text:
    SIBLEY et al. v. PETTY REALTY CO. et al.
    No. 7382.
    Court of Appeal of Louisiana. Second Circuit.
    Oct. 28, 1949.
    Rehearing Denied Nov. 23, 1949.
    Irion & Switzer, Shreveport, Clifton F. Davis, Shreveport, for appellant.
    Albert E. Bryson, Shreveport, Deutsch, Kerrigan & Stiles, New Orleans, Jacques L. Wiener, Shreveport, James J. Morrison, Baton Rouge, for appellees.
   TALIAFERRO, Judge.

Isaac F. Sibley, for himself and on behalf of his six minor children, joined by his wife, Mildred Hudspeth Sibley, instituted this suit against the defendants, Petty Realty Company, Inc., and its president and general manager, M. A. Mangham, to recover substantial damages allegedly sustained by them, respectively as a result of gas being cut off by the defendants from the building occupied by plaintiffs as a home.

The building in question contains three rooms. It belongs to the defendant corporation whose stock is entirely, or very nearly so, owned by Mr. Mangham. Acting for the company, in the year 1941, he leased the building to Sibley for $10 per month. It is located in the Henderson Iron Works Subdivision in what is known as the Agurs Section of the City of Shreveport. It faces north on Finn Street (formerly Fifth Street) and is parallel and very close to a protection levee.

In addition to the lot upon which said building is situated, the company, at the time this suit arose, owned dozens of other lots in the same subdivision, some of which are southerly and some are easterly from the lot on which the building involved in this controversy, is located. Thirteen of them had very modest buildings thereon which were leased to others for small rentals.

At the time the building was leased to Sibley, all or nearly all of the tenants used wood for heating and cooking. This, in part, was gathered from accumulations along Red River, while some was purchased by and hauled to the respective tenants.

In the year 1943 a well producing gas was brought in some eight hundred feet north of Mangham’s residence. The Sib-ley house is midway between the well and this residence. Mr. Mangham was authorized by the owner of this well to connect a line thereto and use gas therefrom free. He at once accepted the offer and laid a line of one-inch surface piping, to his residence. The line passed west of the Sibley house only a few feet. At first, the residence of Mangham and that of one of his tenants, (J. H. Gongre) were the only ones into which gas was introduced. Soon thereafter Sibley consulted Mangham about connecting his house with the line and he was authorized to do so. There is sharp controversy as to who did the work necessary to put the gas into Sibley’s house. He says that Mangham did so and charged him $1.50 per month for gas thereafter, while Man-gham' denies both of these allegations of fact. He says that he told Sibley that as the gas cost him nothing he would be as generous as was the owner of the well.

On April 4, 1946, the Petty Realty Company, Inc., sold to E. A. Hamner and others the lot on which the Sibley home is located, and fifteen lots additional, constituting two tiers of eight lots each, separated by Finn Street. The lots were purchased as a location for a manufacturing establishment. Thereafter, the City Council officially abandoned that part of Finn Street between the two tiers. Automatically this area reverted to the owners of the adjacent lots.

In the deed to Hamner et als. it is stipulated that the improvements on the lots “are not sold by this deed and are to be removed by the vendors at their own expense”. Sibley was asked to vacate the premises, but refused. Thereafter Man-gham judicially sought to eject him for nonpayment of rent, but failed in the effort. 'Other efforts, extra judicially, came to naught.

In October, 1946, Mr. Hamner called Mr. Mangham’s attention to- the condition of the small surface gas pipe at and about the Sibley house. From heavy vehicular traffic it was bent and otherwise so badly disfigured that it was feared it would break and allow the gas to escape with possible disastrous results. To avert this possibility, Mr. Mangham promptly began to install a two-inch line in lieu of the old one. In order to be safe from damages from vehicular traffic and to avoid passing over lots sold Hamner et als., this line was laid along the levee east of the house.

After the new line had been laid some seven days it was on or about October 20, 1946, connected with the well, the old line was disconnected and gas flowed only through the new line. This left the Sib-leys without gas, — hence this law suit.

