author: ELLIS, Judge. DORE, Judge,

text:
    LONG v. CONTINENTAL OIL CO.
    No. 3077.
    Court of Appeal of Louisiana. First Circuit.
    March 7, 1949.
    Rehearing Denied April 19, 1949.
    Writ of Certiorari Denied May 31, 1949.
    Thos. F. Porter and Thos. L. Raggio, both of Lake Charles, for appellant.
    Hawkins & Tritico, of Lake Charles, for appellee.
   ELLIS, Judge.

The plaintiff, Era B. Long, has filed this suit under the workmen’s compensation statute, Act No. 20 of 1914, as amended, against the defendant, Continental Oil Company, in which he is claiming total and permanent disability as the result of an accident which he alleged occurred on April 27th, 1947, Plaintiff further alleged that on the day of the accident, while working within the scope of his employment as an employee of the defendant at its plant in Calcasieu Parish, Louisiana, that he was required to clean various oil pumps and that upon the completion of this duty, when plaintiff raised from a stooping position he struck his head suddenly and violently on a valve stem, causing laceration of his head, concussion, injuries to the muscles, nerves, ligaments and vertebrae of his back, and severe shock to his nervous system, ‘‘each and all of which has resulted in petitioner being totally and permanently disabled.” Plaintiff alleged that in addition to the specific injuries mentioned that he has continuously suffered from pain in the region of his back; that the pain together with his injury has disabled him from performing work of any reasonable character.

Plaintiff’s primary contention was that the injuries received by him on or about the 27th day of April, 1947 were the sole and only cause of the resulting disability; however, in the alternative, plaintiff alleged that should the Court conclude that the injuries which plaintiff received on the date alleged are not the sole cause of his present disability that “said injuries aggravated and made worse a latent physical condition or disease from which your petitioner was suffering at the time he was injured as aforesaid.”

The defendants admitted that the plaintiff, during the course of his employment on April 27, 1947, 'bumped and cut his head slightly but deny that plaintiff suffered any injury other than a slight cut about an inch long on the top of his head, and defendants further urge that plaintiff lost no time as the result of this accident and sustained no disability as a result thereof. “It is the contention of the defendants that plaintiff is suffering from a congenital condition,— a grade-1 spondylolisthesis — a condition which allows the vertebra in the spinal column to slip back and forth on one another, and that any disability the plaintiff had was caused by an accident which he sustained in 1943, and as to the 1943 accident, prescription of one and two years was pleaded.”

“Defendants contended that long prior to the April 27, 1947, accident, plaintiff’s physical condition was so bad that he had agreed to undergo a very dangerous operation on his spine to fuse the offending vertebra, and that prior to April 27, 1947, the plaintiff was so disabled by the 1943 accident that the management of the employer corporation decided to retire him.”

The case was duly tried and the District Court rendered judgment in.favor of the plaintiff as prayed for. Motion for new trial was duly filed, argued, submitted, and overruled by the Court. The defendant has, therefore, prosecuted this appeal.

The evidence in this case shows that the plaintiff, during the year' 1939, was employed by the Empire Paper Company of Wichita Falls, Texas, in its print shop; that he suffered an accident as shown by photostatic copy of notice of injury filed with the Industrial Accident Board of Austin, Texas, and claim for compensation for injury filed by the plaintiff, in which plaintiff stated that he injured his right shoulder, back and neck in that the muscles were pulled loose in same.

Plaintiff was first employed by the defendant during the year 1942 and at that time was doing hard manual labor as a pumper’s helper. He did not take any pre-employment physical examination.

The testimony reveals that the first examination of plaintiff’s back in 1943 was the result of an accident which plaintiff suffered while tightening a cap on the bottom of a tank with a forty-eight inch Still-son wrench. The wrench slipped and plaintiff injured his back and, as a result of this injury, he was incapacitated for a period of not quite four weeks, and when he returned to work he was given a somewhat lighter job than he had held previous to the injury.

Dr. W. P. Bordelon testified that he examined the plaintiff on July S, 1943, and again on the 15th and again on the 19th, and the last time on the 23rd day of July, and, on the 26th day of July, 1943, discharged him as able to return to work. He did not recommend him for hard manual labor and testified that ón the. 26th day of July he had an X-ray picture of his back in his possession as well as a report from the radiologist, Dr. C. C. McKinney. Dr. McKinney testified that the X-ray of plaintiff’s back on July 9, 1943 “showed a slip of the fifth lumbar vertebra on the first seg-mant of the sacrum, which I have recorded here as a first degree slip. That means about one centemeter.” (Q) “That means he had spondylolisthesis?” (A) “Yes.”

The plaintiff was also examined and X-rays made of his back by Dr. Stakely Hatchette, Dr. Charles V. Platchette, Dr. Lucius DiGiglia, Dr. W. G. Fisher, Dr. G. E. Barham and Dr. P. M. Girard, and all of these doctors were unanimous in their opinion that the plaintiff Long had a grade-1 spondylolisthesis, which is a congenital condition and is not the result of injury or trauma. All of the medical testimony is to the effect that the plaintiff, in his present condition, was totally and permanently disabled in so far as hard manual labor was concerned, but none of them could find any difference in plaintiff’s back condition as shown by the X-rays taken in 1943 and the X-rays taken in 1947. None of the doctors who testified as experts in this case were able to stat.e that the plaintiff had any more disability on the day of the trial than he had subsequent to and as a result of his áccident in' 1943 except Dr. DiGiglia, who did testify that in his opinion the plaintiff was suffering more pain in 1947 than he was in 1943. The doctors were all unanimous in their opinion that plaintiff could gain no relief from his pain or congenital condition unless he submitted to a fusion operation, which, in effect, immobolizes the vertebra.

The testimony also shows that the plaintiff constantly suffered pain since the 1943 accident and kept with him and at home various kinds of m'edicine to alleviate .these pains. There is in the record an offering by the defendant which is a written statement signed by the plaintiff on March 17th, 1947, in which the plaintiff describes his accident of July, 1943, in detail and stated, “suddenly I heard a 'pop’ down low in my back and felt a sharp pain in the lower part of my back. For a minute I couldn’t even let go of the wrench the pain was so great.” He then details in the statement his examinations by Dr. Bordelon and that he was in bed and at that time X-rays were made and thereafter he was given work in the pump house “where the work is comparatively light” In this statement, plaintiff further states, “my back never did stop bothering me. Sometimes it would slack up for two or three months then it was start hurting badly again. Often during the past three years my wife had to put heating pads on my back and give me aspirin or BC powders so I would make a night or so that I could sleep.” This statement was obtained, according to the tesimony, in order to secure an operation for the plaintiff at the expense of the defendant company.

. Mr. J. E. Fenex, who was superintendent for the defendant company testified that he had known the plaintiff ever since he first began to work for the company in 1942. He testified that when the plaintiff came to work for the company, he was recommended by the doctor for all kind of work “except hard manual labor.” We find from the record, however, that certain duties performed by Long during his employment would be classed as hard manual labor. This witness testified also that the plaintiff was a “very good, conscientious worker,” but that after the injury in 1943 his condition became progressively worse and to such an extent that in December of 1946' it became apparent to him that the plaintiff would no longer be able to do his work; that in February or March he decided, after consulting with plaintiff and his wife, that the plaintiff should be permanently disabled, and he sent him to Dr. Barham in December, 1946, in order to substantiate his recommendation to the health department of the defendant company. He did not receive approval until “I believe Mr. Long was in Dallas,” and the record shows that the plaintiff was in Dallas in May, 1947, which, of course, was subsequent to the alleged accident, and at that time was examined by Dr. Gir-ard. This witness further testified. that the plaintiff never did report to him or anybody else, as far as he knew, that he had a back injury on April 27, 1947. This witness testified that he tried to get the plaintiff to take the operation and that the company sent him, the plaintiff, to Alexandria for a preliminary examination for the proposed operation before the alleged injury on April 27, 1947. He testified that plaintiff did go to Alexandia for this examination, that he came back to Lake Charles, then went to Dallas to his own family doctor, returned to Lake Charles and left again. “He just didn’t come back; he just left and didn’t return. We carried him on the payroll for sixty days which we do all men that are off sick. Even myself, if I am off sixty days, I am automatically terminated.” He further testified: “Q. Did you ever talk with him about him not being able to do his work? A. Yes, sir. Q. Just what was the' substance of what you said about it? A. Well, Mr. Long himself complained to me that his back was becoming progressively worse and we agreed — I don’t recall the exact conversation — we agreed that it was and that We must do something. Therefore, in December, ’46 I decided to recommend to our health division and the management that he be totally and permanently disabled until he had his 'operation.”

Warren Cox, who on April 27th, 1947 was doing laboratory work and also at that time performed first aid on those who received injuries, testified that the plaintiff came in on that date with a head injury. He also testified that the plaintiff was suffering pain because he told him that the pain was coming from his back. This is the only testimony in the record that the plaintiff complained of an injury or pain in his back on April 27th, 1947, the date of the alleged ■ accident.

