author: MOISE, Justice.

text:
    215 La. 245
    STATE v. ALEXANDER.
    No. 39270.
    Supreme Court of Louisiana.
    March 21, 1949.
    Rehearing Denied April 25, 1949.
    Drew & Drew, of Minden, for appellant.
    Bolivar E. Kemp, Jr., Atty. Gen., M. E. Culligan, Asst. Atty. Gen., and James E. Bolin, Dist. Atty., of Springfield, for ap-pellee.
   MOISE, Justice.

The defendant was indicted and prosecuted for murder. He was convicted of the crime of manslaughter, sentenced to the penitentiary at hard labor for 21 years,’ and from this conviction and sentence he appeals.

A motion for a new trial was filed embodying certain errors as shown by the bills of exception that were allegedly made by the trial judge during the conduct of the proceedings.

The record shows that there were no eyewitnesses to the crime and the only proof offered by the State as to the guilt of the accused is his numerous incriminating statements made on the afternoon of the alleged slaying.

Bill of Exception No. 1 was reversed to the overruling of defendant’s motion for a new trial. The court in its per curiam states that this motion was overruled “for the reasons set forth in Bills of Exception Nos. 2, 3, 4 and 5.” Therefore, this bill will be hereafter discussed.

Bill of Exception No. 2 was taken to the admitting in evidence, over counsel for defendant’s objection, of certain incriminating statements made by the accused for the reason that they were not free and voluntary and for the further reason that the defendant, at the time of making said statements, was in a state of intoxication and that his drunkenness had reached the point of mania. The trial judge overruled the objection to the admissibility of these statements and gave the following reasons:

“After hearing the evidence I am of the \ opinion that the confessions or admissions were free and voluntary, and that defendant, while under the influence of intoxicating liquor, was still rational and knew what he was saying. This belief is strengthened by the fact that he told the officers where the body would be found, and it was found there.”

In State v. Bartley, 34 La.Ann. 147, this Court stated:

“In regard to the admissibility of the confession of the accused, it depended upon a question of fact, that is, whether the confession was voluntary or not. This question the Judge had to decide, with a view to détermine its admissibility. It was a matter largely within his discretion; and after hearing and weighing the evidence touching the character, of -the confession, he held that it was voluntary and admitted it.
“Whether the confession was voluntary, or not, and admissible or inadmissible, under the evidence submitted, is a mixed question. of law and fact, which we are authorized to review; the evidence on the point being set forth in the bill of exceptions.”

The jurisprudence of the State is well-settled to the effect that a confession’ must be free and voluntary in order to be admitted in evidence against the defend-' ant in a criminal prosecution; that it is the duty of the State to' prove that the confession is free and voluntary and that the admissibility of the incriminating stater ments or confession of the accused is a question of fact, that is, whether the confession was voluntary or not. The trial judge had to settle this question of fact within his sound discretion. State v. Bartley, 34 La.Ann. 147; State v. Porteau et al., 52 La.Ann. 476, 26 So. 993; State v. Edwards et al., 106 La. 674, 31 So. 308.

In Wharton’s Criminal Evidence, 11th Ed., Vol. 2, Sec. 633, at page 1059, we find the following:

“While a disturbance or a partial loss of control of the mental faculties is not in itself a ground for declaring the confession to be involuntary, the circumstances are to be taken into consideration by, the jury when they come to consider the evidence. Hence, a confession otherwise voluntary is not to be excluded because the accused was intoxicated at the time of making it. That fact goes to the weight only of the, confession and is for the exclusive consideration of the jury. It is even held by the weight of authority that a confession made by an intoxicated prisoner is none the less admissible because the liquor was furnished to him by the officer having him in custody. * * * However, the courts have stated that should the intoxication of the con-fesser produce actual mania or render him unconscious of what he is saying the confession is inadmissible as a result thereof.”

Similar language was quoted with approval in State v. Berry, 50 La.Ann. 1309, 24 So. 329 and State v. Hogan, 117 La. 863, 42 So. 352.

A review of the authorities brings us to the conclusion that the fact of the intoxicated condition of the accused at the time of making the confessions does not, unless such intoxication goes to the extent of mania, affect the admissibility of evidence of such confessions, if they were otherwise voluntary. We believe that the confessions were properly admitted.

Bill No. 3 was reserved by the defendant to the ruling of the trial judge that the testimony of A. L. Coffee as to his familiarity with the place and manner in which the gun of defendant was carried in his truck. The defendant does not show the relevancy of this evidence nor how he was aggrieved. We find no merit in this bill.

Bill No. 4 was reserved to a statement made by the Assistant District Attorney in his argument before the jury relative to the confessions. While commenting on the admissibility of the confessions and statements made by the defendant, the Assistant District Attorney stated: “ * * as the Court has so ruled”, after the trial judge had charged the jury not to consider the argument of counsel but to base their verdict on the law and evidence. If this statement had been prejudicial, such a charge would have cured the alleged irregularity.

It is a well-settled principle that as a matter of law, the prosecuting officer has the right to press upon the jury any view of the case arising out of the evidence —the Supreme Court is bound to credit jurors with common intelligence, conscientiousness, and sense of duty. To justify setting aside a verdict of a jury, approved by the trial judge, on the ground of intemperate or improper remarks made by a District Attorney, we would have to be thoroughly convinced that the jury was influenced by such remarks, and also, that the remarks contributed to the verdict found. State v. Johnson & Butler, 48 La.Ann. 87, 19 So. 213; State v. Hamilton, 124 La. 132, 49 So. 1004, 18 Ann.Cas. 981; State v. Davis et al., 178 La. 203, 151 So. 78; and State v. Tucker, 204 La. 463, 15 So.2d 854. We find no- merit in Bill of Exception No. 4.

Bill of Exception No. 5 was taken to the refusal of the trial judge to charge the following special charges:

“No. 1. I charge you, gentlemen of the jury, that the condition of a defendant as to intoxication must be taken into consideration as to the truthfulness of his confession.
“No. 2. If you conclude that the defendant was in such a state of intoxication that he did not know the import of his statements offered as confessions, then it is your duty to disregard said statements and evidence.
“No. 3. You are the sole judge of the condition as to intoxication of the defendant at the time of making said confessions and if there is any reasonable doubt that the defendant did not know what he was saying, then gentlemen you just resolve that doubt in favor of the defendant and disregard the testimony.
“No. 4. ‘Mania’ is that form of insanity where the mental derangement is accompanied with more or less excitement. Sometime the excitement amounts to a fury. The individual in such cases is subject to hallucinations and illusions. He is impressed with the reality of events which have never occurred and of things which do not exist and acts more or less in conformity with his belief in these particulars. It may be general and affect all or most of the operations of the mind, or it may be partial and be confined to particular subjects.”

The general charge is not made a part of the record. In refusing the special charges, the court gave the following reason:

“The general charge on drunkenness was given and under the evidence adduced I do not believe that accused was entitled to these special charges.”

From the general charge of the court, the jury could give whatever weight they wanted to the evidence as to intoxication. This condition was not entitled to be given a preference or priority over any other fact in the case. The judge in his per curiam states that he gave “the general charge on drunkenness”. The fact of drunkenness as a defense to a crime is immaterial. It is a defense when there is mania and in certain cases provided it can be used to negative an intent where a specific intent is required to constitute the crime charged. We are bound to presume that all general charges on the subject of drunkenness were given. The trial judge, in his per curiam stated “under the evidence adduced I do not believe that accused was entitled to these special charges.”

Article 390 of the Code of Criminal Procedure provides:

“The prosecution and the defense have each the right to present to the court, before the argument has begun, any written charge or charges, and request that the same be given. Except as otherwise provided herein, the judge must give every such requested charge that is wholly correct and wholly pertinent, unless the matter contained in such charge have been already given, or unless such charge require qualification, limitation or explanation.”

State v. Poree, 136 La. 939, 68 So. 83; State v. Erwin, 133 La. 550, 63 So. 167; State v. Varnado, 126 La. 732, 52 So. 1006; State v. Hogan, 117 La. 863, 42 So. 352; State v. Nicholls, 50 La.Ann. 699, 23 So. 980.

We cannot pass on the sufficiency of the general charge because it is not in the record. Therefore, such charge is not a subject of review by this Court. State v. Coll, 146 La. 597, 598, 83 So. 844. There is in the record, however, the evidence taken as to the admissibility of the confessions. The trial judge may, when called upon to give certain principles of law in the charge, only give them with such qualification and explanation as to render them applicable to the case under consideration. The trial judge believed he had performed this duty when he gave the general charge of drunkenness. It was, therefore, his right to refuse a charge which is not wholly correct or wholly pertinent under all of the facts and circumstances of the case. We find no error of law in the refusal to give the special charges requested. The judgment appealed from will be affirmed.

Judgment affirmed.

HAWTHORNE and McCALEB, JJ., concur in the decree.

O’NIELL, C. J., takes no part.


source: Caselaw Access Project

author: FOURNET, Justice. HAMITER, Justice PONDER, Justice. HAMITER, Justice

license: Public Domain

text:
    215 La. 257
    PYLE et al. v. CITY OF SHREVEPORT.
    No. 39014.
    Supreme Court of Louisiana.
    Dec. 13, 1948.
    On Rehearing March 21, 1949.

      Wilson, Abramson & Maroun, of Shreveport, for plaintiffs-appellants.
    Ben F. Roberts, City Atty., Francis R. Edwards and James W. Hammett, all of Shreveport, for defendants-appellees.
   FOURNET, Justice.

The plaintiffs, one a citizen and taxpayer of the City of Shreveport and the others of the two areas involved in this litigation, are appealing from a judgment of the lower court dismissing their suit to have Municipal Ordinance No. 158, (adopted pursuant to the provisions of Act No. 315 of 1946) wherein certain territories in the Country Club and Werner Park sections were sought to be annexed to and made a part of the city, annulled and vacated and the proposed extension of the city limits to include these areas denied.