Plaintiffs allege that the line was disconnected about the hour of 3:00 o’clock p. m1., without notice to them of the intention so to do; that the weather was cold and they were deprived of fuel for heat and cooking for five days because during that period they were unable to procure wood to burn in their wood stove; that other houses of the defendant company were connected with the new line and thereafter supplied with gas; that demand was made upon Mangham to- connect their home with the new line but he refused to do so; that since the closing of Finn Street they cannot get wood over that street which comes to a dead end at the levee beside the house; that the new line at the locus of the house was so laid that wood could not be hauled over it; that defendants have built a fence back of the Sibley house which prevents access thereto from that direction, and that all of these conditions made it quite difficult for plaintiffs to get the wood they have used since the loss of gas.

Plaintiffs additionally allege that due to defendant’s action in not connecting their house to the new gas line, three of the children contracted bad colds and were confined to bed for two weeks; that due to her having to be up at nights attending the needs of the sick children, without heat in the house, Mrs. Sibley contracted influenza that lasted three or four months; that defendants’ said action has caused all of the petitioners extreme embarrassment, etc.; that the twelve year old daughter had to miss school and she was especially embarrassed and humiliated when making excuses for her non-attendance; that Mr. Sibley was humiliated and embarrassed in not being able to report for daily work because he had to remain at home and get wood necessary for heating and cooking.

Prior to answering, the Petty Realty Company, Inc., formally called its insurer, the -Continental Casualty Company, in warranty, under allegations appropriate to its position that there was coverage under the terms of a policy contract issued to it.

Answering the call, the insurer denies that the policy contract was intended to, nor did it, embrace liability flowing from the facts alleged upon, -in that the policy provided protection against loss “imposed upon defendant by law for damages caused by accident”, and that the facts of this case show that the damages sought to be recovered herein did not arise from an accident.

Answering, the defendants articulately deny all of the allegations of the petition. They reaffirm the allegations of the call in warranty and pray that should judgment be rendered against them, or either of them, that like judgment be rendered against said warrantor, plus the additional sum of $750 as counsel fees.

The case, on plaintiffs’ motion, was tried with a jury. Verdicts were returned against Petty Realty Company, Inc., and Mangham, as follows, viz.:

In favor of Mrs. Sibley, $500' and in favor of each of the five youngest children, $150. The demands of Mr. Sibley and the twenty-year old son were rejected. The jury found for the insurer on its defense of lack of coverage, and the demand against it was rejected.

Application of defendants for new trial was denied. Judgment in keeping with the jury’s verdicts was signed. Defendants appealed to the Supreme Court. That Court decided that it had no jurisdiction of the cause of action alleged upon, and transferred the appeal to this Court. See 215 La. 597, 41 So.2d 230.

One of the most embattled issues in the case revolves around the contention of the plaintiffs that they monthly paid to the company through its said president, the sum of $1.50 for the gas they consumed. Another issue, but of less concern, is who extended the first gas line into the Sibley house. Overshadowing both of these issues, is the legal proposition advanced that as defendants were not legally required to supply gas to the Sibley house, whether for a charge or not, there rested no obligation upon them or either of them to continue such supply after once begun; and, as a corollary, when once disconnected from the gas line, there did not arise any obligation on defendants’ part to connect it to the new line.

A very significant fact in the case is that neither defendant was authorized by permit from any state agency or department, nor by the 'City of Shreveport, to lay the gas lines, supply gas or make a charge therefor, if supplied.

Neither defendant had the legal right to -sell gas to the public in the manner charged, and, perforce, neither was legally obligated to do so. They put gas only in their own buildings and were at liberty at any time to disconnect same.

Among the powers delegated by the Legislature to the City of Shreveport is that to regulate and control the use, quality and sale of gas within its territorial limits. Dart’s General Statutes, Par. 19, § 6260, Act No. 158 of 1898, § 11, subd. 19, as amended by Act No. 220 of 1912. In the exercise of this power the City is authorized to appoint an inspector of gas and meters.

The Public Service 'Commission is given the power to fix and regulate the rates charged or to be charged by and service furnished or to be furnished - by public utilities. Dart’s General Statutes, § 7917, Act No. 24 of 1904, § 4.

Plaintiffs charge and argue that Mr. Mangham’s course, after selling the property, was that of determined effort to force them to surrender possession of the house; and that he did the various annoying and vexatious acts charged to him, in the hope that possession would be voluntarily given. The record, as we view it, does not sustain this contention. We doubt that this situation would -have arisen had the lot not been sold. After this Was done, it was defendants’ duty to remove the building within a reasonable time as the purchaser wished full possession of all of the lots. The building could not well 'be moved so long as occupied; and surely not while connected with the gas line.