The defendant also offered the testimony of H. R. Wall, who was assistant superintendent of Continental Oil Company. This witness testified that the plaintiff’s work was always satisfactory, however, he had talked with the plaintiff about his physical condition more than once and had recommended to the plaintiff that he should have an operation or do something about his condition. He recommended this to • the plaintiff because of plaintiff’s complaints. While this witness apparently disputes the fact that plaintiff had hard manual labor to do, he admits that plaintiff did do manual labor. This is immaterial in view of the medical testimony that anyone suffering from the congenital condition that the plaintiff had .could injure his back merely by the ordinary, every-day movements of the body such a9 walking, sitting down, getting up, lifting any object when the back was in a certain position, in other words, with the condition the plaintiff had and the accident of July, 1943, it was only natural, as shown by the testimony, that he should suffer a great deal of pain in attempting to do his daily work. The X-rays taken in 1943, Í946 and 1947 show approximately one centimeter of displacement of the vertebrae. However, the doctors also testified that it would only take an infinites-mal movement of the vertebra to pinch the nerve and cause pain and that the X-ray would not necessarily show such a small displacement. Therefore, although they were of the opinion that there was no change in the condition of his back as shown by the X-rays of 1943, 1946 and 1947, it would be possible that he could have had such a slight additional displacement of the ' vertebra' without the X-ray showing it. ■

Plaintiff testified that on April 27, 1947 he was in a stooping' position working on a pump and that when he straightened up but while still in a bending position, he struck his head on an overhead valve stem which resulted in a cut approximately one-half to three-fourths of an inch in length. This accident was witnessed by a fellow employee, Leland Reeves, who corroborated the plaintiff in his testimony as to the accident and who also testified that Long' did hard, manual labor during 1944, 1945, 1946 and part of 1947; that he worked with him and that he performed his labor satisfactorily, although periodically from plaintiff’s accident of 1943 until his 1947 accident he had heard him frequently complain of his back,

Plaintiff, after receiving the injury, went to the First Aid Laboratory where he was treated and, after twenty-five or thirty minutes there, he returned to his work. From the testimony, there is no doubt but that the plaintiff suffered quite a great deal of pain at times from 1943 to the date of his alleged accident on April 27, 1947, but that he must have don’e his work satisfactorily' up until approximately December 1946.

We must take as true plaintiffs statement of March 17th, 1947 as well as the Superintendent’s testimony. Certainly no such statement would have been prepared and signed by the plaintiff unless he had previously discussed the matter with his superintendent and had decided that his back condition was too bad for him to continue his work, and that an operation was the only means which might give him relief, and also that his disability dated from the accident of 1943.

Plaintiff testified that prior to his accident in April, 1947, that his back did not bother him all the time. “There were intervals there when it didn’t "bother me at all. But now it hurts everytime I move my hips.” - Plaintiff also testified that he was willing to submit to an operation if. the defendants would have given it to him, and he was asked the following question: “Q. But they refused to pay £<w vour expenses for an operation? A. They wouldn’t guarantee to pay for it,, no, sir.” On cross-examination plaintiff, when questioned about his statement that the company would not guarantee the expenses of an operation, when asked if they wanted plaintiff to pay for it, answered: “No, sir, they didn’t say that. They said they imagined they would pay for it.” The testimony is sufficient for us to conclude that the defendant company had agreed to pay for this operation and that the plaintiff knew that they would pay for it and this was not his real reason for not accepting the operation.

There is no denial by plaintiff that he suffered with his back during his employment from the year 1943 to the year 1947. The only diffei'ence, he states, is that after his accident, April 27th, 1947. his back hurt all the tiine. He did not complete his day’s work on that date and also came back and worked the next night, which would be April 28th. He had his regular two days off and then returned to work for another day without complaint.

While plaintiff stated that as a result of his accident of April 27th, 1947 he had the worst pain in his back that he had ever suffered, yet he did not tell Reeves, his co-employee who witnessed the accident, of any pain to his back. The-record shows that he only told Cox, the first aid man, that his back was paining him.

Dr. Girard was asked under cross-interrogatory the following question: “Q. If your diagnosis of the plaintiff’s condition is based in whole or in part upon any history which the plaintiff gave you, please state in detail what that history was. A. The patient stated that he was pulling on a pipe wrench when he felt a sudden pop in his back. He had very severe pain in low back region. He stayed in bed for six weeks with his back taped. Pain has been steady ever since but in the last 8 months it has been especially bad. He stated that he got attacks very suddenly and very severe; had lost 20 pounds in weight; had no previous injury that he knows of; coughing or sneezing causes pain in the back; he receives occasional relief from drawing up of the legs and also rest in bed helps him at some time.”

It is quite strange that plaintiff told Dr. Girard, which was on May 8, 1947, about ten days after his alleged accident, only about his accident in July, 1943. . It doesn’t seem reasonable that .this doctor could possibly have forgotten the history of such a recent injury had it been told to him. It leads us to believe that as late as May 8, 1947 Long considered the seat of his trouble to date from the accident of July, 1943 rather than the accident of April 27, 1947.

Mrs. Long stated that her husband had never suffered with his back that she knew of until he got hurt in July, 1943; that subsequent to July, 1943, and prior to- April, 1947, he suffered pain “but nothing compared to what he has had since he got hurt in 1947.” She had given him hot baths and administered aspirins and BC tablets quite a number of times as a result of his injury in July, 1943 and prior to the injury of April, 1947. She also “rubbed him religiously, sometimes for hours to start the circulation.” She testified that her husband worked regularly and she is borne oút in this by the record.’ He was only off one day on account of his back prior to the accident of April, 1947. She described her husband’s condition when he got home after the accident of April, 1947 by stating “that he was as white as a sheet and appeared io be suffering very much and that he could hardly straighten up;” that she immediately got him to bed, took his shoes off for him and that she had never had to do that prior to April, 1947; that she gave him the same treatment after his accident in April, 1947, as for the one of July, 1943 but on “a greater scale.” She also testified that her husband tossed and tumbled practically every night and “sometimes he doesn’t rest at all.” Mrs. Long testified that she discussed with the defendant company the necessity of an operation on her husband’s back prior to his accident of April 27, 1947, and that while the company did not refuse to pay for it, that it would not. put in writing “statements that they would guarantee us the full obligation.”

The judge of the lower court seemed to base his judgment largely upon the testimony of the plaintiff and on the testimony of his wife and the plaintiff’s history. He found that the plaintiff was not incapacitated because of his back after he recovered from the injury of 1943, at least until December, 1946 as shown’by plaintiff’s own statement of March 17, 1947, whereas, according to the plaintiff and his wife, on the date of the trial he was continuously suffering pain since the injury of April 27, 1947 to such an extent that he was unable to perform any manual labor.

As we see the case at the present time, we have one in which the plaintiff suffered a back injury in 1939 and again in 1943, and that from 1943 he suffered pain and the condition of his back apparently became progressively worse, although. he did perform his duties which consisted of manual labor. The condition of his. back and the pain became so acute according to. the statement signed by plaintiff on March 17th, 1947, that he .agreed to an operation on his back and the company agreed to furnish this operation. Plaintiff practically admits in his statement that his back condition progressed to such an extent that the pain was constant and evidently, he himself felt that he could not, continue to do the work.

In addition, we'have a case in which-all the medical testimony is to the effect that there is no difference in the X-ray pictures of plaintiff’s back taken in 1943, 1946 and 1947, and not one Of the doctors could testify that there was any change in the condition of plaintiff’s back. Further, plaintiff did not state to anyone except Cox that he had hurt his back on April 27, 1947, and his statement to Cox,. first aid man, was not that he had hurt his back but that his back was hurting him, and this was not unusual as plaintiff’s back pained him constantly prior to his 1947 accident. The record shows that he. had often told people of this pain in his back subsequent to 1943 and prior to 1947. Therefore, this does not in any way corroborate or add anything to the plaintiff’^ testimony that he had injured his back as well as his head on April 27, 1947. Also, he failed to tell Dr. Girard on May 8, 1947 of his alleged accident only ten days prior thereto .on April 27, 1947 and, instead; attributed his disability to his accident of 1943.

We are lead to the inevitable conclusion that the preponderance of the evidence, as well as plaintiff’s history, proves that his disability was the result of Jiis accident of July, 1943 rather than his accident of April, 1947, nor has plaintiff proven an aggravation of his back condition as a result of his 1947 accident. Plaintiff’s testimony that he had injured his back or aggravated his back condition as well as cut his head on April 27th, 1947, and the testimony of his wife that he suffered more intense pain subsequent to his 1947 accident stand alone and cannot overcome the preponderance of the testimony and his history to the effect that his disability was due entirely to his accident in 1943 and, having filed this suit on July 30th, 1947, the plea of prescription as to any cause of action based upon the accident of 1943 must be sustained, and the plaintiff having- failed to prove that his back was injured or his previous back condition aggravated by the 'accident of April 27th, 1947, the judgment of the District Court must be reversed.

It is therefore ordered that there be judgment in favor of the defendants, dismissing plaintiff’s siiit at his cost.

DORE, Judge,

(dissenting).

It is conceded that when plaintiff. was employed by the defendant in 1942 plaintiff was suffering from a congenital condition, a grade-1 - spondylolisthesis, a condition which allows the vertebrae in the spinal column to slip back and forth on one another. This condition however, did not prevent plaintiff from doing hard manual labor. It is conceded by the majority opinion that plaintiff, in July, 1943, suffered an accident which caused a slip of the fifth lumbar vertebra on the first segment of the sacrum of about one centimeter. ■ This accident incapacitated plaintiff for a period of about four weeks and when he returned to work he was given lighter work than he had been doing prior to the injury. However, the record' discloses that soon after his return to work, plaintiff returned to hard manual labor and performed his duties satisfactorily, thoflgh at times in pain, up to and until April, 1947.

Plaintiff testified that on April 27, 1947, he was in a stooping position ’working oh a pump and that when he straightened up he struck his head on an overhead valve stem which resulted in a cut approximately one-half to three-fourths of an inch in length, and '-‘wrenched” his “body around to kind of protect” himself and when he did he “really hurt then, his hips”. He hurt so badly that he forgot about his head. He made it to the first aid station and reported the accident and complained of his back.

The accident was witnessed by a fellow-employee, Leland Reeves, who corroborated the plaintiff in his testimony. Plaintiff is also corroborated as to his back paining him by Warren Cox, the male attendant at the first aid station.

