text:
    198 La. 773
    NANNEY v. TOWN OF LEESVILLE et al.
    No. 36434.
    Supreme Court of Louisiana.
    Nov. 3, 1941.

      Cline, Thompson, Lawes & Cavanaugh, of Lake Charles, for appellant.
    J. R. Ferguson, of Leesville, for appellees.
   ROGERS, Justice.

This is a suit by Albert H. Nanney, a qualified elector and taxpayer, attacking the legality of the proceedings creating Sewerage District No. 3, of the Town of Leesville, and calling a special election in the District for the purpose of issuing bonds to construct, acquire, extend, and improve a sewer system, together with the necessary equipment and furnishings therefor.

The defendants are the Town of Leesville, Sewerage District No. 3, and the Mayor and Board of Aldermen of the Town, as the governing authority of the Sewerage District.

Plaintiff alleges that the proceedings of the Mayor and Board of Aldermen are illegal, because the municipal officers are not authorized to establish a sewerage district embracing the territorial limits of the municipality; that they are not empowered to ■create an overlapping sewerage- district, or a district that includes the territory of two other districts previously created; and that the bonds, the issuance of which the electors and taxpayers authorized, together with the bonds outstanding, exceed the constitutional limitation of 10% of the assessed valuation of the taxable property in the newly created District.

Answering the suit, the defendants filed an exception of no right or cause of action, pleas of prescription of thirty days to the attack on the creation of the sewerage district and sixty days to the attack upon the validity of the bonds. They also pleaded the legality of the proceedings and the validity of the bonds.

The case was submitted for decision to the Court below on the pleadings, exhibits, and an agreed statement of facts. Upon the issues as thus presented, the trial judge rendered a judgment in favor of defendants, rejecting plaintiff’s demands. He sustained defendants’ exception and pleas of prescription and also decreed as valid the proceedings creating the Sewerage District, the election held therein, the issuance of bonds in the amount of $85,000 and the levy and collection of taxes to pay the bonds in principal and interest. The plaintiff has appealed from the judgment.

Briefly stated, the facts as disclosed by the agreement of the parties and the attached exhibits are as follows: The plaintiff is a qualified elector and property taxpayer, residing in Sewerage District No. 3, of the Town of Leesville, which town is a municipal corporation created under the provisions of Act 136 of 1898. By Ordinance No. 212, adopted March 11, 1930, and Ordinance 306, adopted March 25, 1941, Sewerage Districts Nos. 1 and 2, of the Town of Leesville, were created, respectively. By Ordinance No. 309, adopted March 26, 1941, the territorial limits of Leesville were extended, and by Ordinance No. 310, adopted May 27, 1941, Sewerage District No. 3 was created by the consolidation of Sewerage Districts Nos. 1 and 2 and by extending the boundaries thereof so as to include all the territory situated within the corporate limits of the municipality as defined by Ordinance No. 309. At the time of their consolidation with Sewerage District No. 3, Sewerage District No. 1 had an outstanding bonded indebtedness of $13,309 and Sewerage District No. 2 had no bonded indebtedness. The taxable value of all the property situated within the corporate limits of the Town of Leesville and Sewerage District No. 3, as shown by the assessment rolls for the year 1940, is the sum of $1,045,-339.

Pursuant to the authority granted by the State Bond and Tax Board of Louisiana, the Mayor and Board of Aldermen of Lees-ville adopted Ordinance No. 311, calling a special election in Sewerage District No. 3 to obtain the sense of the qualified electors and property taxpayers within the District on the proposition of issuing negotiable bonds to the amount of $100,000, for the purpose of constructing, acquiring, extending, and improving a sewer system, together with the necessary equipment and furnishings-therefor. The special election was regularly held on July 1, 1941, and the result thereof was promulgated as required by law, showing that the proposition was carried by the votes of a majority of the qualified electors and taxpayers participating in the election.

Due to the location and construction of Camp Polk in the vicinity of the Town of Leesville, and the resultant increase of the population of the town, it is necessary to extend the existing sewer system so as to provide adequate sanitary facilities for its residents. The United States Government, through the Federal Works Agency, Defense Public Works Division, has offered to make a grant of $339,596 to Sewerage District No. 3, of Leesville, in order to aid in financing the construction of a sewer system and public improvements for which the issuance of the bonds was authorized at the special election.

In view of the grant made by the Federal Government, it is not necessary, and the governing authorities of the Sewerage District do not intend, to issue more than $85,-000 of the authorized issue of $100,000 of bonds, in order to accomplish the purposes for which the bonds were voted.

No protests of any nature or kind have been made by any qualified elector or property taxpayer, or by anyone else to the Mayor and Board of Aldermen contesting or complaining of the inclusion of any of the property situated within Sewerage District No. 3, or protesting against the calling and holding of the election or the issuance of the bonds.

The judgment appealed from is correct in every respect.

Plaintiff’s contention that under sub-paragraph (c) of Section 14 of Article XIV of the Constitution of 1921, a municipality is without authority to create a sewerage district co-extensive with its territorial limits, is untenable. The provision of the Constitution, as amended by Act 177 of 1924, reads as follows: “The Legislature * * * may by general law authorize the police juries to create sewerage districts, composed of territory wholly within a parish, but no sewerage district shall be created comprising the whole territory of a parish; and may by general law authorize municipal corporations to create sewerage districts, whose territory may be less than the territory of the municipality * * *.”

The constitutional provision, although authorizing police juries to create sewerage districts, expressly prohibits them from creating any sewerage district comprising the whole territory of a parish. But there is no such prohibition as regards municipalities. As to them, the constitutional provision expressly declares that: “The Legislature * * * may by general law authorize municipal corporations to create sewerage districts, whose territory may be less than the territory of the municipality * * *.”

The provision is permissive rather than prohibitive. The language in which it is couched indicates that the framers of the Constitution having in mind the fact that most sewerage districts embraced or would embrace the whole territory within the corporate limits of the municipality, intended to make it clear that under the constitutional provision municipalities would have a discretionary right to create sewerage districts composed of less territory than the entire territory within the corporate limits.

At the time the 'Constitution of 1921 was adopted, Act 246 of 1916 was in effect. This act authorizes municipal corporations having a population of not more than ten thousand to create sewerage districts, “to embrace their entire respective territorial limits, or any portion of their respective territorial limits.” This act was not repealed or modified by subsection (c) of Section 14 of Article XIV in the Constitution of 1921. Under the provisions of this Act, incorporated municipalities the size of Leesville are given the right to create sewerage districts embracing the entire, or any part of the territorial limits of the municipality.

Another contention of the plaintiff, which is untenable, is that the municipal authorities are without legal authority to create Sewerage District No. 3 by consolidating Sewerage Districts Nos. 1 and 2 and attaching thereto the additional territory incorporated in the Town of Leesville.

Under Section 1 of Act 26 of 1926, municipal corporations, with the exception of the City of New Orleans, are given the right “to create one or more sewerage districts within their respective limits; to enlarge the same after such districts are created, and to consolidate them.”

Act 46 of 1928, although it does not refer to Act 26 of 1926, is to the same effect.

The Town of Leesville previously created Sewerage Districts Nos. 1 and 2, but due to the rapid growth of the Town, caused by the construction of Camp Polk in its vicinity, it is necessary to enlarge the sewer system in order to adequately serve the inhabitants of the municipality. The Town has recently extended its corporate limits so as to embrace an adjoining area in which a number of residences are being constructed for their use, none of which can be served by the present sewer system. In these circumstances, it becomes necessary to enlarge the sewer system by extending the limits of Sewerage Districts Nos. 1 and 2 and consolidating them as thus extended into a sewerage district designated as Sewerage District No. 3. The newly created Sewerage District does not in any sense constitute an overlapping of the existing sewerage districts. It represents the consolidation of the entire territory of Sewerage District No. 1 with the entire territory of Sewerage District No. 2 and the extension of the limits of both districts to form the enlarged sewerage district designated as Sewerage District No. 3.

The third and last contention of plaintiff is that the bonds authorized to be issued, together with the bonds outstanding, exceed the constitutional limit of 10% of the assessed value of taxable property situated in Sewerage District No. 3. This contention is not well-founded.

Sewerage District No. 1 issued bonds, of which issue it has now outstanding in principal and interest the sum of $13,309. Of this amount $12,500 represents the prin'cipal of the indebtedness. No bonds were issued by Sewerage District No. 2. Sewerage District No. 3, which was formed by the consolidation and extension of Sewerage Districts Nos. 1 and 2, was authorized by the voters at the special election to issue bonds in the amount of $100,000. The assessed value of the taxable property situated within Sewerage District No. 3 is $1,045,339. Realizing that they could not issue bonds to the full amount of $100,000 without exceeding the constitutional limits of 10% of the assessed valuation of the property within the sewerage district, the Mayor and Board of Aldermen, as the governing authority of the District, adopted Ordinance No. 321 providing for the issuance of bonds in the sum of $85,000 instead of in the sum of $100,000. The $85,000 in bonds, which are to be issued by Sewerage District No. 3, added to the $13,309 of bonds, in principal and interest, outstanding against Sewerage District No. 1 makes the total amount of the bonds outstanding $98,309 which is well within the constitutional limitation of 10% of the assessed valuation of the property within Sewerage District No. 3.