The charge that Finn Street was blocked and a fence was erected at the rear end of the house purposely to prevent wood being brought to the house, is not sustained by proof.

After being closed by action of the City Fathers, Finn Street was freely used by Hamner and his associates while erecting new buildings. If the area formerly embraced within the street’s limits was blocked, as charged, it was by the purchasers of the adjoining lots and they were within their rights in so doing.

In regard to the erection of a fence south of the Sibley house, it is shown that this was done by another tenant of defendants. It is shown that they did not direct nor suggest that the fence be built and located as was done; in fact, it does not clearly appear that the fence (two barbed wires attached to posts) served to interfere with wood hauling as plaintiffs say.

The testimony pertinent thereto convinces us that Sibley, and not Mangham, made or had made, the necessary connections to put gas into the house. The workman who laid the line originally and also Mr. Mangham so testified. In view of all the circumstances, especially if no charge was made for the gas, this would have been the logical course to pursue.

Whether a charge for the gas was made is left in considerable doubt. Sibley, his wife and twenty-year old son all testify that this charge was made. No receipts were given. Sibley’s reputation for truth and veracity was severely attacked. Several of his neighbors testified that his general reputation was bad and that they would not believe him on oath. However, as we understand the pertinent law, it is immaterial, as respects liability, whether or not defendants charged for the gas.

In the instant case it is certain the lessee accepted the leased premises with the knowledge that he would have to use wood for heating and cooking. When the gas line was disconnected he was left in no worse condition, with respect thereto, than when he first occupied the premises.

A different case might be tendered if, after supplying gas to Sibley, the lessor, without advance notice -of his intention so to do, disconnected it with injurious results to the lessee or members of his family. But that is not the case before us. It is shown, as said before, that the two-inch line was laid several days prior to being connected. Sibley must be held to have had knowledge of this fact and why the new line was laid, as it passed only a few feet east of 'his house. Mangham tesi-fied that he told Sibley that there would not be any arrangement for a connection between the house and the new line. From these facts, Sibley was put on his guard and had ample time to lay in a supply of wood to meet the change in conditions then impending.

It was but natural that, as Mangham was eager to remove the house to fulfill his obligation to Hamner, et al., 'he was unwilling to again have the house connected with the new line. Regardless of this, he did suggest to Sibley that he run a line of his own from the well to the house. He did so, but for the lack of proper equipment, the venture was not a success.

To hold defendants liable in damages, if such there were sustained, it would first be necessary to hold that they or one of them breached a duty owed to the defendants. Has this been done? We answer the question in the negative. Defendants had the unquestioned right to disconnect the gas line from the Sibley house when they chose so to do, because they were not obligated, as a matter of law, to allow them to introduce and use the gas in the building. It was in the building merely by sufferance. The motives or reasons back of the disconnection are of no special significance since the right to disconnect and not reconnect were absolute. There is respectable authority to support this holding. See: Sullivan v. Natural Gas Company, Inc., La.App., 154 So. 387; 28 Corpus Juris 568-569, § 32; 38 C.J.S., Gas, § 26; McCune v. Norwich City Gas Company, 30 Conn. 521, 79 Am.Dec. 278; Elwell v. Atlanta Gas-Light Company, 51 Ga.App. 919, 181 S.E. 599; Oklahoma Natural Gas Co. v. Young, 10 Cir., 116 F.2d 720, 132 A.L.R. 908.

It follows from the above stated conclusions that the question raised by and between the defendants and their war-rantor (insurer) is now moot.

For the reasons above and herein assigned, the verdicts of the jury and judgment based thereon, insofar as they reject the demand contained in the call in warranty, are affirmed.

And, for said reasons, the judgment from which appealed, insofar as it condemns the defendants in favor of the plaintiffs, named therein, is hereby annulled, reversed and set aside with costs.


source: Caselaw Access Project

author: HAMITER, Justice.

license: Public Domain

text:
    215 La. 1056
    ANGELLOZ et al. v. SOUTHWESTERN OIL & REFINING CO.
    No. 39016.
    Supreme Court of Louisiana.
    June 30, 1949.
    Rehearing Denied Nov. 7, 1949.
    Fred G. Benton, Sam Cashio, Baton Rouge, for plaintiffs-appellants.
    Kizer, Heaton & Craig, Baton Rouge, for defendant-appellee.
   HAMITER, Justice.