It appears that the majority of this court' do not lay any stress on the happening of this accident in the aggravation of the preexisting condition of plaintiff’s back. The opinion seems to discount the fact that the accident of April 27, 1947, caused any injury to plaintiff’s back because plaintiff made no complaint of back injury to his fellow employee Reeves and only complained to Cox of “pain coming from his back” and the further fact that plaintiff did not give a history of an injury to his back to Dr. Girard on May 8, 1947, and only informed the doctor of the accident of July, 1943.

As to the witness Reeves, he was only questioned as to the manner in which the accident happened and the resultant effects. He was not questioned as to what plaintiff said about the results. According to this witness, the blow plaintiff received on his head “kind of jarred him down”.

The witness Cox testified that the plaintiff complained to him, prior to treatment for the head injury, that he was suffering pain coming from his back. He did not question plaintiff any further.

As to Dr. Girard, he was asked to give the history as given to him by plaintiff. He was not.questioned as to whether plaintiff made any complaint of any accident happening in April, 1947. It was just as reasonable to believe that plaintiff informed the doctor of the accident of April, 1947,, and the doctor did not make a note of it as to find it strange that the doctor only ■made a note of the accident of 1943.

It is conceded in the majority opinion that the medical testimony in this case is that any one suffering from the congenital condition that plaintiff had could injure his back merely by the ordinary every-day movement of the body and that it would only take an infinitesimal movement of the vertebra to pinch the nerve and cause pain and that -the X-ray would not necessarily show such a small displacement. According to witness Reeves, as stated supra, the blow plaintiff received on his head “kind of jarred him down”. This is certainly in line with human reaction of being hit on the head; that is, a tendency to stoop down. This is also in substantiation of plaintiff’s testimony that he “wrenched his body around to kind of protect himself.” Dr. Girard states in his deposition that the accident of April 1947 “was a competent producing cause of the aggravation of the condition found in the region of Mr. Long’s hack.” This is supported by the other medical testimony in the record.

The plaintiff testified that the pains, after the accident of April, 1947, increased to such an extent that he was forced to discontinue working. His wife testified that Ythen plaintiff returned home on the evening of the accident he was pale and suffering more than usual.' Both testified that the pains kept getting worse. v The fact remains that prior to the accident of April, 1947, plaintiff performed his duties satisfactorily to his employer; thereafter he had to quit.

Considering these facts, I am of the firm opinion that plaintiff has borne the burden of proof and has established that the accident of April, 1947, had aggravated a preexisting condition. It appears to me that such was also the conclusion of the trial judge. His judgment should be affirmed.


source: Caselaw Access Project

author: DORE, Judge..

license: Public Domain

text:
    Buffington S. MAYER, Jr. v. Joseph H. SLAUGHTER et al.
    No. 3091.
    Court of Appeals of Louisiana. First Circuit.
    March 7, 1949.
    Benj. W. Miller and A. J. Jones, both of Bogalusa, for appellants.
    Taylor, Porter, Brooks & Fuller, of Baton' Eouge, for appellees.
   DORE, Judge..

For the reasons assigned in the consolidated cases of Hartman v. Mayer, et al., and Mayer v. Slaughter et al., La.App., 39 So.2d 166, it is ordered that the judgment in the above, numbered and entitled cause be and the same is hereby affirmed.


author: HAWTHORNE, Justice.

text:
    214 La. 890
    STATE ex rel. KEMP, Attorney General, v. BOARD OF LIQUIDATION OF STATE DEBT et al.
    No. 39329.
    Supreme Court of Louisiana.
    Feb. 24, 1949.
    Rehearing Denied Feb. 25, 1949.
    Bolivar E. Kemp, Jr., Atty. Gen., and Carroll Buck, 1st Asst. Atty. Gen., for plaintiff-appellant.
    Geo. M. Wallace, of Baton Rouge, Wm. J. Dodd, of Lake Charles; Morris A. Lot-tinger, of Hoüma, John J. McKeithen, Jr., of Columbia, Theo F. Cangelosi, of Baton Rouge, and Wood, King & Dawson and David M. Wood, all of New York City, for defendants-appellees.
   HAWTHORNE, Justice.

Plaintiff in these proceedings seeks to enjoin the Board- of Liquidation of the State Debt and the individual members thereof (Earl K. Long, Governor; George M. Wallace, Executive Counsel to the Governor; William J. Dodd, Lieutenant Governor; Morris A. Lottinger, Speaker of the House of Representatives; John J. McKeithen, Chairman of the House Appropriations Committee; Ludlow B. Bay-nard, Auditor, and Andrew P. Tugwell, Treasurer) from issuing $60,000,000 in bonds and from selling $50,000,000 of said bonds, which bonds were' to be issued and sold pursuant to the authority and under the provisions of Section 10 of Article 18 of the Constitution of this state.

From a judgment in favor of the defendants setting aside and recalling a rule nisi theretofore issued and denying a preliminary injunction and dismissing plaintiff’s suit, plaintiff has appealed to this court.

In Act No. 530 of 1948, the Legislature of this state submitted to the electors a proposal to amend Article 18 of the Constitution by adding thereto Section 10 relative to bonuses for Louisiana servicemen and servicewomen and ex-servicemen and ex-servicewomen and certain of their relatives. This amendment was adopted and approved by the majority of the voters of this state.

It was provided in this constitutional amendment that the bonuses were to be paid out of the tax levied on beer, Act No 8 of 1948, and, further, that, in order to realize sufficient funds out of which to pay the bonuses and the necessary costs of distribution and administration, the Board of Liquidation of the State Debt was authorized to anticipate the collection of the tax and to incur debt to an amount not exceeding $60,000,000, and as evidence -thereof to issue certificates of indebtedness, bonds, notes, or other evidences of debt in such amounts and denominations and at such maturities and at such rate of interest as in the judgment and wisdom of the board would be deemed advisable, and in order to secure the payment of such notes, bonds, certificates of indebtedness, or other evidences of debt and the interest thereon the Board of Liquidation was authorized to pledge and dedicate the avails and proceeds of the beer tax.

The Board of Liquidation of the State Debt, pursuant to the authority of the constitutional amendment, adopted resolutions providing for the issuance of $60,000,000 of bonds and for the sale of the principal amount of $50,000,000 of the bonds so issued. The resolution authorizing the issuance of the bonds and the bonds themselves provided that there were irrevocably and irrepealably pledged and dedicated to the payment of principal and interest of the bonds, as the principal and interest should respectively become due and payable, the avails and proceeds of the tax levied on beer authorized by Act No. 8 of the Regular Session of 1948 of the Legislature of this state, and, further, that for the payment of principal and interest of these bonds the full faith, credit, and resources of the State of Louisiana were unconditionally and -irrevocably pledged, and that the bonds should be general obligations of the State of Louisiana.

Plaintiff-appellant contends that the Board of Liquidation of the State Debt did not have the authority to provide that these bonds should be secured by the full faith and credit of the State of Louisiana and should be general obligations of the state, for the reason that Section 10 of Article 18 of the Constitution contained no provision expressly conferring upon the board the power so to provide; that under the constitutional amendment the board is authorized only to issue bonds payable out of the proceeds of the tax levied on beer under the provisions -of Act No. 8 of 1948; that such provision is unauthorized, illegal, contrary to the provisions of the cited article of the Constitution, null, void,, and ultra vires.

The sole question for our determination is whether these bonds are general obligations of the State of Louisiana, for the payment of which the full faith and credit of the State of Louisiana are pledged.

The Board of Liquidation of the State Debt was created and exists pursuant -to the authority of Article 4, Section 1(a),. of the Constitution of 1921, and is a department of the state government and not an entity distinct from the state, and the bonds, which it is authorized to issue under the provisions of Section 10, Article 18, of the Constitution, are bonds of the State of Louisiana. The acts of the board being acts of the state, any indebtedness which the board lawfully incurs is therefore the-indebtedness of the state and not the obligation of the board itself.

Counsel for defendants-appellees in brief filed in this court state that the answer to-the question is to be determined by the principles of statutory construction which-have been adopted by the courts of this-state, and that, insofar as the question at issue here is concerned, the principles of statutory construction prevailing in this-state are identical with those adopted by the courts, state and Federal, throughout the country. The rule of statutory construction applicable to the instant case is then, stated in brief -thus:

“It is well established that a statute, authorizing the contracting of debt on. behalf of a public agency, which provides a special fund for the payment of the debt, contemplates the issuance of a general obligation to represent the debt so incurred unless it provides, expressly or by necessary implication, that payment of the debt shall be limited to the special fund.”

In support of this rule of statutory construction counsel for appellees cite and rely on the following cases: United States v. County of Clark, 96 U.S. 211, 24 L.Ed. 628; Vickrey v. City of Sioux City et al., CC., 115 F. 437; Bush v. Martineau, Governor, et al., 174 Ark. 214, 295 S.W. 9; Board of Com’rs of Orleans Levee Dist. v. Whitney Trust & Savings Bank, 171 La. 28, 129 So. 658.

We have carefully studied and analyzed these cases, and in our opinion they are full authority 'for counsel’s position.

In United States v. County of Clark, supra, which appears to be a leading case on this question, one Johnston had obtained a judgment against the county for unpaid interest instalments of certain bonds, and by mandamus proceedings was seeking to compel the county authorities to draw a warrant on the county treasurer for the amount of the judgment. The statute authorizing the issuance of the bonds provided also for the levy of a tax to pay for them. The question, therefore, was whether the judgment creditor could look to the general treasury of the county for payment when a special tax had been authorized . for the payment of the bonds. The Supreme Court of the United States answered the question in the affirmative, observing in the course of the opinion:

“ * * * There is no provision in the act that the proceeds of the special tax alone shall be applied to the payment of the bonds. None is expressed, and none, we think, can fairly be implied. It is no uncommon thing in legislation to provide a particular fund as additional security for the payment of a debt. It has often been done by the States, and more than once by the Federal government. * * * These bonds are a debt of the county as -fully as is any other liability.”