The ordinance creating Sewerage District No. 3 was adopted on May 27, 1941. It was first published in the Leesville Leader on May 29, 1941 and regularly thereafter until July 1, 1941, when the special election called by the Mayor and Board of Aldermen was held. Plaintiff filed this suit on September 30, 1941, which was more than thirty days after the date of the first publication of the ordinance creating Sewerage District No. 3.

Defendants contend that, by failing to file his suit within thirty days from the first publication of the ordinance creating Sewerage District No. 3, plaintiff lost his right to contest the authority of the Mayor and Board of Aldermen to create the District* and that his action is barred by the prescript tion of thirty days, which prescription defendants expressly pleaded.

Defendants’ contention and plea of prescription are supported by the provisions, of Section 1 of Act 26 of 1926, which reads, as follows: “All ordinances creating, enlarging or consolidating a sewerage district or bringing a sewerage district under the provisions of this act, shall be published for thirty days in a newspaper published in, the municipality in which such sewerage district is situated; four publications in. such newspaper once a week constituting-publication for thirty days, and within thirty days from the date of the first publication any owners of property within the limits of said sewerage district or other party interested shall have the right to appeal to the-courts for the purpose of contesting the action of the governing authority Of the municipality or urging any objection to the inclusion of his properties in such district,, after which time such action of said governing authority shall be incontestable for any cause whatsoever, and it shall be conclusively presumed that said sewerage district is. regularly and legally created, and that alL properties therein are lawfully included in. said district, and no court shall be vested with jurisdiction to entertain any cause-which calls into question the validity or regularity of the action of the governing authority of the municipality in creating, enlarging, consolidating, or reorganizing said district, or raises the question of whether the-properties located therein are such as should have been included within the district * * * 1!

In answer to plaintiff's attack upon the-proceedings leading to the election, the election itself, the bonds authorized thereunder,, and the levy of taxes to redeem the bonds,, defendants filed an exception of no cause or right of action and a plea of prescription of sixty days.

The election was held on July 1,. 1941. The Mayor and Board of Aldermen canvassed and promulgated the returns of the election on July 3, 1941. A copy of the promulgation was filed in the clerk’s office of Vernon Parish on July 9, 1941, and another copy of the promulgation was filed with the Secretary of State on July 24, 1941. Beginning July 10, 1941, the promulgation was properly advertised in the Leesville Leader.

In support of their exception and plea of prescription, defendants rely upon the provisions of Article 14, Section 14(n) of the Constitution of 1921, which read, in part, as follows: “For a period of sixty (60) days from the date of promulgation of the result of any election held under the provisions of this section, any person in interest shall have the right to contest the legality of such election, the bond issue provided for, or the tax authorized, for any cause; after which time no one shall have any cause or right of action to contest the regularity, formality, or legality of said election, tax provision, or bond authorization, for any cause whatsoever. If the validity of any election, special tax or bond issue authorized or provided for, held under the provisions of this section, is not raised within the sixty (60) days herein prescribed, the authority to issue the bonds,' the legality thereof and of the taxes necessary to pay the same shall be conclusively presumed, and no court shall, have authority to inquire into such matters. * * * ”

The prescription created by this constitutional provision has been invoked and maintained by this Court in numerous cases. The Court has held that the prescription precludes contests as to the validity of bonds on the ground that the amount of the bond issue was in excess of the assessed value of taxable property in the district by which they are issued. One case of this character is Covington Bank & Trust Co. v. Town of Covington, 159 La. 389, 105 So. 382, which held, as expressed in the syllabus, as follows: “Although authorization for a bond issue, making the bonded debt of the town of Covington in excess of 10 per cent, of the assessed value of it's taxable property was not valid, under Act No. 46 of 1921, § 26, suit to annul the tax election and ordinance for issuing the bonds, filed later than 60 days after promulgation of the result of election providing for the issue, was barred, under Const. 1921, art. 14, §14, subsec. (n).”

This holding was approved in the case of Bordes v. East Jefferson Water Works District, 186 La. 249, 172 So. 8.

In the case of Henning v. Town of Sulphur, 191 La. 979, 186 So. 845, this Court held, as expressed in the syllabus, as follows : “Where more than 60 days had elapsed from the date of promulgation of result of special election authorizing municipality to issue bonds to construct sanitary sewerage system authorized by statute, plea of prescription of 60 days precluded contest as to validity of the bonds for purpose for which they were issued. Acts No. 46 and 80 of 1921, Ex Sess.; Const.1921, art. 14, § 14(n).”

Other cases in which the constitutional prescription was applied, are: Roberts v. Evangeline Parish School Board, 155 La. 331, 99 So. 280; Hardin v. Police Jury of Vernon Parish, 155 La. 899, 99 So. 690; Roy v. City of Lafayette, 168 La. 1081, 123 So. 720; McGuffie v. Police Jury of Catahoula Parish, 183 La. 391, 163 So. 841; and Miller v. Town of Bernice, 186 La. 742, 173 So. 192. The latest case in which the prescription was successfully invoked is Houssiere v. City of Jennings, 195 La. 1042, 197 So. 750.

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


source: Caselaw Access Project

author: O’NIELL, Chief Justice.

license: Public Domain

text:
    198 La. 787
    BROCK et al. v. POLICE JURY OF RAPIDES PARISH et al.
    No. 36299.
    Supreme Court of Louisiana.
    Nov. 3, 1941.

      John R. Hunter & Son, of Alexandria, for relator.
    A. V. Hundley, Dist. Atty., LeDoux R. Provosty, and Lamar Polk, all of Alexandria, for respondents.,
   O’NIELL, Chief Justice.

This case is before us on a writ of cer-tiorari and a rule on the defendants and the judge of the district court to show cause why a writ of mandamus should not be issued to compel the judge to grant the plaintiffs a suspensive appeal from a judgment dissolving a temporary restraining order and rejecting the plaintiffs’ demand for an injunction. They aver that each one of them is proprietor of a business establishment of a class described in an ordinance adopted by the Police Jury of the Parish of Rapides, undertaking to regulate such establishments, and that each of them therefore has a property right which will be destroyed or impaired if the ordinance is enforced. They contend that the police jury had no authority in law to adopt the ordinance and that it is unconstitutional for certain reasons stated in their petition. The defendants are the Police Jury of the Parish of Rapides, the District Attorney for the Ninth Judicial District, in which the parish is embraced, and the sheriff of the parish. The judge of the district court granted, ex parte, the temporary restraining order and a rule on the defendants to show cause why a preliminary injunction should not be issued. The defendants in response to the rule filed a motion to dissolve the temporary restraining order, and at the same time filed exceptions to the suit, and, with reservation of the motion and exceptions, answered the suit, and claimed that the police jury had authority in law to adopt the ordinance and that it was a valid ordinance. On -the hearing of the rule the case was tried virtually on its merits, and a judgment was rendered dissolving the restraining order and recalling the rule to show cause why the preliminary injunction should not be issued, and rejecting the plaintiffs’ demand at their cost. It appears from the entry of the judgment on the minutes of the court that the judge in his decree declared that the third section of the ordinance was unconstitutional and that in all other respects the ordinance was valid. The third section is the one which purports to impose the penalty of fine or imprisonment or both fine and imprisonment for a violation of the ordinance.

Counsel for the plaintiffs, in open court, immediately after the judgment was rendered, asked for a devolutive and suspensive appeal. The defendants objected to the granting of a suspensive appeal, and the judge, after hearing arguments on the motion and objection, refused to grant a sus-pensive appeal, but granted a devolutive appeal, and fixed the return day and the amount of the appeal bond. The attorneys for the plaintiffs then gave notice of their intention to apply to this court for writs of certiorari and mandamus to compel the judge to grant them a suspensive appeal.

What the attorneys for the plaintiffs mean by a suspensive appeal in this case is one which would have the effect of maintaining the temporary restraining order in full force and effect, and of preventing, in the same way that a temporary injunction would prevent, the execution or enforcement of the ordinance while the appeal is pending.

It is declared in Section S of Act No. 29 of 1924, regulating the procedure and defining the authority of the courts with reference to temporary restraining orders and preliminary injunctions, that “no appeal shall be allowed from any order granting, continuing, refusing or dissolving a restraining order”. It is declared also in that section of the statute that where, after a hearing, a preliminary injunction is granted, continued, refused or dissolved by an interlocutory order or decree, or where an application to dissolve an injunction is refused by such an order or decree, a devolu-tive appeal but not a suspensive appeal from the order or decree may be taken as a matter of right. It is declared also in that section that the judge of the district court may in his discretion allow to a party enjoined a suspensive appeal from an order granting a preliminary injunction, and that if the judge refuses to grant a suspensive appeal to the party enjoined in such a case the appellate court having jurisdiction may allow the suspensive appeal. To show that the judge in this-case had no authority in law to allow the plaintiffs a suspensive appeal, we quote the 5th section of the statute, so far as it is pertinent, thus:

“No appeal shall be allowed from any order * * * dissolving a restraining order; but, where upon a hearing, a preliminary writ of injunction shall have been * * * refused * * * by an interlocutory order or decree, * * * a de-volutive [appeal] but not a suspensive appeal, may be taken as a matter of right from such interlocutory order or decree”.