The interpretation of a provision of an oil, gas and mineral lease is required in determining this litigation.

On February 17, 1944, plaintiffs, Dewey D. and Arthur A. Angelloz, granted t'he lease, which had a primary term of three years and covered approximately 1253 acres, to the Denkmann Lumber Company in consideration of $12,000 cash in hand paid and of certain stipulated covenants and conditions.

The lease was prepared on a printed form, except as to its paragraph 4 which was wholly typewritten and was pasted to such form. The typewritten paragraph, containing the disputed provision, recites as follows:

“If operations for the drilling of a well be not commenced on said land on or before the 17 day of May, 1944, this lease shall terminate. In the event that said first well to be drilled is a commercial producer of either oil or gas, Lessee agrees to begin operations for the drilling of a second well at some location on the land leased hereby within 12 months from the date of this lease, or to pay to Lessor the sum of Twelve Thousand ($12,000) Dollars in cash in lieu of the drilling of said second well. Should this payment be made to Lessor instead of drilling the second well as aforesaid, or should two wells be drilled either of which is a producer, this lease shall be in full force and effect so long as oil, gas and other minerals are produced from the land in paying quantities anything herein to the contrary notwithstanding. In the event that the first well is a dry hole, the operations for the drilling of a second well shall be begun by Lessee within 12 months from the date of this lease, or within said period there shall be paid to Lessor by Lessee $10 per acre, which payment shall cover the privilege of deferring commencement of operations for the drilling of a well for 12 months from said date. In like manner and upon like payments during the primary term, the commencement of such operations may be further deferred for like period for the same number of months successively.”

Shortly after the execution of the lease the Denkmann Lumber Company assigned it to the Southwestern Oil and Refining Company, defendant herein.

Prior to May 17, 1944, or within 90 days from the date of the contract, operations for the drilling of a well were commenced; but from them a dry hole resulted. Thereafter, no second well was started.

Before the expiration of the first year the 'lessee tendered to the lessors as delay rentals the sum of $12,530, or $10 per acre for the 1253 acre tract leased. Whereupon a dispute arose over that provision of paragraph 4 which relates to the commencement of a second well, or the making of a specified payment, if the first well drilled proved to he a dry hole. The lessee (defendant) maintained that under such provision the payment of $10 per acre, or the total amount of $12,530, was for delay rentals to keep the lease in full force and effect during the second year without the necessity of drilling a second well. The lessors (plaintiffs) contended, on the other hand, that not only was payment of the mentioned sum necessary as rentals, but that the lessee was obligated additionally ito pay a like amount in lieu of commencing a second well during the first 12 months; hence, they demanded a total payment of $25,060.

Since all parties desired that the lease he kept in effect for the second year, a written agreement was entered into on February 16, 1945, or one day before the expiration of the first year, whereby lessee deposited in lessors’ bank account the sum of $12,530, and the parties stipulated that lessors would institute the instant proceedings to determine whether such payment had 'the effect of extending the lease for the second year without any other consideration, or whether the lessee owed the demanded additional sum of $12,530.

On the trial of the case on the merits plaintiffs introduced in evidence the original lease, the assignment from the Denlc-mann Lumber Company to defendant, the agreement of the parties of February 16, 1945, and they then rested. The defendant, thereupon, offered the testimony of Mr. J. Blanc Monroe, an attorney of New Orleans, which had been taken out of court under oral examination by counsel for all parties, and it also offered the answers of Messrs. Fred W. Reimers, W. H. Giles and L. F. Statton (representatives of the original lessee) to interrogatories and cross-interrogatories propounded to them. To all of the offerings plaintiffs’ counsel objected on the ground that parol evidence is inadmissible to vary or alter the terms of a written contract. The district judge reserved his ruling and admitted the evidence subject to the objection.