The case of Vickrey v. City of Sioux City et al., supra, involved two classes of bonds issued by the City of Sioux City. Each class was issued under separate authority of the Legislature and a separate ordinance of the city. The legislative act authorizing one class declared that the city council should have power to issue bonds payable only out of special assessments which had been levied to pay the cost of street improvements, and it further provided that the bonds should express on their face that they were issued under the provisions of that act, and that they were payable only out of the special assessments levied for the purpose of paying for street improvements. The court held as to this class [115 F. 438]:

“ * * * Under these circumstances * * * bonds of this' class did not constitute obligations binding the city for the payment of the bonds as original obligations issued by the city, but * * * the liability -of the city was limited to the proper collection and disposition of the -special assessments pledged for the payment of the indebtedness represented by the several bonds.”

The legislative act authorizing the issuance of the other class of bonds also provided -for the -levying of special taxes and further provided -that those, taxes would constitute a sinking fund -for the payment of the costs of the improvement and of any bonds issued to pay the cost thereof. The court said:

“There is not to be found in the act any express declaration that the bonds issued are payable only out of the funds realized from the special assessments provided for in the act, nor is such declaration to- be found in the language of the bond itself.
“There is not to be found * * * in the act * * *, or in the ordinance of the city based thereon, or in the terms of the bonds themselves, any declaration to the effect that the holders of the bonds can look only to the funds realized from the special assessments for the payment of the bonds, and the express promise to pay on the part of the city which is set forth in the bonds cannot be limited by the inferences sought to be drawn -from the fact that the act of the legislature provides for ¿he creation of a -sinking fund, consisting of the funds derived from the special assessments, to be used only for the payment of the costs of the improvements, including the bonds issued to meet the cost.”

The court accordingly held that the bonds of this class were general obligations of the city, for the payment of which ■the city was unconditionally liable.

Bush v. Martineau, Governor, et al., supra, was a case in which the constitutionality of what were commonly called the state highway acts was challenged, and in which it was contended that the form of notes sought to be issued by the state was without authority in one of the acts, Act No. 11 of 1927, in that the notes were made direct obligations of the state, for which the full faith and credit of the state were pledged. The Arkansas Supreme Court denied the contention that the payment of certain notes could be made only out of the security provided for their payment. The pertinent part of Act No. 11 of 1927 read:

“To provide the funds to meet this requirement, the State shall borrow each year whatever amount may be necessary, * * * and to issue State Highway notes for the amount borrowed, to be secured by a pledge of the revenues derived from gasoline, motor oil and automobile taxes, and to pledge .said revenues, or so much thereof as may be necessary, for the payment of said notes * *

The notes themselves pledged the full faith and credit of the State of Arkansas in addition to the gasoline taxes, etc., for the payment of -the notes. To the contention that this was erroneous the court said [174 Ark. 214, 295 S.W. 12]:

“It is difficult to perceive why the state’s full faith and credit should not be pledged, if it is to borrow any money. The fact that it pledges the funds arising from the tax on gas, oil, and motor vehicles does not relieve the state otherwise. The state is not, and should not be, in any different or more favorable situation in this regard than an individual. A farmer who borrows money from his bank and mortgages his crop to secure the payment of his note is not relieved of payment in the event of crop failure. All the faith and credit he has, in addition to the crop, are pledged to the payment of his debt. Necessarily it must be so with the state. Even if the notes were made payable only out of this particular fund, yet if the fund failed or was insufficient, there would be a moral, if not a legal, obligation on the state to pay. The only difference between the obligations of an individual and the state is that the individual may be compelled to pay in a civil action, whereas the state can never be, sued in any of her courts, even though morally and legally obligated to pay. There can be no just reason in law why the notes should not contain this clause, and we therefore hold that these notes, when issued, will be the direct obligations of the state, for the payment of which the full faith and credit of the state are pledged.”

In the case of Board of Levee Com’rs of Orleans Levee Dist. v. Whitney Trust & Savings Bank, supra, the levee board, a political corporation independent of the state, issued bonds, the payment of which was secured by a mortgage on certain land and the improvements to be made thereon and by a pledge of the property, leases, income, and revenues arising out of the so called “Lakefront Improvement Project,” for which the bonds were being issued pursuant to the provisions of a constitutional amendment. The constitutional amendment authorizing the issuance of the bonds provided that they should not be construed as obligations of the state, and that nothing in the amendment should be construed as pledging the credit of the state for the payment of the bonds. The defendant bank contended that these bonds were not the general obligations of the Board of Commissioners of the Orleans Levee District, enforceable as such in the courts having jurisdiction in the Parish of Orleans. In deciding this case adversely to the bank’s contention, this court said [171 La. 28, 129 So. 660]:

“ * * * Our opinion, on the contrary, is that the proviso in the constitutional amendment that the bonds shall not be construed as obligations of the state, and that nothing in the amendment shall be construed as pledging the credit of the state for the payment of the bonds, conveys a strong inference, and is in fact a recognition that the-bonds are the obligations of the levee board, for the payment of which its credit is pledged. There is no reason to doubt that, if the Legislature had intended, in proposing the constitutional amendment, that the credit of the levee board should not be pledged for the payment of the bonds, the Act 292 of 1928, proposing the amendment, would have contained that proviso, as well as- — or instead of — the proviso that the credit of the state should not be deemed pledged for the payment of the bonds.
“Our conclusion, therefore, is that these bonds are valid obligations of the board of levee commissioners of the Orleans levee district, enforcible as such in the courts having jurisdiction in the parish of Orleans.”

Abbott, in A Treatise on the Law of Public Securities (1913), after discussing a case of the Supreme Court of the United States, stated that, in some cases where the grant of authority for the issue of se7 curities contains provisions for the levy of a specific tax with which to meet the accruing interest and ultimately pay the principal of the bonds, “The claim has been made that the holder of the security is limited in his right to recovery to the proceeds of the tax thus levied and that if this proves insufficient for the purposes contemplated that he is without a remedy. The authorities generally hold on this proposition that although a special tax may be levied at the time the securities are issued either under special statutory provisions or otherwise that the bonds thus issued are not to be regarded as payable only from this special tax from the special fund thus derived but are general charges upon the revenues * * Sec. 366, p. 761.

This author points out, however, that, if the indebtedness of the public authority in its terms clearly and unquestionably provides that the debt shall be paid only from a fund specially provided, the holder is limited in his recovery to such revenues or funds. See sec. 368, p. 764.

The legislature of this state in Act No. 530 of 1948 provided that the payment of the bonds authorized to be issued by the Board of Liquidation of the State Debt was to be secured by a pledge and dedication of the avails and proceeds of the beer tax, authorized by Act No. 8 of 1948, and that the surplus or residue of the tax in each year, after paying the bonuses, notes, bonds, certificates of indebtedness, or other evidence of debt therein .authorized and all interest due thereon, should be passed to the general fund of the state. There is no provision in this act that the proceeds of this special tax alone- shall be applied to the payment of the principal and interest due on these bonds, nor is there any express declaration that such bonds are payable only out of the funds realized from the special beer tax, nor is there even anything in the act implying that payment of the bonds was intended to be limited solely to the proceeds of the tax.

In the absence of such provision, express or clearly implied, when these bonds are actually issued and sold, they will become general obligations of this- state, for the payment of which the full faith and credit of the State of Louisiana are irrevocably pledged.

The Legislature of this state at the time of the enactment of the statute was undoubtedly familiar with, and took into consideration, the rule of statutory construction applied herein, and, when it authorized the issuance of these bonds for the purpose of paying bonuses to veterans of World War II, it did so with the intent and purpose that these bonds were to be general obligations of the State of Louisiana and secured by the full faith and credit of the state. This conclusion is borne out by the fact that, at the same session of the Legislature, a joint resolution, Act No. 520, was adopted, proposing a constitutional amendment authorizing the Department of Highways to construct a toll bridge across the Mississippi River at New Orleans and to issue bonds of the State of Louisiana for the purpose of financing it. This resolution was adopted and became a part of the Constitution at the same election at which Act No. 530 was ratified. In this resolution the Legislature provided that the bonds should be payable solely from the income and revenues received from the use of the bridge, and the resolution contained the following statement: “ * * * ft is hereby expressly declared that the credit of the State of Louisiana is not pledged for the payment of said bonds.” In that act the Legislature made its intention clear and unmistakable, that is, that the full faith and credit of the state were not pledged to secure the payment of the obligations authorized to be issued thereunder.

In the act with which we are here concerned, no such express declaration is found, and thus it clearly was the intention of the Legislature that the bonds issued under Act No. 530 of 1948 were to be general obligations of the state and secured by its full faith and credit.

The Board of Liquidation of the State Debt therefore correctly and properly incorporated in the resolutions authorizing the issuance of the bonds and in the bonds themselves the provision that these bonds were general obligations of the State of Louisiana, for the payment of which the full faith, credit, and resources of the State of Louisiana were unconditionally and ir-repealably pledged.

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


author: MOISE, Justice.

text:
    214 La. 905
    HAWTHORNE v. HAWTHORNE.
    No. 38770.
    Supreme Court of Louisiana.
    Feb. 14, 1949.
    G. P. Bullís, of Ferriday, for appellant.
    Smith & Taliaferro, of Harrisonburg, for appellee.
   MOISE, Justice.

The defendant appeals from a judgment in a divorce proceeding denying her alimony, both temporary and permanent, and holding that the 17 shares of stock in the Mansura Moss Company, Inc., form no part of the community of acquets and gains.