The statute therefore in unmistakable terms forbade the judge in this case to grant the plaintiffs a suspensive appeal, either from the dissolving of the restraining order or from the refusal of the judge to grant a preliminary injunction. So far as the judgment rej ected the plaintiffs’ demand and dismissed their suit it could not be appealed from suspensively, because there was nothing that could be suspended by the plaintiffs’ taking an appeal and calling it a sus-pensive appeal. A suspensive appeal, as distinguished from a devolutive appeal, is one which stays execution of the judgment appealed from. Therefore an appeal from a judgment which merely rejects the plaintiff’s demand and dismisses his suit at the outset is essentially only a devolutive appeal, even though the judge and the appellant may call it a suspensive appeal.

The case of Brock v. Stassi, 189 La. 88, 179 So. 44, is exactly in point. Brock instituted an executory proceeding against Stassi on a mortgage note, and Stassi filed a petition for an injunction in the execu-tory proceeding, contending, first, that the note was paid, and, in the alternative, that the debt was extinguished by prescription. Brock, answering the rule to show cause why a preliminary injunction should not be granted, “put the whole case at issue; and it was tried on its merits.” The judge, after hearing the evidence, gave judgment for Brock, rejecting Stassi’s demand for an injunction. The judge granted Stassi an appeal from the judgment, and called the appeal “both a suspensive and a devolutive appeal”. Brock moved to dismiss the appeal, and this court characterized the appeal thus: “The motion to dismiss the appeal is overruled, but the appeal is maintained only as a devolutive appeal.” In deciding that inasmuch as the judge had not granted a preliminary injunction Stassi’s appeal from the judgment rejecting his demand and dismissing his suit could not stay the executory proceeding, the court said:

“There was therefore no authority for the judge to order the executory proceedings stayed by virtue or effect of the so-called suspensive appeal from the judgment rejecting Stassi’s demand and dismissing his petition for an injunction. An appeal from a judgment dismissing a suit at its inception is not a suspensive appeal, because there is then nothing to suspend — whatever may be the name given to the appeal.”

To the same effect was the decision in the case of Snowden et al. v. Red River & Bayou Des Glaises Levee & Drainage District et al., 172 La. 447, 134 So. 389, 391. The plaintiffs in that case sued to enjoin the levee and drainage district and the tax collector from collecting certain levee taxes, on the ground that the tax was invalid. The judge issued a rule on the defendants to show cause why a preliminary injunction should not be issued. The defendants filed an exception of no cause of action and a plea of estoppel, and prayed for a dismissal of the suit and for 10 per cent on the amount of the taxes, as damages under the tax statute, section 56 of Act 170 of 1898. The case was submitted to the judge on those issues and while he had it under advisement he issued a restraining order, preventing the tax collector from selling the property. The judge afterwards gave judgment against the plaintiffs, dissolving the restraining order, refusing to issue an injunction, dismissing the suit and condemning the plaintiffs to pay the 10 per cent statutory damages. The judge allowed the plaintiffs an appeal, which he characterized as both a suspensive and a devolutive appeal. The defendants moved to dismiss the suspensive appeal on the ground that, according to section 5 of Act 29 of 1924, such an appeal could not be allowed from a judgment dissolving a restraining order and refusing to issue a preliminary injunction. This court held that the appeal which the judge had allowed, and which he called a 'suspensive appeal, stayed execution of the judgment condemning the plaintiffs to pay the 10 per cent damages, but had no such effect on the judgment dissolving the restraining order and refusing to grant an injunction. The court said:

“In this instance, no preliminary injunction ever issued, and hence no preliminary injunction was ever dissolved, to be reinstated, as it were, by a suspensive appeal.
“The law does not contemplate that a restraining order, granted by the trial judge, pending an application for a preliminary injunction, should be, as it were, reinstated by a suspensive appeal, and operate during the pendency of the appeal. It contemplates that such an order shall pass out of existence, and so remain, in the lower court.”

In the opinion rendered in the case of Agricultural Supply Co. v. Livigne, 177 La. 15, 147 So. 365, there is a palpable error in that the appeal which the court allowed to an intervener, appealing from a judgment' dissolving a temporary restraining order, refusing to grant a preliminary injunction, and finally rejecting his demand, was called a suspensive appeal. The court could not have allowed a suspensive appeal without doing violence to section 5 of Act 29 of 1924 and the jurisprudence on the subject. So far as the intervener was allowed an appeal the decision was correct, but it was a mistake to call the appeal a suspensive appeal.

If the judge in this case had granted the plaintiffs a preliminary injunction and after-wards dissolved it in consequence of his rejecting the plaintiffs’ demand or dismissing their suit, they would have been entitled to a suspensive appeal, i. e. one which would have kept the preliminary injunction in force pending a hearing of the case on appeal. It was so decided in Everett v. Hue & Aarnes, 173 La. 420, 137 So. 201, and in American Bakeries Co. v. Louisiana State Board of Health, 185 La. 959, 171 So. 90. In those cases the court called attention to the fact that that part of the fifth section of the act of 1924 which allows only a devolu-tive appeal, and not a suspensive appeal, as a matter of right, from an interlocutory order or decree dissolving a preliminary injunction, refers only to interlocutory orders or decrees, and not to final judgments. The difference between this case and the two cases just cited is that in this case the preliminary injunction was refused, whereas in each of the cases cited it was granted.

The remedy afforded by Act No. 29 of 1924, to a plaintiff who is denied a preliminary injunction to which he is entitled, is in section 6 of the act; that is, he should apply to this court for writs of certiorari and mandamus, not to compel the judge of the district court to grant a suspensive appeal, but to compel him to grant the preliminary injunction; and on a sufficient showing this court will issue a temporary stay order with the writ of certiorari, to preserve the status in quo.

The respondents have filed in this court a document in which they join in the request that the court issue the writ of mandamus to compel the judge of the district court to allow the plaintiffs a suspensive appeal. That is, in effect, merely an agreement on the part of the defendants that they will not attempt to enforce the ordinance in contest until the case is decided on appeal. There is nothing illegal in such an agreement, and if it is carried out, as it should be, it will be as availing to the plaintiffs as a preliminary injunction or a suspensive appeal would be. But there is no reason why we should compel the judge of the district court to grant the plaintiffs a suspensive appeal from the judgment which he rendered against them. He granted them a devolu-tive appeal, which is all that the law allowed them, and they are protected now by the agreement of the defendants that the ordinance complained of shall not be enforced before the case is decided on appeal.

According to the record before us the judge had not signed the judgment which he had rendered when the plaintiffs asked for and were granted an appeal. We assume that the judgment was signed before the appellants filed their appeal bond; otherwise the appeal will have to be dismissed, even though the appellees may not move to dismiss it. There is no right of appeal from a final judgment until it is signed. Succession of Savoie, 195 La. 433, 196 So. 923.

The rule to show cause why a writ of mandamus should not be granted is recalled and this proceeding is dismissed at relators’ cost.


author: ODOM, Justice.

text:
    198 La. 798
    WAGGONER et al. v. GRANT PARISH POLICE JURY et al.
    No. 36383.
    Supreme Court of Louisiana.
    Nov. 3, 1941.

      John R. Hunter & Son, of Alexandria, for relators.
    Harry Fuller, of Winfield, for respondents.
   ODOM, Justice.

A local option election was held in the Parish of Grant on June. 17, 1941. A majority of -those voting at the election voted against the issuance of licenses for the sale of intoxicating liquors in the parish except in certain designated localities. On June 19 the police jury promulgated the results of the election and on the same day adopted an ordinance carrying into effect the results of the election. That ordinance prohibited the sale of intoxicating liquors and prescribed penalties for the violation of its provisions.

On July 17, 1941, the plaintiffs, relators here, petitioned the court for a preliminary writ of injunction, enjoining, restraining, and prohibiting the judge of the district court, the district attorney, the police jury, and the sheriff of the parish from instituting or undertaking any civil or criminal actions under said ordinance and from taking any steps of any character to enforce its provisions. They prayed for the issuance of a rule nisi, directing the defendants, and each of them, to show cause, on a day and at an hour to be fixed by the court, why a preliminary writ of injunction should not issue. They attached to, and made a part of, their petition certain ordinances of the police jury and other documents.

When they presented their petition to the judge of the district court, he signed the following order:

“The foregoing petition, annexed documents and annexed affidavit considered, it is
“Ordered that a rule issue herein ordering and directing the Police Jury of Grant Parish, State of Louisiana; Harry Fuller, District Attorney of Grant Parish, Louisiana, and H. Gillis Bowen, Sheriff of Grant Parish, Louisiana, to show cause on the 18th day of August, A. D., 1941, at the hour of 10 o’clock, why a preliminary injunction should not issue herein, according to law, and in accordance with the prayer of the foregoing petition.
“Thus Done And Signed in Chambers at Colfax, Louisiana, on this 17th day of July, A. D. 1941.
(signed) “Cass Moss “Judge”

The ground on which the preliminary writ of injunction was sought was that the ordinance adopted by the police jury making it unlawful to sell or otherwise handle intoxicating liquors in Grant Parish was illegal, null, and void for the following, among other, reasons:

(1) That the petition requesting the police jury to order the election did not contain 25 per cent of the qualified voters of the parish, in that a large percentage of the names on the petition were not signed by the persons themselves; that their names were affixed to the petition by others without any authority on the part of the alleged signers, and that in instances where signatures were affixed by mark, the marks were not witnessed and were placed thereon without authority.