It appears that a petition, signed according to the certificate of the assessor by 25% in number of the resident property owners and by 25% in the valuation of their property in the Lonoke, Parkhurst, Werner Park, and Morningside subdivisions (hereafter referred to as the Werner Park area), and a like petition signed by the required percentages in the Country Club Heights subdivision (hereafter referred to as the Country Club area) seeking to have these two areas included in the city’s corporate limits were filed with the public authorities of the City of Shreveport on September 23, 1947. On November 12 following, an opposition was filed by a number of the residents of the so-called Werner Park area who opposed the annexation of this area or any part of it. The city, however, on December 9, through its council, introduced an ordinance that was, on that day, •read for the first time and notice thereof was duly published in the city’s official journal calling the public’s attention to the fact that it would be 'Called up for final passage on December 23. On that day, after a public hearing had been held so that those so desiring might freely express their views, the city formally adopted the ordinance as Ordinance No. 158 by unanimous vote.

In addition to alleging that this ordinance is -unreasonable and discriminatory, the plaintiffs, as a basis for its nullity, assigned a number of irregularities connected with its adoption. Most of these have apparently been abandoned since in this court they are urging only four, i. e., (1) that the ordinance was adopted before public notice was given as required in Section 2; (2) that the city sought in this one ordinance to annex two non-contiguous areas; (3) that the petitions do not conform to the requirements set out in Section 2 of the act since the names thereto affixed are to be found in numerous petitions instead of in only one; and (4) that the -assessor used the 1946 rolls in attesting to the number of owners and valuation represented in the petition instead of using the 1947 rolls and did not take into consideration the changes in ownership after January 1, 1947.

By referring to a map to be -found in the record that is reproduced herein below, it will be revealed that the two areas sought to be annexed to the city are separate and -distinct,, although each i-s -contiguous to the city limits; no one part of either touches the other.

The intervening area is largely commercial and industrial in character. The Werner Park area, to the lower right of the map, is well developed urban property that is almost entirely equipped with sewerage and water that has been installed and streets that have been paved at the expense of those living therein; whereas the Country Club area, lying in the upper left of the map, i-s a very sparsely developed section that is more rural in character, having no sewerage system and only an inadequate water supply that is piped to the residents living there through the country club facilities. While this area was at one time laid out for residential development, with properly dedicated streets and roads, large portions thereof have never been developed and, during the intervening years, weeds and grass 'have grown over the passageways. As adopted by the ordinance, the large tract of land blacked-out and lying in the center of the Country Club area, used by the Shreveport Country Club as a golf course, is excluded. Also, it is to be noticed that the extreme left boundary of this area is made jagged and irregular by the elimination therefrom of a -number of lots that have apparently been left out deliberately.

“It is elementary that municipal corporations are creatures of the state, established by the legislature for the purpose of administering local affairs of government. Such powers as these corporations have, as well as the limits of the territory they are to -govern, are all matters that are entirely within the province of the legislature, and so long as there is no constitutional provision restricting the legislature’s authority in this respect, that body may enlarge or diminish the territory of these corporations, consolidate one with another in whole or in part, and even terminate their existence at will. It may also legally delegate these powers to the municipal authorities.” Edwards v. Town of Ponchatoula, 213 La. 116, 34 So.2d 394, 397. See, also, Shirk v. Lancaster City, 313 Pa. 158, 169 A. 557, 90 A.L.R. 688; 38 Am.Jur. 635, Section 18, and -the annotation to be -found at 64 A.L.R. 1335. Generally speaking, however, when the legislature does delegate its power to the municipal authorities, strict compliance with the procedure prescribed in the statute is essential to a valid alteration of the municipality’s -corporate limits. Layton v. Mayor of Monroe, 50 La.Ann. 121, 23 So. 99; Dees v. City of Lake Charles, 50 La.Ann. 356, 23 So. 382; Pittsburgh, C., C. & St. L. R. Co. v. Anderson, 176 Ind. 16, 95 N.E. 363; Weeks v. Hetland, 52 N.D. 351, 202 N.W. 807; Posey v. Paxton, 201 Ark. 825, 147 S.W.2d 39; and other authorities cited at 64 A.L.R. 1341. See, also, 43 C.J. 122, Sections 81 and 82.

In the Pittsburgh -case it was said that “The municipal authorities can in no case alter the boundaries unless the power so to do is conferred upon them by the Legislature ; such power, when conferred, must be exercised under the circumstances and in the manner prescribed.” In the Hetland case the court held that the power of annexation as -conferred on the municipalities by statute is arbitrary and extraordinary, and that when such power is exercised the -statute must be strictly complied with. It was further held that all doubtful claims of power by the municipal corporation, or any doubt or ambiguity in the .terms used by the legislature, are -to be resolved against the corporation.

The legislature of 1946 in delegating to municipal corporations the power to contract or expand their -corporate limits .in its Act No. 315 specifically declared that “the limits and boundaries of existing incorporated municipalities -shall remain as now established but may be enlarged or -contracted by ordinance of the governing body as hereinafter provided” (Section 1), but -that “No ordinance enlarging the boundaries of a municipality shall be valid unless prior to •the adoption thereof a petition has been presented to the governing body of the municipality containing the written assent -of 25% in number of the resident property -owned in said territory as well as 25% in value of -the property with the area proposed to be included in the corporate limits according to t-he certificate of the Parish Assessor.” Section 2. In -this same section is contained -the provision that “Anyone desiring to be heard with reference -to said proposed -ordinance shall notify the clerk or secretary of the municipality in writing and the governing authorities before adopting any ordinance, shall grant such hearing.” In Section 4 any interested citizen oí the municipality or territory proposed to be annexed thereto is granted the right, within 30 days after the promulgation of the ordinance, to contest the proposed extension or contraction by filing suit in the district court, where the question “shall -be whether said proposed extension is reasonable.” In Section 8 it is further declared that “Where the boundaries of a municipality have been enlarged or contracted the ordinance with reference thereto must define with certainty and precision the territory which it is proposed to include in or to exclude from the corporate limits as the case may be and said ordinance must also define the entire boundary as changed.”

Clearly this law contemplates that no territory can be annexed to a municipality unless previous thereto it has been requested to make such annexation in a petition duly certified by the assessor as having been assented to by one-fourth in number and amount of the property taxpayers within the area to be annexed, and regardless whether the area sought to 'be included is composed of two separate and distinct and non-contiguous parts, as is the case here, that may be annexed by an ordinance adopted upon a single petition, a question upon which we express no opinion, we do say that the citizens of two separate areas cannot by two separate petitions, each seeking to have its own respective area annexed without reference to the other, merge the two areas for annexation in one ordinance. This, we think, is not only at variance with the letter and spirit of the law, but is also sufficient in itself to render the ordinance unreasonable. Certainly if the inclusion of one of the areas were held to be unreasonable, of necessity the ordinance would be annulled, for we have no way of determining whether the governing authorities of the city would have adopted the ordinance without the inclusion of both.

For the reasons assigned, the judgment appealed from is annulled and set aside and it is now ordered, adjudged, and decreed that Ordinance No. 158 of 1947 of the City of Shreveport is null and void and of no effect, at the cost of the defendant.

HAMITER, J., dissents and assigns written reasons.

McCALEB, J., concurs in the decree but doubts that the case is within our appellate jurisdiction.

O’NIELL, C. J., takes no part.

HAMITER, Justice

(dissenting).

Up until the adoption of the assailed Municipal Ordinance No. 158 of 1947, as the majority opinion itself discloses, all of the requirements of Act No. 315 of 1946 were fully satisfied with reference to the annexation of both the Werner Park and the Country Club areas by the City of Shreveport. Separate petitions for the respective areas, each signed by 25% in number of the resident property owners who represented 25% in value of the property and each bearing the necessary certificate of the Parish Assessor, were submitted to the council; more than ten days public notice of the petitions’ filing was given; and a hearing on the proposed annexations was duly held.

Following the public hearing, the previously introduced Ordinance No. 158 of 1947, entitled “An Ordinance to enlarge the limits and boundaries of the City of Shreveport and to define the boundaries of the City of Shreveport as enlarged and extended” and which described both areas, came before the City Council in regular session for final consideration. At that time the council, with all five members present and voting, unanimously adopted it.

Within thirty days thereafter, and while the ordinance was being published in accordance with law, this suit was instituted, by interested citizens of the territory proposed to be annexed, pursuant to the authorization contained in Section 4 of Act No. 315 of 1946, which reads as follows:

“Any interested citizen of the municipality or of the territory proposed to be annexed thereto may, within thirty (30) the day period before said ordinance becomes effective, file suit in the District Court having jurisdiction over said municipality, to contest the proposed extension of the corporate limits and the question shall be whether said proposed extension is reason-' able. If the extension of boundaries is adjudged reasonable the ordinance shall go into effect ten (10) days after said judgment is rendered and signed unless a sus-pensive appeal therefrom has 'been taken within the time and manner provided by law. If the proposed extension he adjudged unreasonable the ordinance shall be vacated and the proposed extension shall be denied and no ordinances proposing practically the same extension shall be introduced for one year thereafter. A similar right of appeal from the judgment of the District Court annulling the ordinance shall •be granted the municipality or any interested citizen as hereinabove provided.” (Italics ours.)

The decision of the majority herein annulling said Ordinance No. 1S8 of 1947, as I appreciate it, does not result from a determination, unfavorable to defendant, of the question (raised by plaintiffs in their petition and which the quoted Section 4 states shall be presented in a suit of this kind) of whether the proposed extension is reasonable; nowhere does the opinion disclose a finding of unreasonableness in annexing the two areas. The decision results solely from a conclusion, which I maintain is unfounded 'both in law and logic, that separate ordinances were necessary for the annexation of the two noncontiguous areas.