In rebuttal, with reservation of all rights under the obj ection, testimony was given by Mr. Arthur A. Angelloz, a plaintiff, and by Mr. Samuel Cashio, one of plaintiffs’ attorneys. Also, plaintiffs introduced in evidence a letter (hereinafter quoted in full) dated February 16, 1944, written by Mr. Dewey D. Angelloz to the Denkmann Lumber Company.

. There was judgment in favor of defendant dismissing the suit. In arriving at his decision the district judge, as stated in his assigned written reasons, considered the evidence to which objection had been urged, he then being of the opinion that it was admissible for the purpose of explaining the intention of the parties with respect to the disputed lease provision which he deemed ambiguous. From the judgment plaintiffs are appealing.

On considering paragraph 4 of the contract, a provision of which is the basis for this controversy, we find the parties agreeing first that unless operations are commenced before May 17, 1944 (or within 90 days), the lease should terminate. Admittedly such operations were so commenced; hence, there was no termination of the lease on the named date. But the first well, on its completion, proved to be a dry hole, and, as a result, ithere was rendered inoperative the next succeeding two sentences of paragraph 4 which were to apply in the event of a producing well. The non-producing first well, instead, made applicable the controversial stipulation of the typewritten paragraph reading:

“In the event that the first well is a dry hole, the operations for the drilling of a second well shall be begun by Lessee within 12 months from the date of this lease, or within said period there shall be paid to Lessor by Lessee $10 per acre, which payment shall cover the privilege of deferring commencement of operations for the drilling of a well for 12 months from said date.”

On this last quoted stipulation plaintiffs predicate their contention that defendant obligated itself to pay $12,530 ($10 per acre for 1253 acres) in lieu of drilling a second well during itlie first 12 months, an amount in addition to the necessary rental payment. Defendant insists that the stipulation simply required it either to drill a second well or 'to pay rentals of $10 per acre for maintaining the lease during the second year.

Plaintiffs’ contention would appear to have merit if it were not for the clause “ * * * which payment shall cover the privilege of deferring commencement of operations for the drilling of a well for 12 months from said date.” With that clause eliminated the stipulation could well be construed as obliging the lessee to pay $10 per acre in lieu of commencing operations for a second well before the expiration of the first year. But the clause is a part of the agreement, not mere surplusage, and it must be given effect.

The clause relates to and modifies the provision immediately preceding it which grants to lessee the alternative of paying $10 per acre instead of drilling the second well. On making such payment it has the privilege of deferring drilling operations for 12 months. To be noticed, however, is the fact that the clause further states that the 12 months’ deferrment is “from said date.”

Now what is meant by the phrase “from said date”? Counsel for plaintiffs direct attention to a preceding provision in the same sentence requiring the drilling operations to be commenced “within 12 months from the date of this lease”, and they suggest that the phrase has reference to the date of the contract. On this point, to quote from their brief, they argue:

“ * * * The words ‘said date’ can only be technically, accurately, and substantially interpreted as referring to the date of said lease, and the plain meaning is that if the Lessee elected not to drill the second well in the first year Lessee was to pay the $10.00 per acre to fulfill Lessee’s obligations for that year, and that upon making such payment the lease would thereby be extended for the full first year. The Court must distort the meaning of plain English to arrive at any other conclusion.”

Answering this argument, defense counsel say:

“In support of the meaning which they attribute to the words ‘said date’, the plaintiffs rely very heavily on the fact that the word ‘said’ is used to refer back to something” previously stated, and they go back to the four preceding words ‘date of this lease’ as being the point of reference. A glance at the sentence from which these words are taken shows that the plaintiffs have snipped them off at the point most advantageous to them, and that the entire phrase reads ‘within 12 months from the date of this lease’. When this entire phrase is considered, rather than picking the last four words out of context, it is clear that the words ‘said date’ are meant to refer to the date at the end of ‘12 months from the date of this lease’.
“Another consideration reveals clearly the unsoundness of plaintiffs’ grammatical juggling. The phrase states that the $10.00 per acre covers ‘the privilege of deferring commencement, etc.’ It does not say shall cover ‘the privilege of having deferred commencement’. The word ‘defer’, in its ordinary and usual meaning, always relates to future contemplation, and could not be twisted into a past reference, as plaintiffs are attempting to do, without giving it meaning which it has never known in the English language. It must be remembered that after the first well turned out to be a dry hole, the lessee had up until the very last day of the first year of the lease in which he could either begin drilling the second well or assume its obligation to pay the $10.00 per acre renewal rental. There can be no dispute that it did not have to make its choice as to which alternative it chose until this very last day. Since that is the undeniable result of this provision of the lease, for the plaintiffs to say that the $10.00 per acre payment covered the privilege of ‘deferring’ drilling operations for the year which had already passed (including as we have seen three months which had no relation to the obligations surrounding a second well) is to create new meaning for an otherwise commonly understood word (‘deferring’) and to reach an absurd conclusion, which the plaintiffs admit should be avoided in contract interpretation.”

