60 to 70 mph. But all of the experts agree that in winds of that velocity-the plane would not roll if its parking brakes-were locked and functioning. On the other hand winds of 25 to 30 mph, according to the evidence, would roll the plane with its. brakes unlocked. Concurring with the strong winds to cause the accident, it logically follows, was the failure of duty on the part of the defendant to properly secure its plane.

An act of God in the legal sense— that which will excuse the discharge of a duty and relieve a defendant from liability for injury—is a providential occurrence or extraordinary manifestation of the forces of nature which could not have been foreseen and the effect thereof avoided by the exercise of reasonable prudence, diligence and care or by the use of those means which the situation renders reasonable to employ. 1 Corpus Juris Secundum, verbo Act of God, page 1425, Holden v. Toye Brothers Auto and Taxicab Company, 1 La.App. 521. “Fortuitous event is that which happens by a cause which we can not resist.” Revised Civil Code Article 3556, paragraph 15. In the instant case, as shown above, the strong winds could be and were foreseen and, with respect to the accident and .injury, could have been resisted by the exercise of reasonable prudence and diligence.

The award of $6814.40 for physical damages was based on an estimate submitted by George A. Potter, an aviation repair man offered as a witness by plaintiff. Twq other equally reputable repair men, ,R. W. Magee and Frank Gear, testified as witnesses for defendant and estimated the amount •of such damages at $2850 and $2600 ■ respectively. We can not say that the district court erred in accepting Potter’s estimate and rejecting the others. That approved was submitted in writing and in much detail; the others were given verbally and without itemization. Defense counsel, direct attention to the fact, on ,the other hand, ■that Potter’s written estimate was made •subsequent to the hurricane of September, 1947, during which further damage resulted to the plane. But Potter insists that it covl ered only the July 29, 1947, damage, and his testimony is corroborated by each of the members of the.plaintiff partnership.

The item of $1050, allowed by the district court as lo.ss of profits on a contracted commercial flight to Baltimore, Maryland, scheduled for the day following the acci•■dent, is not questioned by defendant here.

In ■ considering the answer to the appeal, under which plaintiff claims the additional sum of $6350 for further loss of earnings during the 74 days between the accident and the filing of this suit, we notice that the average monthly net income of plaintiff had been approximately $400 per month during ¡the period of four months in which' it had been operating; that approximately 30 days is required in making the repairs; and that considerable delay attends the obtaining of necessary parts and materials from'the factory ¡located in California. It seems only reasonable, in view of these circumstances, that plaintiff’s award should be increased to cover the loss of profits, based on its average monthly income, for the mentioned 30 days and for an additional 15 days during which parts and materials might be assembled.

For the reasons assigned the judgment is amended by increasing the award in plaintiff’s favor from $7864.40 to $8464.40, and as thus amended, it is affirmed. Defendant shall pay all costs of both courts.

O’NIELL, C. J., takes no part.


source: Caselaw Access Project

author: HAMITER, Justice. HAWTHORNE, Justice

license: Public Domain

text:
    215 La. 378
    SAXTON et ux. v. PLUM ORCHARDS, Inc.
    No. 38998.
    Supreme Court of Louisiana.
    April 25, 1949.

      Porteous & Johnson and William A. Porteous, Jr., all of New Orleans, for plaintiffs and appellants.
    John F. Stafford and Sydney J. Par-longue, both of New Orleans, for defendant and appellee.
   HAMITER, Justice.

Invoking the attractive nuisance doctrine, plaintiffs sued to recover damages for the loss of their four year old daughter whose lifeless body was found in a deep pool of water on defendant’s property, they alleging that the child’s drowning was due entirely to the negligence of defendant in creating and maintaining the pool which was alluring and attractive to children.

Answering, defendant generally denied plaintiffs’ allegations, and it affirmatively showed as follows:

“And now for further answer to the plaintiffs petition defendant avers that it is the owner of the house in which the plaintiffs lived and that there was a lake or pond on another portion of the property owned by the defendant and that the plaintiffs knew this fact and that if á death did occur as recited in the plaintiffs petition a fact which defendant denies, then the cause of the death and the resulting damages was caused by the failure of the plaintiffs to properly attend and guard' their minor child, that such act on the part of the plaintiffs should be a ba'r to their recovery. This' fact the defendant specially pleads

There was judgment in the district court, after a trial of the merits, dismissing plaintiffs’ suit. On an appeal to the Court of Appeal that judgment was affirmed. The case is' before us on a writ of certiorari granted on plaintiffs’ application.

About the year 1942 the defendant, Plum Orchards, Inc., acquired several acres of land lying immediately north of the Gen-tilly Highway in the City of New Orleans, and it proceeded to develop the property as a subdivision, some one hundred houses later having been constructed there of which it built and owned approximately eighty.

In the northern portion of the subdivision and well within its boundaries, defendant, during the latter part of 1943 or early in 1944, excavated a place for the three-fold purpose of draining the immediate area, of obtaining dirt for filling, and of providing sewerage. The excavation thereafter, by reason of rains and drainage, resulted in a large, somewhat oblong pool of water without any outlets, the length of which was approximately 200 feet. The width thereof ranged from 20 to 30 feet and the depth from 4 to 10 feet. It had abrupt or vertical, not gradually sloping, edges or banks. This pool, which was not fenced or otherwise isolated from the remainder of the subdivision, was very near to and clearly visible from Pecan Street, on which numerous houses fronted, and Dreux Avenue where a grocery store was operated. It contained marine life such as crayfish, minnows and frogs.

In December, 1945, plaintiffs, Mr. and Mrs. Elzy Saxton, rented from defendant, under a verbal monthly lease, house No. 4754 Pecan Street; and they, with their four children whose ages ranged from two to six years, moved into the premises. Directly across Pecan Street from their home, in a house facing it, lived Mr. and Mrs. Edward Gonsoulin and their nine children. The grocery store operated on Dreux Avenue was some 200 feet away. Also across Pecan street, a distance of about 150 feet, was the above described pool, it being situated 40 feet to the rear of the Gonsoulin dwelling and 10 feet to the side of the grocery store.

Shortly before noon on Sunday, March 24, 1946, Mrs. Saxton, after having played with her children in front of her home, prepared a light lunch. A few minutes later she called the children, and all of them responded except Juanita,'her four year old daughter. Immediately, she and others commenced searching throughout the subdivision for the child, and, following an elapse of about two hours, a young neighbor (Vincent Ciccio) located her lying in the pool of water behind the Gonsoulin house at a point estimated to be from three to seven feet from the bank. Thereupon, Edward Gonsoulin went into the water (to a depth of five feet), brought the body out, and began administering artificial respiration. He pumped a small quantity of water from her system (according to Ciccio and Gonsoulin), but he did not succeed in reviving her.

While the body was still lying near the water’s edge wrapped in a blanket, a photographer employed by- a New Orleans newspaper arrived on the scene and made several photographs of the pool. These disclose (they were identified and offered in evidence) no logs or debris on the surface of the water at the spot where the child was found. But a few feet away, the pictures show, there was a sizable accumulation of short boards, sticks and small pieces of timber which extended from the bank almost across the water. The same condition obtained at several other points in the pool.

Subsequent to the occurrence of the unfortunate accident defendant, according to the testimony of one of its officers, filled the pool with dirt.

In this court defense counsel called attention to the fact that there were no eyewitnesses to the accident and that plaintiffs have not offered any direct proof of death of the child by drowning. They state in their brief here: “There is a possibility that she could have been pushed or thrown into the pond by a third party.” This point apparently was not raised in the Court of Appeal, for we find no mention of it in counsel’s brief filed there or in the written opinion of that court. Be that as it may a strong inference arises from the circumstantial evidence that the child walked or fell into the pool and that her death resulted solely from drowning. The body was found in the pool; the artificial respiration administered to it produced some water; and no one was seen at or near the pool during the two hour period in which the child was missing. And since this inference has not been overcome or rebutted it will be accepted as establishing the manner and cause of death. Siracusa v. Prudential Insurance Company, 211 La. 1066, 31 So.2d 213; 17 Corpus Juris verbo Death, §§ 166 and 176; 25 C.J.S., Death, §§ 80 and 87.

Without merit also is the affirmative defense that the death, together with the resulting damages, was caused by the failure of plaintiffs to properly attend and guard their minor daughter. The evidence abundantly discloses that the parents often cautioned all of their children about playing near the pool, and that they did everything reasonably required of them to prevent the happening of the accident.

This brings us to the important question of whether the attractive nuisance doctrine is applicable.