Neither Act No.-315 of 1946 nor any other statute of this state (including the charter of the City of Shreveport), of which I have knowledge, contains a requirement of that kind; and in the absence of any statutory or charter provision to the contrary the ordinance need not be confined to one of the two areas. Analogous here, but of course not decisive, is a statement of law found in 38 American Jurisprudence, verbo Municipal Corporations, Section 528, reading as follows:

“Whether a municipal corporation in granting franchise rights may include different franchise rights or purposes in the same ordinance depends primarily upon whether there is a restriction against confining an ordinance to one subject. It.is generally conceded that in the absence of any statutory or charter provision to the contrary, an ordinance need not be confined to one subject, and accordingly, that any objection to an ordinance on the ground ■that more than one franchise is thereby granted must be based on provisions of a charter or the statutes. * * * ”

True, in Act No. 315 of 1946 we find reference being made to “an ordinance,” “the ordinance,” and “said ordinance,” the word 'being used in the singular number. But in each instance, it will be noticed, there appears in connection with the word the qualifying clause “enlarging the boundaries of a municipality.” The ordinance under consideration, as shown by its title, purposes only to accomplish that end, namely, to enlarge the boundaries of the City of Shreveport by the annexation of the Wer-ner Park and Country Club areas.

It is said in the majority opinion that a merging of the two areas for annexation in a single ordinance is sufficient in itself tó render the ordinance unreasonable. Further, in support of that conclusion, the opinion reasons: “Certainly if the inclusion of one of the areas were held to be unreasonable, of necessity the ordinance would be annulled, for we have no way of determining whether the governing authorities of the city would have adopted the ordinance without the inclusion of both.” I thoroughly agree that the whole ordinance must be declared null if one of the areas were decreed to be unreasonable. But all of -that is'entirely beside the point, because the annexation of neither of the areas has been held unreasonable. This court has not so ruled; the district court, in its formal judgment, specifically adjudged the'extension reasonable; and the'members of the council of the City of Shreveport, who serve at the will of the electorate of that municipality and who are thoroughly familiar with both areas, unanimously approved the entire proposal.

In this connection, since all of the council members agreed, as shown above, that the including of both areas was reasonable, what purpose would have been served, by their adopting separate ordinances? The law does not require their doing of a vain and useless thing.

Rather than being unreasonable, the adoption of one ordinance for the annexing of the two areas, in my opinion, was the only reasonable and logical method available to the city council. Section 8 of Act No. 31S of 1946 requires:

“Where the boundaries of a municipality have been enlarged or contracted the ordinance with reference thereto must define with certainty and precision the territory which it is proposed to include in or to exclude from the corporate limits as the case may be and said ordinance must also define the entire boundary as changed.”

Where a number of separate tracts are sought to be annexed simultaneously to a municipality by separate ordinances, there could result, in view of the requirement that “said ordinance must also define the entire boundary as changed,” much confusion and even absurd and ridiculous consequences.

Suppose, for example, six separate petitions are filed at one time for the annexation to a municipality of six separate areas. Of necessity, under the .rules of procedure of the council, appropriate separate ordinances are immediately prepared, introduced, the notice of introduction given, each of which must, as required by Section 8, not only describe the territory proposed to be included but also define the entire boundary as changed,by each. In so drafting the six separate ordinances unquestionably untold confusion would arise. However, assuming that they can be and are properly drafted, when the ordinances come on for adoption some days later and the council rejects Numbers 1, 2 and 3, obviously that body would also be compelled to reject the remaining three, notwithstanding all members favor including the territory described, because the new boundaries as fixed therein contemplate and include the areas affected by the first three of the defeated ordinances.

Again, if the council adopted all six and thereafter the court, in a contest respecting them, decreed the first three to be invalid on the ground of unreasonableness, the remainder, for the reason above given with reference to the council action, must also be adjudged invalid.

The annulling of Ordinance No. 158 of 1947 on the ground assigned in the majority opinion, furthermore, can benefit no one. On the contrary expense to th? city and much delay to all parties concerned will attend the council’s later introduction, publishing, and adoption of the required new and separate ordinances.

I respectfully dissent.

On Rehearing

PONDER, Justice.

We granted a rehearing in this case because it was vigorously urged by counsel for the city that the only pertinent question presented to us was whether or not the extension of the boundaries of the city is reasonable.

The purport of our original opinion was, to the effect that Municipal Ordinance No. 158 was null and of no effect for the reason that there had not been a compliance with the procedure outlined in Act No. 315 of 1946 in the adoption of the ordinance. We took the position that the power of the city to enlarge its territory was delegated to it by the Legislature 'by statute and that the failure to comply with the procedure outlined therein rendered the ordinance null. We cited numerous authorities to support this conclusion. After reconsidering the ■case, we are convinced that our conclusion in the original opinion is correct and that it eliminates the necessity of passing on the question of the reasonableness of the extension. However, since it has been so strenuously urged that we pass on the reasonableness of the extension, we have arrived at the conclusion, after a careful consideration of the record, that it is unreasonable to extend the boundaries of the city in the manner proposed.

An examination of the map attached to the original opinion discloses that the boundary lines are irregular, thereby including and excluding property in the same vicinity. It also reveals that a 'large area within the boundary is excluded. The record discloses no valid reason -for the exclusion and inclusion of these properties. The irregularity of the boundary is not brought about by any 'barriers or obstacles, natural or otherwise. There is some doubt as to whether the petitions of the property owners would have been sufficient in number and amount if certain properties had not been excluded in the proposed extension.

The power to extend the corporate limits having 'been delegated -by the Legislature, it is our right and duty to inquire whether the city, in the exercise of the power delegated to it, has complied with the condition upon which it was granted, the condition being that the ordinances enacted pursuant to such power shall be reasonable, impartial, fair, general in application and consistent with law, public policy, and common right. New Orleans & N. W. R. Co. v. Vidalia, 117 La. 561, 42 So. 139.

“The legal, as well as the popular idea of a municipal corporation in this country, both by name and use, is that of oneness, community, locality, vicinity; a collective body, not several bodies; a collective body of inhabitants, i. e., a body of people collected or gathered together in one mass, not separated into distinct masses, and having a community of interest because residents of the same place, not different places. So, as to territorial extent, the idea of a city if one of unity, not of plurality; of compactness or contiguity, not separation or segregation.” 37 Am.Jur. 644, par. 27.

The rule of contiguity applies to the extension of a city’s boundaries. The rule is consistent with the one laid down in the Vidalia case, that an ordinance of this nature must be reasonable, impartial, general in its application and consistent with common right.

There is evidence in the record that the area embraced in the proposed extension is rapidly developing and in need of the services of the city. This evidence merely shows a necessity for an extension of the city’s limits. There is a vast difference between the necessity for an extension and the reasonableness of. a proposed extension. The need for an extension may be ever so great but it would not justify the extension of the city’s limits in an arbitrary and discriminatory manner.

The fact that the Country Club property is used by members of the club solely for recreational purposes and the fact that it was not embraced in -the petition presented to the city council would not justify its exclusion in the proposed extension since the greater part of the adjacent and surrounding property is embraced therein.

The arbitrary fixing of the boundary lines in such a manner as to exclude and include property in the same vicinity and the arbitrary exclusion of property within the boundaries is not only unreasonable but discriminatory.

For the reasons assigned, our original decree is reinstated and affirmed at defendant’s cost.

HAMITER, Justice

(dissenting).

The written reasons which I assigned for dissenting with the majority holding on the original hearing I now reaffirm.

The additional conclusion announced by the majority on this rehearing, with which I also disagree, fails to take into consideration -the jurisprudence of this court to the effect that the burden of proving the unreasonableness of the proposed annexations is upon those asserting it (in this case the plaintiffs), and that the unreasonableness must be made to appear by abundant evidence. Lawrence v. Town of Mansfield, 129 La. 672, 56 So. 633; Bowman-Hicks Lumber Company et al. v. Town of Oakdale, 144 La. 849, 81 So. 367; Harvey Canal Land & Improvement Co. et al. v. Gelbke, 166 La. 896, 118 So. 75. Such a burden, as the record before us discloses, has not been discharged by these plaintiffs.

The majority opinion states that, according to a map attached to the original opinion, the boundary lines are irregular, thereby including and excluding property in the same vicinity. At two or three points on the map which are near each other, it is true, slight jogs or offsets appear. But plaintiffs offer no evidence whatever, as was their duty, to show that the irregularity (if it be such) tended to render the proposed annexations unreasonable. And I am aware of no law requiring a boundary to run in a straight line. On the other hand, defense counsel, in their brief, give the reason for the offsets as follows:

“ * * . * In other words, there is no necessity for the boundary line to reach out and take part of a landowner’s property, place it within a municipality and leave the remainder out. That accounts for the location of the 'boundary line at this place.5jí $C

Further, it is said that the map reveals that a large area within the boundary is excluded (referring to -property of the Shreveport Country Club), and that -this exclusion is not only unreasonable but is discriminatory. As I view -the map, and as shown by the testimony of defendant’s engineer, the Country Club area proposed to be annexed does not completely surround the Country Club property; the area bounds it on three of its four sides. As •to the holding that the exclusion of the Country Club property would be discriminatory, it evidently -has as a basis 'an assumption that -the owner thereof would enjoy all the benefits and advantages afforded the owners in the annexed territory, yet it would not have to pay any taxes therefor. But -there is nothing in the record to support that assumption. On the contrary, it appears that the Shreveport Country Club has provided, and it now maintains, at its own cost all of the facilities which might or could be furnished by defendant.

Neither do I deem the boundaries of the territory proposed to be annexed, both of the areas therein being contiguous to defendant’s present -corporate limits, to have been arbitrarily fixed, as the majority opinion indicates was done. These boundaries were decided -upon by property owners themselves within each area (at least 25% in number and representing -at least 25% of the value of the property included), and were delineated in the two separate petitions which they presented to defendant’s Commission Council. By a unanimous vote of its members that body approved the boundaries as thus recommended and determined.