In further support of their position herein, which is that the disputed provision merely stipulated for the payment of delay rentals on failure to drill, counsel for defendant call attention to the next succeeding, or the last, sentence of paragraph 4 reading: “In like manner and upon like payments during the primary term, the commencement of such operations may be further deferred for like period for the same number of months successively.” And, as to it, they say that the word “like”, which is used three times, clearly refers to the previous sentence as containing a similar condition, and that since the succeeding sentence admittedly is a rental provision it follows that the previous sentence also contains a provision of the same character. Additionally, counsel show that immediately following the typewritten paragraph 4, on the printed portion of the contract, the lease provides: “Such rental payments may be made to the Lessor by Lessee paying or tendering the same to Lessor, or depositing or tendering for deposit to the credit of Lessor in the Fidelity National Bank at Baton Rouge, La., * *

Adverting again to the brief of plaintiffs’ counsel, we find therein the following additional argument:

“There are a number of other reasons why the conclusions of the trial court are unsound. In the first place, the initial $12,-000.00 payment was the consideration paid by Lessee for the privilege of drilling a well within ninety days from February 17, 1944. If this well was not drilled within that time, then by the express language of the lease it was to terminate automatically. For the remaining nine months of the first year, the Lessee was required to either drill a second well or to pay $10.00 per acre and this was true whether the first well was a producer or a non-producer.
“If what the Lessee contends for here is correct, there is no consideration whatever for the remaining nine months of the lease, for here Lessee is contending that when he paid the $10.00 on February 16, 1945, that he was paying the rental for the second year. What this argument would sustain is that the consideration for one year was the same as the consideration for two years. ‡ ‡ % a

We do not understand that the lessee’s initial payment (often called a bonus) of $12,000 was merely for the privilege of drilling a well within 90 days from February 17, 1944. In consideration of that sum and of certain stipulated covenants, conditions and obligations the lessee, according to the contract, received a lease for three years (the primary term) and so long thereafter as oil, gas or other minerals would be produced. Among such conditions was the commencement of drilling operations within the mentioned 90 day period, and with this condition the lessee complied. Clearly this compliance, along with the bonus payment, constituted a serious and an adequate consideration for the lease’s existence during the remaining nine months of the first year.

Had not the above referred to phrase “from said date” been inserted in paragraph 4, no difficulty would be experienced in determining the meaning of the $10 per acre payment clause. Without that phrase the remainder of the clause, when considered with the other lease provisions, could only be construed as relating to the payment of delay rentals. However, by the use of that phrase, particularly since preceding it in the same sentence reference was made to “date of this lease”, the clause was rendered ambiguous. And because of the ambiguity the trial judge was warranted in permitting the introduction of extrinsic evidence as an aid in determining the intention of the. parties. Rudman v. Dupuis, 206 La. 1061, 20 So.2d 363; Krauss et al. v. Fry et al., 209 La. 250, 24 So.2d 464.

From such evidence we find that the typewritten paragraph 4 was prepared in the law offices of Mr. J. Blanc Monroe, who represented the Denkmann Lumber Company. Participating in . the preparation, in addition to Mr. Monroe, were Mr. Cashio (one of plaintiffs’ attorneys), the plaintiffs herein, and three representatives of the named lumber company, the original lessee. All joined in making suggestions as to its contents, and the completed form was agreed to only after much revision and rewriting.

Mr. Monroe and the three representatives of the original lessee testified emphatically that the parties intended the disputed $10 per acre payment clause to relate merely to delay rentals to keep the lease in full force and effect for the second year, and that the phrase “from said date” meant a date one year after the contract’s execution.

