author: McBRIDE, Judge.

text:
    BAIRD et ux. v. EMPLOYERS’ LIABILITY ASSUR. CORPORATION, LIMITED.
    No. 19030.
    Court of Appeal of Louisiana. Orleans.
    Feb. 7, 1949.
    As Amended on Denial of Rehearing March 14, 1949.
    See 39 So.2d 374.

      H. L. Hammett, of New Orleans, for plaintiffs and appellees.
    Edward Rightor and W. H. Sellers, both of New Orleans, for -defendant and appellant.
   McBRIDE, Judge.

This suit arises from an automobile -col.lision which occurred on January 2, 1945, at a-bout 2:50 o’clock, p. m., in the City of New Orleans. The plaintiff wife sued for $35,000.00 -to -compensate her for personal injuries, and the plaintiff husband sued for $1,210.75, the medical a-nd -other expenses incurred in the treatment of -his wife, and for damages sustained to his -automobile. Both plaintiffs reside in New Orleans.

William R. Baird was driving his automobile down Carondelet Street with his wife as a -passenger. He stopped at Howard Avenue pursuant to a red light, when an automobile, owned by a partnership known a-s Rosenthal and Mathis, and driven by Frank Alexis, its employee, came from behind and struck the rear bumper of the Baird automobile.

This suit ist directed against The Employers’ Liability Assurance Corporation, Ltd., the insurer of the partnership’s automobile. There is a stipulation by counsel in’ the record -to the effect that defendant was the insurer of the “accident,” and that the -liability limits -of the policy -exceed the amounts sued for. Counsel further stipulated -that William R. Baird “may show medical bills and expenses in excess of the amount sued for in the petition without the necessity -of amendment, though liability therefor is denied.”

U-pon a trial below, Mr. -Baird recovered $3,516.73 and Mrs. Baird was awarded $12,-000.00. Defendant ha-s appealed suspen-sively from the judgment.

Defendant’s counsel admitted that this is a case of liability. Therefore, the only questions -to be resolved are, whether Mrs. Baird was injured in the accident, and, if so, the quantum to be allowed to plaintiffs.

The record shows that Mrs. Baird was thrown forward and then ba-ck -by the impact, and immediately felt a terrific lightning-like pain across her shoullder. After the accident, the Bairds continued on to the Union Station at Howard Avenue and South Rampart Street, where Mr. Baird was to board a train for Chicago, and his wife took over the driving of the car. The lightning-like pains seem to have subsided, and Mrs. Baird experienced no further pain until the following day.

Mrs. Baird formerly resided in Meridian, Mississippi, and testified that she visited that city from time to time. On the day after the accident she departed for her former home, but before the bus “got out into the country” she started to have “terrific pains” in her shoulder and heck, which continued throughout the trip. When she arrived at Meridian, her -left shoulder, was swollen and the muscle had a “big knot” on it.

Mrs. Baird was unable to see a doctor in Meridian and did not secure the services of a physician until she returned to New Orleans, when she visited Dr. J. T. Sanders on January 17, 1945. She was treated by several other physicians, and finally submitted to an operation by Dr. R. E. Sem-ines, of Memphis, Tennessee, on December 3, 1947.

Numerous X-ray pictures of Mrs. Baird’s neck were made, and the physicians are almost unanimous in their views that these plates showed degenerative hypertrophic changes or arthrosis, which condition, we are led -to believe from the medical testimony, would be not uncommon in a person forty-eight years old, which was Mrs. Baird’s age.

Dr. Sanders gave diathermic treatments which did not improve the patient’s condition, and then referred her to Dr. Gilbert C. Anderson, who saw her first on February 2, 1945. He found Mrs. Baird suffering from pain and the loss of power in her left hand. His thought was that she had some pressure on a nerve root caused by a ruptured disc. Dr. Anderson referred Mrs. Baird to Dr. Frank Brostrom, an orthopedic surgeon, and later concluded that operative procedure was necessary and referred her to Dr. Semmes of Memphis.

Dr. Brostrom was deceased at the time of the trial. Two of his reports, however, outlining his treatment, are in the record and were admitted into evidence without objection. He had Mrs. Baird admitted to Touro Infirmary in New Orleans, and according to his reports (and also according to the testimony of Dr. Anderson) traction treatment was applied, which is a stretching to relieve pressure. , This procedure was described by Dr. Anderson as: “A halter is applied to the patient’s he'ad in such a way as to afford as little discomfort as possible, and from this apparatus- a line is carried over a pulley attached to the head of the bed, and on that line is hung a weight.”

This first traction was given for a period of about three weeks, while the patient lay in a bed on a thin mattress; the traction weights were increased until they totalled fifteen pounds.

Mrs. Baird testified regarding this treatment and stated that it was very painful. Upon being released from the hospital she was fitted with a neck brace, and slept for' a month at her home in the same traction arrangement. During this period she was treated both by Dr. Anderson and Dr. Bro-strom. She had one spasm attack in her neck and Dr. Brostrom suggested that she be placed -back into traction, but she refused, because that operation was too painful. However, she stated that when her condition failed to improve she again-submitted to traction .on January 6, 1947, at Riley’s Hospital in Meridian, Mississippi, under the care of Dr. Gus A. Rush, Jr., a physician of that-city.

Dr. Rush testified that he had known Mrs. Baird all of his life, and that while he was in New Orleans on November 25, 1945, he observed at once that something serious had happened to her, as when he had -last seen her she was a most pleasant normal individual, -but that she had become restless and complained of intense pain in the shoulder, and of her inability to - even stand the weight of a light coat. He noticed that she constantly massaged the fingers of her left hand, arid that there was a -slight lifrip involving her -left leg.

Dr. Rush did not again see Mrs. Baird until -she w-as admitted to the hospital at Meridian, for in the meantime she wás still under the treatment of Drs. Brostrom -and Anderson. Mrs. Baird was ‘ again placed into traction, and upon being relieved from it a cast was applied to her neck 'and shoulders, but had’ to be immediately removed because of the intense pain caused by it. Dr. Rush then attempted to alleviate the pain by the use of Novocain injections, which were only temporarily helpful; one of .these injections caused the patient a severe drug reaction, which necessitated the use of another type of injection. Dr. Rush’s opinion was that Mrs. Baird’s condition was due directly to trauma.

Mrs. Baird’s condition failed to respond to any of the treatments and showed no improvement whatever, and Dr. Rush then recommended surgery. He suggested a consultation with Dr. Semmes, a neurological surgeon, at Memphis. Dr. Semmes operated upon Mrs. Baird on December 3, 1947, at Baptist Memorial Hospital in Memphis. When he first examined her she had a stiff •neck, pain in the shoulder, left arm, forearm, index finger, and in the thumb of the left hand, and also complained of tiredness in the left leg with a turning in of the left foot, and he estimated about a fifty per •cent loss of power in the left hand. His diagnosis was that the patient had a ruptured disc, which he characterized as very painful. The operation which he performed is classified as a major one; it consisted of laying open the back of the neck and exposing the spine and the left side of the interspaces.

Dr. Semmes removed some bone and ligaments, and the nerve roots were exposed in the interspaces, notably the sixth and seventh nerves. These he found to be compressed, flattened, adherent, and atrophied. He testified that he found two ruptured discs, between the fifth and sixth and between the sixth and seventh vertebrae, which he corrected.