(2) That the petition was presented to the police jury on December 9, 1940, and that the election should have been called to be held within 90 days thereafter.

(3) That, after the election had been called and ordered held on April 22, 1941, the police jury was without authority to postpone said election and to extend the date of holding the same from April 22 to June 17, 1941.

The district attorney, representing the defendants, filed several exceptions and pleas which were finally overruled. He filed an answer for defendants. A hearing was had on the rule to show cause as directed by the judge. At the hearing on the rule, numerous documents and exhibits were filed, and approximately 100 witnesses were called and examined. After the hearing on the rule, the following judgment was rendered and signed in open court:

“This cause came on regularly for hearing pursuant to assignment on plaintiffs’ petition for rule to show cause why a preliminary injunction should not issue herein, and after appearance and joinder of issues by respondents in rule.
“Present: John R. Hunter, Sr. and John R. Hunter, Jr. for plaintiffs in rule; and Harry Fuller for respondents.
“The Court, after hearing the pleadings, the evidence adduced on the trial of said rule, and arguments of counsel, being of the opinion that the law and the evidence are in favor of respondents in rule and against said plaintiffs, for reasons this day orally assigned in open Court:
“It Is Therefore Ordered, Adjudged and Decreed that the petition of plaintiffs, Hiram Waggoner, Ed Hawthorne and Jimmie Warford, for a preliminary injunction to enjoin, restrain and prohibit the defendants from enforcing, and from undertaking to enforce the ordinance of the Police Jury for the Parish of Grant, State of Louisiana, adopted June 19, 1941, which said ordinance is more specifically described in plaintiffs’ petition, be and the same is hereby denied and plaintiffs’ demands rejected, at their cost; that, accordingly, the rule herein issued be and the same is hereby dismissed.”

After the rendition and signing of this judgment, plaintiffs asked for and were granted appeals, devolutive and suspensive, to this court, and counsel announced to the court that plaintiffs would apply to this court for writs of certiorari, mandamus, and prohibition on the ground that the appeals granted did not afford them adequate protection or an adequate remedy.

The judgment was signed on August 21. On August 25 plaintiffs filed applications in this court for writs. They set out in detail the issues involved in the suit, stated the results of the trial of the rule nisi, and pointed out the errors in the judgment of which they complained. They ground their application for the relief sought upon the proposition that the appeals granted did not afford them adequate relief. They prayed that the trial judge be ordered to send up the record in this case, and that mandamus issue, compelling him to grant the preliminary writ of injunction prayed for. On August 28 we granted the writs with a stay order coupled with a rule to show cause. In obedience to the writ of certiorari, the judge sent to this court a certified copy of the record, and in response to the rule to show cause the judge, the district attorney, the police jury, and the sheriff filed answers.

According to the showing made by relators in their application for the writs, and because of certain admissions made by respondents in their answers, we seriously doubt the validity of the judgment rendered by the trial judge, although we do not at this time definitely and finally decide the issues raised. Plaintiffs, relators here, are entitled to an appeal to this court from the interlocutory order refusing to grant the preliminary writ of injunction prayed for and dismissing the rule nisi. They have appealed, and the appeal is lodged here. In order that all of the parties to the litigation may be afforded ample opportunity to present fully the issues raised, the case should be heard and finally decided on appeal.

Relators are licensed liquor dealers doing business in the Parish of Grant. They were engaged in that business when the local option election was held and when the police jury adopted the ordinance prohibiting the business in which they had been licensed to engage. They alleged, and respondents say in their answer that they do not dispute, “that the business and stock in trade of each relator has a value in excess of $2000.00”.

The ordinance of the police jury, adopted to carry into effect the results of the local option election, which ordinance made it unlawful to sell intoxicating liquors in Grant Parish, was by its terms to become effective on August 30, two days after we granted the writs. The judgment dismissing the rule and denying plaintiffs’ application for injunctive relief was signed on August 21. Respondents say in their answer:

“That while the transcript of appeal could not be lodged in this Honorable Court before the effective day of said Ordinance, yet the suspensive appeal, which was asked for by plaintiffs and granted to them, could have been perfected before any attempt was made to enforce said Ordinance. * * * That, therefore, said plaintiffs, relators herein, had an adequate remedy by appeal and their application for writs was improvidently made and prematurely sought.”

We cannot lend sanction to respondents’ statement that the appeals granted and perfected afford relators adequate protection or adequate remedy. Act No. 29 of 1924, which regulates the procedure and practice in, and the power of, courts in respect to temporary restraining orders and preliminary writs of injunction, provides in Section 5 that:

“No appeal shall be allowed from any order granting, continuing, refusing or dissolving a restraining order; but where upon a hearing, a preliminary writ of injunction shall have been granted, continued, refused or dissolved by an interlocutory order or decree, or an application to dissolve an injunction shall have been refused by such order or decree, a devolutive, but not a suspensive appeal, may be taken as a matter of right from such interlocutory order or decree.”

In this case a preliminary writ of injunction was refused upon a hearing by an interlocutory order or decree. . Therefore, according to the plain language of the act, relators were entitled to a devolutive, but not a suspensive, appeal from the order.

The relief primarily sought by plaintiffs, relators here, was an order or judgment granting a preliminary writ of injunction prohibiting the defendants, respondents here, from enforcing or attempting to enforce the provisions of the police jury ordinance making it unlawful to sell intoxicating liquors in Grant Parish. Clearly a devolutive appeal from an order refusing the preliminary writs of injunction prayed for would not prevent the officers from proceeding, on and after the effective day of the ordinance, to enforce the provisions of the ordinance. But it is suggested that relators were protected by the suspensive appeal. The answer is that, under the law, they were not entitled to a suspensive appeal from the order refusing the preliminary writ of injunction and dismissing the rule nisi. And, even if rela-tors intended to take, and the judge intended to grant, a suspensive appeal from that order, such appeal would have no effect under the law. A district judge cannot confer upon a litigant a right which the law specifically withholds.

Whether the court intended to grant a suspensive appeal from its order refusing to issue the preliminary writ of injunction prayed for and dismissing the rule nisi is not quite clear. The facts are that the only hearing had was on the trial of the rule nisi. That clearly appears from the record itself. We are informed by counsel for defendants that:

“When the trial Judge, after reviewing the evidence, announced that the ruling of the Court was that the preliminary injunction was denied and that the rule would be dismissed, counsel for plaintiffs informed the Court that all of their evidence had already been offered and it was upon suggestion of said counsel that the judgment was drawn to include a decree rejecting plaintiffs demands.”

Respondents in their answer say that “it was at the suggestion of counsel for plaintiffs that if the preliminary injunction was to be denied them and the rule dismissed, then that the judgment further show that plaintiffs’ demands were rejected”.

From the wording of the judgment itself, it does not clearly appear that the judge intended to reject plaintiffs’ demands on the merits, although he might properly have done so because the defendants had filed answers and plaintiffs had introduced all the evidence they had to offer. But, conceding that the judge did finally decide the case on its merits, the fact remains that, before announcing his decision to that effect, he announced from the bench that plaintiffs’ application for a preliminary writ of injunction was refused and that the rule nisi was dismissed. This was an interlocutory order or decree, from which a devolutive, but not a suspensive, appeal could be granted.

Obviously, if the issues raised by relators are well founded and if the facts support their contentions, they are entitled to an injunction to preserve their personal and property rights. This court has repeatedly recognized that a devolutive appeal from an order refusing a preliminary injunction, although allowed by law, is neither an adequate nor an appropriate remedy to obtain such relief as relators here are asking, and that the only effective relief to be obtained in such cases is by application to this court under its general supervisory jurisdiction. Succession of Levins, 184 La. 825, 167 So. 454, and the cases there cited.

In Loeb v. Collier, 131 La. 377, 59 So. 816, this court said:

“It is true that, as a general rule, cer-tiorari can issue only in cases in which the regularity of the proceedings of the trial court is attacked, but the Constitution lodges in the Supreme Court control and general supervision over all inferior courts. The power thus granted is plenary, and its exercise rests in the sound discretion of the court. Thompson & Co. v. Gosserand, 128 La. 1029, 55 So. 663; State ex rel. Union Sawmill Co. v. Summit Lumber Co., 117 La. 643, 42 So. 195.”

Since the adoption of Section 10, Article 7, of the Constitution of 1921, giving the Supreme Court control and general supervision over all inferior courts, Articles 845 and 857 of the Code of Practice have been obsolete. Keegan v. Board of Commissioners, 154 La. 639, 98 So. 50.

This, in our opinion, is a case in which we should exercise our supervisory powers to the end that no irreparable injury may be done relators pending a final decision of the case on appeal.