The divorce proceeding was filed on May 16, 1946. The petitioner alleges that the spouses had lived separate and apart for more than two years, that no children were born of the marriage, and that no community property was acquired. The defendant answered and admitted the separation for the time alleged but averred the existence of a community of acquets and gains. She prayed for alimony during the penden-cy of the suit and after final judgment of divorce at the rate of $75.00 per month, and likewise prayed for a dissolution of the community. An agreement was entered into between the litigants to the effect that the trial on the merits relating to the divorce be had without delay and that the settlement of the issues of alimony and community property be fixed at a later date. Under this agreement, a judgment of divorce was rendered by the court on July 29, 1946 and reservations were made in conformity with the stipulations heretofore made by the parties. On October 7, 1946, after the final judgment of divorce was rendered, a motion was filed by the defendant for temporary alimony and for an injunction prohibiting the plaintiff husband from disposing of any of the community property. The district court refused to allow alimony.

An examination of the record discloses, when we separate the essentials from the incidentals, that only two questions must be decided: Whether the defendant is entitled to alimony, pendente lite and permanent; and (2) Whether the 17 shares of stock in the Mansura Moss Company, Inc., form a part of the community of acquets and gains.

Alimony pendente lite can not be obtained after a final divorce. Since the court had not been called upon during the pendency of the divorce proceeding to enter any order on the subject, it can not now make such entry, because it is too late. Alimony “pendente lite” or “temporary” alimony means just what the Latin words say —during the pendency of suit. The conditions precedent for the recovery of such alimony are that the wife must be in necessitous circumstances and there must he a suit pending for separation from bed and board or divorce. In this case the latter condi-ion precedent is absent and a judgment refusing such an award is in conformity with the law.

The next issue is the one of permanent alimony. This alimony is usually granted at the same time that a judgment of divorce is had, or, in some instances, with the reservation that alimony may be applied for after final judgment. Here the element essential for the obtaining of permanent alimony is that the wife must show that she was free from fault and she must prove her allegations with reasonable certainty. The evidence fails to support her contention. The trial judge found that both parties were at fault in causing the separation. The record bears out his findings and we, therefore, conclude that permanent alimony was properly refused.

The district court decreed that the seventeen shares of stock of the Mansura Moss Company, Inc., form no part of the community. A Ford automobile and certain real property (located in Texas) were declared to be the separate property of the wife. Certain household furniture and fixtures and a small cash balance in bank were decreed to be part of the community, and the plaintiff husband was ordered to pay $150100 attorney’s fees to the defendant’s attorney. Only the wife has complained that she was aggrieved by the judgment and only the wife appealed. The husband has not answered the appeal.

The record shows that prior to plaintiff’s marriage to defendant in November, 1939, he bought in at public auction for $200.00 plus the assumption of a mortgage indebtedness of $437.00, a moss gin and equipment which he had formerly owned and operated; that he continued to operate this gin after his marriage to defendant; that in 1943 he again became financially involved and a judgement was secured against him; that in order to protect his equity in the gin and equipment, he entered into a partnership, whereby a two-thirds interest therein was transferred to the Mansura Moss Company, Inc., and in exchange for his equity in the gin and equipment, he received from the Mansura Moss Company, Inc., seventeen shares of its preferred stock, and settlement of indebtedness due by him of approximately $3500.00 was effected.

Plaintiff contends that the seventeen shares of stock are his separate property and that they form no part of the community existing previously between the defendant and himself.

The evidence shows that while plaintiff testified that the property transferred to the Mansura Moss Company, Inc., was the same that he bought before his marriage to defendant, he directly contradicted himself by stating that some of the equipment, tools, etc., that he owned prior to his marriage to defendant had been worn out and lost and replacements were made from time to time during his marriage to defendant and that these replacements were included in the transfer. A comparison of the deeds contained in the record further shows that there is a difference between the moss gin and equipment transferred in exchange for the seventeen shares of disputed stock in 1943 and that bought before plaintiff’s marriage to defendant; that the 1943 transfer included, among other items and equipment, two trucks, an International and a Ford truck; that the International truck, although bought on terms of credit before this marriage, was paid for, as was the Ford truck, during the existence of the community between plaintiff and defendant.

Since it is clear that the gin and equipment transferred to the Mansura Moss Co., Inc., in 1943 was different from the one plaintiff owned at marriage, and since its value was less than plaintiff’s debts at marriage, but was $1700.00 more than his debts at the time of the transfer, it is obvious that plaintiff has not discharged the burden of proof to show that the seventeen shares of stock acquired in 1943 were not community property. The law is clear that all property purchased during the existence of the marriage, whether taken in the name of the husband or wife, is community property, unless there is a specific recitation that the purchase was made with separate funds. R.C.C. Art. 2334, as amended; Art. 2404, as amended; Houghton v. Hall, 177 La. 237, 148 So. 37; Cox v. Cox, 193 La. 268, 190 So. 401; Betz v. Riviere, 211 La. 43, 29 So.2d 465.

For the reasons assigned, the judgment appealed from, insofar as it decrees that the seventeen (17) shares of preferred stock owned by plaintiff are his separate property is annulled and set aside and the judgment is amended accordingly, adjudging and decreeing the seventeen (17) shares of preferred stock owned by plaintiff in the Mansura Moss Company, Inc., to be a portion of the community of acquets and gains heretofore existing between the parties and, as thus amended, the judgment of the district court is affirmed; plaintiff to pay all costs.

O’NIELL, C. J., and HAWTHORNE, J., take no part.


text:
    214 La. 912
    JOHNSON v. JOHNSON.
    No. 38336.
    Supreme Court of Louisiana.
    Feb. 14, 1949.

      Ben F. Thompson, Jr., of Alexandria, for plaintiff in rule, appellant.
    J. B. Nachman, of Alexandria, for defendant in rule, appellee.
   HAWTHORNE, Justice.

By judgment of the Ninth Judicial District Court for the Parish of Rapides, rendered on June 27, 1941, Mrs. Vivian A. Johnson was granted an absolute divorce from her husband, Richard M. Johnson, under the two-year separation law, and was awarded custody and control of their minor twin sons, issue of the marriage, and Mr. Johnson, the husband, was granted the right to have his children visit him in the home of his mother, where he resided, from 2:00 to 4:40 p. m. on July IS, 1941, and at the same hours on every second Tuesday thereafter. (By agreement of the parties, the visiting day was later changed to’ every second Saturday.)

The present proceedings were instituted by Richard M. Johnson, who seeks to have amended and modified that portion of the judgment which granted to him the right to have his children visit him at the time, place, and hours specified.

Petitioner, appellant in this court, in his petition filed in the lower court alleges that he and his mother, sisters, and brothers love his children; that, due to the strained relationship which exists between him and his divorced wife, neither he nor.any member of his family is a welcome guest in the home of his wife’s parents (where the children and their mother reside), and that no natural relationship _ can exist between him and his children under such conditions ; that, on the occasions when he takes the boys to visit in his mother’s home, they are happy, contented, and well cared for; that it is to the best interest of the children that they be given an opportunity to become better acquainted with, and to love, their relatives on their father’s side; that on the date the original judgment was rendered these children were approximately two and one-half years of age, but that they were at the time these proceedings were instituted approximately seven and one-half years old.

After making these allegations, he prays that the judgment heretofore mentioned be amended and modified so as to grant him the privilege of having his children visit him for a resonable length of time during school vacation at his home in Glenmora, Louisiana, and that he further be granted the privilege of having his children with him more frequently and for longer periods of time than as provided in the original judgment.

Respondent, Mrs. Vivian Johnson, after alleging that the major financial responsibility for the support, maintenance, and education of the children is borne by her, and after setting forth that the judgment which petitioner seeks to have modified or amended permits him to see his children under reasonable regulations, alleges that under this judgment giving her the care and custody of these children it is necessary that she have their constant care and supervision if she is to direct their welfare properly and maintain their physical well-being, and that the rearing of these children requires daily and constant care and supervision, and that for these reasons she is adverse to any change in the original decree which would interfere with her rights as a mother and legal custodian performing the trust vested in her. She relies on the rule established by our jurisprudence that the Louisiana law does not countenance a divided custody of children; that the welfare of children requires a custody and control under an undivided authority, and that such authority is necessary to the welfare of children.

After trial on the merits the lower court denied to petitioner the relief prayed for by refusing to amend or modify its previous judgment, and dismissed his suit. From this judgment he has appealed to this court.

After the separation but prior to the judgment of divorce, .plaintiff herein, Richard M. Johnson, attempted unsuccessfully to obtain custody of the children by habeas corpus proceedings instituted against his wife and her parents! He was, however, given the right to visit his children at all reasonable times and places. On appeal this court stated that the trial judge was of the opinion that the welfare of the children, who were then only 23 months of age, required them to be left in the care and custody of their mother, and found that there was nothing in the record which would warrant a reversal of the judgment of the court below. See State ex rel. Johnson v. Ashmore et al., 197 La. 971, 2 So.2d 897.

Subsequent to our opinion and decree in that case, a judgment of divorce was rendered between Mr. and Mrs. Johnson, and Mrs. Johnson was awarded the care and custody of the twin boys, two and one-half years old at that time. That judgment permitted the husband to have these children visit him as above set out, and this is the judgment which he prays that we amend or modify.