Dr. Rush, the Meridian physician,-attended the operation at Memphis, and testified as to the existence of the ruptured discs.

Two medical expert witnesses were produced by the defendant.

Dr. Rufus H. Aldridge of New Orleans testified that he examined Mrs. Baird on February 13, 1948, and made a study of the X-ray plates. Referring to the plates of January 17, 1945, he gave the opinion that these disclosed degenerative or destructive process between the fifth and sixth cervical vertebrae, with some narrowing of the disc between them, and also possibly between the sixth and seventh vertebrae. He noticed these changes also in the other X-rays and thought -they were of some time standing, possibly for as -long as a year prior to the dates the X-rays were made. He advanced the opinion that the condition which he found would ordinarily be found in a person past the age of forty-five. Dr. Aldridge’s explanation of these ■hypertrophic changes was, “spurring or pointing of -the edges of the vertebral •body.”

The other defendant expert, Dr. Lyon K. Loomis, ordered X-rays, and examined Mrs. Baird on March 6, 1947. The plates, according to his testimony, showed “negative with the exception of some hypertrophic changes of the bodies of the fifth and sixth cervical vertebrae,” but he stated that he was unable to find any definite evidence of an injury. His interpretation of the first X-rays taken, i. e., those of 'January 17, 1945, was that they showed essentially the same condition, and he believed that the hypertrophic changes could have existed for as long as twelve months prior to the date of the "pictures.

■Concerning the X-rays of January 17, 1945, the report of Dr. Magruder, who made them in New Orleans, was that they were negative for fracture, but showed fusion between the bodies of the fifth and sixth vertebrae, an old lesion. The gist of the report of Dr. Teitelbaum, who later made X-rays, wás that degenerative arth-rosis of a moderately advanced degree appeared, but that there was no other significant abnormality demonstrated.

Counsel have argued pro and con as to the findings of the various physicians. Counsel for defendant argue that the medical evidence unmistakably shows that the hypertrophy or degenerative arthrosis was of long standing predating the accident, and that the condition was one which would ordinarily be found in a person of Mrs. Baird’s age, and that the complaints, therefore, cannot be attributed to the automobile accident. Counsel point out that Dr. Sem-mes had never been shown the Magruder X-rays of January 17, 1945, nor had he been made acquainted with the Magruder report which recited that the pictures showed an old lesion, and ’Contend that if Dr. Semmes had been given the benefit thereof he probably would not have formulated any other opinion but that Mrs. Baird’s troubles antedated the accident.

However, counsel overlook entirely the testimony of Drs. Teitelbaum and Anderson to the effect that a disc rupture is not necessarily always to be seen on an X-ray plate. They also disregard the testimony of Dr. Semmes and Dr. Anderson to the effect that their diagnoses were that the patient’s condition was due to a ruptured disc.

But regardless of what the X-ray showed, we have the positive testimony of Dr. Semmes that he found and corrected two ruptured discs, and also the equally positive testimony of Dr. Rush, who witnessed the operation, that such condition existed.

When considering all of the testimony, to which we have given the most careful study, -there*is no doubt in our minds that Mrs. Baird’s symptoms were caused by the ruptured discs. Neither can there be doubt that the condition emanated from the automobile accident. Dr. Rush testified that he had been in the armed service during the late war and had considerable experience with accidents of a similar character, in which members of the armed personnel had been thrown forward in aircraft, sustaining “a rupturing of the car-tilagenou-s disc between the vertebrae within the neck or lower back region with escaping of the gelatinous nucleus pulposus which dislocated itself around the nerve roots or cord of the affected area,” and that he believed Mrs. Baird’s condition was caused by the accident of January 2, 1945. Dr. Semmes’ opinion was that what he found at the operation would not only be consistent with the happening of the accident of January 2, 1945, but that an automobile being struck in the rear by another car is exactly “the type of injury which does cause ruptures of the intervertebral discs, and I have seen a number of cases which have resulted because of such an accident.” Dr. Loomis, one of the defense experts, admitted “it is very possible that this woman could have sustained a neck injury at the time of her accident.”

There is some conflict in the evidence as to whether the impact between the automo-, biles was violent, but we do not believe that such detail is important or is necessary to be resolved, for the reason that it is well known that when two automobiles collide suddenly, even though lightly, an unsuspecting occupant in the forward automobile will experience a jolting of the head and neck.

Before her injuries, according to Mrs. Baird’s testimony, she was a healthy normal person, and her symptoms appeared simultaneously with -the accident and continued thereafter, even down to the date of the trial below. When testifying, she -still complained of pain. She was formerly a healthy and athletic person, and indulged in such sports as swimming, golfing, and badminton, in which she is unable to engage a-t the present time. The operation has partially relieved the pain in her neck, but on frequent occasions she still suffers-. The movement -of her left -arm is restricted and she -has little use of that member, -to such an extent -that she cannot hold dishes, wring clothes, carry packages or a handbag. She ■lives very cautiously, because of the admonition given her by Dr. Semmes that her neck is vulnerable and another injury would be fatal.

Mr. Baird corroborated his wife’s testimony in considerable detail. He also testified as to her good disposition and pleasing personality previous to the accident, and contrasted it with the change that took place after the injuries. He described her as having been transformed into a nervous and irritable person who continually complains of pain.

According to Dr. Rush, Mrs. Baird will never recover the full and normal use of her left arm, -and -can never be assured o'f complete relief from pains. Dr. Semmes stated that in a few months she would know better of -the results of the -operation. However, it was his belief that her inter-vertebral joints will not return to normal, nor will the changes in the nerves, as they are probably largely irreversible. He expressed the positive opinion that her neck is very vulnerable. None of the defense experts examined Mrs. Baird after the operation, and there is no contrary evidence ■tending to show that she has not suffered permanent injuries.

Mrs. Baird underwent prolonged and severe treatments for almost two years, which included extended traction on two occasions, the wearing of a neck brace, and submission to a major operation. She was hospitalized on three different occasions. During the whole period she claims to have suffered intense pain and mental anguish. The experts classified her condition as being of a painful type.

The trial judge assessed $12,000.-00 for the injuries, which defendant’s counsel argue is excessive, citing the cases of Bonvillain v. Realty Operators, Inc., La.App., 26 So.2d 25, and Burke v. Toye Bros. Yellow Cab Co., La.App., 28 So.2d 369. A reading of those cases, however, shows that the injuries were not nearly as severe as those suffered by Mrs. Baird, nor did either of those plaintiffs undergo such an extended and painful course of treatment, and we think that the cited cases should not be employed as criteria here. We are well aware that most plaintiffs in physical injury cases are usually prone to exaggerate in expressing their suffering and injuries. However, we have given the most careful consideration to the record and it is convincing that Mrs. Baird was seriously hurt, suffered intense pain, and is permanently injured, and it is our opinion that the award should not be disturbed. In the assessment of damages for personal injuries, much discretion must be left to the court, as no rule obtains and no standard exists for measuring such damages, and all circumstances being considered there is no manifestation that there was any abuse of discretion by the trial judge.