Moreover, at the present time, according to the record, the entire proposed Werner Park area is well developed, and defendant is supplying almost 100% of the residents therein with water, 90% with sewerage, and most of them with fire protection. While not quite so thickly populated, the Country Club area is also well developed, it being suitable for residential, commercial and industrial purposes; and it is now receiving some benefits from the utilities of defendant. Too, therein is located the Jewella School, and the lands of that area have been platted into subdivisions with dedicated streets. And for improving utility services to both areas, defendant has already completed elaborate plans and it has available the necessary funds and much of the required materials.

Appropriate here is the following comment found in New Orleans & N. W. R. Co. et al. v. Town of Vidalia, 117 La 561, 42 So. 139, 144, a decision cited in support of the majority holding on this rehearing:

“ * * * Upon -the whole, we consider that the public at large and the community of the town will derive a distinct advantage from the proposed extension, and we do not discover in what way it will operate to -the disadvantage to the plaintiffs, save in the possible increase, to a limited extent, of their taxation, and this, we think, will be measurably compensated by the benefits to accrue from the additional facilities, in the way of water, light, and police, which the town proposes to furnish.”

I respectfully dissent.


author: FOURNET, Justice. MOISE, Justice

text:
    215 La. 280
    HAYNES v. LOFFLAND BROS. CO. et al.
    No. 38958.
    Supreme Court of Louisiana.
    March 21, 1949.
    Rehearing Denied April 25, 1949.

      Fred G. Benton and Wilson B. Holcombe, both of Baton Rouge, for applicant.
    St. Clair Adams & Son, of New Orleans (P. A. Bienvenu, of New Orleans, of counsel), for defendants-respondents.
   FOURNET, Justice.

This case is before us on a writ of cer-tiorari granted Mrs. Viola Geffert Haynes for the purpose of reviewing the judgment of the Court of Appeal for the Parish of Orleans affirming the judgment of the lower court dismissing her suit -against the Loffland Brothers Company and its insurer, the Insurors Indemnity and Insurance Company, on behalf of her minor son, Billy Louis Thomas, to recover compensation for the death of the minor’s father and her former husband, Louis F. Thomas, during the course of his employment. The sole question presented for our consideration is the right to such compensation under our laws when the undisputed facts show the child was neither living with the father at the time of the accident and death nor receiving any contribution from the earnings of the deceased toward his support.

The provisions of the Employers’ Liability Act, (Act 20 of 1914, as amended) pertinent to the issues here involved, are that “For injury causing death within one year after the accident there shall be paid to the legal dependents of the employee, acttuilly and wholly dependent upon his emnings for support at the time of the accident cmd death, a weekly sum as hereinafter provided, * * Subsection 2 of Section 8, Act No. 242 of 1928, p. 358. “A child or children under the age of eighteen years (or over said age, if physically or mentally incapacitated from earning)” is conclusively presumed to be wholly and actually dependent “upon the parent with whom he is, or they are, living at the time of the injury of such parent.” “In all other cases, the question of legal and actual dependency in whole or in part, shall be determined in accordance with the facts as they may be at the time of the accident and death”. Paragraph D of sub-section 2 of Section 8. There is a further qualification to be found in Paragraph I of this same subsection : “In all cases provided for under this Section the relation or dependency must exist at the time of the accident and at the time of death, and the mere expeetcution or hope of future contributions to the support of an alleged dependent by an employee, shall not constitute proof of dependency as a fact.’’ (Italics ours.)

The above italicized portion of Paragraph I was not incorporated in the act as originally adopted in 1914. It was made a part of the act by the adoption of an amendment in 1926, Act 85, p. 114, and ever since its adoption the appellate courts of this state have consistently held that one not conclusively presumed to be dependent upon the earnings of the deceased employee for support under the provisions of paragraphs (B), (C), and (D) of sub-section 2 of Section 8, (i. e., husband, wife, and children living with the deceased employee at the time of the injury) must not only prove he is or they are legal dependents of the deceased but also that the deceased employee was actually contributing to their support at the time of the accident and death. Fuhrmann v. Keenan, 168 La. 642, 122 So. 892; Edwards v. Standard Gin & Mfg. Co., 12 La.App. 153, 125 So. 593; Harris v. Louisiana Oil Refining Corp., 13 La.App. 416, 127 So. 40; Plick v. Toye Bros. Auto & Taxicab Co., 13 La.App. 525, 127 So. 59; Chauvin v. American Mutual Liability Ins. Co., 17 La.App. 187, 134 So. 450; Lemmler et al. v. Fabacher, 19 La.App. 144, 139 So. 683; Lewis et al. v. Southern Advance Bag & Paper Co., La.App., 147 So. 532; Jones v. Dendinger, Inc., et al., La.App., 147 So. 732; Keyhea v. Woodard-Walker Lbr. Co., Inc., La.App., 147 So. 830; Rollins v. Foundation Co. et al., La.App., 154 So. 674; Fulton Bag & Cotton Mills v. Fernandez et al., La.App., 159 So. 339; Swift & Co. Fertilizer Works v. Harris et al., La.App., 166 So. 516; Britt v. Nashville Bridge Co., La.App., 171 So. 493; Woodard v. Murphy Iron & Boiler Works, Inc., et al., La.App., 172 So. 397; Darrow v. Travelers Ins. Co., La.App., 175 So. 98; American Mut. Liability Ins. Co. v. Sanders et al., La.App., 177 So. 498; Sanders v. M. Feitel House Wrecking Co. Inc., La.App., 180 So. 442; Dillon v. Traders & General Ins. Co., La.App., 183 So. 553; Guidry v. Swift & Co. et al., La.App., 199 So. 619; Dudley v. Martin, La.App., 4 So.2d 102; Pointe Coupee Electric Membership Corp. et al. v. Pettey, La.App., 6 So.2d 764; Archibald v. Employers’ Liability Assur. Corp., La.App., 20 So.2d 178; Stubblefield v. McKesson & Robbins, Inc., La.App., 20 So.2d 430; Hamilton v. Consolidated Underwriters, La.App., 21 So.2d 432; Thompson v. Vestal Lbr. & Mfg. Co., 208 La. 83, 22 So.2d 842; Powell v. Paramount-Richards Theatres, Inc., et al., 22 So.2d 859; Moy et al. v. Schuylkill Products Co. et al., 209 La. 782, 25 So.2d 542; Sandidge v. Aetna Casualty & Surety Co. et al., La.App., 29 So.2d 522; Slaughter v. Liberty Mut. Ins. Co., La.App., 33 So.2d 86.

This court through the author of .this opinion observed in the Moy case, where recovery was denied to a surviving widow and minor children who were not living with the deceased and not receiving any contributions from him, that [209 La. 782, 25 So.2d 543] “However unfair it may seem that these unfortunate children should be made to continue suffering because of the unworthiness of their father, simply because their mother or some one else on their behalf did not coerce him by means of legal proceedings to fulfill the duties legally imposed upon him as their father, our lawmakers did not provide for such a case under our compensation law and we are powerless to prevent the perpetuation of this injustice that has been brought upon them through no fault of theirs and that must, in the future, be continued in similar instances until the legislature, in its wisdom, may see fit to correct the same, since .this is a matter that falls exclusively within the province of that branch of our government.”

In the instant case the Court of Appeal for the Parish of Orleans in referring to this statement felt that this use of .the word “coerce” connotes more than an unsuccessful effort to force a result. “In other words, the court did not mean that it will be sufficient if an attempt is made to force the husband or father to contribute. What it clearly means is that actual dependency is not shown by the mere effort to make the husband or father contribute. The attempt must produce the result and there must actually be the receipt of support or the dependency, which is necessary, is not shown”. [34 So.2d 80, 83.]

Counsel for the plaintiff, however, contends the Court of Appeal erred in its holding that the Moy case is controlling here and in its appreciation of the significance of the statement from the Moy case since the record in the instant case shows the wife obtained a judgment of divorce from the deceased in which she was also granted the custody of the minor and alimony of $15 a month for the child’s support, which alimony was not only badly needed by the minor but was sought to be collected in every way possible, the child’s mother exerting every effort toward locating her husband, even employing the good offices of the district attorney and district judge, and eventually having her husband, when finally located, indicted for failure to pay the alimony although the indictment, obtained approximately a month prior to his death, availed her nothing since the state refused his extradition. He cites in support the cases of Gregory v. Standard Oil Co. of Louisiana, 151 La. 228, 91 So. 717, and Stubblefield v. McKesson and Robbins, Inc., La.App., 20 So.2d 430.

Neither of these cases is controlling or pertinent here. The Gregory case was decided prior to the passage of the 1926 amendment and is generally credited with being the reason for the legislature’s adoption of .the provision with reference to the expectation or hope of future contributions. In the Stubblefield case the minor was not only living with his mother but was also actually contributing toward the upkeep of the household, thus relieving her of her legal obligation to maintain him. Despite ■the fact, therefore, that the mother was not herself being supported by the child, but by her second husband, the court found the mother was dependent upon the deceased within the meaning and contemplation of the law because she was dependent upon the contributions made by him toward his own support.

If the problem posed in this case were being considered by the courts for the first time, we might view counsel’s argument with favor. However, in view of the unanimous holdings of the courts of this state for over 20 years that from the language used in the 1926 amendment the legislature intended the contrary, we feel it would be an encroachment upon the functions of the legislature for the courts at this late date to attempt to place a different construction thereon, particularly since the legislature in the interim has had its attention called to this gross injustice on a number of occasions in the various opinions of the courts and has not seen fit to change the provision it added to Paragraph I by the 1926 amendment despite the fact that it has met in regular session every‘two years since then and has also held innumerable special sessions, during many of which sessions the act has been amended in other respects. And this is even more true since it cannot be said the language used, when considered with the historical background of these dependency provisions that prompted many of the amendments, does not fairly, if not precisely, support the interpretation that has been placed on this provision by the courts.