For the reasons assigned, it is ordered that the preliminary writs granted in this case on August 28, 1941, as enlarged and extended by our order dated September 5, 1941, be and are hereby made peremptory, and accordingly the Honorable Cass Moss, judge of the Eighth Judicial District Court for the Parish of Grant, is directed and commanded to grant forthwith to plaintiffs, relators in this case, a preliminary writ of injunction as prayed for by them, the writ to remain in force and effect until the final decision of the case by this court on appeal.


author: TALIAFERRO, Judge.

text:
    BYNOG v. MANSFIELD HARDWOOD LUMBER CO. et al.
    No. 6427.
    Court of Appeal of Louisiana. Second Circuit.
    Oct. 31, 1941.
    Harry Fuller, of Winnfield, for appellants.
    Gahagan & Pierson, of Natchitoches, for appellee.
   TALIAFERRO, Judge.

Plaintiff, alleging himself to have been an employee of defendants, C. E. Soncrant and the Mansfield Hardwood Lumber Company, sues to recover workmen’s compensation on the basis of permanent total disability. For a cause of action he avers that while performing his duties as log cutter for defendants on October 23, 1940, a tree fell and struck him on his head, neck, shoulder and back, inflicting physical injuries resulting in the disability alleged upon. He admits that he has been paid compensation in the amount of $23.40 for which credit is due defendants. He also alleges that he is under the treatment and observation of a physician and that the expenses thereof will equal or exceed $250. The right to sue for this amount he prays to he reserved to him.

The answer óf the defendants, supplemented by stipulation of counsel at beginning of trial, removes from controversy all issues tendered save and except whether plaintiff is disabled and, if so, the extent of such disability. It is admitted by counsel that his weekly wage was $12 and that he had been paid $124 on compensation account. Defendants aver that the limb, of a falling tree and not the tree, struck plaintiff a glancing blow about the head, from which he received “certain muscular injuries of a slight and temporary nature”. It is also averred by defendants that subsequent to institution of this suit, plaintiff submitted himself to examination by medical experts of defendants’ selection and that he was thereafter, pending a determination of his complaints regarding his physical condition, paid additional compensation in the sum of $101.40 without prejudice. Credit for this amount, plus the $23.40, is prayed for in the^ event a judgment favorable to plaintiff IS rendered. Defendants disclaim liability to plaintiff in any sum beyond that which they have paid him.

There was judgment for plaintiff awarding him compensation during the period of his disability, not exceeding four hundred (400) weeks. Credit was given defendants in the sum of $124.40, being compensation for sixteen (16) weeks at the weekly rate of $/’.80. The correct amount would be $124.80. Defendants appealed.

Plaintiff was sixty-six years of age when injured. He is uneducated, can neither read nor write. He has followed timber cutting exclusively for a livelihood for the past forty-five (45) years. Prior to the time of the accident he was a strong, healthy, vigorous man for his age. Describing his physical prowess, he testified: “I could buck against any negro; I did not cull nothing; I was a man among men.” No one disputed him on this score. He alone gave testimony as to how he was injured. He says that he was struck by a limb attached to a large cypress tree which he and others felled; that as the tree fell the limb struck him violently on the top of his head; on his arms and shoulders; that the blow knocked him to the ground arid rendered him unconscious for awhile. •A wound three or four inches long above the forehead was cut in the scalp.

Plaintiff was promptly carried to Dr. Reed’s office in the City of Natchitoches where the wound was sutured. He was then carried to a sanitarium and remained therein for four days. He testified that pain in his neck, head and upper part of his back has been continuous since the accident and that this symptom, plus the fact that his neck was sore and stiff, rendered him unable to perform manual labor, the only sort of- work he was ever able to perform.

More than one-half dozen physicians testified in the case. Most of them examined plaintiff physically and interpreted X-ray pictures made of his neck within a short time of the accident. Notwithstanding the adverse opinion of the physicians who testified for the defendants, we are convinced that the blow to plaintiff’s head fractured the fifth cervical vertebra. This vertebra forms a part of the neck. The fracture is described as being one of compression which means that the blow on the head was so violent that it had the effect of driving the vertebrae composing the cervical group against each other with sufficient force to produce fracture. At the time of trial, six months after the accident, the fracture had undergone calcification and had healed. The blow also caused injury to the cartilaginous discs between the fifth and sixth cervical vertebrae, and possibly injured the nerves of that locus, but as to this, the testimony is uncertain. It is certain, however, that at the time of trial plaintiff’s neck was stiff; normal motion thereof in any direction could not be had. In addition there was present to a substantial degree the soreness that developed immediately after the injury. This hangover of soreness, it is contended, is superinduced by arthritic conditions found by nearly all of the doctors to exist in the cervical vertebrae. We feel quite certain this is correct.

Defendants contend that the mentioned arthritis was present prior to the injury; therefore, its disabling effect may not be accredited to the blow. Whether the arthritis existed at the time of the accident or developed as a result of it, for the purposes of determining the right to compensation, is immaterial. If it did exist prior to the accident, its presence was unknown to plaintiff and in no manner and to no extent did it interfere with the efficient discharge by him of his laborious duties. If the arthritis did exist prior to the accident and was thereby aggravated and aroused from a dormant state to an active one, culminating in the present degree of disability, compensation is still due plaintiff. This principle has been repeatedly affirmed by all the courts of this state. The following cases are a few of those so holding: Doane v. Board of Com’rs of Port of New Orleans, La.App., 163 So. 717; Jones v. Lake Charles Compress & Warehouse Co., Inc., La.App., 153 So. 347; Stovall v. S. Bender Iron & Supply Co., et al., La.App., 152 So. 387; Nelson v. Bateman Contracting Co. et al., La.App., 145 So. 808.

Dr. Reed, a witness for defendant, who administered first aid to plaintiff and also attended him while in the sanitarium, originally was of the opinion that he would be able to resume work in about two months after discharge from the sanitarium. He then observed no symptoms which indicated that plaintiff would become permanently and totally disabled. He again examined plaintiff on December 28th and found him then totally disabled to work. Plaintiff was again examined by Dr. Reed on the day of trial and the doctor gave the following enlightening testimony touching his condition at that time, to-wit:

“Q. Is there anything now that would cause you to believe that any permanent injury that he might have, disability that he might now complain of, can be traced to the accident, or is it due to old age ? A. I would think it was due to the accident.
“Q. That is he— A. He evidently has an arthritic condition of the cervical region.
“Q. Would you say that was due to the injury that he received, or could it be due to age and the hyperthropic changes? A. I would naturally think that owing to the fact that it started from the time he was hurt and has persisted to the present time, that it evidently was caused from the lick.
“Q. You would say it is arthritis and that it is due to the lick? A. Traumatic injury, yes. * * * * *
“Q. You have examined the plaintiff today; do you find that he has limitation of motion in the neck? A. Yes.
“Q. Is it a marked limitation? A. Very marked.
“Q. In your opinion, is it due to the accident which he had on October 23rd last year? A. I would say yes, taking into consideration the history of the case.
“Q. Is it not a fact that whether he will ever recover is problematical ? A. You will just have to guess at it; one man’s guess is as good as another’s.
“Q. He is not able to be a log cutter and tie hacker now? A. No.”

The doctors who testified for plaintiff fully concur in the opinion of Dr. Reed, reflected from the above quoted testimony. The trial judge experienced no difficulty in reaching the conclusion that plaintiff was entitled to recover compensation on the basis of being totally disabled and gave written reasons therefor. We find ourselves in complete harmony with him.

It is the opinion of some of the physicians that plaintiff’s ailments could possibly be relieved by appropriate medical treatment. His right to sue the defendants for the expenses of such treatment, should he decide to undergo the same, to the amount fixed by law, was reserved to him in the judgment appealed from. This was eminently correct.

For the reasons herein assigned, the judgment appealed from is affirmed with costs.


author: SIMON, Judge.

text:
    ROPPOLO et ux. v. PICK.
    No. 17675.
    Court of Appeal of Louisiana. Orleans.
    Dec. 1, 1941.
    Rehearing Denied Dec. 15, 1941.

      A. D. Danziger, of New Orleans, for appellants.
    Meyer Sabludowsky and John D. Schil-leci, both of New Orleans, for appellees.
   SIMON, Judge.

Plaintiffs, Mrs. Rose Roppolo, and her husband, Steve Roppolo, seek recovery for loss alleged to have been sustained by them as the result of an accident caused by falling plaster in the building located at 1527 Adams Street in the City of New Orleans and occupied by them as a residence.

It is asserted that, at about the hour of 4:30 o’clock, on the morning of February 10, 1940, while the family were asleep, Mrs. Roppolo was injured by the fall of plaster from the ceiling in the bedroom, jointly occupied by her and her husband. On behalf of the wife, judgment is sought for $4,000, and the husband, as master of the community, prays for judgment in his behalf for $125 for the medical expenses sustained in connection with his wife’s injuries. It is alleged that the leased building was owned in community by Louis Spiro and his wife, Sarah Lissa, now both deceased, and presently represented by Mrs. Ruby Pick, testamentary executrix duly qualified and confirmed as such in the “consolidated matters entitled ‘Succession of Louis Spiro’, No. 233,907, and the ‘Succession of Sarah Lissa, wife of Louis Spiro’, No. 226,841, Section 'C of the docket of the Civil District Court for the Parish of Orleans * * * ”. It is to be observed at this moment that, though plaintiffs affirmatively aver the leased premises to have been community property of the decedents, damages are sought only against Mrs. Ruby Pick, in her capacity as testamentary executrix of the succession of Louis Spiro. It is further alleged that the accident “and the resulting injuries * * * are due to the direct result of faulty construction and unsafe condition of said premises.”