■ The facts and circumstances surrounding the custody, control, and rearing of these children at the time this case was tried in the lower court are almost identical with those set out in the cited case. It is true that 'these children are now of school age and are attending a school where their mother is employed as a teacher, and that they accompany her to school daily, all residing now, as then, in the home of the maternal grandparents. There is no doubt that the father and his relatives have a great deal of love and affection for these children, as do their mother and her parents. There is no question about the reputation or character of either the plaintiff or the defendant, and 'their respective families are respected in the communities in which they reside. Defendant’s parents are engaged in farming approximately five miles from Glenmora, and plaintiff and his family operate a grocery business and a cotton gin in that town. Plaintiff testified that he is contributing $25 a month to the care and support of these children, or $12.50 to each.

In this state the law is well settled that, when the parents of children are separated or divorced, and the care and custody of the children, issue of their marriage, are vested in one of the parents, the other possesses certain natural rights with respect to the children. One of these is the right of access to his children, and the exercise of this right under such reasonable restrictions as the circumstances warrant within the discretion of the co'itrt should; not be withheld unless the parent has forfeited the privilege by his conduct or unless the exercise of the privilege would injuriously affect the welfare of the children. Jacquet v. Disimone, 175 La. 617, 143 So. 710; Shipp v. Shipp, 183 La. 1025, 165 So. 189. See also Cormier v. Cormier, 195 La. 158, 190 So. 365; Pierce v. Pierce, 213 La. 475, 35 So.2d 22.

In permitting the parent who has not obtained the care and custody of a child access to his child or in permitting the child to visit such parent at various times and places pursuant to the rule of law set forth, we must not lose sight of the rule that the welfare of a child, which is the paramount consideration in a case of this nature, requires a custody and control under an undivided authority, and the rule of law with reference to visitation should never in any case be extended to the point where it becomes divided custody or a division of such authority.

This court in Newson v. Newson, 176 La. 694, 146 So. 472, stated: “At the outset, it may be said that the custody of the child should be given to one of the spouses, and not alternatively to each, for it is not conducive to the welfare of a child to place it in the custody of one parent for awhile, and then in the custody of the other parent, and so to continue during the minority of the child; for such divided authority and the differences in views as to the proper way to rear a child, which are likely to result, may be expected to be deleterious to the child’s welfare.” See also Cormier v. Cormier, and Pierce v. Pierce, both cited supra.

With these rules in mind, we may safely conclude that under the jurisprudence of this state, where a parent has not forfeited his right of visitation by his conduct and where the exercise of this privilege would not- injuriously affect the-welfare of the child, a parent against whom an adverse judgment has been rendered, granting unto the other spouse the care and custody of the child, has a right of access to the child, the right to have the child visit him. The exercise of these rights is under such reasonable restrictions as the circumstances in any given case may warrant, always within the discretion of the court, provided that the right to have the child make such visits be not of such a nature or for such a period of time as to have the effect of awarding to such parent part-time custody and thereby subjecting the child to a divided authority. All of these rights, of course, are always subject to the sound discretion of the lower court under the facts and circumstances of any given case; for the law is well settled that a reasonable latitude must be left to the trial judge in determining matters affecting the welfare of children, and that a judgment based upon the facts disclosed in any given case is entitled to great weight. State ex rel. Johnson v. Johnson et al., 149 La. 89, 88 So. 698; Davis v. Willis et al., 169 La. 13, 124 So. 129; State ex rel. Castillion v. Jeunesse, 185 La. 845, 171 So. 51; State ex rel. Guinn v. Watson, 210 La. 265, 26 So.2d 740.

Appellant herein has advanced no valid reasons to show that the trial judge has abused his discretion, and we shall therefore not disturb the ruling of the court below.

In the instant case, there is no doubt whatsoever that plaintiff should be given the right to visit his children at the home of their maternal grandparents at reasonable times and under reasonable circumstances; and, under proper showing that this privilege is denied him by his wife or her parents, and in the absence of any showing by her that he has forfeited this right by his -conduct or that the welfare of the children would be adversely affected thereby, the wife and her parents may be coerced to permit such visits under orders of court.

Further, in the instant case, due to the fact that these twin boys are now no longer infants but are approximately 10 years of age, and due to the love and affection which their father and the members of his immediate family seem to have for these boys, it may be to their best interest and welfare in the future to permit them to visit their father in the home of their paternal grandmother during the school term on Saturdays more often than twice each month and for a longer period than two and one-half hours on the days of such visits, and, further, to visit their father from time to time during vacations. However, in the final analysis, the question of whether it is to the best interest of the children to allow such visitation where the parties cannot agree between themselves is in the sound discretion of the trial judge.

A judgment concerning the custody of children and the right of visitation is always subject to amendment or modification in the discretion of the court, but, since both of the parents in this case assert, and we believe have, parental love, the interests of the children should be their primary concern, and they should mutually agree on the question of visitation of these children with the father at such times and places as may be convenient to each without the necessity of forcing one or the other to apply to the court for modification and amendment of its judgment. However, if they cannot agree, either party has the the -right to seek such modification and amendment of the judgment as under the facts and circumstances the best interest of the children may justify.

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

PONDER, J., dissents.

O’NIELL, C. J., does not take part.


author: PONDER, Justice. HAWTHORNE, Justice McCALEB, Justice

text:
    214 La. 922
    ROSHTO v. ROSHTO.
    No. 38810.
    Supreme Court of Louisiana.
    Feb. 14, 1949.
    McHenry, Lamkin & Snellings, of Monroe, for defendant-appellant.
    M. C. Redmond, of Monroe, for plaintiff-appellee.
   PONDER, Justice.

This is an appeal from a judgment refusing the father the right to visit his child whose custody had been awarded to its mother.

Joseph Roshto and Mary Eleanor Cover-dale were married on May 2, 1941. A child, Julia Ann Roshto, was born to this union on June 25, 1945, while Roshto was away on military duty. Roshto was discharged from the Army on January 10, 1946, and he returned home immediately after his discharge. He and his wife separated a short time thereafter on February 5, 1946. His wife instituted separation proceedings on March 6th, thereafter, on the ground that her husband had abandoned her, which resulted in a judgment decreeing a separation from bed and board on April 3rd, thereafter, wherein the community was dissolved and the custody of the child awarded to its mother. Prior thereto, during the month of March, 1946, the parties entered into an agreement settling their community rights, wherein Roshto accepted $500 as an equivalent to his one-half interest in the community. On April 18, 1947, the wife instituted divorce proceedings based on the ground that there had been no reconciliation, which terminated in a judgment of final divorce on May 15, 1947, wherein the custody of the child was awarded to its mother. Shortly after the decree of divorce was handed down, the divorced wife married Roger D. Larsen. On September 9, 1947, Joseph Roshto instituted the present proceedings seeking a judgment recognizing his right to visit the child at a time and place to be fixed by the court and the right to visit his child in case of its illness. On trial of the application the lower court gave judgment dismissing the application and Roshto has appealed.

There is no dispute between counsel for the opposing sides as to the law governing this case. Both concede that a father has a right to visit his child whose custody has been awarded to its mother and that the exercise of this privilege should not be withheld unless the father has forfeited the privilege by his conduct or the exercise of it would be detrimental to the welfare of the child. A ruling to this effect was handed down in the case of Jacquet v. Disimone, 175 La. 617, 143 So. 710, which has been approved by this Court on a number of occasions since that date, the most recent being in the case of Johnson v. Johnson, 214 La.Sup. 912, 39 So.2d 340.

The sole dispute in this case is whether or" not the appellant has by his conduct forfeited his right to visit his child.

At the time the child was born, Roshto. was away on military duty. He was away-from home in active military service, a. large part of which was overseas, from a date prior to the birth of the child until he was discharged on January 10, 1946. It appears from the record that he only-saw the child for a period of time of less than one month before' the separation took place. Roshto 'has been attending school at Baton Rouge, Louisiana under the G. I. Bill of Rights since the separation. Allotments were made for the support of the child until January, 1947. He has rendered no support to the child since that •date and none has been demanded of him. No alimony or support were awarded in the judgment of separation or the judgment of the divorce.

Prior to the institution of the present ■suit the appellant was refused permission to see the child and 'his attorney had endeavored to obtain such permission without ■success.

The only testimony pertinent to the issue involved herein is that given by the appellant and appellee. The appellee’s testimony is to the effect that the appellant never wanted the child and has shown no affection or interest toward it. ‘ The appellant’s testimony is to the contrary. ' It-is urged that the appellant has instituted these proceedings for the purpose of annoying and harassing the appellee. The •evidence does not support this contention. The appellant’s reputation is not attacked and there is no proof in the record that it would be detrimental to the welfare of the child for him to visit it.

A parent possesses certain natural rights with respect to his child whose custody is given to the other parent. One of these is the right to visit the child. This natural right of the parent should not be taken from him unless the evidence conclusively shows that his conduct is of ■such a nature that he has forfeited the right of access to his child. The evidence in this case does not warrant the conclusion that the father by his conduct ha? forfeited the right to visit his child.

There was no evidence introduced in this suit with reference to- a reasonable time and. a proper place for the father to visit his child. The convenience of the parties should be considered in fixing the time and place. However, the father should have the right to visit the child on at least two occasions each month at a congenial place and should be permitted to visit his child in event of its illness.

For the reasons assigned, the judgment is reversed and set aside; the case is remanded to the lower court to be proceeded with in accordance with the. views herein expressed; all costs to await the final disposition of the cause.

O’NIELL, C. J., does not take part.

HAMITER, J., concurs for the reasons assigned by HAWTHORNE and Mc-CALEB, JJ„ ’ ■

HAWTHORNE, Justice

(concurring).

I concur in the decree reversing and setting aside the judgment, and remanding the case to the lower court. I am of the opinion, however, that it is not proper for this court to determine the number of visits that should be allowed to the father. That is a matter within the discretion of the trial judge, subject, of course, to review by this court.

McCALEB, Justice

(concurring).