With reference to the doctrine generally it is well and ably stated in 38 American Jurisprudence verbo Negligence, Section 142, that:

“The attractive nuisance doctrine or, as it is sometimes called, the ‘turntable doctrine’ is a subject upon which there has been no small amount of confusion and diversity of opinion. There has been a difference of opinion not only as to whether the doctrine should be recognized, but also, in jurisdictions where it has been accepted, as to the conditions under which it is applicable. While the doctrine has been variously stated, courts which accept it generally are in substantial accord with the proposition that one who maintains upon his premises a condition, instrumentality, machine, or other agency which is dangerous to children of tender years by reason of their inability to appreciate the peril therein, and which may reasonably be expected to attract children of tender years to the premises, is under a duty to exercise reasonable care to protect them against the dangers of the attraction. Within the limitations hereinafter considered, the doctrine is for the benefit of a meddling, as well as of -a trespassing, child. The result of such doctrine is that one is negligent in maintaining an agency which he knows, or reasonably should know, to be dangerous to children of tender years, at a place where he knows, or reasonably should know, children of tender -years are likely to resort, or to which they are likely to be attracted by the agency, unless he exercises ordinary care for the protection of such indiscreet and youthful persons.”'

The limitations referred to in that general statement include the following found, in Section 145 -of the same authority:

“The foundation of liability for negligence is knowledge—or what is deemed in law to be the same: opportunity by the exercise of reasonable diligence to acquire knowledge-—of the peril which subsequently results in injury. Consistent with such general principle is the rule applied in attractive nuisance cases that the defendant is not liable unless he knew, or reasonably ought to have known, that the structure or instrumentality was alluring to children and endangered them. One of the essential conditions of liability under the doctrine of attractive nuisance is that there must have been ground for anticipating the presence of the injured child, since, unless the presence of the child is reasonably to be anticipated, the -duty of taking precautions for its safety does not arise. The owners of'land are not required in using it for legitimate purposes to guard against .every possible danger to children. To children whose presence upon the premises cannot reasonably be anticipated, they owe no duty to keep their land free from dangerous conditions. Moreover, to authorize a recovery it must be shown that the defendant knew, or ought to have known, that the child would make use of the instrumentality, and provided no guards or protections from the peril to which it was exposed, although he might reasonably have done so.”

In the annotation given on page 1263 of Volume 152 of the American Law Reports, it is said that to make out a case under the attractive nuisance doctrine there must appear:

“1. That the injured child was too young to understand and avoid the danger.
“2. That there was reason to anticipate the presence of such children, either because of some attraction on the premises, or because the danger was in some place where children had a right to be.
“3. That there was a strong likelihood of accident.
“4. That the danger was one other than those ordinarily encountered.
“5. That the precautions not taken were such as a reasonably prudent person, would have taken under the circumstances.”

Further, with reference to the doctrine generally the following observation is made in the annotation on page 224 of Volume 36 of the American Law Reports to-wit:

“The weight of authority is to the effect that the attractive-nuisance doctrine does not apply to ponds, — at least, where there is no unusual danger.”

The courts of Louisiana, as the jurisprudence discloses, have recognized and accepted the attractive nuisance doctrine, although perhaps in most of the cases in which the doctrine was invoked it, because of the peculiar factual situations involved, was not applied. Jackson v. Texas Company, 143 La. 21, 78 So. 137, L.R.A.1918D, 150; Fincher v. Chicago R. I. & P. Railroad Company, 143 La. 164, 78 So. 433; Tomlinson v. Vicksburg S. & P. Railroad Company, 143 La. 641, 79 So. 174; Peters v. Pearce et al., 146 La. 902, 84 So. 198; Friedman’s Estate v. Texas and Pacific Railroad Company, 209 La. 540, 25 So.2d 88, 163 A.L.R. 1228; McKenna v. City of Shreveport, Second Circuit, 16 La.App. 234, 133 So. 524; Peters v. Town of Ruston Second Circuit, La.App., 167 So. 491.

The following comment in the Jackson case, supra, [143 La. 21, 78 So. 139], clearly evidences a recognition and an acceptance of the doctrine:

“The counsel for defendant cites authority to the effect that it- is not the duty of an occupier of land to exercise care to make it safe for infant children who come upon it without invitation, and merely by sufferance, which is sound enough doctrine when properly applied, but it has no application to a case where the occupier has taken no steps to inform the public of his occupancy, but, having established something which is at once attractive and dangerous to young children upon land which has all the appearance of a public highway and is so used by the public, including the children, fails either to give notice that the place is not open to the public, or to take the proper precautions, to protect the public, and the children, against the danger which he has there created.”

Interesting, and certainly relevant here, is the Fincher case, supra, in which damages were disallowed to the parents of a four year old daughter who had drowned in a pond located on defendant’s property. In reaching its conclusion this court reasoned [143 La. 164, 78 So. 434]:

“There is really no dispute as to the facts, the question''being as to whether under the foregoing circumstances the turntable or attractive áppliance doctrine is applicable.
“Everybody knows, and several witnesses in this case testify, that a pool of water is attractive to children; but, for the application of said doctrine, it does not suffice that the thing from which the injury has resulted was in itself attractive or, in other words, was such that the instincts of children would prompt them to meddle; or play with or in it, but it must be so situated as to lure or attract children from the safe place where they have a right and are likely to be, 'and induce them to enter the premises where' the attraction is in order to meddle or play with or in it, and the danger of its so alluring children must be so obvious that a due regard for the safety of the children would suggest to a man of ordinary prudence and necessity of taking precautions for their protection. * * *
“True, in this case, this pool was not very -far from the depot, and not very far from the street, but it was on ■ the other side of the railroad tracks, and down an embankment, not within sight from the street, nor until the first track of the railroad had been crosséd. Not accessible, or even visible, therefore, to children except by going upon the railroad tracks, a place certainly where children had absolutely no right to be, where they would be incomparably in greater danger than when within sight of, or even access to, a pool of water, * * *
“In this case the child could not have been attracted by this pool until after she had become a trespasser.”

What makes that decision ' particularly appropriate here is the fact that in such case, as our examination of the briefs discloses, the defendants urged the court (just as in this case) to apply the majority rule that ponds are not to be classed with turntables and that the owner of t-he property on which a pond is situated is under no obligation to keep the premises guarded against trespassing children. But the court refused to apply that rule, basing the decision on the fact that the pond was rather inaccessible and isolated, that is so located that children could not have been attracted by it until after they had become trespassers on another portion of defendant’s property. The inference resulting is that under certain circumstances the attractive nuisance doctrine can be applicable to a pond.

In the Tomlinson case, supra [143 La. 641, 79 So. 175], it is said:

“ * * * The doctrine of responsibility for having on one’s premises an inviting or attractive danger to children must be — and we think it has been — confined to cases where the dangerous agency -is so obviously tempting to children that the owner is guilty of negligence for failing to observe and guard against the temptation and danger. * * *” .

An almost identical comment is found in Peters v. Pearce, supra.

In the light of the above stated principles of law we consider now the peculiar facts and circumstances of the instant case.

At the time of the drowning plaintiffs’ daughter was only four years old. It • can not be gainsaid that a child of that tender age is without the ability to appreciate the peril attending a pool of water such as that in which her body was found.

But was this pool unusually attractive to and dangerous for children? Was there a strong likelihood of an accident? Could the presence of children be reasonably anticipated? Did defendant fail to take precautions for the protection of children such as a reasonably prudent person would have taken under the circumstances? For the attractive nuisance doctrine to be applicable here all of these questions, which are interrelated and may be discussed together, must be answered in the affirmative. We think that they can be.

A pool of water naturally attracts children. Fincher v. Chicago R. I. & P. Railroad Company, supra. The instant pool, undoubtedly, was unusually attractive and alluring to children in view of of its contents and location. In it was a large quantity of debris, consisting of small timbers, sticks and short pieces of boards, — of the kind with-which children enjoy playing, using them as boats. Additionally, it contained crayfish, minnows and frogs, — marine life that invariably attracts childish interest. And the pool, besides being clearly visible from the nearby streets and dwellings, was readily accessible. It was not fenced off in any manner; in fact, no fences separated the houses in that vicinity.

Then too there were numerous children continuously within a short distance of the pool. In plaintiffs’ home lived four (ISO feet away); the Gonsoulin’s had nine (40 feet away); and the grocery store (10 feet away) was often visited by young customers. According to defendant’s manager not less than 20 children resided, in the area. With this knowledge, and in view of the pool’s attractiveness, visibility and accessibility, defendant could reasonably anticipate children’s playing at and near the water.

That the pool was unusually dangerous and that there was a strong likelihood of an accident can not be denied. Its banks did not slope gradually — they were abrupt, vertical; and immediately beside them the water had a depth of at least four feet. At the deepest part of the pool it stood near 10 feet. While playing with the marine life, or attempting to use the 'accumulated debris as boats, rafts, or a walkway, a child of tender age very easily could slip or fall into the water with disastrous results.

A reasonably prudent person, under the circumstances shown above, would have taken precautions for the protection of children from the obvious danger. If maintenance of the pool was desired defendant could have fenced it adequately withoút too large an expense. However, the eliminating of the pool entirely long before the accident, just as .was ultimately done, would have been more appropriate for it served no useful purpose. After becoming filled to capacity with water, it was useless for drainage; besides, according t.o the record, large drainage canals existed along the north, west and east boundaries of the subdivision. Defendant did nothing to provide the needed protection.