As to Mr. Baird’s claim for $15.00 to cover damages sustained to his automobile, the same must be disallowed, as there is no proof in support thereof. He also presented an itemized statement, accompanied by receipted bills and vouchers, for $3,501.73 for expenses, which is largely made up of physicians’ fees, hospitalization, costs of nurses, X-rays, etc. His testimony is that all of the items shown on the statement were necessary in connection with Mrs. Baird’s treatment, and that he paid them, however, with the exception of one physician’s charge which had not been paid for the reason that he had never received a bill from the doctor, but that he intended to pay this bill upon its receipt.

It is argued by defendant that the medical and other expenses are out of proportion to the injuries, and that Mr. Baird made no attempt to minimize the expenses, but on the contrary sought to build up excessive charges. We see nothing in the record to indicate such, with the possible exception of the bill of Dr. Rush for $100.-00 for his expenses of travelling to Memphis to witness the operation. It is not shown that Dr. Rush, who is a general practitioner, in any way assisted at the operation, or that he even consulted with Dr. Semmes, or that his presence was requested or necessary. His own testimony is that he attended the operation merely as an onlooker, and we do not believe that this item of $100.00 should .properly be assessed against defendant.

The statement also includes charges for long distance telephone calls and the travelling expenses incurred by plaintiffs, to which defendant excepts. It is argued that Mrs. Baird coud have received adequate and competent treatment from physicians in New Orleans, and that it was not all necessary that she go to Meridian or Memphis. Of course, we would not countenance an injured person burdening a defendant with unnecessary, expenses for 'medical attention received in distant parts when proper medical services could be secured in New Orleans, but under the circumstances of this particular case we cannot say that it was unreasonable or unnecessary for Mrs. Baird to seek treatment in Meridian and Memphis. She had been treated by several New Orleans physicians and obtained no relief, becoming greatly distressed and discouraged because of her lack of progress. Dr. Rush, her life-long friend and family doctor, in whom she had implicit confidence and trust, recommended her to Dr. Semmes. Dr. Anderson, of New Orleans, also recommended Dr. Semmes. When asked if she acted upon the recommendations, Mrs. Baird testified, “Yes, I had to; there wasn’t anything else to do.”

Mr. Baird accompanied his wife to Memphis ior the operation, and resided in a hotel there during her 'Stay in the hospital. Defendant complains of his expense ■account. We believe that Mrs. Baird would naturally want her husband to be present' with her in Memphis, and it is hut natural that Mr. Baird would have a desire to be with her, and we think that the expenses should be allowed, with the exception of a few items. Included in. the account are ■bills for meals, laundry, tips, and telephone calls, which aggregate $33.80, for which we do not believe defendant is liable.

For the above reasons, the judgment appealed from is amended so as to reduce the amount allowed William R. Baird 'from $3,516.73 to $3,367.93, and as thus amended, and in all other respects, it is affirmed; defendant-appellant to pay -all costs.

Amended and affirmed.


source: Caselaw Access Project

author: McCALEB, Justice.

license: Public Domain

text:
    214 La. 750
    WILLIAMS v. BOWIE LUMBER CO., Limited.
    No. 38750.
    Supreme Court of Louisiana.
    Dec. 13, 1948.
    Rehearing Denied Feb. 14, 1949.
    Wm. H. McClendon, Jr. and Thomas B. Wheeler, both of New Orleans, for plaintiffs-appellants.
    Monroe & Lemann and Malcolm L. Monroe, all of New Orleans, for defendant-appellee.
   McCALEB, Justice.

Plaintiffs, claiming that, as descendants of one Francis Martin, they have inherited ownership of the Nji of Sec. 17, T. 14 S., R. 8 E., Lafourche Parish, less 40 acres comprising the NWJ4 of NWJ4 of that section, filed this suit to have their ownership recognized and the claims of the defendant denied. Proceeding under the provisions of Act No. 38 of 1908, they alleged that the tract is swamp land, not susceptible of actual physical possession; that the defendant, nonetheless, claims possession and that it is also asserting legal ownership under an act, dated November 5th 1900, wherein Francis Martin transferred certain properties to Robert H. Downman (defendant’s author in title). In the alternative, it is averred that, should it be found that defendant is in actual possession of the land, petitioners assume the position of plaintiffs in a petitory action.

Defendant resists the demand on the ground (1) that the deed from Francis Martin to its grantor, Downman, conveyed title to the property in suit and (2) that, in any event, it has acquired the land by prescription as it has been in open and notorious possession of the premises since 1906, or for more than 30 years.

On the issues thus formed by the pleadings, the parties stipulated the facts. After a hearing, the trial judge sustained both contentions of the defendant and dismissed the suit. Plaintiffs have appealed.

The salient facts are not in dispute and may be stated as follows: Francis Martin, from whom plaintiffs inherited, was the owner of many large tracts of timberland in Lafourche Parish, including the property in controversy. In April 1900, Martin brought suit in the Federal Court against Robert H. Downman and others, alleging that the defendants had trespassed on his lands and appropriated the standing timber thereon. However, before trial of the case, an agreement of compromise was made whereby Martin promised to transfer all of his property in Lafourche Parish to the defendants (excepting certain specific tracts not involved herein) for $100,000. Pursuant to this agreement, Martin sold and delivered to Downman by notarial act, dated November 5th 1900, a large quantity of land in Lafourche Parish (19 separate parcels) for the stated consideration of $100,-000 and his additional agreement to dismiss the suit in the Federal Court and release Downman from any claims which he might have against him for trespass. The tract in controversy was not specially described in this sale. However, following a detailed description of the 19 tracts, the deed contained the following clause:

v“The vendor herein declares that it is his true intent and purpose to sell to the purchaser herein all the property owned by him in the Parish of Lafourche, except, however, the north half of southwest quarter of section fifteen township fourteen south of range seventeen east, and also such lands as he the vendor may own in section eight of township fourteen south of range seventeen east.”

Soon after his purchase of the lands, Downman transferred to the defendant corporation. From its acquisition until 1907, defendant paid taxes on all of the lands including those in Section 17 which were erroneously described as the “NWJ4-of the NWJ4”- In 1907, the description was corrected so as to properly designate the lands on the assessment rolls as the N14 of Section 17. From that year on, or for a period of 41 years, defendant paid all taxes on the property.

Many other acts indicating possession of the lands in full ownership throughout the years have been shown by the defendant but it would be inutile to advert to this evidence since the- view we take of the case makes it unnecessary that we pass upon defendant’s plea of prescription of thirty years.

The main contention of the defendant is that the deed from Martin to Downman transferred the land in controversy, even though' it was not particularly described therein, in view of Martin’s expressed intention to convey “all of the property owned by him in the Parish of Lafourche” except certain described land in Section 15 and all land in Section 8.

We think that the point is well taken for the reason that, as between the parties to the contract and their privies, a sale of real property by an omnibus designation is just as effective and binding as though the lands were specifically described.

Under our law, the only prerequisite of form relative to the sale of an immovable is that it must be made by authentic act or under private signature. Article 2440 of the Civil Code. As between the parties, the contract of sale is perfected when three circumstances, the thing, the price and the consent, concur. Article 2439. In the case at bar, all of the essentials appear, i. e., conveyance by Martin of all of the property owned by him in La-fourche Parish (with certain specified exceptions), the price and the consent of the vendor and vendee. And, since Martin’s intent to convey everything he owned is clearly expressed in the deed, there is no reason to look beyond the four corners of the contract for interpretation. Article 1945 of the Civil Code provides that “Legal agreements having the effects of law upon the parties, none but the parties can abrogate or modify them” and that the intent “is to be determined by the words of the contract, when these are clear and explicit and lead to fio absurd consequences.”