For answer, defendant denied every allegation of plaintiffs’ petition, and averred that, if it were shown that plaintiffs were tenants of the premises in question, plaintiffs, by virtue of the provisions of the rent receipts, assumed all risks incident to occupancy, thus barring their right of recovery.

A trial on the merits of the issues created by the pleadings resulted in a judgment in favor of Mrs. Rose Roppolo for $500 and in favor of Steve Roppolo for $125. Defendant has appealed and plaintiffs have answered the appeal, praying that the amount awarded Mrs. Rose Roppolo be increased to $4,000, as originally prayed for.

We have no difficulty in finding as a fact that the plaster did fall, since the evidence is overwhelmingly to that effect. There can be no dispute that the premises were owned by Louis Spiro, “in community with his wife”, now both deceased, and that they were leased by plaintiff, Steve Roppolo, from Louis Spiro, under an oral lease, during the month of November, 1939, and thereafter occupied by plaintiffs as a family residence.

The contention of defendant concerning the assumption of risk by the lessee is based upon a printed waiver which appears upon three rent receipts offered in evidence. This inscription reads as follows:

“Tenant rents this property with the understanding that no damages will be due by cause of fallen plaster or other unforeseen defects, and failure to notify the owner or agent, in writing of any visible defects will serve as contributory negligence and will vitiate all claims.”

Defendant contends that the inscription, supra, is in accordance with Act l74 of 1932, which relieves the lessor from responsibility for damages for physical injuries occasioned the lessee or occupant by vices or defects in the leased premises when the lessee “assumes responsibility for the condition of the premises”. Section 1. Under Section 2 of the statute, supra, the words “by license of the tenant or occupant” are defined to be “those who derive their right or license to be on the premises from said tenant or occupant, such as sub-tenants, roomers, servants, guests, customers, employees, members of the family and others of a similar status”. McFlynn v. Crescent Realty Corporation of Delaware, La.App., 160 So. 454; Paul v. Nolen, La.App., 166 So. 509. In Clay v. Parsons, 144 La. 985, 81 So. 597, it was said:

“Our opinion is that the provisions of the Civil Code that hold the owner of a building answerable for any injury that may befall another because of the landlord’s neglect to make repairs are subject to the general law of negligence, and that the obligation thus imposed by law upon the landlord may be dispensed with, not only by a lessee as a condition of his contract of lease, but by any one desiring to occupy the house and willing to assume the risk.” (Italics ours.)

In Pecararo v. Grover, 5 La.App. 676, we held:

“It is lawful to stipulate in a lease that the lessor shall not be responsible for damages caused by any vice or defect of the leased property.
“With such a stipulation in a lease the lessee cannot recover damages against the lessor for injury received from falling plaster.”

(Syllabus, 1 and 2.) (Italics ours.)

Defendant does not contend that there was any assumption of risk on the part of the lessee in the verbal contract of lease. The evidence discloses that the lease contract was oral and that the only agreement or understanding between the lessor and the lessee was the amount of the monthly rental to be paid, there being no stipulation or agreement of an assumption of risk by the lessee as a particular condition of the contract of lease itself. In support of her contention, defendant relies exclusively upon the inscription (supra) contained in the rent receipts offered in evidence. Necessarily, if it be held that there was an assumption of risk on the part of the lessee, it can only find its support in the rent receipt provision quoted above.

The evidence shows that when the negotiations leading up to the contract of lease had been consummated, and the first monthly rental paid in advance, lessee received the rent receipt in question. He. testified that he did not read it, being under the belief that it evidenced simply a voucher, or receipt, for the first month’s rent in advance, and which would accord him the immediate right of occupancy. It is further shown that the lessor did not direct lessee’s attention to the inscription contained in the rent receipt, and, as disclosed by the record, no discussion was had, nor was any notice or warning, verbal or otherwise, directed to the lessee to the effect that the receipts embodied a special contract between them. Defendant must necessarily rely entirely upon the silent delivery and acceptance of the rent receipt to sustain her contention that such a stipulation constituted a contract between them.

From the circumstances of the transaction, lessee unquestionably had the right to regard this rent receipt simply as a receipt or voucher, evidencing payment of the first monthly rental. No stipulation or agreement was entered into, and much less was there ever an understanding between lessor and lessee, that the rent receipt, with its inscription, would’constitute a special contract between them and intended, as such, to serve that particular purpose. We are satisfied that such a voucher, or receipt, with its inscription, does not give rise to a contract between the parties and thereby impose upon the lessee the assumption of risk urged by defendant.

We recognize a distinction between rent receipts, commonly used in commercial transactions, and contracts or agreements between parties. The difference is obvious, which, in the one case, permits of no negotiation or discussion, being simply a fulfillment of one’s assumed obligations, while, in the other, a contract or agreement between parties is a matter of discussion and arrangement, with full opportunity for deliberate reciprocal action.

In Lawes v. New Orleans Transfer Company, 11 La.App. 170, 123 So. 144, we held that a person who receives a check for baggage entrusted to a transfer company is not bound by an inscription on the baggage check limiting liability of the transfer company, in the absence of proof of assent by the passenger.

The case of Marine Insurance Company v. Rehm, La.App., 177 So. 79, involved the factual situation of a customer parking his automobile in, a parking lot, paying the charge therefor, and receiving a tag on which were the words: “* * * We will not be responsible for loss or damage to automobiles * * * by fire, theft, or any other cause whatsoever, except damage * * * while being handled on our premises by our employees under our orders”. The automobile was stolen, resulting in a suit for damages, and, it being shown that the customer did not know what was written on the tag until after the theft, we held that such a tag amounted only to a means of identifying his property, or mere receipt, and was not a special contract limiting the liability of the parking lot owner. Hoffman v. Zimmer et al., La.App., 175 So. 115.

Defendant having tendered this special defense, it is well settled that she assumed the obligation of proving the existence of this contract, or stipulation, with legal certainty. In this she has failed.

Defendant further contends that, in order to establish liability on her part, it is sacramental that the fall of the plaster result from an act of negligence on her part. , By virtue of Articles 670, 2315 and 2322 of the Revised Civil Code, every owner is answerable in damages to any person rightfully on or near the premises who is injured by accident resulting either from the owner’s neglect to maintain the building in a safe and livable condition, or from a vice or defect of original construction, provided the injured party be himself without fault. Klein v. Young, 163 La. 59, 111 So. 495; Heath v. Suburban Building & Loan Association, La.App., 163 So. 546; Tesoro v. Abate, La.App., 173 So. 196; Morris v. Hava, La.App., 180 So. 216; Hughes et al. v. Abate, La.App., 2 So.2d 68.

It is also well recognized that ignorance of the unsafe condition of a structure on the part of the owner, or that he did not, or could not, discover the defective condition, does not relieve him of the duty imposed by the Civil Code to maintain his property in a condition of safety to others. Tucker v. Illinois C. Railroad Company, 42 La.Ann. 114, 7 So. 124; Barnes v. Beirne, 38 La.Ann. 280; Allain v. Frigola, 140 La. 982, 74 So. 404; Serio v. American Brewing Company, 141 La. 290, 74 So. 998, L.R.A.1917E, 516; Atkins v. Bush, 141 La. 180, 74 So. 897, L.R.A.1917E, 809; Byrd v. Spiro, La.App., 170 So. 384.

The record discloses that the roofs of the premises in question were inspected four or five months prior to the accident complained of and that a certain leaky condition around the chimneys was corrected. We are convinced that the undisputed falling of the plaster resulted from the failure of defendant to have observed the obligations imposed upon her by maintaining the premises in such a condition as to avoid injury or damages to persons rightfully therein.

Mrs. Roppolo is 46 years of age, weighing approximately 167 pounds. Aside from her domestic duties, she- assisted her husband in his cleaning and pressing business. The uncontradicted testimony shows that approximately one square yard of plaster fell from the ceiling, falling entirely upon her, no portion thereof striking her husband. It being the month of February, both were heavily covered, save their.faces and head, and no injuries were received to that portion of her body so protected. She 'states that .portions of the plaster, shown to be approximately five-eighths of an inch in thickness, struck her on the side of her face, forehead and neck; that the force of the blow immediately aroused her, the combined shock of the blow and the collapsing of the bed rendering her semi-conscious; that since the accident she has suffered intermittent shocking pains on the side of her head, face and neck, extending into her shoulder and arm, producing a temporary semi-paralysis of the left arm. She further states that she was confined to bed for two weeks and that, from that time to the date of the trial below, a period of about fourteen months, she has been forced to resort to periodical heat applications to alleviate her pains. She further states that she has been under the care of her physician since the accident, visiting his office two to three times a week.