To the contrary Messrs. Angelloz and Cashio, in their testimony, were equally as emphatic that such clause had reference to a payment to be made during the first year in lieu of drilling a second well, and that additional delay rentals were provided for in the next succeeding sentence. Further, these witnesses testified that irrespective of whether the first well resulted in a producer or a dry hole the lessee, under the agreement, was required to make that in lieu payment, the terms and conditions being the same in either case. They failed to satisfactorily explain, however, why it was necessary in paragraph 4, if the terms and conditions were the same, to have two separate provisions containing different phraseology and different amounts. A single provision covering the asserted identical obligations, it seems, would have sufficed.

In addition to the last discussed testimony plaintiffs introduced a letter written by Mr. Dewey D. Angelloz, on the day preceding the execution of the lease, which sets forth the agreement of the parties. It reads:

“February 16, 1944
“Denkmann Lumber Company
“Canton, Mississippi
“Gentlemen:
“Confirming our verbal understanding of this date relative to you leasing our Clover Ridge Plantation in Section 39, 40, 72 and 110 Township 7 South, Eange 10 East, Iberville Parish, Louisiana. It is agreed by and between us as follows: That we agree to execute to you a three year oil, gas and mineral lease on the above described land for the following consideration: $12,000.00 to be paid upon the signing of said lease and evidence of title, and a 1/32 overriding royalty of the 8/8 and the commencement of the drilling of a well within ninety days from the signing of said lease.
“It is further understood and agreed that in the event said well to be drilled is a commercial producer, either oil or gas, that you will agree to begin the drilling of the second well at some location on this lease within twelve months from the date of said lease or pay to us the sum of $12,-000.00 cash in lieu of drilling the second well.
“Should this payment be made to us instead of drilling the second well within the twelve months period, this lease shall be in full force and effect so long as oil, gas and other minerals are produced therefrom in paying quantities.
“In the event that this well is a dry hole then a second well should be started within twelve months from the date of lease or a rental payment of ten dollars per acre to us and such like amounts in lieu of drilling during the primary term of this lease.
“The above terms should be accepted by you not later than Friday, the 18th day of February, 1944.
“Yours very truly,
“(Signed) D. D. Angelloz”

Rather than support the contention of plaintiffs herein, this letter, with special reference to the next to the last paragraph thereof, appears to sustain the position of defendant. It specifically refers to the $10 per acre payment as rental.

After thoroughly analyzing the provisions of the lease in question and carefully studying the extrinsic evidence, which was properly admitted for the purpose of aiding in determining the intention of the parties to the ambiguous contract, we are unable to conclude that the district judge erred in ruling in favor of the defendant.

For the reasons assigned the judgment is affirmed.

O’NIELL, C. J., takes no part.


author: MOISE, Justice.

text:
    215 La. 1070
    OIL TRANSPORT CO. v. WHITEMAN.
    No. 39157.
    Supreme Court of Louisiana.
    June 30, 1949.
    Rehearing Denied Nov. 7, 1949
    George B. Matthews, Charles Kohlmeyer, Jr., New Orleans, Kelleher, Hurley & Kohl-meyer, New Orleans, of counsel, for defendant and appellant.
    Deutsch, Kerrigan & Stiles, New Orleans, Eberhard P. Deutsch, New Orleans, Rene H. Himel, Jr., New Orleans, of counsel), for appellee.
   MOISE, Justice.

The plaintiff in this action is seeking to recover the amount paid by him for the damages sustained by the tug Maude Wil-mot in an accident on April 28, 1947.