Counsel for plaintiffs nevertheless maintain that the clause .relied upon by defendant is meaningless and invalid because of the lack of a detailed description of the lands and that, therefore, it conveys absolutely .nothing. In support of this proposition, reliance is placed in Baldwin v. Arkansas-Louisiana Pipeline Co., 185 La. 1051, 171 So. 442; McCluskey v. Meraux & Nunez, La.App., 188 So. 669; Cupples v. Harris, 202 La. 336, 11 So.2d 609; Snelling v. Adair, 196 La. 624, 199 So. 782; Reynaud v. Bullock, 195 La. 86, 196 So. 29; United Gas Public Service Co. v. Mitchell, 188 La. 651, 177 So. 697 and Daigle v. Calcasieu Nat. Bank, 200 La. 1006, 9 So.2d 394, 395.

The adjudications depended on do not support the contention of counsel and are not applicable to the situation presented here. All of those cases involved the rights of third persons and they are authority only for the proposition that a sale with an omnibus description does not supply notice to third persons who acquire an adverse interest in the lands. This was clearly pointed out in Daigle v. Calcasieu Nat. Bank, supra, where we remarked that, whereas Articles 3306 and 3307 of the Civil Code require precise description as one of the essentials for the validity of a conventional mortgage, there is no specific article of the Code with such a prerequisite as to sales. But, after referring to Articles 2251 and 2259, dealing with the registry of authentic acts by notaries in the Parish of Orleans and those in other parishes, and many authorities, the Court resolved that, to bind third persons, the'act must contain a description of the immovables and concluded thus:

“It seems to be settled now by the jurisprudence in Louisiana that such a vague and indefinite description, in an instrument purporting to convey title to real estate, as all of the land owned by the seller in a named parish, is not'sufficiently specific to give notice to third parties thereafter dealing'with the seller

We did not say that such a description rendered the sale invalid as between the immediate parties thereto. On the contrary, we merely held that an omnibus description does not provide adequate notice to third parties.

The difference between the line of cases depended on by plaintiffs and a matter such as this was perceived by the Circuit Court of Appeals for the Fifth Circuit in Saucier v. Crichton, 147 F.2d 430, where Judge Lee, as organ of the court, correctly announced that the former are limited in their application to third parties subsequently dealing with the vendor.

Plaintiffs also contend that the only right which defendant acquired under the omnibus description was an action to reform the deed, or for specific performance, and they point out that it is now too late for defendant to pursue either one of these remedies as they are personal actions which prescribe in ten years under Article 3544 of the Civil Code. Pursuant, to this notion, counsel have filed in this court a plea of prescription.

These postulations are not tenable. Initially, it is not correct to say that defendant acquired only a right to reform the sale or to have a specific performance. Indeed, the act transferred title to Downman in accordance with the clear and expressed intent of Martin. True enough, defendant could have demanded from Martin a precise description of the tract to protect itself from claims of third persons and it would have been entitled to a reformation if Martin had refused the request. See Daigle v. Calcasieu Nat. Bank, supra, at page 1019 of 200 La., at page 394 of 9 So.2d. But the fact that defendant has not elected to so do cannot improve the claim of plaintiffs as it is clear that they have no title.

Nor can the lapse of time increase plaintiffs’ rights. Defendant is neither attempting to reform the deed, nor is it seeking a specific performance of the contract. Its position is that Martin sold to Downman all of his lands in Lafourche Parish (except certain land specifically designated); that the effect of this deed was to transfer title to the property in controversy and that plaintiffs, as heirs of Martin standing in his shoes, are without right or interest to assert that the sale is invalid because the lands are not described in detail.

The judgment appealed from is affirmed,

       An act authorizing the institution of suits to establish title to real estate where none of the claimants is in actual possession.

       Defendant contends that, through in-advertanee, the lands were described as the “NW14 of the NW%” instead of “Ni/2.”


author: HAMITER, Justice. PER CURIAM.

text:
    214 La. 759
    SCHNEIDER v. SCHNEIDER.
    No. 38466.
    Supreme Court of Louisiana.
    Jan. 10, 1949.
    Rehearing Denied Feb. 14, 1949.
    See also 211 La. 959, 31 So.2d 176.
    J. Monroe Simmons, of Covington, and Chas. J. Rivet, of New Orleans, for defendant-appellant.
    Sidney W. Provensal, of Slidell and Hugh M. Wilkinson, of New Orleans, for appellee.
   HAMITER, Justice.

In this action, instituted on April 26, 1946, Mrs. Louise Manion Schneider seeks a judgment against her husband, Claude W. Schneider, decreeing a separation from bed and board between them, granting to her the permanent care, custody and control of their three minor children, and awarding alimony for the support of herself and the children.

According to the allegations of the petition herein, plaintiff and defendant were married in New Orleans on October 22, 1924, and of the marriage three children were born. In the early part of the year 1945 she sued for a separation from bed and board in the Parish of Orleans, but the suit was dismissed on an exception to the jurisdiction filed by her husband in which he showed that the matrimonial domicile was in the Parish of St. Tammany. Thereafter, specifically on June 25, 1945, she filed suit in the Parish of St. Tammany seeking the same relief. In that suit (hereinafter referred to as the former suit) she charged that her husband -had been guilty of cruel treatment, outrages and excesses toward her, of such a nature as to render their living together insupportable, and she set out specific instances thereof beginning about six months after their marriage and continuing at frequent intervals until August, 1944. The -former suit was tried on November 20, 1945, and judgment rendered therein in favor of her husband on November 23, 1945. On her appeal to the Supreme Court that judgment was affirmed. Decided by this court on March 18, 1946. See 209 La. 925, 25 So.2d 900.

Additional allegations of the petition in the instant suit, and on which plaintiff primarily relies for her cause of action, are the following:

“That her husband has again been guilty of cruel treatment, outrages and excesses toward your petitioner of such a nature as to render their living together insupportable; that on the 16th day of February in the year 1946 at the premises 1236 First Street in the City of New Orleans, Louisiana, between the hours of six and eight in the evening, she and her daughter Margaret were in the kitchen preparing their dinner when her husband came into the house. Remembering that her daughter had received an invitation and call out from a carnival organization of which petitioner’s husband was a member and thinking that her husband had sent same to their daughter, she told Margaret that she should thank her father which the child immediately did; that her husband permitted their daughter to thank him for the invitation and did not tell her that he had not sent it. Shortly afterward a friend of their daughter called their home and over the telephone informed her that he, the friend, had sent the invitation. After the telephone conversation the child returned to the kitchen much hurt and almost- immediately thereafter she left the kitchen without saying anything and your petitioner thought the child had gone to her room. Instead the child had gone to the room in which her father was and petitioner heard her say to her father, ‘Dear why did you deceive me, why did you let me think that you had sent me this invitation when you knew all the time that you had not’; that her father replied, ‘you are a little liar if you say that I told you I sent the invitation’; that petitioner then told her husband that he should not call their child a liar; that she had not lied to him, whereupon her said husband rushed toward her in a belligerent manner saying that she was encouraging their child to run around and that she was just like her mother, ‘just a G— d-— little liar’; that petitioner became alarmed and returned.to the kitchen'but that her husband followed her and pointing his finger in her face he said ‘you are a liar and always have been and you are trying to make your children just like you, you are npthing but a low down’ Irish b-and if it weren’t for my money and social position you couldn’t get anywhere and would not have a friend’; that while hurling these and other insults at her he was swinging his arms frantically with his fists closed, while standing close to your petitioner. Their daughter fearing that her mother might be bodily harmed asked her father to get out and leave her and her mother alone. Her husband then turned to their daughter and raising his hand, said, ‘I’ll beat you within an inch of your life, you nasty ungrateful little b-’. Petitioner then demanded that he leave the kitchen and stay out; that her husband then said, ‘I’ll fix you, your mother is breaking up everything and you’ll be right on the street with her when I get finished with you, I’ll sell the G— d- house and see that you both get nothing’. Becoming alarmed for the safety of herself and her daughter, as her husband by this time had become so enraged that he was walking up and down and shouting in a loud voice, petitioner went to the telephone and called up her husband’s brother, Matt, asking him to come down and take his brother out of the house so that she might avoid calling the police but her husband’s brother merely laughed and hung up the telephone; that she then rang her own brother, John, asking what to do, as she was trying to avoid calling the police to her home; that while she was talking to her brother her husband continued to hurl insults at her in a loud voice and came toward her in an effort to prevent her from using the telephone; that her daughter, again fearing for her mother’s safety, got a carving knife from the buffet drawer and standing by petitioner told her father not to come near her mother. That while she was talking to her brother, her husband knowing she was talking to her brother, shouted, ‘that son of a b-is too scared to come down here’. Fearing for the safety of her brother as well as herself and her child she then told her brother not to come down to her home but instead to try to locate one of her lawyers but he was Unable to locate either of them. Her husband continued his tirade and- insults a short while- longer and then went to. his room.”

To the petition defendant tendered exceptions of no right and no cause of action and a plea of estoppel. On these being overruled, an answer was filed in which defendant denies plaintiff’s charges of cruel treatment. His prayer is that the demands of plaintiff be rejected and, in the alternative, that he be awarded the custody of their children.

After a trial of the merits there was judgment in favor of plaintiff decreeing a separation from bed and board, granting to her the permanent care, custody and control of the children, and awarding alimony. Defendant appealed. Plaintiff has answered the appeal, praying for an increase in the alimony award.

In written reasons for his judgment the district judge first analyzed the testimony given by the litigants’ daughter, Margaret, who described in detail the occurrence of February 16, 1946. Continuing, he said:

“ * * * The plaintiff’s testimony was substantially the same as her daughter’s.
“The defendant denied that he used the language attributed to him by his wife and his daughter. He further sought to minimize the occasion and said it was only a family squabble as the result of his daughter wanting a new dress to wear to the ball. He, likewise, attributed whatever difficulties he had with the daughter to previous promptings on the part of the plaintiff.
•“After an analysis of all the testimony given in this case it is impossible for me to reach the conclusion that what transpired on February 16th, 1946, within this home was nothing more than a mild family disagreement. ' In the first place, it seems illogical that the wife would have gone to the telephone and called the defendant’s brother, as well as her own brother, to come to the home in order to quiet the defendant if he had not been acting in a threatening and belligerent manner. I note further from the testimony that shortly after the call to the defendant’s brother, Matt Schneider, that defendant’s sister, Louise Schneider, did come to the home and went to defendant’s room, where she talked with him for some time. It is logical to assume from this that the brother, Matt Schneider, called the sister and asked her to visit the home, and it is further logical to assume that he considered the argument serious enough to entreat his sister to make said visit. In addition to this, I note that the defendant admitted that his daughter, Margaret, did have a butcher knife in her hand and, certainly, the dispute must have been a serious one when the daughter, who was only seventeen years of age, considered it necessary to obtain the butcher knife in order to defend her mother. I was favorably impressed with the testimony of the daughter, Margaret, and I am of the opinion her version of what transpired on the evening of February 16th, 1946, was substantially correct. I, therefore, am of the opinion that defendant did use the language attributed to him by both the daughter and the plaintiff. I am of the further opinion that the offensive epithets which were used by the husband toward the wife in the presence of the seventeen year old daughter constitute a sufficient cause for a separation from bed and board. See Dunlap v. Dunlap, 49 La. [Ann.] 1696, and 22 So. Page 929; Schmalz v. Schmalz, 146 La. 876, 84 So. 166.
“I might further add I have held many hearings in connection with the marital difficulties that have arisen between these parties and I have reached the conclusion it is impossible for them to adjust their difficulties and live together as husband and wife. To force them to do so would not only constitute a prolongation of a life of misery for both, but certainly would not afford an environment conducive to the proper rearing of the children.”

Our careful study of the record does not leave us with the conviction that the trial judge manifestly erred in his announced finding of fact. As shown above a definite conflict in the evidence exists. The testimony of the plaintiff and the daughter accords with such finding and substantially supports the factual allegations of the petition, while that of the defendant is to the contrary. By reason of the conflict there has arisen a question of the veracity of the witnesses, and the trial judge, who resolved it in favor of plaintiff, was in a much better position to determine that question than are we.

But appellant urges here, to quote from the brief of his counsel, that:

“If, arguendo causa, we ignore the husband’s denials, and accept the wife’s version of the incident of February 16, 1946, as absolutely correct, it does not show sufficient cause to support the judgment in her favor.”

Separation from bed and board may be claimed' reciprocally on account of excesses, cruel treatment, or outrages of one of the married persons towards the other if the ill treatment is of such a nature as to render their living together insupportable. Revised Civil Code, Article 138. And there is no rule of law requiring that there be more than one instance of cruel treatment to justify a decree of separation. Sliman v. Sliman, 155 La. 397, 99 So. 343.

While recognizing these principles of law, appellant’s counsel contend that the incident primarily relied on herein by plaintiff — that occurring on February 16, 1946, during the pendency of the former suit in this court — merely evidenced disappointment in the marriage relation and incompatibility of temper which under our well established jurisprudence do not constitute cruel treatment and are not causes for a judicial separation, they citing Gormley v. Gormley, 161 La. 121, 108 So. 307, and Temperance v. Hermann, 191 La. 696, 186 So. 73. We are not impressed with this contention. Certain circumstances attending the incident, as pointed out by the trial judge, compel the conclusion that there occurred something more serious than a mild dispute. Thus, plaintiff sought the aid of both her brother and defendant’s brother; the sister of defendant came to talk with him shortly after the telephone call to his brother; and the daughter grasped and displayed a butcher knife in defense of plaintiff. Further, it seems appropriate to observe that in a mild dispute between a husband and wife of culture and refinement, to which class these litigants belong, one of them does not ordinarily use the vile epithets attributed to this defendant in addressing the other, particularly in the presence of their teen age daughter.

Therefore, we approve the holding of the district court that defendant’s conduct on the evening in question amounted to cruel treatment toward his wife, of such a nature as to render their living together insupportable, and furnished grounds for a separation from bed and board. Under the jurisprudence of this state cruel treatment is not confined to physical mistreatment, abuses or injury; it can, likewise, result from mental harassment alone arising from conduct that is the very refinement of cruelty, without either force or blows. Moore v. Moore, 192 La. 289, 187 So. 670, and the numerous decisions therein cited. See also Sampognaro v. Sampognaro, 211 La. 105, 29 So.2d 581. Unquestionably, that definition embraces the offending acts committed by this defendant.