While I fully agree that the lower court erred in not recognizing the father’s right of visitation, I do not think tha.t we should either fix the minimum number of visits to be allowed each month or declare that the father be permitted to see the child during periods of illness. In ruling thus, the court has limited the discretion of the trial judge before the judge has had an opportunity to hear the evidence and, by requiring him to permit visitation to the child during illness, has perhaps unwittingly entered an ■ order which might not redound to- the welfare of the child.

I respectfully concur in the decree.


author: REGAN, Judge.

text:
    JACOBS v. METROPOLITAN LIFE INS. CO.
    No. 18955.
    Court of Appeal of Louisiana. Orleans.
    March 14, 1949.
    Rehearing Denied March 28, 1949.
    Writ of Certiorari Denied May 31, 1949.

      Gatlin & Hill, of New Orleans, for appellant.
    Phelps, Dunbar, Marks & Claverie and J. Barnwell Phelps, all of New Orleans, for appellee.
   REGAN, Judge.

This is a suit by the plaintiff, Mrs. Walter W. Jacobs, to recover the sum of .$500, the face value of a policy of industrial life insurance, issued by the defendant, the Metropolitan Life Insurance Company, on the life of her husband, Walter Jacobs.

The defendant answered and denied liability under the said policy.

From a judgment in favor of defendant •dismissing plaintiff’s suit, plaintiff prosecutes this appeal.

The record reflects that the policy was issued by defendant on January 26, 1942, as a result of a written application, signed by the insured, on January 8, 1942. The insured was hospitalized on January 20, 1942 and remained in the hospital until his death on February 9, 1942. Plaintiff made demand upon defendant and liability was denied on the following grounds:

'(1) That the provision of the “When Policy is Voidable” clause applied: and

(2) That the insured wilfully and knowingly concealed his serious heart ailment in the written application for the policy.

The pertinent facts are not in dispute •except relative to the question of whether the Metropolitan Life Insurance Company’s Agent, George B. Daly, received information concerning the prior illness of the insured Jacobs.

The insured Jacobs signed a written application for the policy on January 8, 1942, which denied that he had received institutional, hospital, medical or surgical treatment or attention within two years of the date of the signing of the application for the insurance in question. It is admitted that prior to the date of the signing of the application, the plaintiff, and possibly the insured, were advised by the physician, who had been treating the insured, that the insured was not an insurable risk. It is also admitted in the plaintiff’s own testimony that the insured suffered from a serious heart ailment within two years preceding the date of the application and the ultimate issuance of the policy. Plaintiff further testified that she did not believe tha^ the policy would be issued if the soliciting agent communicated all of the facts that she supposedly told him and, for this specific reason, she failed to pay a first premium on the policy. In addition thereto, it is admitted that no reference to the “medical treatment” or “attention”, which had been received by the insured was endorsed on the said policy by the defendant.

During the trial counsel for plaintiff attempted to establish grounds for waiver of -the “When Policy is Voidable” clause through the testimony of the plaintiff to the effect that full disclosure of the insured’s serious heart ailment had been made to the soliciting agent, Daly. This argument was met by the defendant on the ground (1) that the provisions of the “When Policy is Voidable” clause are not subject to waiver and (2) relying on plaintiff’s own story there was collusion between herself and the soliciting agent.

We shall discuss these defenses in categorical order.

The policy contained the following provision :

“When Policy is Incontestable and When Voidable — This Policy shall be incontestable after it has been in force during the lifetime of the insured for a period of one year from its date of issue, except for nonpayment of premiums.
“Subject to the foregoing provision, if within two years prior to the date of issue of this Policy, the Insured has received institutional, hospital, medical, or surgical treatment or attention, and the Insured or any claimant under the Policy fails to show that the condition occasioning such treatment or attention was not of a serious nature or was not material to the risk, this Policy shall be voidable by the Company either before or after any claim, unless reference to such institutional, hospital, medical, or surgical treatment or attention is endorsed on this Policy by the Company; provided, 'however, that this Policy shall not be voidable because of absence of in-dorsement referring to any information which was disclosed in a written application for this Policy.
“If this Policy is voided by the Company, the Company will return the premium paid.”

This court previously considered the validity and enforceability of the “When Policy is Voidable” clause in the case of Prilleux v. Metropolitan Life Insurance Company, La.App., 4 So.2d 768, 770. The clause in the Prilleux case was virtually identical with the clause presently contained in the policy before us. In reasoning that such a clause was valid and enforceable the court stated: “It is seen, therefore, that there is no prohibitory law in this state to preclude the enforcement of the provisions of the ‘when policy is voidable’ clause of the policy under consideration. Further, we cannot conceive of any theory upon which it could reasonably be held that the enforcement of the provisions of the clause would be in contravention of any public policy of this state. This clause is simple, specific and definite. It is a reasonable contractual reservation of a right to avoid the policy within a reasonable time after its issuance in either of two events contained in the clause (which events are themselves reasonable), conditioned on the existence and affirmative proof of such fact or facts by the insurer. Accordingly, we believe that the clause in question is enforcible.”

Thus it is clear that the burden is placed on the plaintiff to show that the insured did not suffer from a disease of a serious nature within two years prior to the date of the issuance of the policy. Obviously the plaintiff has failed to sustain the burden of proof required of her, for in the words of the trial judge found in his reasons for judgment, “In this case there is no question that the plaintiff (insured) suffered a serious ailment within the two years preceding the date of the application and the issuance of the policy. Plaintiff has so admitted and testified that D-r. Joe W. Wells had advised her that her husband was not an insurable risk. * * * ”

Counsel for plaintiff contend,, therefore, that the validity and enforceability of the "When Policy is Voidable”' clause is now without any effect whatsoever. In our opinion this contention is without merit. Plaintiff has alleged that the policy here involved was in full force and effect at the time of the death of .the insured. This suit, therefore, is a suit on the insurance policy or on a contract which,, like all other contracts, is the law between the parties. Muse v. Metropolitan Life Insurance Company, 193 La. 605, 192 So. 72, 125 A.L.R. 1075. Once the validity and enforceability is admitted, this unambiguous, simple, definite and specific clause-must, of necessity, apply and have binding-effect on the parties for it is universally recognized that Courts have no authority to change or alter the terms of such contracts or policies. Edwards v. Life & Casualty Insurance Co. of Tennessee, 210 La. 1024, 29 So.2d 50.

Counsel for plaintiff seem also to-assert that since this clause was not in the application and since the insured did not see the policy prior to his death, the "When Policy is Voidable” provisions have no effect. It is well recognized that an application does not represent a contract of insurance and is merely to induce the insurance company to issue a policy which itself embodies the terms and conditions of the contract.

We shall next consider defendant’s-contention that the insured wilfully and knowingly concealed his serious heart ailment in the written application for the policy. There is a conflict between the testimony of defendant’s soliciting agent,. Daly, and that of the plaintiff and beneficiary, Mrs. Jacobs. The testimony of neither Daly nor Mrs. Jacobs is corroborated to any extent by other witnesses and, since it is admitted that the insured knew of his serious heart ailment prior to the signing of the application, the question as to the wilful and fraudulent concealment of this heart ailment by the insured, Jacobs, depends entirely upon which of the witnesses we choose to believe. The suspicious circumstances under which this policy was obtained causes us to look upon the plaintiff’s testimony with disfavor.

In Jacobs v. Southern National Life Insurance Company, La.App., 21 So.2d 173, 175, we said that: “While the procurement of these policies shortly before the insured’s death might be considered as a suspicious circumstance, we are not now concerned with those other two policies and the suspicion, such as the facts justify, is not sufficient to overcome the proof that in the instant case, the defendant’s agent was informed of the true state of Jacobs’ health.

Incidentally, the plaintiff, Mrs. Jacobs, in that case, is the same plaintiff, Mrs. Jacobs, in this case.

We feel, therefore, constrained to disregard the testimony of the plaintiff and to find that there was no disclosure of the insured’s serious heart ailment by either the insured or the plaintiff.

We now pass to a consideration of the defense that the provisions of the “When Policy is Voidable” clause are not subject to waiver.

We held in Prilleux v. Metropolitan Life Insurance Company, supra, that the “When Policy is Voidable” clause is simple, specific and definite. It is a reasonable contractual reservation of a right to avoid the policy within a reasonable time after its issuance in either of two events contained in the clause,,. Thus it becomes patent that the provisions of this clause clearly limit the liability of the insure.r in the event the insured had received prior medical treatment for a disease of a serious nature within' the stated period. Since such a clause limits the liability of the insurer, it is also patent that the coverage of the policy does not extend to the situation where the insured has been treated or has received prior medical attention for a serious Asease within two years prior to the issuance of the policy. Hence, in the instant case, the. clause is not a forfeiture clause but is a clause specifically limiting coverage.

No Louisiana authority was cited to us and we have been unable to find any passing upon the question of whether a clause of this character was subject to waiver through the disclosure to the soliciting agent of prior medical treatment and disease. In any event, it is well recognized that the doctrines of implied waiver and of estoppel based upon the conduct or action of the insurer or its agents are, generally speaking, not available to bring within the coverage of a policy risks not covered by its terms or risks expressly excluded therefrom; and the application of the doctrine in this respect is, therefore, to be distinguished from the waiver of, or estoppel to deny, grounds of forfeiture.

In Carnes & Co. v. Employers’ Liability Assur. Corporation, 5 Cir., 101 F.2d 739, on page 742, the court in discussing the question of waiver, where coverage is sought to be extended, states: “ * * * The doctrine of waiver cannot be invoked to create a primary liability, and bring within the coverage of the policy risks not included or contemplated by its terms. _ Estoppel through the knowledge of Guy L. White, the agent of the Insurance Company, could operate in favor of the insured, Carnes & Company, only to relieve as against the consequences of violation of the terms of the policy and not to extend coverage. H. D. Foote Lumber Co., Inc., et al. v. Svea Fire & Life Ins. Co. 179 La. 779, 155 So. 22; Annotation 113 A.L.R. 857-871.”