Dr. E. F. Salerno, who examined the injured plaintiff two days after the accident, testified that he was called to her home and that he found her in a highly nervous condition, complaining of pains in the left side of her face, head and neck. His examination revealed multiple bruises and contusions on the left side of her face and shoulder, a discoloration in the central portion of the forehead, and injury to the muscles on the left side of the face and neck producing an inability to move her head to the left, right, or downwards. He testified that she also complained of severe pain on the left side of her face and concludes that she had an inflammation of the muscles and tissue covering the cheek-bone. He prescribed bromides and sedatives to relieve pain and nervousness, hot applications, other forms of heat treatment, and a lotion. He further states that she was unquestionably, in severe pain. His findings also disclosed that - she was in a highly nervous state and that this nervous condition, which he terms “secondary hysteria”, was partly due to the accident. Plaintiff received diathermic treatment at his offices for a period of almost eight months on an average of two to three times each week. Though he attributes plaintiff’s long-existing pain and nervousness, which he terms “secondary neuralgia”, to the accident, he testified that plaintiff is of a highly nervous temperament, a condition which had existed years prior to the accident and which undoubtedly was attributable to some constitutional cause. His conclusion is that plaintiff recovered completely from any possible effects of the accident within a maximum of eight months of its occurrence. He further stated that there is no evidence of any permanent injury or disability and that plaintiff is fully able to resume the duties she normally exercised prior thereto.

Dr. C. J. Tripoli examined the injured plaintiff two weeks prior to the trial below. From Inis examination he concluded that she was not suffering from any permanent injury or disability and that she did not objectively disclose any symptoms, or evidence of injury. He concludes, as did Dr. Salerno, that her nervous condition, as of the date of his examination, had been of long standing, being entirely disassociated from any possible effects of the accident.

In most cases where damages are sought on account of personal injuries, we necessarily experience difficulty in fixing the amount to be awarded. Ofttimes an arbitrary amount is arrived at. In the present case the difficulty is increased because the nature of the injury and the suffering experienced can only be judged from subjective conditions. The doctors themselves positively testify that the injured plaintiff, for years previous, had been suffering from a nervous disorder which they attribute to a constitutional cause. We are satisfied, however, that this plaintiff received injuries from which she experienced pain and discomfort. In seeking relief from those intermittent pains, she found it necessary to visit her physician’s offices for heat treatments two to three times a week for a period of almost eight months. We readily recognize the inconvenience of the constant visits to her doctor’s office and the discomfort of these treatments, with the attending stress of worry and anxiety over her ultimate recovery. Undoubtedly, she experienced pain and suffering and was partially incapacitated during this period of time. We are convinced, however, as are the doctors, that this condition did not exceed the maximum period of eight months and that a complete recovery has been effected.

We are not unmindful of the wisely established and sound rule that the findings of a court, a qua, on questions of fact, should not be disturbed unless there appears manifest error. We appreciate that our learned brother below was afforded the opportunity of hearing and viewing the witnesses, more particularly the complainant, and thus could determine, from her appearance and demeanor, the nature and extent of her injuries. But we are satisfied, in view of the injuries which she received, requiring almost constant medical attention for a period of about eight months, with the accompanying pain and suffering, that the amount awarded was somewhat insufficient. We have decided to allow Mrs. Rose Roppolo damages of $750.

Defendant lastly contends that since plaintiffs, in their petition, have affirmatively alleged that the premises in question, at the time of the lease agreement, belonged to the community of acquets and gains then existing between Louis Spiro and his wife, Sarah Lissa, both presently deceased, and that, having sought recovery against the Succession of Louis Spiro only, the amount of damages to be awarded, if any, should be decreed due by the Succession of Louis Spiro in the proportion of one-half.

Defendant’s contention is not well founded. It is well settled that a third person’s action for injuries as a result of defective premises is an action ex delicto, since recovery is limited under the provisions of Articles 670, 2315 and 2322 of the Civil Code. Klein v. Young, supra; Heath v. Suburban Bldg. & Loan Ass’n, supra; Tesoro v. Abate, supra; Morris v. Hava, supra; Hughes v. Abate, supra; Coleman v. Rein, La.App., 4 So.2d 622, decided Nov. 17, 1941.

It is further well established that joint tortfeasors are liable in solido and that the injured party may sue any or all of the solidary obligors. Reneau v. Brown, 9 La.App. 375, 158 So. 406; Reid v. Lowden, 192 La. 811, 189 So. 286; Jones v. Maestri, 170 La. 290, 127 So. 631; Rumpf v. Callo, 16 La.App. 12, 132 So. 763; Grantham v. Smith, 18 La.App. 519, 132 So. 805, 810; Diebel v. Bertucci, 19 La. App. 412, 140 So. 515; Quatray v. Wicker, 178 La. 289, 151 So. 208; Grigsby v. Morgan, La.App., 148 So. 506; Gordon v. Bates-Crumley Co., La.App., 158 So. 223.

The judgment appealed from is amended by the increase of the amount awarded to Mrs. Rose Triolo, wife of Steve Roppolo, plaintiff, to $750. In all other respects, the judgment is affirmed, at the cost of appellant.

Amended and affirmed.


author: WESTERFIELD, Judge.

text:
    NUSS v. MACKENZIE et al.
    No. 17558.
    Court of Appeal of Louisiana. Orleans.
    Dec. 15, 1941.
    Rehearing Denied Jan. 5, 1942.
    Katz & Amato and Porteous, Johnson & Humphrey, all of New Orleans (Julius Katz and F. Carter Johnson, Jr., both of New Orleans, of counsel), for appellant.
    Drew Linard Smith, of New Orleans, for appellees.
   WESTERFIELD, Judge.

This is a suit for damages for physical injuries resulting from a collision which occurred on United States Highway No. 90, about eleven miles from the City of New Orleans, on October 26, 1939, at about 1 o’clock a. m., when the Plymouth sedan, owned and driven by the plaintiff, John Nuss, collided with the Chevrolet automobile owned and driven by Kenneth Mac-Kenzie. Nuss sued MacKenzie and his employer, Edward E. Elmer, in solido, claiming $13,627. The alleged liability of Elmer is based upon the contention that, at the time of the accident, MacKenzie was using the automobile upon an errand of his employer. Nuss alleged that just prior to the accident, he was driving in the direction of the City of New Orleans on the extreme right-hand side of the road when, without warning or knowledge on his part of the presence of the MacKenzie automobile on the highway, his Plymouth car was struck by the MacKenzie Chevrolet with the result that he was seriously injured and his car demolished; that he does not know how the accident happened and, under the circumstances, invokes the doctrine of res ipsa loquitur.

MacKenzie denied all responsibility for the accident, averring that he was driving on his right-hand side of the road and that, as he approached the point where the accident happened, he glanced to his left and saw a car bearing down upon him, without headlights; that he applied his brakes and swerved to his left in a fruitless effort to avoid the collision. Both defendants deny that MacKenzie was acting in the course of his employment. MacKenzie reconvened and asked for $1,185 for physical injuries and damage to his automobile.

The Board of Administrators of the Charity Hospital of Louisiana at New Orleans filed a petition of intervention seeking judgment for $45, under Act 289 of 1938, for hospitalization given Nuss.

There was judgment below dismissing both the main and reconventional demands as well as the intervention of the Charity Hospital. The suit as against MacKenzie was dismissed as of nonsuit. Plaintiff has appealed and MacKenzie and Elmer have answered the appeal seeking to have Mac-Kenzie recover on his reconventional demand.

United States Highway No. 90, sometimes called the Chef Menteur Highway, where the accident occurred, is a paved thoroughfare 45 feet wide. It is divided into four traffic lanes, two on each side with a wide black line in the center. Two of these lanes, those on the right or Lake Ponchartrain side of the highway, are for the use of traffic moving towards the City of New Orleans and the other two on the left or Mississippi River side for traffic moving in the opposite direction. The roadways on the extreme right and left are referred to in the testimony as “slow lanes”, while those immediately contiguous to the black line on either side are called the “fast lanes”.

The drivers of the colliding automobiles are unable to explain the accident.. Neither saw the other until a moment before the impact and both claim to have been driving on their extreme -right or about 25 feet apart. There was a passenger in the Nuss car by the name of William Campbell, who died as a-result of injuries received in the accident.. No witness; other than the two, drivers, was produced who had seen the accident, therefore, we have practically no. evidence concerning the cause of the accident. .

The pictures of the automobiles, which were offered in - evidence, show that the right front, side of each .car was the point of contact, notwithstanding the fact, that, in view ;of the -position, of the cars on the highway, .as claimed by-the drivers,'each car should '.have passed • to the left o.f the other with a margin of about 20 feet. The only explanation we have of this circumstance is that each driver testified that immediately before the accident he turned his automobile towards the left.

The MacKenzie car, which was proceeding away from New Orleans, entered a right-hand curve. In MacKenzie’s words: “I * * * came to a curve to the right and while going along this curve with my lights on, I suddenly saw a car coming from the left and the only way I saw it was from the reflection of my lights on that car and it was almost in my face when I saw it”.