Especially appropriate here is the case of Kammer v. Reed, 176 La. 1091, 147 So. 357, 358, the evidence in which showed that the husband had called the wife vile names. Observed the court: .

“We feel fully justified, under the facts of this case, in maintaining the self-respect and in protecting the womanhood of the plaintiff, a lady of refinement, against such vile epithets, insults, and outrages as have been heaped upon her in this case by defendant, in his sudden fits of temper and rage.
“In our opinion, the ill treatment plaintiff has received at the hands of her husband is of such a nature as to render their living together insupportable, and to entitle plaintiff to a separation from bed and board.”

Of course, had this plaintiff been responsible for the commencement of the husband’s conduct of which she complains, as defendant insists she was, she could not obtain the relief sought. Under our jurisprudence a husband or wife is not entitled to separation from bed and board because of cruelty if his or her conduct was such as to exasperate the other spouse and provoke the offending acts. Ducros v. Ducros, 156 La. 1033, 101 So. 407; Armentor v. Gondron, 184 La. 922, 168 So. 102. But we are not satisfied that plaintiff commenced the quarrel or that what she did and said was sufficiently provocative to justify defendant’s abusive and vile language toward' and ill treatment of her. After defendant had replied to the daughter “You are a little liar if you say that I told you I sent the invitation”, plaintiff intervened and told the husband that he should not call their child a liar. From this it appears in the first place, that defendant started the regrettable affair by calling the daughter, a “little liar”. Secondly, it is but natural and proper for a mother to express disapproval of a remark of that kind addressed to her daughter.

In an'answer to defendant’s appeal, plaintiff prays for an increase of the alimony award. The issue of alimony heretofore has been determined by this court, Schneider v. Schneider, 211 La. 959, 31 So.2d 176, and the award made by the district court on the trial of the merits is in keeping with our conclusion. There appears no good reason at this time- to again pass upon that issue.

For the reasons assigned the judgment is affirmed.

O’NIELL, C. J., does not take part.

PONDER, J., absent.

On Application for Rehearing.

PER CURIAM.

On application for rehearing counsel for appellant strenuously urge that this court in its original opinion ignores one of the issues presented in this case, wherein the principle, well settled in the jurisprudence, was urged that mutual wrongs debar both spouses from judicial separation. The court has carefully considered the issue as presented in the application, and we conclude that our decision as to that issue will not affect the decree rendered on original hearing. A rehearing is therefore denied.


author: MOISE, Justice. HAMITER, Justice

text:
    214 La. 772
    OIL WELL SUPPLY CO. v. NEW YORK LIFE INS. CO. IRION et al. v. NEW YORK LIFE INS. CO.
    Nos. 38691, 38692.
    Supreme Court of Louisiana.
    Jan. 10, 1949.
    Rehearing Denied Feb. 14, 1949.
    Blanchard, Goldstein, Walker & O’Quin, of Shreveport, for defendant-appellant.
    Irion & Switzer and Tucker, Bronson & Martin, all of Shreveport, for plaintiffs-appellees.
   MOISE, Justice.

The question herein presented for decision is res nova in Louisiana. There is no controversial issue of fact and the points involved being identical, these suits were consolidated.

Plaintiffs seek to recover from the de-. fendant the full amount of the extended term insurance on three policies on the life of Alfred B. Irion. The Oil Well Supply Company is the assignee of two of these policies and the wife and daughter of the deceased are the beneficiaries under the third policy. The assignee’s policies, which were in effect for a period of 5%ths years, lapsed for nonpayment of the quarterly premium due March 30, 1943. The* beneficiaries’ policy, effective for a period of 5% years, lapsed for nonpayment of the quarterly premium on December 30, 1942. At the time of these defaults in the payment of the premiums, there was some indebtedness on the policies. They had a cash surrender value, less the indebtedness at the date of lapse, sufficient to purchase on assignee’s policies extended insurance to November 16, 1945 and November 17, 1945, and to August 12, 1945 on the beneficiaries’ policies. After the death of the insured on November 22, 1945, the plaintiffs sought to collect the full amount of the extended term insurance. The defendant refused to make payment and plaintiffs filed these suits contending that if the 1942 dividend alleged to be due had been applied to the reduction of the policy loans, the cash value remaining would have been sufficient to purchase additional temporary insurance for a period extending beyond the date of the death of the insured.

The record, shows that on June 30, 1937, Alfred B. Irion, the deceased, made application to the defendant company for $25,000 life insurance to be written on the ordinary plan, payable on death to his wife and daughter. There were two supplemental applications, both of which expressly related back to the first and were to be considered part thereof, for additional insurance, one policy for $15,000 and another for $2,500. These two policies were later assigned to the plaintiff Oil Well Supply Company. In the application, the assured was given the choice of having the policies-dated as of the date of the application or as of the date on which the policies were written. In the application the deceased requested that the insurance when issued relate back to and be effective from the date of the application, June 30, 1937. In due course, under date of July 13, 1937, the policies were issued, to take effect as of June 30, 1937 and delivery thereof was made on July 26, 1937, when the first semiannual premiums were paid. After July 30, 1938, by agreement, the premiums on the policies were payable quarterly. The policies lapsed for nonpayment of the premiums, assignee’s on March 30, 1943 and the beneficiaries’ on December 30, 1942, and the policies were converted into nonparticipating term insurance for the face amount thereof less the amount of the loans thereon.

The policies of the defendant mutual insurance company provide for an annual participation in the company’s divisible surplus, by way of dividend payments. On the anniversary date of the policies for the years 1939, 1940, 1941 and 1942, dividends were applied toward payment of quarterly premiums or left at interest. Apportionment of the distributable surplus for the year 1943 was authorized by the defendant’s board of directors, first, tentatively by a resolution adopted December 16, 1942, fixing approximately $32,000,000 as the amount of the surplus to be distributed during the year 1943, and then specifically by a resolution of January 20, 1943, which determined the distributable surplus to be $32,087,840. Both of these resolutions authorized distribution of this surplus “to those policies which participate annually in surplus, on their anniversaries in 1943, provided premiums shall have been paid in full to such anniversaries cwid the policies are then in full force." (Italics ours.) No portion of the surplus distributed by the company during the year 1943 was allocated to these policies. However, it was admitted, if the policies had been entitled to the 1943 dividend, such dividend would have been sufficient as to each policy to have provided extended insurance to a date subsequent to the insured’s death.

In asserting their alleged claims against the company, plaintiffs contend: (1) That since the insured was paying a semiannual premium, and since the insurance did not take effect until the policies were delivered and the first premium paid (July 26, 1937),. accordingly two of the policies did not lapse until 5%ths years thereafter or on April 26, 1943, and the other until 5% years thereafter, or on January 26, 1943; that there is ambiguity by reason of the wording of the application and the policy, and that an interpretation must be made in favor of the insured; that predating the policies as requested by the insured constitutes a forbidden discrimination against the insured because he paid á full six months premium for the period beginning with the effective date of the policy and ending December 30, 1937, and therefore did not get six months’ coverage for the six months’ premium; (2) That because these policies were in effect during the whole of the calendar year 1942, the company was obligated to distribute to them a part of the surplus which the directors on December 31, 1942 found could be distributed, notwithstanding that the policies had lapsed for failure of the policyholders to pay the full premiums for the policy year current on December 31, 1942, and despite the further fact that the resolution of the board of directors declaring the dividend, apportioned no part thereof ■ to such lapsed policies.