Defense counsel rely largely on the decisions in McKenna v. City of Shreveport and Peters v. Town of Ruston, both supra. On a number of grounds those cases are distinguishable, some of which are that the children involved therein were not of the tender age enjoyed by the child here, and the respective ponds were not unusually attractive and dangerous to children as was the instant pool of water.

For the loss of companionship, love, comfort and anticipated aid of their daughter and for shock and mental suffering plaintiffs pray for judgment in the total sum of $12,000. Decedent, according to the evidence, was a bright, healthy and obedient child, and no doubt her passing was a distinct loss to and- was keenly felt by her parents. For that loss no amount of money can adequately compensate the parents. Considering the child’s age, along with the mentioned circumstances, however, we are of the opinion that for the purpose of this decision an award of $6000 to both parents is reasonable and proper. Additionally, the father is entitled to recover the funeral expenses (for which he prayed), proved to be $411.50.

For the reasons assigned the judgments of the district court and the Court of Appeal are reversed and set aside, and there is now judgment in favor of both plaintiffs and against defendant in the amount of $6000. There is further judgment in favor of plaintiff Elzy S. Saxton and against defendant for the additional sum of $411.50. Each amount shall bear legal interest from judicial demand until paid, and defendant shall pay the costs of both courts.

O’NIELL, C. J., takes no part.

HAWTHORNE, Justice

(concurring).

I am in complete accord with the decision insofar as it holds the defendant liable, but I am of the opinion that the sum awarded as damages is insufficient.


author: PONDER, Justice. O’NIELL, Chief Justice

text:
    215 La. 396
    STATE v. WOOD et al.
    No. 39271.
    Supreme Court of Louisiana.
    April 25, 1949.

      L. G. -Campbell, of Benton, for appellants.
    Bolivar E. Kemp, Jr., Atty. Gen., M. E. Cu-lligan, Asst. Atty. Gen., and James E. Bolin, Dist. Atty., of Springhill, for ap-pellee.
   PONDER, Justice.

The -defendants, Wilson Wood, Wyatt Wood -and Gentry Wood, were convicted of the crime of simple kidnapping and sentenced to serve four and one-half years in t-he penitentiary. They ha-ve appealed from the -conviction and -sentence.

The indictment under which t-he defendants were convicted -charged -them with intentionally and -forcibly carrying Ori-ce Parker, a female person over the age of fourteen years, from one place to another without her -consent. On trial of -the -case, the prosecutrix -testified that the defendants forcibly seized her and another girl, Mary Lee Y-oun-g, -and carried them in -an automobile into the Parish of Bienville where tw-o of the defendants -raped her. S'he testified that the defendants brought her ¡back in the automobile -into Bossier Parish and left her in the road near her home.

Bill of exception No. 1 was taken to -the ruling of -the trial judge -permitting the prosecutrix to testify concerning the rape. Bill of exception No. 3 was taken to the ruling -of the trial judge allowing a practicing physician, who had examined the prosecutrix two days after the offense was committed, to -relate what he ascertained from the -examination.

(Counsel for the defendants contends -that the admission of this testimony was erroneous and prejudicial to the -defendants. He bases his- contention -on the ground ¡that the evidence was not relevant because -th-e statutory crime of kidnapping required no proof of motive and that the evidence was of no probative value to show the lack of consent in taking or -carrying the prosecutrix to -the point of -the alleged atta-c-k. Pie advances the -argument that the evidence -did not tend to. prove force and that the specific intent to commit the act -of unlawful intercourse is not ■an element -of the -crime of kidnapping.

Under the provisions of Article 441 of the Code of Criminal Procedure the evidence i-s admissible to -show intent and -the use -of force. Moreover, where several felonies are parts of the -same transaction evidence of t'he entire transaction is -admissible on the trial of an indictment for any one of the offenses. State v. Vines, 34 La.Ann. 1079; State v. Anderson, 120 La. 331, 45 So. 267; State v. Guillory, 201 La. 52, 9 So.2d 450; State v. Ferrand, 210 La. 394, 27 So.2d 174, 167 A.L.R. 559 and State v. Jones, 211 La. 387, 30 So.2d 127.

Bill of exception No. 2 was taken to the ruling of the trial judge permitting the prosecutrix to testify that she was fifteen years of age. Counsel contends that the evidence -of -t-he -age of the prosecutrix was immaterial and 'highly prejudicial to the defendants. He -bases his -contention on the ground that the statute under which the defendants were charged makes -no distinction between the kidnapping of persons of -different ages and that -the admission of the- -evidence of the youthful age oí the prosecutrix was not a material fact at issue.

The defendants were charged in the indictment with kidnapping a 'female over fourteen years of age and evidence of the prosecutrix’s age was admissible to prove this allegation. Moreover, we know of no reason why the age of a witness would not be admissible in evidence.

Bill of exception No. 4 was taken to the ruling of the .trial judge allowing the State to bring out on cross-examination from Mary Lee Wood, a witness for the defendants, that she had been treated for a venereal disease.

Counsel for the defendants contends that the evidence had no bearing on the guilt of the accused and that cross-examination of a witness is strictly limited to questions forming a basis of impeachment of facts pertinent to the issue. The authorities he cites to support his contention are to the effect that a witness cannot be cross-examined on a collateral or irrelevant fact merely for the purpose of contradicting the witness should the witness deny it. We find no fault with the authorities cited but they are not applicable.

The defendant in his motion for a new trial alleged: “That the Court erred in permitting the State through the District Attorney, to propound questions to Mary Lee Young Wood, testifying on behalf of the defendant, who was allegedly present at the time of the commission of the alleged crime, tending to show that she and the prosecuting witness contracted a venereal disease as a result of such intercourse.”

The prosecutrix testified that the defendants kidnapped her and this witness. Subsequent to the commission of the offense and prior to the trial, this witness married one of the defendants who the prosecutrix testified had raped her. The evidence was offered to prove the witness had contracted a disease similar to the one that the pros-ecutrix had contracted from one of the defendants. The witness took the stand for the defendants and testified that they were not the three men who kidnapped her and the prosecutrix. She had identified the three defendants shortly after the commission of the crime as the ones who had committed the offense. The prosecutrix’s mother and a deputy sheriff testified that this witness had identified the defendants as being the guilty parties.

The evidence was relevant under the provisions of Articles 490 and 492 of the Code of Criminal Procedure to test her credibility. It was also relevant to corroborate the testimony of the prosecutrix and disprove the testimony of the witness.

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

O’NIELL, Chief Justice

(dissenting).

The defendants, Wilson Wood, Wyatt Wood and Gentry Wood, were convicted of the crime of simple kidnapping and sentenced to imprisonment in the penitentiary for four and a half years.

It appears from the statements made or approved by the trial judge in the bills of exception that the prosecution was for the kidnapping of Orice Parker, one of two young women who were involved in the affair. The other one of them, Mary Lee Wood, married one of the three defendants, Wilson Wood, about two weeks after the date of the alleged kidnapping, and on the trial of the case was a witness for the defendants. She testified that the three young men who were then on trial were not the men who kidnapped her and the prosecuting witness, Orice Parker, and had sexual intercourse with them on the occasion of the kidnapping.

There are three bills of exception in which the defendants complain of the judge’s allowing the state to introduce1 evidence that the defendants raped or had sexual intercourse with the two young women on the occasion of the alleged kidnapping. The bill in which the salient facts disclosing the error of the judge are stated completely is Bill of Exception Number IV, which reads as follows:

“Be it remembered that on the trial of this cause the District Attorney on cross-examination propounded the following objectionable questions to Mary Lee Wood, nee Young, a witness sworn in chief for the defendants; said objectionable questions being as follows, to-wit:
“Q. ‘Did Dr. McCuller treat you for anything resulting from your relations with these boys?’ A. ‘Yes sir, he gave me some shots.’
“Q. ‘What did he give you these shots for?’ A. ‘I don’t know. I know what he said.’
“Q. ‘Did he give you more than one shot?’ A. ‘Yes sir, we went up there two or three times.’
“Q. ‘What did he say the shots were for?’ A. ‘He said they were for a bad disease.’
“To which questions the defendants, through counsel, then and there objected for the following .reasons, to-wit:
“Even though the witness was under cross-examination, such testimony was not relevant to [the] crime charged and would only have a tendency to prejudice the minds of the jurors against the defendants. That the mere fact that this witness was placed on the stand by the defendants did not license the District Attorney to go completely outside the events surrounding the crime charged under the guise of testing the credibility of the witness.
“Whereupon, the Court overruled the defendants’ objections, recalled the jury, which had been previously removed, and permitted the questions to be asked and answered in the presence of the jury; to which ruling of the Court, the defendants, through their counsel, then and there excepted, reserved these bills of exception, and made the evidence of said witness a part of these bills of exception, which, having first been tendered to the District Attorney, were given to the Judge for his reasons and signature.
“Signed — L. G. Campbell,
attorney for defendants.”