The act as originally passed in 1914 provided that legal dependents of the deceased employee “wholly dependent upon his earnings for support at the time of the injury” should recover according to the sliding scale therein set out. A husband living with his wife, a wife living with her husband, and a child living with the deceased parent were conclusively presumed to be “wholly” dependent upon the deceased for support. No person was considered a dependent “unless a member of the family of the deceased employee, or bearing to him the relation of husband or widow, or lineal descendant or ascendant, or brother or sister, or legally adopted child.” Paragraph (e) of sub-section 1 of Section 8 and paragraphs (a), (b), and (c) of sub-section 2. In the 1916 amendment of Section 8 (Act 243, p. 513) the provisions of sub-sections 1 and 2 with respect to the conclusive presumption of dependency in the case of a surviving spouse or child were eliminated and recovery was permitted in accordance with the number of children in the family. In the absence of a surviving spouse and children, provision was made for recovery by the father and mother “if dependent on the deceased to any extent for support”, § 8, subd. 1(f) (7), and brothers and sisters if “actually dependent on the deceased for support to any extent”. § 8, subd. 1(f) (8). In this amendment for the first time we find the provision “In all cases provided for in this schedule the relation or dependency must exist at the time of the injury,” (Paragraph 11 of sub-section (f) of Section 8.) In 1918, Act 38, p. 53, the amendment adopted by the legislature provided for the insertion of the word “actually” before the word “dependent” in the provision with reference to recovery by the father and mother. In this amendment also it was provided that a surviving spouse could not recover unless living with the deceased or '“actually dependent [upon him] for support”. (Sub-section 2(g) of Section 8.) These provisions remained the same when the act was further amended by the adoption of Act 247 of 1920, p. 467.

In 1921 the Supreme Court, allowing a father to recover although there had been no showing that he was dependent upon his son, held in the case of Heinzelman v. Board of Commissioners of Port of New Orleans, 149 La. 215, 88 So. 798, 800, that “dependent to any extent” is a very broad term, including aid for the discharge of a legal obligation to support, as well as that actually given in supplying personal wants. .In the case of Harris v. Calcasieu Long Leaf Lbr. Co, 149 La. 649, 89 So. 885, decided that same year, it was held that “the extent of liability for compensation is not governed by the extent to which the parents were dependent upon the employee for support. It is sufficient that they were actually dependent upon him to any extent.” The next year, in the Gregory case, supra, the court extended its construction of these dependency provisions to include parents in necessitous circumstances to whom the minor child had made no actual contributions, having died before he could carry out his promise to send them certain weekly amounts for their support. Also in 1922 a working father who was not actually dependent upon his deceased minor son for .■support was permitted to recover along with the mother because the deceased had pooled his earnings with those of his father and .another minor brother in helping to support a large family, the court stating it was not intended that dependents could only recover under the act if they were in “actual want and suffering.” Hamilton v. Texas Company, 151 La. 692, 92 So. 301, 302. This jurisprudence, as was pointed out by the Court of Appeal for the Second Circuit in deciding the case of Cauthorn v. Cypress Tank Co, 1 La.App. 100, in 1924, “repudiated the suggestion that actual, absolute, present dependency was a necessary ■condition to the right of recovery.”

In the face of the construction placed ■on the act by the courts the legislature, in its Act 85 of 1926, reverted to the provisions substantially as they had been incorporated in the original act, restoring subsection 2 of Section 8 with its conclusive presumptions of dependency, but adding the further.qualification to Paragraph I of this sub-section that “the mere expectation or hope of future contributions to the support of an alleged dependent by an employee, shall not constitute proof of dependency as a fact.” Since the adoption of this provision, as above pointed out, the courts have consistently held that both relationship and contribution to support at the time of the injury and death must be proved in all cases where dependency is not conclusively presumed.

We think, therefore, most appropriate here the observation of the learned author of the opinion in the case of Ford v. Louisiana & A. Ry. Co., La.App, 196 So. 403, 405 that: “The power to enact a Workmen’s Compensation Law reposes in the law-making body of the state. The amount of compensation, to whom due and payable, the limitations and restrictions within which it may be demanded, peculiarly address themselves to the law-making power. Act 20 of 1914, with subsequent amendments, reflects the will of the lawmaker on the subject and through its beneficent provisions dependents acquire the right to demand and receive the monetary benefits named therein. Courts are not concerned with the lack of consistency, the inequities or other seemingly apparent shortcomings of the act. It is their province to construe and enforce its provisions as written, especially when unambiguous.”

For the reasons assigned, the judgment of the Court of Appeal for the Parish of Orleans is reinstated and made the judgment of this Court.

O’NIELL, C. J, takes no part.

MOISE, J, concurs with written reasons.

MOISE, Justice

(concurring).

I am expessing these views in the hope of invoking relief by the Legislature, so that the observations made -by my colleague, Mr. Justice Fournet, in the majority opinion of the court in the case of Moy et al. v. Schuylkill Products Co. et al., 209 La. 782, 25 So.2d 542, 543, relating to the dependency of children on their parents under the Workmen’s Compensation Law, will be effectively heard. In that case, Mr. Justice Fournet speaks thusly: “However unfair it may seem that these unfortunate children should be made to continue suffering because of the unworthiness of their father, simply because their mother or some one else on their behalf did not coerce him by means of legal proceedings to fulfill the duties legally imposed upon him as their father, our lawmakers did not provide for such a case under our compensation law and we are powerless to prevent the perpetuation of this injustice that has been brought upon them through no fault of theirs and that must, in the future, be continued in similar instances until the -legislature, in its wisdom, may see fit to correct the same, since this is a matter that falls exclusively within ■ the province of that branch of our government.”

When the Legislature passes a law within the general scope of its constitutional powers, the court cannot pronounce it void merely because it is, in the court’s judgment, contrary to'the principles of right and natural justice. In such an event, all that the court can say is that the Legislature is the possessor of equal right of authority and has'passéd an amendatory act, which, in the opinion of the court, is contrary to the abstract opinion of right. The repeal of a natural' law of dependency by the Legislature is that body’s prerogative but it does violation to the rule of reason. In the instant case, the father of the child was killed while performing services for the master. This is one of the conditions precedent for the bringing of a suit under -the Workmen’s Compensation Law for the dependent child. That father was a fugitive from justice— being charged in the criminal court of competent jurisdiction for the failure to support his minor child. The mother and father had been divorced, the custody of the child granted to the mother. Through the father’s turpitude, the child received no contribution for support. Through the divorce proceedings and awarding of custody, the child lived with its grandmother. The assured urged these grounds as a defense to the action; and, under the Workmen’s Compensation Law, from the language used in the mandatory acts, the child cannot recover as a dependent. The unfortunate circumstance is that the Legislature made the fact of dependency based on the contributions of the parent during his life and the residence of the child with the parent, when it should have made the question of dependency the basis of relief and for recovery. Dependency is the essential; contributions by'the parent and residence only the accidental.

I respectfully concur.


author: KENNON, Judge.

text:
    GRAY v. MASUR.
    No. 7302.
    Court of Appeal of Louisiana. Second Circuit.
    April 29, 1949.
    Joseph S. Guerriero, of Monroe, for appellant.
    Thompson, Thompson & Sparks, of Monroe, for appellee.
   KENNON, Judge.

Plaintiff in this suit seeks damages of defendant in the sum of $15,000 for humiliation, embarrassment, shame and loss of credit; all allegedly resulting from defendant’s derogatory utterances, in hearing of others, concerning plaintiff.

Since the suit before us is for an amount in excess of $2,000 and is not for personal injuries or workmen’s compensation, the Supreme Court and not the Court of Appeal has jurisdiction of the appeal. See Paragraph 10 of Article 7 of the Constitution of Louisiana. .

Therefore, in accordance with Act 19 of 1912, it is ordered that the appeal in this case be transferred to the Supreme Oou'rt of Louisiana. The appellant is hereby granted a period of sixty days from the date this decree becomes final to file the necessary transcript and perfect her appeal, and should she fail to do so within this sixty day period, the appeal is to stand dismissed. Appellant to pay the costs of this appeal; ' all other costs to await the final outcome of the litigation.


author: KENNON, Judge.' HARDY, Judge TALIAFERRO, Judge.

text:
    LECKIE v. H. D. FOOTE LUMBER CO., Inc., et al.
    No. 7212.
    Court of Appeal of Louisiana. Second Circuit.
    Nov. 24, 1948.
    On Rehearing April 29, 1949.

    Writ of Certiorari Denied May 31, 1949.
    Hudson, Potts, Bernstein & Davenport, of' Monroe, for. appellants.
    John J. McKeithen, of Columbia, for appellee.
   KENNON, Judge.'

This is a suit for 400 weeks compensation, less 70 weeks previously paid. The petition alleges that plaintiff was employed as a saw filer and scaler; that, while in the course of his. employment, and, while attempting to .trim a piece of lumber by the use of a. power driven cut off saw, he received an injury which resulted in the loss of a substantial portion of his.left hand, including the thumb, the first joint of the first ’ and middle fingers, the first two joints of the ring finger and a stiffening of all remaining finger joints. Plaintiff alleged that as a result of the injury, he was totally and permanently disabled within the meaning of the Workmen’s Compensation Law Act No. 20 of 1914, as amended; that he could no longer follow the occupation of saw filing, an occupation that he had followed for more than twenty-five years, and. that he is unable to perform manual labor of any kind.

Defendants filed a joint answer, admitting ' the employment of plaintiff at the sawmill of the defendant lumber company and the payment by the defendant insurance company of $1400.00 in compensation, but denied that plaintiff was engaged in the operation of trimming lumber at the time of his injury and denied the allegations relative to the extent of disability.

The District Court found for plaintiff and the case is before us on appeal from that judgment.

Plaintiff was second in charge to> a Mr. Baum in the operation of defendant’s sawmill. His specific tasks were to scale such logs as were received at the mill and to file crosscut saws. In addition, he performed general tasks around the mill and was free to do whatever seemed necessary in facilitating the mill’s operation.