The defendant argues that the policies were antedated June 30, 1937, at the written request of the insured, as shown in his application; that the policies ceased to exist. as participating policies prior to their anniversary date on 'June 30, 1943, and no portion of the divisible surplus distributable during the year 1943 was due or allocable to these policies because the premiums thereon for the policy year current upon the 30th day of December, 1942, had not been completed. Act No. '88 of 1906, § 1.

In the district court, judgment was rendered in favor of the plaintiffs. In written reasons, the district judge declared that the effective date of the insurance was June 30, 1937, as stipulated in the policies themselves, and not July 26, 1937 (the date of delivery of the policies) ; but that the policies were entitled to share in the distribution of surplus during the year 1943, notwithstanding the nonpayment of the premium for the policy year current on December 31, 1942. The defendant appealed.

There are two questions of law to be decided:

(1) What was the effective date of the policies ?

(2) Were these policies entitled to participate in the apportionment of the 1943 dividend ?

We will first consider plaintiffs’ contention that where there is ambiguity in a policy as to the effective date of the insurance, or a conflict between the provisions of the application and the provisions on the face of the policy, the policy should be construed against the insurer and in favor of the insured.

The provisions of the application dealing with the effective date "of the insurance áre as follows: “It is mutually agreed as follows: 1. That the insurance hereby applied Tor shall not take effect unless and until the policy is delivered to and received by the applicant and the first premium thereon paid * * *; provided, however, that if the applicant, at the time of making this application, pays the soliciting agent in cash the full amount of the first premium for the insurance applied for * *' *; then said insurance shall take effect and be in force under and subject to the provisions of the policy applied for from and after the time this application is made, * *

Insofar as the insured was given- a choice with reference to the. date of the policy, the application shows (sic) :

Date Policy r date ofthis application as of J [4aéc Pol-i-ey-is written.”

The pertinent provisions of the policy read :

“This policy shall take effect as of the Thirtieth day of June Nineteen Hundred .and thirty-seven, which day is the "anniversary of the Policy.
* " *. * * * *
“This contract is made in consideration of the application therefor and of the payment in advance of the sum of $* * *, the - receipt of which is hereby acknowledged,1 constituting the first premium and maintaining this Policy for the period terminating on the Thirtieth day of December Nineteen Hundred and thirty-seven, and of a like sum on said date and every six calendar months thereafter during the lifetime of the Insured.”

An insurance policy is a contract between the insurer and the insured, and the courts are bound to give legal effect to it according to the intent of the parties, the intent to be determined by the words of the contract when these are clear and explicit and lead to no absurd consequences. Art 1945, R.C.C.

The record is conclusive that the consent to antedate the contract was legally given, as shown by the above quoted provisions of the application.

Article 1901 of the Revised Civil Code provides: “Agreements legally entered into have the effect of laws on those who have formed them. * * * ”

It is a principle of law that if an insurance policy contains ambiguous provisions, courts will construe them favorably to the insured, but to invoke this principle there must be ambiguity and some doubt as to the agreement of' the parties. Here the policy provisions are certain, definite and clear. It is equally important to the policyholders and the company that definite and clear provisions should not be impaired by any loose or ill-considered interpretations. See Coons v. Home Life Ins. Co. of New York, 368 Ill. 231, 13 N.E.2d 482.

The general rule stated in 29 American Jurisprudence, under “Insurance”, Sec. 390 is: “Where a policy is antedated at the request of the insured, the agreement is binding on both parties and the premuim periods begin on the date so inserted although the policy is not delivered until a later date.”

We have two recent decisions, Muse v. Metropolitan Life Insurance Company, 193 La. 605, 192 So. 72, 125 A.L.R. 1075 and Hemel v. State Farm Mutual Auto Insurance Company, 211 La. 95, 29 So.2d 483, where it has been pointed out that an insurance policy like any other contract is the law between the parties and the court is not ordinarily at liberty to depart from its terms. When the intent of the parties is evident on the terms of the contract there is nothing for the court to construe and the policy must be given a reasonable interpretation consonant with apparent objects and plain intents of the parties.

An applicant has the choice of paying the first premium at the time he submits the application, in which event, if the application be'approved, .the insurance becomes effective from that date; so that if the applicant were to die before the policy is actually delivered, the beneficiary would nevertheless receive the full amount of the policy. Mr. Irion preferred not to pay the premium at the time of making the application and desired the earlier dating, the date of the application. When Mr. Irion received each policy, he understood that in accordance with the wish he had expressed in his application, the insurance had been made effective as of June 30, 1937 and the first premium which he paid was for the period terminating December 30, 1937. He likewise understood that similar payments were to be made by him on the 30th day of June and the 30th day of December each year thereafter during his lifetime. The indisputable facts are that he was given the choice of an effective date, that he exercised his choice, and that when he subsequently received the policy which plainly provided that June 30th was the anniversary date and that the policy became effective as of that date and that the first premium covered only the period ending December 30, 1937, he not only accepted the policy but continued thereafter to pay premiums on the basis of his original choice of an anniversary date.

There are some things in law and in fact which are self-evident and others which are proven by the senses. All that we can observe by the organs of the senses, all that we accept by precedent and authority, all that we perceive by the operation of the human understanding, and all -that we consider in retrospect or contemplate at the present or in the future, may be compounded or decomposed in the intellectual laboratory of our jurisprudence that the contract of the parties is the law of the case and, hence, we say that the judgment of the district court in fixing the anniversary date of this contract as June 30, 1937 is affirmed and this anniversary date must be used herein for all purposes.

Plaintiffs further contend that because these policies were in effect during the whole of the calendar year 1942, the company was obligated to distribute to them a part of the surplus which the directors on December 31, 1942 found could be dis-* tributed, notwithstanding that the policies had lapsed for failure to pay the full premiums for the policy year current on December 31, 1942, and notwithstanding the further fact -that the resolution of the board of directors, declaring the dividend, apportioned no part thereof to such lapsed policies.

Further pertinent provisions of the policies are:

“The proportion of divisible surplus accruing upon this policy shall be ascertained annually. Beginning at the end of the second insurance year, and on each anniversary thereafter, such surplus as shall have been apportioned by the company to this policy, shall at the option of the insured, be either * * (Here is listed various options as to method of disposition of the dividend which insured may make.)
“If no option is selected, the dividend will be applied to the purchase of a dividend addition to the sum insured. The Insured may surrender any dividend addition for cash at any time not later than three months after any default in payment of premium, and the cash value thereof shall never be less than the original cash dividend.”

Plaintiffs’ second contention is that where a policy is in full force and effect for the calendar year during which the dividend is earned, and the dividend is apportioned, the policy is entitled to be credited therewith.