[The following statement per curiam was inserted by the judge before he signed the bill]:

“This witness was on cross-examination. She took the stand and testified for the defendants, saying that they were not the three men that picked [up] her and the Parker girl. Shortly after the crime had been committed she [Mary Lee Wood] identified the three as the men [who 'had had sexual intercourse with the girls on the occasion of the kidnapping.] She denied this on the witness stand, but her mother took the stand and testified that she did identify them. Also the mother of the Parker girl and W. H. Horton, deputy sheriff, .testified that she [Mary Lee Wood] had identified them.
“In view of her testimony on direct examination I think the district attorney had the right to ask the questions and most anything else to test her credibility. (Sgd) J. F. Mclnnis, Judge.”

In effect this witness, Mary Lee Wood, as a result of the cross-examination, informed the jury that she had contracted a venereal disease as a result of having been raped. But the important fact was that she already had told the jury that the three defendants then on trial were not the same men who had kidnapped her and raped or had sexual intercourse with her, and though the prosecuting attorney in his question asked if she had been treated for anything resulting from her relations with “these” boys, and although she answered that she had been treated for a venereal disease, she meant, of course, that she had been treated for a venereal disease which she had contracted as a result of her relations with the boys who, she had stated, had kidnapped and raped or had sexual relations with her. She did not intend to refer to the defendants because she had just stated that the defendants were not the parties who had kidnapped and raped or had sexual relations with her. With this explanation of the testimony, it is clear that the trial judge committed a reversible error in allowing the witness, Mary Lee Wood, to leave the jury with the impression that the three men on trial had raped or had 'had sexual intercourse with the girls and had given them a venereal disease. Such evidence was not only prejudicial to the three defendants on trial but it was unfair to them in that it identified them as being the same three who had sexual intercourse with the girls and gave them the venereal disease. And that in turn — erroneously — identified the three young men on trial as the parties who committed the crime of kidnapping.

For these reasons I respectfully dissent from the prevailing opinion in this case.


author: HAWTHORNE, Justice.-

text:
    215 La. 406
    LOHMAN v. LONERGAN et al.
    No. 38959.
    Supreme Court of Louisiana.
    April 25, 1949.
    Rehearing Denied May 31, 1949.
    C. B. Prothro, Shreveport, for defendants-appellants.
    Leroy Smallenberger, Shreveport, respondent. for
   HAWTHORNE, Justice.-

This case is before us under our supervisory jurisdiction to review a judgment of the Court of Appeal, Second Circuit, which .-affirmed -a judgment of the district court in favor of plaintiff, Z. Lohman, and against H. S. Lonergan, a real estate agent, in the sum of $450.00, which had been deposited by Lohman with Lonergan as part payment of the purchase price of certain real property situated in the City of Shreveport.

The writ was granted in the instant case because we were of the opinion that an error of law had been committed, but, after we received the transcript and reviewed the entire record, under the facts as found by us it is clear that the Court of Appeal committed no error of law, and its judgment should be affirmed. See Lohman v. Lonergan et al., La.App., 33 So.2d 705.

On March 28, 1945, plaintiff herein signed a contract with defendant PI. S. Loner-gan, a real estate agent, and with Joe Du-puy, designated as owner (also made a defendant in these proceedings), represented by his wife, Mrs. J. Dupuy, with reference to the purchase of certain property situated in the City of Shreveport, designated as Nos. 1919 and 19191,4 Highland Avenue, and all improvements thereon, including a six-room dwelling house and a five-room garage apartment. In this contract the purchase price of the property was fixed at $9000.00, $2000.00 of which was to be paid in cash and the balance at the rate of $80.00 per month. The contract itself was on a printed form and designated as “sales contract”. It read in part as follows:

“Received of Z. Lohman the sum of— Four Hundred and Fifty and No/100 Dollars — ($450.00) which is part payment of the purchase price of the property hereinafter described) which property was this day sold by H. S. Lonergan, Agent, for the undersigned owner, to the above person for the price and on the terms herein set forth, said sale being subject to approval of title by purchaser’s attorney. ‡ * * ’f

The contract provided that the amount of the deposit of $450.00 was to be held in trust by the real estate agent, and under the title “Special Agreement” it was agreed that the purchaser was to have possession of the garage apartment within 30 days from date of sale. The contract also contained provisions with reference to examination of title, time for curing defects and for transfer of title after approval by the purchaser’s attorney, and return of the money deposited in the event the title could not be made merchantable.

Upon the execution of this contract, plaintiff deposited with the real estate agent, in part payment of the purchase price, the sum of $450.00, which amount he now seeks to recover.

According to the testimony, plaintiff executed the contract for the primary purpose of securing a home for him and his family. He had recently returned to Shreveport to live, and, at the time the contract was entered into, he and his family were inadequately housed in a two-room apartment. The property described in the contract was being purchased by plaintiff so that he and his family might live in the five-room garage apartment located thereon, and in the contract it was especially agreed “that purchaser is to have possession of Garage Apartment with in 30 days from date of sale”. On the date this contract was entered into, this apartment was occupied by tenants of the owner, Joe Dupuy. Plaintiff was not acquainted with Mr. Dupuy, the owner of the property, prior to the execution of the contract, but dealt entirely with H. S. Lonergan, realtor, as agent for the owner.

The provision of the contract with reference to when possession of the garage apartment was to be delivered is not free from ambiguity, for it is susceptible of at least two interpretations. The contract refers to the property as property “this day sold” and provides for possession of the garage apartment “with in 30 days from date of sale”. (Italics ours.) Under this provision plaintiff contends that he was to have possession of the five-room garage apartment within 30 days from March 28, 1945, the date of the contract, while defendant Lonergan contends that possession was to be delivered within 30 days from the date of the act of sale. On the trial of the case on the merits, the realtor was, to say the least, evasive in his testimony as to when possession was to have been delivered, and finally admitted that he did not remember just what had been said on the question of possession. The plaintiff, however, testified that upon the execution of this agreement the realtor, who was the agent of the owner, informed him that possession of the garage apartment would be delivered within 30 days from the date of the contract itself, and it has been established to our entire satisfaction that both plaintiff, the prospective purchaser, and defendant Lonergan, agent of the owner, understood that possession would be delivered within this 30-day period.

The record shows that on April 28, 1945, plaintiff informed the real estate agent that he was ready to buy the property provided he could get possession of the garage apartment, and that he had the purchase price available. Since the property at that time was still occupied by the tenants of the owner, delivery of possession could not be accomplished within the period specified, and thereafter plaintiff instituted the present suit.

A careful consideration of all the testimony and evidence adduced on the trial of this case convinces us that the primary motive or cause of the contract was the possession of the garage apartment, which, as testified by plaintiff and proven to our satisfaction, was to be delivered by the owner within 30 days from the date of the contract, and, since the plaintiff was without fault and was ready and willing to accept title and pay the purchase price upon delivery of this possession, which the evidence shows could not be made for the reason that the apartment was occupied at that time by tenants of the owner, in our opinion the judgment of the Court of Appeal affirming the judgment of the district court is correct and should be affirmed.

The authorities cited by relator Lonergan in his brief have no application and are not pertinent to the issues involved in this case. In the instant case, we have based our decision entirely on the fact that possession of the garage apartment, the primary motive or cause of the contract, could not be and was not given; and plaintiff, being without fault, is entitled to the return of his deposit made on the purchase price.

For the reasons assigned, the judgment of the Court of Appeal, Second Circuit, is affirmed; relator to pay all costs.

O’NIELL, C. J., takes no part.


author: FOURNET, Justice.

text:
    215 La. 412
    OLIVIER’S MINOR CHILDREN v. OLIVIER.
    No. 38031.
    Supreme Court of Louisiana.
    April 25, 1949.
    Ellender & Wright, of Houma, for appellants.
    Elton A. Darsey, of Houma, for defendant-appellee.
   FOURNET, Justice.

Mrs. Esther Beadle Olivier, in her capacity as tutrix of her five minor children born of her marriage to the late David J. Olivier, instituted this suit on their behalf as the heirs of their father to set aside a deed by notarial act dated June 1, 1942, wherein the paternal grandmother of the minors, now deceased, conveyed to her only surviving son, Berwick J. Olivier, her right, title, and interest in and to a tract of land with improvements thereon located in the town of Houma, Louisiana, on the ground that the sale was a simulation or donation in disguise. She also seeks to have the property, after the annulment of the sale, decreed to form part of the estate of Mrs. Eva Edwards Olivier. This appeal is being prosecuted from the judgment of the lower court dismissing the suit.