However, there is authority among other jurisdictions to the effect that a provision of life insurance policy limiting an insurer’s liability under specified conditions to ■a return of premium is not subject to waiver or estoppel by reason of the agent’s knowledge. on behalf of the condition respecting the insured’s health.

In Champion v. Life & Casualty Insurance Co., 25 Ala.App. 101, 141 So. 363, 365, the court in referring to a clause which provided that the liability of the ■ company should be limited if the insured had been attended by a physician for any serious disease or complaint states: “The limitation of the Company’s liability sét out -in the above pleas is the,-proper subject of contract between the parties. In the absence of fraud or misrepresentation on the part of company or its authorized agents, this part of the policy contract is as binding on the insured as is any other. Placed in the contract for the benefit of the insurer, it was none the less binding on the insured. Recognizing the limited liability, defendant pleads its tender and offer to pay. Being a valid stipulation in the contract of insurance, it was immaterial whether the soliciting agent had knowledge or notice of the condition of insured or not. Assuming that both the agent and the company had such knowledge, the company admits the liability and offers to comply with the contract according to its terms.”

In Life & Casualty Insurance Company v. Williams, 200 Ga. 273, 36 S.E.2d 733, 161 A.L.R. 686, the court states in its syllabus: ■“The insurer is not estopped from asserting nonliability except for a return of premiums paid, under the limitation of insurance clause and nonwaiver provisions contained in an industrial life insurance policy — -providing that, ‘Within two years from date of issuance of this policy, the liability of the company under same shall be limited, under the following conditions, to the return of premiums paid thereon: '(1) If the insured was not in sound health upon the date of issuance and delivery of this policy, or if the insured before its date had tuberculosis;’ and ‘This policy shall ■constitute the entire contract. Any erasure ■or alteration made herein except by endorsement signed by the president or secretary, actuary, or other officer of the company, shall be void. Agents (which includes managers and superintendents) are not authorized to make, alter, or discharge ■contracts, or waive forfeitures or any provisions or terms of this policy’ — though the application for insurance was not attached to the policy, and where the agent soliciting ■the insurance and delivering the policy had full knowledge that the insured was not in sound health upon the dates of the application for and the issuance and delivery of the policy, and that the insured had tuberculosis at the time of the application and when the policy was issued and delivered, from which disease she died within less than two years from the date of the policy.”

In the words of the court in Horrmann v Prudential Insurance Company of America, 192 Misc. 738, 81 N.Y.S.2d 218, 221, “Without attempting to distinguish between the characteristics and effects of implied waiver and estoppel, neither, singly or in combination, is sufficient to call into existence elements of contract not entered into between the parties, or to create a liability upon one of them contrary to and in addition to the express terms of the contract. This principle has been applied repeatedly to insurance contracts (16 Apple-man on Insurance Law and Practice, section 9090, and cases there cited), and this in spite of the liberality shown by the Courts in the construction of such contracts. * * * ”

See, also Standard Acc. Insurance Company v. Roberts, 8 Cir., 132 F.2d 794.

Therefore, we are of the opinion that the “When Policy is Voidable” clause is not subject to waiver through any disclosure which was made to the soliciting agent of the defendant insurance company. Plaintiff contends that the knowledge of the agent is the knowledge of the principal and that it is imputed to the principal. It is well established that there is an exception to the general rule that a principal is chargeable with the notice or knowledge of his agent. Where the conduct or position of the agent is such as to raise a presumption that he would not communicate to the principal the facts in controversy, as where the agent is, in realty, acting in his own business and for his own personal interest and -adversely to the principal, or, for some other reason, has motive for or interest in concealing the facts from his principal, the knowledge of the agent will not be imputed to the principal. See Annotation 104 A.L.R. 1246.

It appears that the leading case discussing this exception to the general rule is that of Mutual Life Insurance Company v. Hilton-Green, 241 U.S. 613, 36 S.Ct. 676, 60 L.Ed. 1202. The United States Supreme Court, in discussing this very question, states on page 622 of 241 U.S., on page 680 of 36 S.Ct.:

“The general rule which imputes an agent’s knowledge to the principal is well established. The underlying reason for it is that an innocent third party may properly presume the agent will perform his duty and report all facts which affect the principal’s interest. But this general rule does not apply when the third party knows there is no foundation for the ordinary presumption, — when he is acquainted with circumstances plainly indicating that the agent will not advise his principal. The rule is intended to protect those who exercise good faith, and not as a shield for unfair dealing. * * *
“The assured at the least consciously permitted an application containing material misrepresentations to be presented by subordinate agents to officers of the insurance company under circumstances which he knew negatived any probability that the actual facts would be revealed; and later he accepted policies which he must have understood were issued in reliance upon statements both false and material. He could claim nothing because of such information in the keeping of unfaithful subordinates. Moreover, the false representations accompanied and were essential parts of the policies finally accepted. He did not repudiate, and therefore adopted and approved, the representations upon which they were based. Beyond doubt an applicant for insurance should exercise toward the company the same good faith which may be rightly demanded of it. The relationship demands fair dealing by both parties. * * * ”

The doctrine emanating from the Hilton case was approved by the Court of Appeal of Louisiana, Second Circuit, in the case of Lucas v. American Bankers’ Insurance Company, 141 So. 394, 397, where it was said: “ * * * The agent no doubt expected to profit from the insurance he wrote, and plaintiff likewise from the result of accidental death to his mother. At least it was designed to obtain some unjust advantage to them or to cause a loss to defendant, or both. The betrayal by the agent, Billingsby, of his trust put an end to his agency. The rules of agency bring no benefit to those who openly and flagrantly violate them for their own gain. Neither will defendant be bound when its consent to issue the policy was the result of error caused by fraudulent representations to which plaintiff, if not made directly by 'him, yet by his act and conduct he has contributed to make them effective, the representations being material to the policy contract.”'

In McCormack v. Security Mutual Life Insurance Company, 220 N.Y. 447, 116 N.E. 74, 78, Judge Cardozo; in discussing the. exception to the general rule concerning imputation of the knowledge of the agent to the principal, said: “ * * * in -the case at bar there is the added circumstances, aside from the position of the agents, that the plaintiff did not intend or expect that they would communicate the truth. She signed a false warranty with instructions-to transmit it. She gave no instructions to-report her earlier words, which would have-made her application worthless. She must have known that it would be mere chance if they were reported. She cannot now insist that what was then but a chance must now be taken for a certainty. The law of imputed notice has its basis in the presumption that an agent will perform ’his duty.. Henry v. Allen, 151 N.Y. 1, 45 N.E. 355, 36 L.R.A. 658. The presumption is not available for the protection of a wrongdoer who had no reason to expect, and did not intend that there should be, a revelation of the truth. * * * ”

Counsel for. plaintiff contents that the case of Jacobs v. Southern National Life Insurance Company, supra, governs in the present case. As we stated hereinabove,, the plaintiff, Mrs. Jacobs, in that case, is the same plaintiff as in this case. This argument, however, overlooks entirely the fact that the “When Policy is Voidable” clause was not at issue, and that such a provision was not contained in the policy therein sued on. The holding of the Jacobs case is quite clear. There we said: “While the' procurement of these policies shortly before the insured’s death might be considered as a suspicious circumstance, we are not now concerned with those other two policies and the suspicion, such as -the-facts justify, is not sufficient to overcome .the proof that in the instant case, the-defendant’s agent was informed of the true state of Jacobs’ health. We know of no-reason why Mrs. Kilean should have testified as she did and to the effect that the defendant’s agent knew of Jacobs’ illness, unless she was- telling the truth. The-knowledge of the defendant’s agent is imputed to his principal.”

Obviously, therefore, as was stated by the erudite trial judge in his written reasons for judgment: “From the above quotation it will be seen that what the Court of Appeal held was that where the agent is informed by the insured of his condition of health and the agent fails to place such information in the application, the knowledge of the agent is imputed to his principal. There is a well-established exception to the general rule which imputes an agent’s knowledge to his principal.”

We are, therefore, convinced that the only hope which the insured and plaintiff 'had that the defendant would grant to the insured the policy here involved, was that the prior illness of Jacobs would not in any way be communicated to the defendant. In view of these facts, it is clear that the exception to the general rule imputing the knowledge of the agent to the principal must apply and there can be no recovery on this policy on the ground of knowledge or imputed notice.

We next consider the last contention of defendant that relying on plaintiff’s own story there was collusion between herself and the writing agent. We are of the opinion that plaintiff in 'her own testimony clearly states that she did not, at any time, believe that the information which she presumably gave to defendant’s agent, Daly, would be communicated to the defendant. In fact; the reason that the plaintiff gives for her failure to pay to Daly the first premium due on the policy, was that she did not believe that the insurance would go through. There can be no doubt that the plaintiff knew that no part of her disclosures to the defendant’s agent, Daly, would be transmitted to the defendant.

A fortiori the plaintiff should not be permitted to enrich herself at the expense of the defendant and, accordingly, we are thoroughly in accord with what was said in 2 American Jurisprudence, “Agency”, Section 372, page 291: “ * * * Moreover, as the rule is intended to protect those who exercise good faith, and not as a shield for unfair dealing or to enable third persons to use the agent to further their own frauds upon the principal, it will not apply in favor of one acquainted with circumstances plainly indicating that the agent would not advise his principal, as where the agent is known to be acting adversely to the principal, or where the third person seeking to charge the principal is in collusion with the agent.”

For the reasons assigned 'the judgment appealed from is affirmed.

Affirmed.