The injury occurred on a Saturday afternoon while only plaintiff and defendant’s manager, Mr. Baum, were present at the mill. They were performing the customary Saturday task of preparing the small mill for its weekend shutdown. Part of this weekly shutdown work consisted of burning out the slab pile so as to reduce the fire hazard. Mr. Baum went to the burning pit, leaving plaintiff 'to attend to. the operation of the two engines, which operated the mill machinery, including a blower which accelerated the burning of the slabs and waste. Plaintiff was being paid for this Saturday afternoon work. In addition to being on duty with the engines, he was available — and used when occasion required — to scale any logs that might arrive on Saturday afternoon.

The mechanical set-up of the mill was such that when it was desired to operate the blower which accelerated the burning of waste, all the other machinery connected to the engines was also automatically put in operation. Included in the machinery which was necessarily — though idly — operating on the Saturday afternoon in question, was a circular cut off saw situated about ten feet from the motors which plaintiff was attending. Plaintiff’s injury occurred when he picked up a short piece of scrap lumber and proceeded to run it through the cut off saw. Plaintiff’s petition alleged tha-t his purpose in using the saw at the time was “to trim, a piece of lumber.” Defendants introduced evidence at the trial 'that the material was only a piece of slab, less than 30 inches long, incapable of being used for lumber and that plaintiff’s purpose was to cut it in two pieces for his own use as stove wood. The District Court found — and the record amply sustains this finding — that the board being trimmed by plaintiff at the time of his injury was not fit for sale and was usable only as fire wood.

After 70 weeks, defendants discontinued paying compensation and the defense in the present suit is that plaintiff at the time of his injury had turned aside from his. employment and was engaged in a task which served his own interest exclusively and had not sufficient relationship to his-employment to entitle him to benefits, under the compensation law.

Plaintiff’s contention is that he was. simply taking advantage of the fact that the nature of the duty he was performing —namely, that of watching the engines- and being available for the scaling of such logs as might be brought to the mill— permitted him to cut some stove wood for himself; that, when he was injured, he had not left the place of his employment or ceased to perform the duties required of him at the time.

The record discloses that the defendant lumber company permitted its employees to carry away for fuel slabs which-otherwise would have been burned as-waste and had permitted employees at convenient times while on duty to cut such slabs into convenient lengths for wood. The alternative method of disposing of waste slabs was to place them in the conveyer trough (situated some four feet from the cut off saw) to be carried to the burning pit.

The case turns upon a question of law. Is compensation due an employee who is injured, while at his place of duty, while watching machinery as required by his employer, while available on the premises for his other duty of scaling any logs that might arrive, but whose injury occurs when the employee is also performing some other act for his own benefit?

In the case of St. Alexandre v. Texas Company et al., La.App., 28 So.2d 385, 387, an employee was granted compensation for an injury which he received while opening a bottle of RC Cola, which he had taken during work hours — as was permitted by the company — from a cooler set up on the premises for the use of all employees. The Court in the course of that opinion noted that it is well settled that “when an employee temporarily leaves his work to get a drink or to go to the toilet, he is, nevertheless, considered as still being 'at work’ to such an extent that if, during that interval; he is injured in an accident, it is proper to say that the accident occurred ‘in the course of the employment.’ ”

This case quotes with approval from an article in the Indiana Law Journal, Vol. 21, No. 4, which recites that many acts of a personal nature, such as getting fresh air, smoking, resting, eating food or ice cream, drinking water or other refreshment, taking baths in showers provided by the employer, using the telephone, •etc., are compensable incidents of the employment should injury occur.

In an earlier Supreme Court case, Kern v. Southport Mill, Ltd., 174 La. 432, 141 So. 19, the Court laid down the rule that in determining whether an accident arises out of the employment, it is necessary to consider only two questions. First, was the employee then engaged about his ■employer’s business and not merely pursuing his own business or pleasure and second, did the necessity of the employer’s "business reasonably require that the employee be at the place of the accident at the time the accident occurred.

In the case before us, plaintiff’s injury “arose out of his employment” according to the test set forth in the Kern case. Certainly the necessities of the employer’s business reasonably required him to be at the place of the accident at the time the accident occurred and, while he was incidentally pursuing his own business in that he was trimming stove wood for himself, he was also satisfactorily performing the required duty of attending to the operation of the motors. He was also about his employer’s business to the extent that he was available at the mill site in the event logs should arrive for scaling. The fact that he was at the time, and without ceasing to attend to his employer’s business, using the cut off saw, which otherwise would have been idle, for his own benefit did not alter the inescapable fact that he was also at the time performing the duties required of him by his employment.

The legal situation would have been no different than had he been injured by an Act of God, such as in the case of Harvey v. Caddo De Soto Cotton Oil Co., Inc., La.App., 6 So.2d 742, or had he been injured while taking refreshments for his own pleasure as in the St. Alexandre case, supra.

To sum up, we find as a matter of fact that at the time plaintiff Leckie was injured, he was not engaged in trimming lumber for the benefit of his employer, nor was he engaged in the picking up of boards as a part of any clean-up duty which might have benefited his employer. We find that Mr. Leckie’s duty at the time of his injury, as assigned to him by defendant’s . foreman, was to attend to the running of the engines and machinery, including the blower, and to keep himself available to scale any 'logs that might arrive at the mill. We find that his injury resulted when he, taking advantage of the fact that his duties did not require the use of his hands for any purpose at the minute, picked up a small board and proceeded to cut some stove wood for his own personal use.

We think that under the Louisiana authorities plaintiff is entitled to compensation. At the time of his injury he was, to the extent that he was watching the engines, engaged in his employer’s business. It is true that he was also engaged in cutting stove wood for his own purposes, but under the test of the Kern case, supra, it could not be said that “he was merely-pursuing his own business.” He meets the further requirement of the Kern case that ■ the necessities of the employer’s business reasonably required that he be at the place of the accident at the time the accident occurred.

The judgment is affirmed, with costs.

HARDY, Judge

(dissenting).

As stated in the majority opinion this case turns upon a question of 'law, and I am unable to concede the pertinence and applicability to the instant case of the authority cited, namely, Kern v. Southport Mill, Ltd., 174 La. 432, 141 So. 19, and St. Alexandre v. Texas Co. et al., La.App., 28 So.2d 385, which latter case quotes an article in the Indiana Law Journal, Volume 21, No. 4.

The- facts in Kern v. Southport Mill, supra, are so entirely different from those involved in the case before us as to render any enunciations of principle or pronouncements contained in the opinion purely obiter. The majority opinion seizes upon and emphasizes an expression found in the opinion in the Kern case [174 La. 432, 141 So. 21], “not merely pursuing’his own business or pleasure”. Reference to standard and accepted dictionaries discloses the definition of merely to be, among others: “only, singly, including nothing else, barely”. Under the undisputed facts of this case I respectfully ask: How can an employee engaged in cutting a stick of wood on a buzz saw, which act and the purpose thereof included nothing .else except the satisfaction of his own personal interest, be considered as having been in the course of his employ-' ment and engaged upon his employer’s business at the time? It may be argued that his attention .to the minor and momentary detail of cutting stove wood did not prevent him from giving supervision to the machinery of his employer under his charge. The test, -in my mind, is not his attention, but his ability to perform his employer’s work if it had been required at the exact moment. Obviously it would have been necessary for him to have first desisted from' the work he was doing in his own interest and for his own advantage. And, under such circumstances, I protest that the doctrine of employer’s liability is being carried to an absurd extreme.

With respect to the holdings in questions involving a pause in employment for acts of a personal nature, for purposes of refreshment, brief recreation, etc., I am not impressed by the asserted analogy. All of these actions are definitely to be considered as in the employer’s interest because they are for the benefit of the employee as an employee, enabling him the better to give his time, attention and best effort to; his employment. Non constat in the instant case, since the cutting of the stove wood did not advance the employer’s business or the employee’s efforts in the course of his employment.

Being of the opinion that the use of a dangerous instrumentality by an employee in the prosecution of' the exclusive service of his own personal interest is not an incident to his employment within the interpretation and meaning of the Workmen’s Compensation Statute, I respectfully -dissent.

On Rehearing

TALIAFERRO, Judge.

The facts of this case are clearly set out in our former opinion. They will not be at length iterated herein. The members of this Court are unanimous in the opinion that plaintiff when injured had turned aside from his over-hour duties to his employer and was engaged in the per-formaiice of an act purely for his own interest and benefit; that is, to convert a discarded and non-commercial piece of timber into- stovewood for his own use; that in so -doing he unnecessarily exposed himself to the dangerous instrumentality that caused'the injury but-for which the accident would not have happened.

The accident happened in the course of plaintiff’s employment, but to entitle him to recover compensation, of course, it must be found and held that it arose out of and/or was incidental to such employment. In other words, did the turning aside to engage in a purely personal, dangerous act, several feet from where he was required to be to perform his duties, for the moment, deprive plaintiff of the benefits of the Workmen’s Compensation Law, as regards an accident that occurred while he was so engaged ? On this question a. majority of this court takes the affirmative. The question is one of law arising from the factual findings of the Court’s entire membership.

In cases of this character the courts of this state have frequently held that whether or not an injury arises out of the employment depends necessarily upon the facts and circumstances of ea.ch case. No hard and fast rule in such cases is possible- of intelligent adoption. If it should be held that the facts of this case warrant recovery by plaintiff, it is difficult to perceive to what extent the rule might be carried. Can it logically be said that had the accident occurred fifty feet farther from the exact locus of his duties, it would not be compensable, whereas since it happened only ten feet therefrom, it is com-pensable ? We believe the factor of distance is not entirely controlling. To the nature of the act of deviation or turning aside should be' accredited controlling influence.

The testimony shows that about the immediate locus of the accident plaintiff had assembled a goodly quantity of discarded pieces of lumber he evidently intended to carry home for stovewood. And, it is shown that plaintiff’s superiors did not of-, fer objection to this being done, nor to the use of the saws, when not otherwise engaged, to cut .the pieces into appropriate lengths, but in so doing in each instance, the employee acted for himself and not for his employer. He was subserving his own personal interest.