It appears from the record that the property in controversy was acquired on July 5, 1897, by Charles Olivier while he was married to Eva Edwards and that her half interest in this community property and the usufruct of her husband’s half was all that she had at the time of his death in 1916. Thereafter, for her support and maintenance, she relied exclusively on the cash contribution of $10 monthly from each of her three sons, David, George, and Ber-wick Olivier, and the produce and rentals realized from the property. This arrangement continued until the death of George in 1936, when her contribution in this respect was reduced to the $20 received from the two remaining sons and such extra amounts as she requested from them from time to time. About a month after David’s death in April of 1942, Mrs. Eva Edwards Olivier, in company with the defendant, appeared before a notary public and executed the deed in controversy. In this deed Mrs. Olivier conveyed to her son her “right, title, and interest” in the property for the recited consideration of $2,170, $1,170 of which was in cash and the remainder of which was represented by a note made to the order of the maker (Berwick) and endorsed by him in blank. This note was due and payable in three months, subject, however, to a stipulation that it could be periodically and successively extended by the payment of $75 on or before maturity. In this deed Mrs,. Olivier reserved unto herself the usufruct of the property and she continued to remain in possession thereof until her death on June 3, 1943, collecting the rent from such apartments as she had leased, amounting to approximately $27 a month. From the date of the execution of this sale, the-defendant testified he contributed no' further amounts toward her support.

The plaintiffs are attacking this deed as a simulation and donation in disguise. They, as the children and heirs of their, late father, David Olivier, are, together with the defendant, Berwick Olivier, the sole heirs of both Mr. and Mrs. Charles Olivier, since George died without issue in 1936. ‘ '

Under the express provisions of the Revised Civil Code, “The sales of immovable property made by parents to their children, may be attacked by the forced heirs, as containing a donation in disguise, if the latter can prove that no price has been paid, or that the price was below one-fourth of the real value of the immovable sold, at the time of the sale” (Article 2444),-but “where the thing sold remains in the possession of the seller, because he 'has reserved to himself the usufruct, or retains possession by a' precarious title, there is reason to presume that the sale is simulated, and with respect to third persons, the parties must produce proof that they are acting in good faith, and establish the reality of the sale.” Article 2480.

The notary before whom the act was executed testified that the cash consideration therein recited was not passed in his presence when the act was signed and the defendant, admitting this fact but seeking to rebut the presumption provided for in Article 2480, testified he paid this amount to his mother in cash later that same afternoon in his grocery store. In corroboration he offered the testimony of his wife and of one Alvin J. Colwart. The defendant also testified he made regular cash payments to his mother thereafter aggregating the sum of $775, all during the short time that intervened between the date of the deed and her death,' and all in accordance with the notations made on the back of the note by the defendant himself.

' The defendant, professing to have no knowledge of his mother’s disposition of this money and obviously realizing the significance of the fact that the evidence failed to reveal any trace thereof, sought to bolster his cause by stating his mother lived extravagantly and beyond her means, purchasing expensive fruits - out of season, keeping a supply of expensive canned goods and fruits on hand, maintaining 6 cats and 5 dogs on sausage and meats, and making lavish donations of this money to his wife ■and their son, who was in the service. However, the evidence to support this, like the evidence in support of the main issue, when carefully studied and analyzed is, to say the least, most unimpressive.

The defendant’s explanation that the reason motivating the sale and his acquisition of the property was a desire to protect his mother’s possession of the property since his sister-in-law was pressing her for a settlement of the interest of the minors therein, is denied by the sister-in-law who also testified that he did attempt to purchase the interest of the minors in the property but that she refused to consent to such a sale, a fact which' he admits. His explanation further loses its force in face of the fact that he had advice of counsel and admitted he knew his mother could not be deprived of her usufruct of this community property during her lifetime, although it does not appear he so advised her. In fact, we learn from the notary, who is also an attorney and is now a district judge, that when the defendant’s mother appeared with her son for the execution of the. deed she wished to be assured that by signing the same she would not be disturbed in her possession and her continued use of the rentals from' the property during her lifetime.

Another weakness in the defendant’s evidence is apparent in his statement that within 30 days after he supposedly gave this large sum of money in cash to his 73-year-old mother — which, according to his story, he allowed her to carry away in 'her purse and take to her home where, except for tenants, she lived alone, without being concerned for her safety in keeping such a large sum around the house or without caring what disposition s'he made thereof— he made the first payment of $100, although the note did not mature for another 60 days, and that he continued making cash payments monthly thereafter, without concern as to her disposition thereof or without regard to her needs; further, that the notations appearing on the back of the note-showing such payments were all in 'his own handwriting, having been made by him with “a high priced two-bits fountain pen” and with the same ink. This seems to be most incredulous in the light of the record revealing Mrs. Olivier could write and further, that she had lived a simple and frugal life, for many years, subsisting on the small allowances given her by her sons, the small rental she collected from the apartment and room she rented out, the produce from the garden she raised, the chickens and cows she kept, the cream cheese she occasionally sold, and the small revenue derived from time to time in renting a part of the premises out for trailer purposes. Out of these small amounts she not only managed to live, but, also, to put a little money in a savings account in a local bank, which account at the time of her death, showed a balance of $150. The most inexplicable scrap of the whole fabric from which the defendant’s evidence is sought to be pieced together is the failure of the deceased to put these large cash sums in her savings account, andj also, her withdrawal from such account on January 12, 1943, of the small accumulated interest of $2.24 when at that time she was supposed to have in her possession these unusually large sums of cash.

The defendant’s testimony in many details that are unimportant except for the bearing they have on the credulity of his whole defense is impeached. In many instances his statements are exaggerated and incredible and in others they are refuted by the evidence. To illustrate, in seeking to establish his mother’s extravagance the defendant testified she lived far beyond her means, purchasing expensive food for herself and her many pets from' 5 or 6 stores in her immediate neighborhood and from a Mr. Keppel, an itinerant vendor from whom she purchased fruit, although the record shows she purchased the bulk of her groceries at the defendant’s store and that these never amounted to -more than $15 monthly. However, when pressed under cross-examination, the defendant admitted the canned goods found in a cabinet in his mother’s house at the time of her death had a 'value of only $3 or $4. In addition, the defendant failed to offer the testimony of any of these store keepers, or of Mr. Keppel, to corroborate his statement that she purchased large ' quantities of expensive foods from them. Of necessity, therefore, we must assume; as we are admonished to do under the well-recognized rules of evidence, that 'had they been called to testify their testimony would have been adverse to the defendant. First National Bank of Ruston v. Jones, 186 La. 269, 172 So. 155; Bates v. Blitz, 205 La. 536, 17 So.2d 816; Succession of Yeates, 213 La. 541, 35 So.2d 210, and the authorities therein cited. Finally, the evidence showed the deceased owned only one dog.

The testimony of the defendant’s wife is equally unimpressive and does not add any weight to the defendant’s cause. While she did testify her husband paid his mother at the store with the money he kept there and that she saw her mother-in-law place the sum in her handbag, on cross-examination she admitted she could not testify of her own knowledge the exact amount that passed between them because she only heard and saw the counting as she passed by them while she was busily engaged in .waiting on customers. The weight to be given this evidence is further weakened when we consider it in the light of the other evidence in the record and more particularly Mrs. Olivier’s attempt to corroborate her husband’s effort to bolster his evidence with respect to his mother’s extravagance in lavishing gifts on his wife and son, for she would have us believe, on her simple and uncorroborated statement, that following the sale of the property her mother-in-law gave her $50 in cash on two occasions and over $200 in sums ranging from $10 to $50 from time to tóme which she sent to her son who was in the service, and that she sent this money through the mail, unregistered and uninsured, in specie. In apparent justification for sending the money she proffered the statement that he was always broke and in need of money and that he used the money to purchase watches, of which he had three or four. But under cross-examination she admitted the boy had never written his grandmother. From this fact it may well be inferred that if Mrs. Olivier did indeed send these sums to her son she sent 'her own money and the matter of the grandmother sending hers was an afterthought, or else that she did not inform her son his grandmother was his benefactor, for it would be most unusual for the boy who had so consistently written his mother for money to have been so ungrateful he would not even acknowledge his grandmother’s generosity, unless his mother failed to inform him of the source of the cash.

The testimony of the defendant’s other witness, Colwart, when analyzed, is contradictory and has very little probative value. On direct examination Colwart did testify that while in the store of the defendant purchasing some articles he saw Mrs. Olivier paid the money by her son and that she put this money in her purse after it had been counted bj’ the defendant, but on cross-examination he not only confessed he was not paying any particular attention to what was going on but admitted that while he saw the money being counted and saw it stacked in piles of $100 on the counter and made up of $10 and $20 bills, he left the store when the $1,000 mark had been reached and before the counting was completed. He also stated he did not know at the time the occasion for the delivery of this amount to Mrs. Olivier and only learned about it the next day when the defendant, driving into his filling station for gas, said it was the consideration given her for the purchase of the property.

Reviewing the entire record we find it most convincing that Mrs. Olivier continued to live after the execution of this deed very much as she had bef ore, that is, on the produce and rentals from her property and on the small amount she customarily received from the defendant, principally in the form of groceries. The record is totally barren of any evidence from which the disposition of any part of the money allegedly paid her by her son could be traced, with the exception of the fantastic story the defendant and his wife told of her extravagance.