Act No. 88 of 1906, § 1, Dart’s Stats. Sec. 4104, requires life insurance companies to provide in every policy: “ * * * that the proportion of the surplus accruing upon said policy shall he ascertained and distributed annually and not otherwise. Upon the thirty-first day of December of each year, or as soon thereafter as may be practicable, every such corporation shall well and truly ascertain the surplus earned by such corporation during said year. After setting aside from such surplus such sums as may be required for the payment of authorized dividends upon the capital stock, if any, and such sums as may properly be held for account of existing deferred dividend policies and for a reasonable contingency reserve, every such corporation shall apportion the remaining surplus equitably to all other policies entitled to share therein. * * * The dividends declared as aforesaid * * * shall be payable respectively either upon the anniversary of the policy next after said thirty-first day of December or upon a day certain in the year following said date, according to the rules of the corporation or the terms of the policy, and upon the sole condition that the premium payments for the policy year current upon said thirty-first day of December shall have been completed. * *

Under the provisions of this statute, the board of directors of the company was required to determine on the 31st day of December, 1942, or as soon thereafter as might be praticable, how large a sum it could safely distribute during 1943 to its policyholders. Two resolutions were passed by the company, one being tentative, the other definitive. Both dealt with the distribution of surplus during the calendar year 1943 and authorized payments during 1943 only to those policies on which the premiums had been paid in full to the 1943 anniversary date. The first resolution of the board of directors, on December 16, 1942, provided: “Resolved, that the Board of Directors hereby finds that the divisible surplus of the company as of December 31, 1942, will be approximately $32,000,000.00 (net of reinsurance in domestic.companies), and, in the absence of any further action by this Board on or before that date, hereby authorizes the officers of the Company to pay dividends on policies with anniversary dates falling due in the year 1943 at rates determined on the basis outlined in the Actuaries’ memorandum to the President, dated December 4, 1942, provided that in each case premiums shall have been paid in full to such anniversary date and the policy shall then be in full force; and to prepare and send out dividend notices for the year 1943 in accordance with this authorization; it being estimated that the aggregate amount of such dividends will approximate the sum of $32,000,000.00 (net of reinsurance in domestic companies).”

The second resolution of January 20, 1943, determined exactly the amount which could be distributed to the policyholders whose premiums were paid in full on their anniversaries in 1943. This apportionment having been made — this specific sum having been set aside for distribution — payment to all policies included therein was required by the statute to be made on the sole condition that the premium payments on such policies for the policy year current on December 31, 19Ji2 should be completed. No dividends were paid on these policies because the premium payments for the policy year current on December. 31, 1942 were not completed and the policies were thus not brought into the class to which dividends during 1943 were entitled. A definite date must necessarily be fixed for determination of surplus, but on that date policies are not all on a par as to'premium payment for the current full insurance year. Premiums are payable in advance. Therefore, some policies have contributed a full year’s premium. The policies involved here had not. The statute provides that all must be on the basis of a full year’s premium payment. The policy year of these policies which was current on December 31, 1942 is the policy year which began June 30, 1942 and ended June 30, 1943. The insurer was bound under the terms of the general resolution of its Board of Directors and under the mandate of the - Louisiana Statutes to apply to these policies the same rule, the same formula and the same procedure by which it measured the rights of every other policyholder similarly situated, which means that the insurer could not have paid a dividend on these policies during the year 1943 without violating the terms of the statutes forbidding discrimination.

The law under which the policy was written governs the rights of the parties and an insurance policy like any other contract is written and must be construed in compliance with the law existing at the time of its confection. Johnson v. Anderson-Dunham Concrete Co., 212 La. 276, 31 So.2d 797, and authorites therein cited.

The question under discussion has been decided on numerous occasions in the federal courts and in courts of other states, and the weight of the jurisprudence supports the position taken by the defendant • that a condition such as was imposed by the resolution of the board of directors of the company in this case is valid and fair. Coons v. Home Life Ins. Co. of New York, 368 Ill. 231, 13 N.E.2d 482; Menin v. New York Life Ins. Co., 188 Misc. 870, 69 N.Y.S.2d 523; Fenster v. New York Life Ins. Co., 188 Misc. 909, 66 N.Y.S.2d 871, affirmed 272 App.Div. 879, 72 N.Y.S.2d 404; Joyner v. Jefferson Standard Life Insurance Co., 5 Cir., 53 F.2d 745, certiorari denied 286 U.S. 542, 52 S.Ct. 498, 76 L.Ed. 1279; Ward v. Prudential Life Ins. Co. of America, Mo.App., 105 S.W.2d 983.

The case of Finley v. Massachusetts Mut. Life Ins. Co. 172 La. 477, 134 So. 399, 400, upon which the district court based its finding for the plaintiffs, without analysis appears to sustain the contention of the plaintiffs with respect to the 1943 dividend. But the factual situation in that case was different, and the district judge recognized this when he said: “ * * * it is true that the insured there had completed the payment of premiums for the current policy year, but lapsed his policy in -the subsequent policy year * * In the Finley case the divisible surplus earned during 1926, to be paid as dividends for the year 1927, was not ascertained and declared by resolution until January 25, 1928 and distribution was to be made “to policyholders during the twelve months beginning with June, 1928, and ending with May, 1929”. The anniversary date of the Finley policy was March 9th of each year. Mr. Finley’s policy lapsed in December, 1928. (He died on April 30, 1929). It is therefore clear that his premiums had been paid during the policy years 1926-1927, and 1927-1928. This is an all-important consideration, and the fact that the premiums for the “current policy year” had been paid in full in the Finley case was the basis for the statement by this court that “The defendant company became a debtor to each and every one of its policyholders the moment the resolution providing- for the distribution of the surplus became effective in an amount'ascertained by the-actuary.”

The doctrine of reasonable certainty must be applied in law and in fact. The application of this rule should be sought assiduously and should be the foundation for all judgments. However, in the pursuit of this objective we should not make it fit a preconceived theory but should see that the theory conforms to it.

For the reasons assigned, the judgment appealed from is annulled and set aside and it is now ordered that plaintiffs’ suits be dismissed at their costs.

HAMITER, J., dissents and assigns written reasons.

PONDER, J., absent.

HAMITER, Justice

(dissenting).

In the majority opinion it is said: “No portion of the surplus distributed by the company during the year 1943 was allocated to these policies. However, it was admitted, if the policies had been entitled to the 1943 dividend, such dividend would have been sufficient as to each policy to have provided extended insurance to a date subsequent to the insured’s death.”

The policies in question, I maintain, were entitled to be credited with the mentioned dividend.

The dividend resulted from defendant’s divisible surplus as of December 31, 1942 (see resolution of December 16, 1942, copied in majority opinion). True, as recited in the resolutions of the Board of Directors adopted pursuant to the provisions of Act No. 88 of 1906, it was not payable until the anniversary dates of the policies in the year 1943, and, further, the distribution thereof was conditioned upon payment of premiums to such dates. But it was earned on the adoption of the resolutions of December 16, 1942, and January 20, 1943, they having effected a declaration of the dividend; and there came into being then, with reference to it, a relationship between the company and its policyholders of debtor and creditor.

On the occurrence of that earning and the creation of the mentioned relationship the policies in the instant case were in full force and effect, for no premium was due prior to December 30, 1942, and each policy provided the usual thirty-one days grace period. This being true, the insured, as a creditor of the defendant, was clearly entitled to the benefit of that dividend by way of an extension of his insurance. See Finley v. Massachusetts Mutual Life Insurance Company, 172 La. 477, 134 So. 399, and Salomon v. Equitable Life Assurance Society of United States, 205 La. 941, 18 So.2d 509, 161 A.L.R. 1097.

The majority holding, as I view it, fails to distinguish between the earning of the dividend and the payment thereof.

I respectfully dissent.