It is argued, and so held by. the lower court, that the acts of employees in assembling and carrying home stovewood was really in the interest of the employ^ er, who, otherwise, would have had to burn the same. We think the argument without material bearing in the case. Non-commercial pieces of timber, slabs, etc., were carried by rollers out from- the mill to a pit and there burned. This roller was in constant movement while logs were being converted into lumber. Its burden was to no material extent reduced because a limited quantity of the slabs, etc., were diverted to private use. The rollers, regardless of this diversion, would run as regularly and as continuously as they would had same not been done. The attitude of the employer in permitting this practice was simply an indulgence, an act of generosity on its part.

This case, in principle, is distinguishable from St. Alexandre v. Texas Company et al., La.App., 28 So.2d 385, cited in our original opinion,’ wherein the workman was accidentally injured when opening a bottle of coca cola while on duty, which he intended to drink to refresh and invigorate his" body, fatigued from work. The same rule applies in cases where the workman, for a moment, retires from the immediate locus of his duties to smoke, get fresh air, rest, eat, etc., and is actually injured while doing so, because in such instances physical endurance is bolstered and the ability to render efficient service promoted.

The Supreme Court, it seems to us, has clearly pointed out in several opinions the line of demarcation in cases of this character, including the following: Pierre v. Barringer, 149 La. 71, 88 So. 691; Kern v. Southport Mill, Ltd., 174 La. 432, 141 So. 19; Laine v. Junca, 207 La. 280, 21 So.2d 150.

The Pierre case, supra, is strikingly similar to that at bar. We quote therefrom, as follows:

“The case was tried on its merits, and it was shown that plaintiff was á young colored boy who was engaged as a fireman in a sawmill, and that his employment did not take him in the vicinity of the circular saw by which his hand was severely injured. The evidence further shows that he, the plaintiff, was not performing services' -arising out of and incidental to his employment, and that the accident did not happen in the course of his employment trade, business, or -occupation. The accident to plaintiff happened because of his neglect of the duties assigned to him and the ' unnecessary exposure- by him to a very dangerous implement. It was his duty to have taken care of himself, and not to have placed himself unnecessarily in a place of danger. He had deserted his post of duty at the furnace, and wandered some distance from the boiler when he met with the accident.”

The following decisions of the Courts of Appeal are pertinent to the question: Gooding v. Beauregard Laundry Company, Inc., 9 La.App. 392, 120 So. 507; Liner et al. v. Riverside Gravel Company et al., 13 La.App. 664, 127 So. 146; Como v. Union Sulphur Company, La.App., 182 So. 155.

For the reasons herein assigned, the judgment 'from which appeal was taken is reversed, and plaintiff’s suit is hereby dismissed at his cost.

KENNON, J., dissents for the reasons assigned in the original opinion, contained herein.


author: HARDY, Judge.

text:
    STROZIER v. LONG, Sheriff, et al.
    No. 7325.
    Court of Appeal of Louisiana. Second Circuit.
    April 29, 1949.
    McIntosh, Sims & Hester, of Lake Providence, for appellants.
    Frank Voelker, Jr., of Lake Providence, for appellee.
   HARDY, Judge.

This is a suit in which plaintiff secured the issuance of a restraining order and sought an injunction permanently restraining the defendant, W. McF. Long, Sheriff of East Carroll Parish, and the defendant, John Ellis Green, a judgment creditor of plaintiff, from selling, advertising for sale or attempting to sell an automobile belonging to plaintiff which had been seized under a writ of fieri facias. There was judgment in favor of plaintiff on the trial of the rule for preliminary injunction, which trial, according to stipulation of counsel, was considered to be determinative of the merits, and the restraining order was resolved into a permanent injunction. From this judgment the above-named judgment creditor brings this appeal.

In 1947 John Ellis Green secured a judgment in the amount of $5,000.00, in the Fifth District Court in and for West Carroll Parish, against Hardy M. Strozier, a resident of East Carroll Parish. The judgment creditor caused a writ of fieri facias to' issue directed to W. McFarland Long, the Sheriff of East Carroll Parish, under which the said Sheriff seized a 1947 model Kaiser special Sedan as belonging to the judgment debtor. Strozier, the judgment debtor, thereupon instituted these proceedings, secured a restraining order, and a rule issued upon the judgment creditor and the Sheriff ordering them to show cause why the automobile under seizure should not be declared exempt from seizure and sale under the provisions of Article 644 of the Code of Practice. The only question involved in this case is whether plaintiff’s automobile is such a tool or instrument as is necessary for the exercise of the calling or trade by which he makes a living.

Plaintiff is engaged in the business of buying timber, cutting and selling 'logs, which business provides the source of income by which he supports himself and his family. The testimony establishes the fact that plaintiff, who is 60 years of age, is and has 'been for the major portion of his life, some 48 years according to his testimony, in the logging business. At the time of the seizure he was the owner of one logging ■truck and the automobile which is the object of this litigation, which was purchased in 1946. Plaintiff operates principally in the northeast section of the State of Louisiana; he is not a large scale operator and his success depends entirely upon his own efforts. It is necessary for him to travel about the country in the effort to find and purchase merchantable timber, which is cut by his crew and hauled by his truck. Attendant upon purchasing and cutting the timber it is also necessary for plaintiff to seek out buyers and sell his logs. In the course of these operations we think the testimony overwhelmingly establishes the fact that plaintiff uses his automobile for all of these purposes and, additionally, for 'the purpose of hauling his crews of cuttefs and loaders to and from the site of his logging operations. There is nothing in the record which controverts plaintiff’s contention that he uses this particular automobile exclusively for business purposes and that it is neither a luxury nor a convenience.

It is argued on 'behalf of the defendant judgment creditor that plaintiff could travel about the country by bus or taxi, and by the use of these established modes of transportation attend to the affairs of his business, and, further, that he could haul his logging crew on the truck. Even without what we regard as the overwhelming evidence to the contrary which is contained in the record, we think common knowledge and common sense would indicate that this argument is unreasonable. A logging operator in this day and time without the use of an automobile would be about as effective as a cowboy, on foot, attempting to round up range cattle.

The facts abundantly establish the merit of plaintiff’s contention that his automobile is a necessary instrument in the pursuit of the trade by which he makes his ■living, and therefore falls within the very words, intent and purpose of Article 644 oi the Code of Practice.

Counsel for the defendant judgment creditor cites the case of Holt v. Flournoy, 24 So.2d 171, decided by this Court in 1945. We think i't unnecessary to go beyond the cited case in which we attempted to review and analyze the jurisprudence on this point.

The facts in the Holt case were not merely distinguishable but were entirely different from the facts in the instant matter. The evidence in the Holt case conclusively established the fact that Holt’s automobile was not necessary and that his loss of the vehicle by seizure did not affect his employment nor pay in the slightest degree. Exactly the opposite effect is established by the evidence in the instant case. The loss of the automobile of the plaintiff in this case would not only unquestionably impair his income but, in our opinion, would jeopardize his continuance of the trade by which he makes his living.

Under these 'facts it is evident that plaintiff is entitled to the protection which is accorded by the provisions of our exemption statute incorporated in the article of the Code of Practice to which reference is made above.

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


author: PONDER, Justice.

text:
    215 La. 295
    STATE ex rel. ELLIOTT et al. v. RATZBURG et al.
    No. 38927.
    Supreme Court of Louisiana.
    March 21, 1949.
    Rehearing Denied April 25, 1949.
    C. B. Prothro, of Shreveport, for plaintiffs-appellants.
    W. M. Phillips, of Shreveport, for defendants-appellees.
   PONDER, Justice.

The relators have appealed from a judgment rejecting their demands, in a mandamus proceeding, for the cancellation of a mortgage.

The relators purchased from E. H. Lyles and his wife, by credit deed,- Lots 10 and 11 in Block 4 in the Dixie Place Annex, a sub-division of Caddo Parish, with the. buildings and improvements thereon, for .a consideration of $3,800, payable as follows: $1,250, cash and the balance to be paid in monthly installments of $40 each, due on or before the fifth day of -each month beginning April 5, 1946. A note .was executed, and identified with the mortgage, retained in the credit deed, calling for the balance of the unpaid purchase price, wherein it was stipulated that the note is payable in monthly installments of $40, each due on or before the fifth day of each month beginning April 5, 1946 and .a like sum on or before the fifth day of each succeeding month until the note has been paid in full. The note bears 6% interest from date, payable monthly, until paid. The relators made regular payment on the note through October 5, 1942, at which time they offered to pay the respondent the balance due on the principal and, the accrued interest,, which was refused by the respondents after a tender had been made. Thereupon the relators filed the present suit seeking to have the mortgage securing the note cancelled and erased from the records of Caddo Parish. The trial' judge was of the opinion that the words “on or before” recited in the deed and note did not signify "that the'maker of the note had the right to pay all the installments and accrued interest at one time, i. e.,, liquidate the obligation prior to its maturity without paying the entire interest on the full term-of the note. He therefore rejected the relators’ demand and they have appealed.

Opposing counsel contend that the only question presented for our determination is whether the relators have the right under the terms of the deed and the note to pay the entire balance due plus accrued interest only or can the holder of the note refuse to surrender the note until the rela-tors pay the balance with interest for the full term of the note.

Under the provisions of Article 1945 of the Revised Civil Code parties are governed by their legal agreements and courts are bound to give legal effect to the contracts according to the true intent of the parties, which intent is to be determined by the words used in the contract. It is true that Article 2052, Revised Civil Code provides that “What is due only at a certain time, cannot be demanded before the expiration of the intermediate time” but where the parties have agreed that it may 'be paid on or before a certain time it would appear that the obligor has the right to discharge the debt at any time before the day named. He cannot be compelled to pay the debt before its maturity but the privilege of paying it before that time is granted to him by the use of the words “on or before”. It is a well recognized rule of construction that words must be given their common accepted meaning. From our examination of the jurisprudence of other states, it appears that the common law authorities are divided although the weight of the jurisprudence is to the effect that the use of the words “on or before” where there is no stipulation prohibiting the payment before maturity gives the debtor the option or privilege of paying the principal with accrued interest at any time he sees fit prior to maturity.