We therefore conclude that the defendant has failed to discharge the burden resting upon him to prove the reality of the sale. In fact, we think that every fact and circumstance adduced during the trial of the case supports the conclusion that the sale was a simulation, pure and simple.

For the reasons assigned, the judgment of the lower court is reversed and set aside and it is now ordered, adjudged, and decreed that the deed executed by Mrs. Eva Edwards Olivier, widow of Charles Olivier, to the defendant, Berwick J. Olivier, recorded in the conveyance records of Terre-bonne Parish in book C.B. 132, at folio 645, be declared null and void and of no effect ; it is further ordered that the property described in this said sale be decreed to form part of the estate of the said Mrs. Eva Edwards Olivier. The defendant is to pay all costs.

O’NIELL, C. J., takes no part.


text:
    215 La. 423
    BARTON v. RAZIANO et al.
    No. 39353.
    Supreme Court of Louisiana.
    April 25, 1949.

      Fred A. Middleton and Stanley A. Baron, both of New Orleans, for relator.
    Joseph A. Sims, of Hammond, and S. Monk Zelden, of New Orleans, for respondent.
   FOURNET, Justice.

Henry Raziano, against whom a judgment had been rendered by default in favor of Meyer Barton, the alleged holder of a $5,000 note executed by Raziano on July 30, 1947, applied to this court for an order prohibiting the sheriff of Tangipahoa Parish from proceeding with the sale of certain trucks, trailers, and lumber in satisfaction of such judgment on March 5, 1949, at 10 o’clock a. m., under a writ of seizure and sale issued by a deputy clerk of court for the Parish of Tangipahoa upon the presentation of a certificate from a deputy clerk of this court showing that Raziano, who had appealed suspensively from this default judgment, had not filed the transcript of appeal within the time fixed in the order of appeal.

It appears that after the rendition of this default judgment and the refusal of the trial judge to grant him a rehearing in the matter, the relator, on October 27, 1948, obtained a suspensive and devolutive order of appeal returnable to this court on November 29, 1948, and furnished the $8,000 bond provided for in the suspensive appeal on November 1, 1948. On February 2, 1949, the judgment creditor obtained a writ of fieri facias from a deputy clerk of the district court for Tangipahoa Parish upon his presentation of a certificate from a deputy clerk of this court dated January 12, 1949, confirming the fact that the transcript of appeal had not been lodged in this court although the return date had expired and no extension of time had been obtained. Under this writ of fieri facias the sheriff proceeded to seize certain trucks and trailers, with loaded lumber. These were later released when the relator furnished a forthcoming bond. In the meantime the defendant sought by rule to have this default judgment declared a nullity and the sale of this equipment enjoined. On the return day set for the trial of this rule, however, the case was continued to March 4, 1949, the day before the property so seized was to be sold, and when on that day the case was again continued because of the absence of the respondent and his attorney, the relator applied to this court for the writs issued in this case.

Under the express provisions of the Code of Practice it was the mandatory duty of the appellant, relator here, to return the petition of appeal and the transcript of the proceedings into this court on or before the return day, November 29, 1948 (Article 587), and, having failed to do so within the three days allowed thereafter as grace or to have obtained an extension of time for the lodging of such appeal and transcript, it was within the discretion of the appellee, Meyer Barton under Article 588 to feitner have execution on the judgment as provided for in Article 589 or to have the judgment affirmed on appeal under the provisions of Article 590. Plav-ing chosen the former, he was compelled to comply with the procedure set out for the execution of such judgment under Article 589, which provides that “If the appellee prefers having execution on the judgment, he may, within three days after the time allowed for the appellant to file the record, ■obtain a certificate from the clerk of the appellate court, declaring that the record has not been brought up, and on the production of this certificate in the lower court, it shall award execution on the judgment, which then becomes irrevocable.” (Italics ours.)

This court, in the early case of Champomier v. Washington, 2 La.Ann. 1013, in construing this article, held that it was not sufficient for the appellee seeking execution of the judgment to present the certification from the Supreme Court relative to the failure of the appellant to timely file the transcript to the clerk of the district court and that a writ of fieri facias issued by the clerk under these circumstances was illegal; the certificate must be produced before the lower court and an order of execution obtained from the trial judge. The court reasoned that the expressions in Article 589 of the Code of Practice “contemplate judicial, and not mere ministerial action, upon the clerk’s certificate, and very properly; for the district judge having granted an order suspending execution, while that order stands undisturbed on his records, no execution ought to issue; and whether the certificate of the clerk of the Supreme Court, which he issues without any action of the Supreme Court, is in due form and rightfully given as to time, is a matter very properly submitted to the judge, and not left to the clerk of the court below, a mere ministerial officer.”

We therefore conclude that the writ of fieri facias issued by a deputy clerk of the Tangipahoa Parish district court in this case was illegally granted and, accordingly, the seizure thereunder must fall with it.

For the reasons assigned the writ of fieri facias issued on February 2, 1949, by Lida Morrison, deputy clerk of court for the Parish of Tangipahoa, is decreed to be a nullity, the seizure thereunder by the sheriff of Tangipahoa Parish on February 15, 1949, is set aside and the alternative writ of prohibition is made absolute, and, accordingly, the sheriff is prohibited from proceeding with the sale of the property of the relator seized thereunder.

O’NIELL, C. L, takes no part.


author: PONDER, Justice.

text:
    215 La. 428
    FIRST SEWERAGE DIST. OF CITY OF LAKE CHARLES v. CITY COUNCIL OF CITY OF LAKE CHARLES, et al.
    No. 39320.
    Supreme Court of Louisiana.
    April 25, 1949.

      Plauche & Plauche,* Lake Charles, for plaintiff-appellant.
    Selby & Hickman, Patin & Patin, Lake Charles, for defendant and appellee.
   PONDER, Justice.

The plaintiff has appealed from a judgment rejecting its demands. After careful consideration of the record, the briefs of the opposing counsel and the arguments advanced on the appeal, we have arrived at the conclusion that the judgment should be affirmed. The trial judge in his written reasons for judgment has correctly stated all the issues in the case and properly disposed of them. We, therefore, adopt his reasons for judgment as our opinion in this case, which are as follows:

“As a result of the increase in population of the City of Lake Charles, and the attendant residential and commercial expansion, the sewerage plant facilities of the First Sewerage District of the City of Lake Charles (hereinafter called Plaintiff Board) were proposed to be enlarged and improved. Accordingly, the City Council of the City of Lake Charles (hereinafter called Defendant City), as the governing authority of the municipality, called an election for the purpose of levying taxes and issuing bonds in the principal sum of $1,500,000.00. This bond issue was approved in 1947 by the qualified electorate.
“Of the approved bond issue, $1,200,000.-00 of bonds were sold by the Defendant City during the month of August, 1947 and the proceeds thereof were delivered to the Plaintiff Board for its administration and use.
“On or about May 12, 1948 the remaining authorized bonds in the principal sum of $300,000.00 were sold. The Defendant City has actually received and is now holding the sum of $303,703.31. Upon receipt of the proceeds from the sale of the remaining issue, as afore-stated, the Defendant City proposes to pay attorney’s fees in the amount of $6,800.00 to Fred C. Selby, the City Attorney, and to thereupon deliver the remaining funds to' the Plaintiff Board for such disbursements it deems necessary in consummating the public improvements so authorized. Prior to such payment to the said Fred C. Selby, the Plaintiff Board, invoking the equity arm of the Court, now seeks permanent injunctive relief against the Defendant City, its individual members, the Mayor, the Commissioner of Finance, and the Commissioner of Streets and Parks, to restrain the defendants from paying the said Selby attorney’s fee out of said proceeds and to compel the defendants to turn over to the Plaintiff Board the entirety of the fund, without deductions.
“Fred C. Selby was likewise joined as a defendant but no injunctive relief is sought against him.
“A temporary restraining order was obtained and is still in effect by agreement of all parties.
“On the return day fixed for the rule for the preliminary injunction the defendants filed a motion to dismiss and exceptions of no cause or right of action, contending that the Plaintiff Board is being improperly represented by special counsel and therefore is not properly before the Court.
“Subsequent to the return day the defendants filed answer joining issue on the merits, with reservation of their rights on the pending motions and exceptions. On the trial of the merits all issues were submitted and tried.
“Taking up the initial attack levelled at plaintiff’s status in Court, as presented by these motions and exceptions, it is contended that the employment of special counsel to prosecute this suit is violative of applicable statutes, particlarly Act No. 125 of 1912, as amended.
“The pertinent portion of Act No. 125 of 1912, as amended by Act No. 341 of 1938 and Act No. 182 of 1940, is Section 3 of said statute found in Dart’s Volume 5, Section 7409, reading as follows:
Resolution of necessity for employment of special counsel. — No Police Jury, Levee Board, Parish School Board, City School Board or other local or state board shall retain or employ any special attorney or counsel to represent it in any special matter or pay any compensation for any legal services whatever unless a real necessity exists therefor made to appear by a resolution thereof, stating fully the reasons for such action and the compensation to be paid, which resolution shall then be subject to the approval of the Attorney General and shall, if and when approved by him be spread upon the minutes of such body and published in the official journal of the parish.’
“Prior to the filing of this suit the Plaintiff Board met in official special session on June 17, 1948 and adopted a resolution authorizing the employment of S. W. Plauche, attorney, to represent it in the filing of this suit or other legal proceedings as may be necessary, and fixing his compensation. (exhibit “S-7”). A certified copy of this resolution was forwarded to the Attorney General for his approval (transcript P. 46). On June 23, 1948 the written approval of the Attorney General was obtained, the original of which is identified as Exhibit “S-8”. The resolution and approval of the Attorney General were duly published in the official journal of the parish, (exhibit “S-9”).