He did not know the exact spot with respect to the dividing line of the highway that his car came to rest, but the evidence clearly preponderates in favor of the contention of plaintiff’s counsel to the effect that both cars were on the lakeside of the road, that is to say, on the side on which Nuss should have been.

While there is nothing in the pleadings on the subject, the record is replete with testimony, offered without objection, tending to prove that the drivers of the colliding vehicles were intoxicated.

Officer Gleber of the Fifth Precinct Police Station arrived at the scene of the accident with Lieutenant Barrett shortly after it occurred. He testified that both the Chevrolet and Plymouth cars were on the lakeside of the highway, the Chevrolet in the slow lane and the Plymouth car in the fast lane. In the Chevrolet car he found a half-pint whisky bottle one-half full of whisky and in the Plymouth car two empty pint whisky bottles.

Lieutenant Barrett corroborates Officer Gleber and added that the two empty bottles smelled of whisky. He made a report to Captain Peterson, Commanding Officer of the Fifth Precinct, in which it was stated that “the three men (including Campbell, who died shortly thereafter) all appeared fo be drunk”. He said that his report was based on his observations of the actions of Nuss and MacKenzie, adding “I found whisky in the cars and they were not washing their faces with it”.

, Nuss attempted to explain the presence of the -bottles in his car by saying that though- at one time they contained whisky, they-had been used as containers of hydraulic .brake fluid and SAE10 motor oil, used - to pump into the compressors on-refrigerators which his occupation required-him to repair.

Miss Mary Lou Ward, one of the operators of a restaurant called the Court of Four Sisters, located on the highway a short distance, from the scene of the accident, testified that Nuss and Campbell had been in her place of business for about two hours. She declared that she had served Campbell two highballs, but that Nuss had nothing to drink at all.

Nuss testified that he had had nothing but a bottle of beer, which he drank at Martins, shortly after leaving the city earlier in the night.

MacKenzie admitted that he had had a couple of drinks, but denied that he was in any way under the influence of liquor.

However this testimony is hardly sufficient to prove that either MacKenzie or Nuss were intoxicated, but it is a possible explanation of the extraordinary accident.

While it is true, as we have said, that both automobiles were found, after the accident, on the lakeside of the road, we are unable to say where the vehicles collided.

Plaintiff introduced a witness by the name of Charles Morel, an automobile mechanic with some twenty years experience. Morel testified that he visited the scene of the accident three days afterwards and examined the automobiles which, in the meantime, had been towed to a garage. He found oil spots on the lakeside of the roadway. He declared that the crank case of the Chevrolet was broken and that of the Plymouth undamaged and that, therefore, as an expert, he was able to say that the oil spots on the highway proved that the crank case of the Chevrolet had been drained at that spot. Pie therefore, expressed the opinion that the accident had occurred there.

In Hobgood v. Louisiana & A. R. Company, La.App. First Circuit, 156 So. 657, 658, in speaking of an oil spot on the roadway, it was said that “the oil spot so found, and which is shown to have been made from the drippings of the Ford car, is a fact strongly corroborative of the testimony of plaintiff that Plenson had run across the center of the road into his car”. However, in that case there was testimony to the effect that the Ford car had actually run across the center of the highway, while in this casé Núss is unable to say what happened. No doubt the location of oil spots, when proven to have been caused by drainage from one of the colliding vehicles, is a circumstance, we may say a strong circumstance, suggestive of the point of collision and, if this oil which was found by Morel came from the Chevrolet driven by MacKenzie (perhaps it did, but there is nothing certain about it, since it was found there three days after the accident), the inference to be drawn therefrom is even stronger.

In the instant case, however, there is no testimony by anybody to the effect that the Chevrolet crossed the middle stripe of the highway, and we cannot accept the testimony of Morel based upon the location of the oil spot as sufficient.

The long and short of the matter is that the plaintiff’s case depends upon the application of the doctrine of res ipsa loquitur. This doctrine has been defined on numerous occasions.

In Bruchis et al. v. Victory Oil Company, 179 La. 242, 153 So. 828, 831, the Supreme Court said:

“Under the general heading ‘Negligence’ the doctrine res ipsa loquitur as applied to negligence cases is explained in Ruling Case Law,-vol. 20, p. 187, as follows:
“ ‘More precisély the doctrine res ipsa loquitur asserts that whenever a thing which produced an injury is shown to have been under the control and management of the defendant, and the occurrence is such as in the ordinary course of events does not happen if due care has been exercised, the fact of injury- itself will be deemed to afford sufficient evidence to support a recovery in the absence of any explanation by the defendant tending to show that the injury was not due to his want of care.’
“Res ipsa loquitur is a phrase meaning the thing speaks for itself,’ ‘the affair speaks for itself,’ or ‘a general way of say•ing that the circumstances attendant upon an accident are of themselves of such a character as to justify a jury in inferring negligence as the cause of the accident’ 34 Cyc. 1665; 45 C.J. 1193-1196; 7 Words and Phrases, First Series, [p.] 6136.- * * *”

In Hamburger v. Katz, 10 La.App. 215, 120 So. 391, 393, we quoted the following from Berry on Automobiles, 4th Ed., page 216:' “ ‘The doctrine of “res ipsa loquitur” may be applied in actions seeking to recover for injuries due to the operation of automobiles. The facts surrounding and forming part of an automobile accident may .be such as to raise the inference that the accident was due to negligence on the part of the person operating or in control of the-automobile.’”

In Schick v. Jenevein, 145 La. 333, 82 So. 360, 362, the Supreme Court said: “Where one is upon the wrong side of the traveled portion of the road, or has not conceded to the other party whom he has attempted to pass that portion of the highway to which he is entitled, and a collision occurs, the burden is upon him who so violates the rule to show that his act was not the proximate cause of the injury, or that there were justifiable circumstances which excuse his conduct.” •

In Ford, Bacon & Davis, Inc., v. Shaw, 8 La.App. 751, we find: “After the collision the cars moved in the general direction in which they were being driven, and both came to a stop on defendant’s right hand side of the roadway, but the evidence shows that after the collision each of the cars swerved to that side of the roadway, and at least there cannot be any clear inference drawn from the situation of the cars after the collision, which supports the testimony of defendant rather than that of the witnesses for plaintiff, and we arc of the opinion that the preponderance of the evidence shows that the collision occurred while defendant was driving on the wrong side of the roadway, and defendant carried the burden of proof to show that such circumstance was not the proximate cause of the collision”.

In Huddy’s Encyclopedia of Automobile Law, Vol. 17-18, at pages 19-21, it is stated : “The act of negligence must be proved by a preponderance of the evidence. Its proof cannot rest in mere speculation, conjecture, or surmise. The plaintiff must make out his case with reasonable certainty. Negligence must be established by direct or circumstantial evidence. Direct evidence is not necessary. Circumstantial evidence may be sufficient. And, generally speaking, the sufficiency or insufficiency of the evidence to prove negligence, in actions for injuries resulting from the operation of motor vehicles, is governed by the general rules applicable to actions for negligence. Where a participant in an accident upon a public highway is upon the wrong side of the street or highway at the time, his presence there may be prima facie evidence of negligence, and no more.”

In Volume 10 of Blashfield’s Cyclopedia of Automobile Law and Practice, Perm. Ed., § 6555, pages 153-158, we find the following :

“Where there is nothing in the record upon which to base k verdict except conjecture, it is not sufficient. * * *
* * * * * *
“* * * Circumstantial evidence may constitute adequate proof of negligence.
“Thus the position and physical condition of motor vehicles after a collision and evidence as to the violence with which occupants were thrown out may demonstrate the falsity of testimony of witnesses for the defendant; and they may be consistent with the truthfulness of the plaintiff’s testimony as to the manner of the occurrence of the accident. Such circumstances may be sufficient to support a verdict for the plaintiff.
* * * * * sK
“It cannot be said, however, as a matter of law, where there is a collision of automobiles that the accident did not happen as stated by either party solely from the respective position of the automobiles after the accident; there being such a complexity of forces and resultants as to afford no idea where the two automobiles would go or what they would do”.

In Lee v. Perrin, La.App., 192 So. 387, we stated that the position of colliding vehicles, after the accident, offers mute evidence which, upon occasions, may be resorted to in determining the cause of the collision.

From the foregoing authorities it is apparent that whenever it is made to appear from the development of essential facts that accidents do not ordinarily occur without the fault of one or the other of the drivers of the colliding vehicles, the presumption is indulged that fault existed, and, if not rebutted by the party whose fault is presumed, will be considered conclusive of his negligence. This would be true in the instant case if there were proof of the alleged fact contended for by plaintiff, that the accident occurred on the lake side of the highway, but this important and necessary prop is missing, and, therefore, the basis for the application of the doctrine of res ipsa loquitur lacks an important and necessary element of proof.

Our conclusion is that neither plaintiff in the main demand, nor defendant in his reconventional demand, has made out a case. It follows, as a matter of course, that the case against Elmer was properly dismissed.

For the reasons assigned it is ordered, adjudged and decreed that the judgment appealed from be and it is amended in so far as it dismisses plaintiff’s suit against Kenneth MacKenzie as in case of nonsuit, and that there now he judgment dismissing plaintiff’s suit. In all other respects the judgment appealed from is affirmed.

Amended and affirmed.