Article 2053, R.C.C. is identidal with Article 1187 C.N. The comments of the French Commentators are more persuasive in a determination of the issue raised in this case because we are governed by the civil law.

“There remains for us to observe, bearing on the effect of the term, that being presumed to be inserted in favor of the debtor (citing laws), the debtor may well defend himself against paying before the expiration of the term; but the creditor may not defend himself against receiving if the debtor wishes to pay; unless it should appear from the circumstances that the time of payment was agreed upon in favor of the creditor as well as in favor of the debtor.” Pothier, Obligations, n. 233 (Vol. I) — Translation.
“The term is always presumed stipulated in favor of the debtor, if the contrary is not written in the contract.”
“The term is always presumed stipulated in favor of the debtor unless from the stipulation or circumstances it would result that it has been given in favor of the creditor.” Baudry-Lacantinerie, Obligations, Vol. 2, page 151, par. 974, et seq.

In this case we have an additional factor in favor of the debtor that grants him an option to retire the obligation whenever he sees fit because the due date of the installments are fixed as being “on or before” the fifth day of each month.

For the reasons assigned, the judgment appealed from is reversed and set aside, the writ is made peremptory and V. G. Simmons, Clerk of the Court and Ex-Officio Recorder of Mortgages for the Parish of Caddo is hereby ordered to cancel and erase from the Records of Caddo Parish the mortgage recorded in Mortgage Book 312, page 523, resulting from a recordation of a credit deed wherein Robert D. Elliott and his wife purchased from E. H. Lyles and his wife Lots 10 and 11, Block 4, Dixie Place Annex, a subdivision of Caddo Parish, with all buildings and improvements thereon and upon payment of the amount tendered by the plaintiffs. All costs to be paid by the respondents.

O’NIELL, C. J., takes no part


author: TALIAFERRO, Judge.

text:
    MOTORS SECURITIES CO., Inc. v. LOWERY (RAY MOTOR CO., Intervener).
    No. 7301.
    Court of Appeal of Louisiana. Second Circuit.
    April 29, 1949.
    W. F. Pipes, of Monroe, for appellant.
    C. E. Lowery and Easterling & Easter-ling, of Monroe, for appellee.
   TALIAFERRO, Judge.

The superior right as between the plaintiff and the intervener and third opponent, to the proceeds of sale by the sheriff, of one Buick automobile, property of the defendant, is involved in this suit. To determine this right requires the ranking of the mortgages against the automobile held by said litigants. Defendant made no appearance in the case, nor did he file answer to either demand.

Intervener’s mortgage is dated May 13, 1948. It was executed before a notary public in Bienville Parish and was duly registered therein. In the act the mortgagor (defendant) is declared to be domiciled in Bienville Parish. The note that this mortgage secures was given by defendant to his wife for cash loaned him and was by her delivered to intervener and third opponent to secure or pay an indebtedness due by her to it.

Plaintiff’s mortgage is dated May. 20, 1948. It was executed before a notary public in Ouachita Parish and in it the mortgagor declared himself to be a resident of Lincoln Parish. The instrument was duly recorded in the office of the Clerk and Recorder of that parish.

It is not stated in either of the acts of mortgage where the car was located nor where it would be kept thereafter.

The defendant defaulted in payments under each mortgage and plaintiff filed foreclosure proceedings by ordinary process in Ouachita Parish where the car was then temporarily located and personal. service was had upon the defendant. Thereafter the intervention and third opposition was filed.

Plaintiff contends that when each of said mortgages was executed defendant was a resident of and was then domiciled in Lincoln Parish, and, therefore, since its mortgage was registered in that parish, although subsequent in date to that of the intervener, it should take precedence over the other mortgage. Conversely, inter-vener argues that when each mortgage was executed, defendant was a resident of and domiciled in Bienville Parish, and that its mortgage, having been timely recorded in that parish, takes precedence over the mortgage held by the plaintiff.

The lower court ruled in favor of the intervener, and judgment was rendered in its favor, as by it prayed. The plaintiff appealed.

The facts of the 'case are not to a great extent in dispute. Defendant, then a resident of Wesson, in the State of Mississippi, married Mrs. Willie Stcll of the same residence, on February IS, 1948. At that time both parties were engaged in business in Wesson. Defendant desired to locate in Arcadia, Bienville Parish, Louisiana, his home of many years previous, and there open up a car sales agency, and prevailed upon his wife to dispose of her business, that of beautician, and- accompany 'him to Louisiana. He assured her, although falsely, that he had succeeded in leasing an apartment for their use in Arcadia, and did not until' they had almost gotten to that town with her furniture and household effects, .enlighten her to the contrary. Instead of having a respectable, apartment for their living quarters, the husband had only been able to lease what is referred to by his wife as a “shack,” out in the open .country in Lincoln Parish, a short distance east of the eastern line of Bienville Parish, and two or three miles east of Arcadia. This building had only four rooms and had been recently constructed, from old and inferior grade lumber. It did not suit Mrs. Lowery, even for temporary quarters, but unable to do better, the 'couple, with Mrs. Lowery’s two small children, established residence therein until the expiration of the four months lease they had on the biiildiug. After this, they abandoned the leased premises and returned with household effects, etc. to their former home in Mississippi. Very soon thereafter the parties were divorced.

While it was defendant’s intention to establish his domicile and residence in the Town of Arcadia, and open business therein, the testimony is conclusive that he did neither. While occupying the “shack” he continued to motor over portions of Louisiana and Mississippi, buying and selling used cars. His wife invariably accompanied him on such trips and left her children with defendant’s sister who lived in Arcadia. Mrs. Lowery, who appeared as a witness for the intervener, testified that after each trip over the country, they returned to the leased premises as their home, and when not on the road the mortgaged automobile was kept there.

Prior to mortgaging the car to plaintiff, defendant filed a formal application for the loan, mainly consisting of questions and answers in which he stated that Lincoln Parish was his residence. This information was necessary for the mortgagor to determine the proper office in which to file and have recorded the mortgage in its favor.

The law applicable to recordation of chattel mortgages is to be found in Section 3 of Act No. 172 of 1944. So far as-pertinent to the facts of the present case,, we quote it, to-wit:

“In order to affect third persons, every chattel mortgage must be by authentic act,, or by private act, duly authenticated in any manner provided by law. A multiple original of every such act of mortgage shall be filed in the office of the Recorder of Mortgages of the parish where the mortgaged property is to be located according to the terms of the mortgage instrument and also, in the office of the Recorder of Mortgages of the parish of the mortgagor’s domicile, if the mortgagor is domiciled in the State. If the mortgagor is not domiciled in the State, filing in the office of the Recorder of Mortgages of the parish where the property is to be located according to the terms-of the mortgage instrument will be sufficient.”

That defendant and his wife intended to and in fact did abandon their domicile in Mississippi with the definite, fixed intention of acquiring a new domicile in the State of Louisiana, is beyond any question. The fact that circumstances beyond their control prevented the establishment of a new domicile in the parish of their primary desire did not militate against the fixed purpose of effecting transition in domicile; and when defendant and his wife established themselves, though temporarily, in the building located in Lincoln Parish, for all legal intents and purposes, this place became their Louisiana domicile. And, as a concomitant it became their residence. Especially should this construction be placed upon their action, when, as against same, nothing is advanced except the ultimate intention and purpose to establish a domicile and residence in the Parish of Bienville. The fallacy of arguing that Bienville Parish was in legal effect the domicile and residence of these people is emphasized by the fact that when they moved from Lincoln Parish they did not go to Bienville Parish, but returned to Mississippi, their former home. Though it may be described as temporary, the domicile and residence established in Lincoln Parish was the only semblance of such they had in Louisiana. This fixed the locus of the office wherein the mortgages should be registered in order to affect third persons.

Concerning the necessary facts to constitute acquisition of a domicile or residence, it is said in Brewster v. Emlet, 168 La. 326-330, 122 So. 54, 55:

“If there be a bona fide intent to establish a domicile, and a bona fide residence of some sort, ‘it is immaterial whether he lived in a hired house, a boarding house or (hotel), or his own dwelling.’ Succession of Steers, 47 La.Ann. 1551, 18 So. 503. The domicile is then ‘fixed,’ even as soon as such residence has begun or lasted ‘even for a few days’ only. Gravillon v. Richard’s Ex’r., 13 La. 293, 33 Am.Dec. 563; Verret v. Bonvillain, 33 La.Ann. 1304.”

In First National Bank of the City of Shreveport v. Pierson, 176 La. 792-796, 146 So. 749, 750, on the same subject, the court, in passing, said:

“The law now is that the intention to acquire a permanent residence in the state combined with the fact of residence, even for a short period, fixes the domicile here, and renders one’s property not subject to attachment on the ground of non-residence.”

To the same effect are: Succession of Purdy v. Klock, 179 La. 902-907, 155 So. 394; Rappeport v. Patten, La.App., 3 So. 2d 909.

For the reasons herein assigned, the judgment from which appealed is annulled, avoided and reversed, and there is now judgment in favor of plaintiff and against the intervener and third opponent, recognizing plaintiff’s mortgage on the automobile, seized and sold herein, to be superior in rank and to prime the mortgage asserted by intervener and third opposition ; and the sheriff of Ouachita Parish is hereby ordered to pay over to plaintiff the proceeds of the sale of said automobile now in his hands.

It is further ordered that costs of court incurred through the filing, prosecution and trial of the intervention and third opposition, including costs of appeal, shall be paid by intervener and third opponent.