“Having literally complied with the statutory requirements quoted above, there is no merit to the attack levelled by defendants as to Plaintiff Board’s status in this litigation. Every needful requisite in conformity with the provisions of the statute, supra, were scrupulously observed and as a consequence the special attorney so retained in connection herewith was proper and Plaintiff Board must be held to be eligible to prosecute the demand as presented.

“The motion to quash and the exception of no right or cause of action are accordingly overruled.
“The decisive question here presented is: As the governing authority of the municipality, does the City Council of the City of Lake Charles, in calling and holding an election for the issuance of bonds for sewerage improvements, have the power and authority to contract with special counsel for legal services in connection with all matters involved therein and pertinent thereto and to pay out of the proceeds realized from the bond sale the contracted attorney’s fees, or is such authority vested exclusively in the Plaintiff Board? The answer of the defendants rests squarely and solely upon the proposition that the City Council of the City of Lake Charles contracted to pay the City Attorney the special compensation in question and that it has the full authority to pay such fee in addition to all other expenses legally incurred in calling, holding the election, and the issuance and -the sale of the bonds so authorized.

The First Sewerage District of the City of Lake Charles (Plaintiff Board) was organized in 1909 under the provisions of Act No. 285 of 1908. This statute, the first and comprehensive statute dealing with the powers and duties of sewerage districts in Louisiana, authorizes the creation of sewerage districts by municipal corporations; grants to such sewerage districts, when created, certain powers; provides for the election of the Board of Sewerage Commissioners and the manner in which the Board shall conduct its affairs; that the members of said Board shall serve without remuneration and that the City Attorney of the municipality creating the Board shall be ex-officio attorney for the Board and shall serve as such without remuneration. The statute further provides that any election to be held in such sewerage districts for the incurring of indebtedness and the issuance of negotiable bonds shall be called by the respective sewerage boards.

“The manner and procedure of calling and holding elections for the purpose of issuing and selling sewerage district bonds was changed in 1921 by Act No. 46 of the Extra-ordinary session of that year. This statute spells out the procedure for holding elections for the purpose of issuing all types of local improvement bonds in parishes, road districts, sewerage districts, municipalities, gravity drainage districts and by school boards. The act further expressly declares that the municipal authorities, which in this instance, is the City Council of the City of Lake Charles, shall be the governing authority of sewerage districts within the confines of the municipality. It is specifically declared that as relates to the calling and holding of elections and the ministerial acts of issuing and selling the bonds, said municipal authorities shall be the governing and controlling authority.
“The next statute we find relating to sewerage boards, in chronological order, is Act No. 135 of 1922 which amends Section 2 of the basic statute (Act No. 285 of 1908) therein broadening the powers heretofore granted. It is conceded that this statute (Act No. 135 of 1922) has no application to the issue here presented.
“The next statute relating to the subject matter was Act No. 26 of 1926 which conferred on municipalities the authority of creating sewerage boards, enumerating its powers, and delegating to the municipality creating the same the appointment of the members thereof. This act likewise has no application to the instant case.
“At the following 1928 Session of the Legislature the basic statute of 1908 was amended by Act No. 46 of 1928. This statute amended and re-enacted the title and Sections 1, 2, 5 and 7 of Act 285 of 1908 and again enumerated the powers of sewerage boards. It further provided, by reference, that the election procedure as provided for by Act No. 46 of 1928 would be controlling.
“Section 5 of said amending statute (Act 46 of 1928) amends Section 5 of the 1908 statute so as to read as follows:
“ ‘That all elections within said districts for incurring of indebtedness and the issuance of negotiable bonds as above provided, shall be called and said bonds shall he issued and sold by the governing- authority of said municipality as provided by Act No. 46 of the Legislature of Louisiana for the year 1921 and Acts superseding or amending the same, and for the payment of the principal and interest of said bonds the governing authority of said municipality shall levy annually ad valorem taxes on all the taxable property in said sewerage district in the manner provided by Act No. 46 of the Legislature of Louisiana for the year 1921 and Acts superseding or amending the same.’

“Thus amended, it is obvious therefore that all elections within said sewerage districts for the incurring of indebtedness and the issuance of negotiable bonds shall be called, perfected, held and the bonds issued and sold by the governing authority of the municipality, namely; the City Council or Municipal Board.

“Said statute of 1928 also amends Section 7 of the basic statute of 1908. In the basic statute, Section 7 thereof provided that the City Attorney ‘shall be ex officio attorney for the Board of Sewerage Commissioners, and shall serve as such without remuneration.’ Section 7 of Act 46 of 1928 provides that ‘the City Attorney of such municipality shall be ex-officio attorney for said Board of Sewerage Commissioners’, thus omitting the provisions of the former section that he ‘shall serve * * * without remuneration.’ By such an amendment the Legislature clearly evidenced the intention that the City Attorney should be compensated for his services, thus removing him from the ineligible list and permitting him to receive special compensation under proper circumstances.

“The Municipal Council of the City of Lake Charles, having called a special- election for said bond issue under the applicable statutes, supra, thereupon engaged the services of Fred C. Selby, City Attorney, for the purpose of casting and perfecting all legal matters and proceedings in connection therewith at an end that said bonds would be presented to and be acceptable on the market. On December 19, 1947, pursuant to the contract previously entered into, as a-fore-stated, the Defendant City Council, in a regular official session, adopted a resolution setting forth the contract between it and Mr. Selby and fixing his -fee for legal services performed in the amount of $8,000.-00, less the sum of $1,200.00 to be paid to Chapman and Cutler, nationally known bond attorneys, leaving a net fee, in favor of Mr. Selby, of $6,800.00 and which is the amount presently in dispute. This resolution was forwarded to the Attorney General as required by the provisions of Section 7409, Volume 5, Dart’s Statutes and which was thereafter approved by the Attorney General and certified as required. (See Exhibit “D-l” and “D-2”).
“At the outset it may be stated that this suit does not present any attack questioning the legal services rendered by Mr. Selby, nor that they have not been performed or thait they have not been satisfactorily completed. Neither is bad faith, fraud or misrepresentation injected herein.

“It must be conceded that in the absence of statutory restrictions or prohibitions, municipal corporations enjoy a general power to make contracts in furtherance of corporate objects. The powers of a mu nicipal corporation are not alone confined to that which is expressly and specifically granted. These powers may be divisible, those expressly granted and those that may be fairly implied. These implied powers include matters which are incidental to' expressed powers, or fairly indispensable to the execution thereof. Su-ch implied powers are such as may be naturally inferred as a result of the imposition of expressed powers and duties, the fulfillment of which could not be otherwise accomplished. Of necessity, these implied powers must be such as are gei'mane, reasonable and necessary and not such as may be foreign to the power or duty delegated to a municipality.

“In the case of State v. Board of Commissioners of the Port of New Orleans, 153 La. 664 [96 So. 510, 512], the Court said:
‘The investment in the board of “all rights, powers and immunities incident to corporations” means, not that the board has all or any of the powers that any corporation may have, but that the board has all of the incidental or implied powers that a political •corporation needs to perform the duties that are expressly imposed upon it, or to fulfill the objects and purposes for which it was created. In allowing the board to do whatever is necessary for the exercise of the authority and duties expressly conferred upon it, the law does not put a very ■strict meaning upon what is necessary, but leaves the matter in some measure to the ■discretion of the board.’ (Italics mine)
“In the case of Montgomery et al. v. City of Lafayette, et al., 154 La. 822, 98 So. 259, [260], the Court therein said:
“ ‘A municipal corporation possesses and can exercise the following powers, and no others: first, those granted in express words; those necessarily or fairly implied in or incident to the powers expressly granted; and, third, those essential to the declared object and purpose of the corporation, not simply convenient but indispensable.’ (See extensive list of authorities ■therein cited).
“Also see: Guillotte v. City of New Orleans, 12 La.Ann. 432; Parish of Ouachita v. City of Monroe, 42 La.Ann. 782 [7 So. 717]; American Ice Co. v. Police Jury, 162 La. 614, 110 So. 878.

“In a general and broad sense it may be equally stated, as conceded by both sides, that ‘responsibility and power are ■concomitant.’ It is equally obvious that •powers expressly conferred upon a municipality to be exercised for the public benefit or protection imposes a duty and obligation. This duty and obligation is not permissive, but imperative, and in the performance thereof it is necessarily called upon to exercise such implied powers as are fairly incidental thereto so that the duty thus imposed may be fully effectuated.

“The authority and responsibility for calling the bond election in question and the ■issuing and sale of the negotiable bonds being expressly vested in the City Council of Lake Charles as the governing authority of said municipality, it must be conceded that there are certain resulting prerequisites which must be observed so as to attain the desired end. These prerequisites must necessarily be performed or fulfilled in conformity with legal requirements. Such prerequisites involve the 'submission of the proposition to the electorate in valid form, the conducting and holding the election and incidents thereof, the printing of the bonds' in proper legal form and their ultimate acceptance on the market. It would seem that there could be no fair dispute over the paying of expenses in connection therewith, including reasonable attorney’s fees. No municipality could reasonably expect to have a purchaser of its obligations until the bonds were cast into such form and published in such manner as the market would demand. It could not fairly be said to have acceptable bonds for sale until they were formulated in strict compliance with statutory requirements, for of necessity public securities cannot be considered marketable unless they are legal and valid in all respects. Certainly, in order to achieve this desirable result, the services of a reputable attorney must necessarily be engaged. It cannot be denied that the services of an attorney to do the numerous and sundry legal acts, and the preparation of all technical documents in connection therewith is an all-important ground work.
“The defendant Selby, as attorney, having performed all legal services required of him and the bonds having been readily approved and sold necessarily forces the conclusion that his services in that connection were manifestly successful and thai he has discharged his responsibilities under his contract of employment with the Defendant City.

“There is no statutory nor judicial authority, and I have been referred to none, which prohibits the payment of attorney’s fees as is here sought to be enjoined. This is equally true as to the payment of all other expenses incurred by the City Council of Lake Charles under the authority delegated to it in the calling and holding of said election. A fair construction of the quoted statutes supra, wherein the Defendant City Council, as the governing authority, is expressly authorized and empowered, to call, and hold the election, print, issue and sell the bonds so authorized by the electorate, as was successfully done in this instance, forces the conclusion that said Defendant City legally possessed such implied powers as were necessarily and incidental thereto. Accordingly, the Defendant City Council was fully warranted to contract for the legal services rendered in connection therewith and to now pay out of the proceeds realized from the bond sale, the attorney’s fees agreed upon.”

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

O’NIELL, C. J., takes no part.


text:
    215 La. 444
    REID et al. v. MONTICELLO et al.
    No. 38965.
    Supreme Court of Louisiana.
    April 25, 1949.
    Porteous & Johnson and William A. Porteous, Jr., all of New Orleans, for Frank Monticello and others, appellants.
    Bass & Brame, of Lake Charles, for Hardware Indemnity Ins. Co. of Minnesota, respondent.
   FOURNET, Justice.

In granting the writ of certiorari in this case we restricted the same to a review of the ruling of the Court of Appeal for the First Circuit maintaining the motion filed by the defendant Hardware Indemnity Insurance Company of Minnesota, one of the two insurers of the main defendant, for the dismissal as to it of the appeal taken by the main defendant and the other insurer from the judgment rendered against them in solido in the district court in a tort action and relieving the Hardware insurance company of liability.

Mr. and Mrs. Kinney E. Reid, in instituting suit to recover for an injury sustained by Mrs. Reid, — and the damages resulting therefrom to Mr. Reid — while she was shopping in the grocery and meat market owned and -operated by the defendant Frank Monticello, availed themselves of the provisions of Act 55 of 1930 and joined as a party defendant Monticello’s liability insurer, the Car & General Insurance Corporation, Ltd. Some seven months after the suit was filed and nearly a year after the accident, also after certain preliminary exceptions filed in limine had been disposed of, the plaintiffs, learning that Monticello was also insured by the Hardware Indemnity Insurance Company of Minnesota, joined this insurer as a party defendant in an amended and supplemental petition. Monticello and the Car insurance company filed a joint answer in which they denied negligence on the part of Monticello or any of his employees, and, in ' the alternative, pleaded the negligence of the injured plaintiff. The Hardware insurance company, answering separately, pleaded, in addition to this same defense, that there was no coverage or liability under the policy it had issued to Monticello, for the reason that it had not been timely notified of the accident and the institution of these proceedings as required under its terms.

After a trial on the merits, the trial judge rendered judgment in favor of Mr. and Mrs. Reid and against Monticello and the Car & General Insurance Company, in solido, with no mention of the disposition of the suit as against the Hardware. insurance company although in his written reasons for judgment the trial judge stated this company should be released under the special defense of failure to give timely notice. The court, however, at the request of counsel for Hardware insurance company, rendered a judgment termed a supplemental judgment in which he dismissed and rejected the demands of the plaintiffs against this company, declaring it to be free from any liability on account of these claims.' Monticello and the Car insurance company not only appealed from the judgment in favor of the Reids, complaining in their petition for appeal of the failure to hold the other insurer jointly liable, but also appealed from the so-called supplemental judgment relieving the Hardware company of all liability. In the Court of Appeal for the First Circuit the plaintiffs, answering this appeal, asked for an increase in the awards made and the Hardware insurance company moved for the dismissal of the appeal taken from the judgment in its favor on the ground that the judgment of the trial court rejected the claims of the Reids against it and the plaintiffs had not appealed from such judgment.

Counsel for the applicants argue in this court that having appealed from the judgment rendered against them and also from the judgment relieving the Hardware insurance company of the liability, Monticello is entitled to have the right of the trial judge to relieve one of his liability insurers reviewed on direct appeal as a matter of right; in any event, that they are entitled to an appeal as a third party aggrieved by the judgment under the provisions of Article 571 of the Code of Practice.

The Court of Appeal, in disposing of the first argument, concluded: “True it is that in their motion for appeal, Monticello and Car & General Insurance Company complain of the judgment on both grounds, namely that it decrees liability against them and that it also relieved their co-defendant of liability, yet this court ■is without power to entertain their complaint as to their co-defendant because as between them and their co-defendant, no issue was contested or controverted nor was any issue between them adjudicated by the judgment appealed from.” 33 So. 2d 760, 762.

The sole object of an appeal is to give an aggrieved party to a suit recourse to a superior tribunal for the correction of a judgment of an inferior court, (Article 564 of the Code of Practice) and such right is extended not only to the parties to the suit in which the judgment is rendered, but also to a third party when such third ' party is allegedly aggrieved 'by the judgment. Article 571.

We do not think it could be successfully argued that Monticello would not have had a right to appeal under Article 571 if the plaintiffs in availing themselves of the provisions of Act 55 of 1930 had proceeded against the Hardware Indemnity Insurance Company direct without joining Monticello and the district judge had dismissed the suit under the same special defense set up by the company in this case, for to all intents and purposes such a judgment would foreclose Monticello’s right to be indemnified by this insurer in the event the plaintiffs were to pursue their action against him directly and recover judgment, and he would of necessity be a third party aggrieved by the judgment. It would' seem, therefore, a highly technical and strained process of reasoning for us to conclude that because Monticello was made a party defendant in this suit with his insurer he should be precluded from appealing under Article 571, or to conclude that quoad this particular insurer there were no issues to be determined when as a matter of fact the insurer was relieved of all liability under the policy issued him by the company under the lower court’s judgment. In fact, the issue of non-coverage because of failure to give timely and proper notice of the accident and institution of this suit to the company was tendered by the company and, in our opinion, the judgment rendered relieving it of liability was just as effective and binding on the defendant Monticello as though he had been sued direct and 'had been cast in judgment and this issue ha.d been thus concluded in an action in which Monticello subsequently sought indemnification against this insurer.

While we accept as true the argument of counsel for the Hardware insurance company in this court that under the jurisprudence judgments will not ordinarily be amended or reversed on appeal as between co-appellees and that the generally accepted rule is that where a solidary judgment is sought ■ against two defendants as joint tort feasors, a judgment relieving one of liability cannot be questioned on appeal taken by the defendant cast in the judgment, the reasons therefor, being that each defendant is liable for the whole damage and the injured party may sue either or both and neither has any right as against the other, a study and analysis of the authorities that are the basis of this jurisprudence will show that they are neither apposite nor controlling here. The holding in the instant case in the Court of Appeal, and the holding of the Court of Appeal for the Parish of Orleans in the case of Jones v. Illinois Cent. R. Co. et al., 35 So.2d 33, that are directly in p.oint, we do not choose to follow, for, as hereinabove demonstrated, the reasoning on which they are based is not sound or in accordance with law.

For the reasons assigned, the ruling of the Court of Appeal for the First Circuit maintaining the Hardware Indemnity Insurance Company’s motion to dismiss plaintiffs’ appeal as to it is overruled, and the case is ordered remanded to the Court of Appeal for the First Circuit for a review of the lower court’s judgment dismissing the suit as to this company. All- costs incurred in this court in connection with 'his writ are to be paid by the Hardware indemnity Insurance Company.

O’NIELL, C. J., takes no part.