The record shows that on April 5, 1947, the plaintiff entered into a written agreement with the defendant to purchase the tug Maude Wilmot on or before April IS, 1947, for the price of $35,000, under the terms therein set forth. Immediate use of the tug on the confection of this agreement was granted by the defendant to the plaintiff and plaintiff agreed to procure from its own underwriter a binder of hull insurance to insure against any possible contingent liability on its part prior to its taking title to the tug and to insure the tug in its favor as owner thereafter. The defendant’s insurance policies covering the tug were then in the possession of the CIT Corporation, which corporation held an outstanding mortgage on the tug. On April 28, 1947, while the tug was being operated under the use agreement by the plaintiff and before title had passed to plaintiff, it ran aground in the Mississippi River near the 709 MAHP and sustained the damages 'herein ■sued upon. The defendant, after being informed of the accident, made an investigation and the insurance company was notified thereof. The sale of the tug — which was to be free of all encumbrances — was not completed until May 6, 1947, because the ■outstanding mortgage of the CIT Corporation had not been satisfied until that date. On May 6, 1947, the day the title passed, plaintiff executed a memorandum agreement in blank (because the amount of damages sustained by the tug had not been definitely ascertained) and in this agreement plaintiff agreed to advance the necessary funds for the repair of the tug and this loan was to be repaid to plaintiff by the defendant to the extent of any net recovery which defendant might effect from his insurance coverage of the tug with the Rhode Island Insurance Company, or from .any person or persons on account of the damage to the tug. The defendant pledged •the recovery and agreed to press a claim against the insurance company and to bring suit against the company 'or any other person or persons, at the expense and under the exclusive direction and control of the plaintiff, his assignees and agents. Under •this memorandum agreement, the plaintiff also agreed to pay to the defendant out of the proceeds of the insurance collected the sum of $300, representing the approximate pro rata premium on defendant’s insurance policies from April 5th to May 6th, 1947. On June 7, 1947, the defendant, through one of his employees, Peer, by letter notified the insurance company, upon the instructions of “Captain George” to cancel the insurance on the tug retroactively to April 15, 1947, and to return the unearned premium on the policy. The insurance company cancelled the policies retroactively to April 15, 1947, and defendant was given credit for the unearned premium. Upon learning of this cancellation, the plaintiff made amicable demand upon defendant to pay the cost of repairs to the tug, but without avail. This suit followed.

The defendant filed exceptions of prematurity and of no right or cause of action, which were overruled, and then, the defendant filed his answer. A rule was taken by the plaintiff for judgment on the face of the papers, which was likewise overruled. After due hearing, judgment was rendered in favor of the plaintiff and the defendant now prosecutes this appeal. Plaintiff has answered the appeal asking that the judgment of the district court be increased to $3,810.59.

The defendant contends that the plaintiff has no legal right for recovery and that there is a legal bar thereto. He admits the cancellation of the insurance policies ■in question 'but avers that said cancellation was through error and inadvertence.

It is to be noted that after the filing of this suit in the district court, the defendant brought an action in the Federal Court against his insurance company on the policies in question for a declaratory judgment. In this case, the learned judge of the Federal Court in deciding adversely to the defendant herein, answered the question as to whether this insurance was cancelled in error or through inadvertence thusly: “It seems very unlikely that the letter of Peer, employee of plaintiff (George W. Whiteman), dated June 7, 1947, notifying defendant to cancel the policy in question, retroactively to April 15, 1947, was written through error and inadvertence. The latter 'by its terms, discloses that it was written on instructions of the plaintiff (George W. Whiteman), and it is clear that at the time it was written, the plaintiff was fully aware of the terms of the sale and transfer of the tug Maud Wilmot, and of the accident in which the tug had been involved.” Whiteman v. Rhode Island Ins. Co., D.C., 78 F.Supp. 624, at page 626.

When the plaintiff obtained the immediate use of the tug, the defendant had an insurance policy thereon in force. The sale could not, at that time, be passed because of an outstanding mortgage on the property and the defendant, in order to protect himself in the ownership of the tug, as well as his mortgage creditor, and to keep good faith with the plaintiff in this suit, was obligated to notify the insurance company of the change in management and to secure its consent thereto. Had this been done and the policy not cancelled retroactively, the plaintiff would have had his day in court and, if he had recovered the damages under the terms of the agreement, he would have had to reimburse the defendant the sum of $300, the approximate payment of the pro rata premium from April S to May 6, 1947.

With great ingenuity defendant’s counsel has argued on the facts as applied’ to the law and has submitted an abundance of authorities for his conception as to the facts and as to the law. ¡The presentation as made not only offends the equitable provision of the law that no man can avail himself of a condition which he is instrumental in producing, but is objectionable because a litigant’s fault in a damage suit is the condition precedent for a determination of liability.

The defendant could not grant to the plaintiff any greater right in the policy contract than that which he himself had. The policy provisions contain a deductible clause of $1,000 in the amount of damages sustained.

Since it was through the conduct of the defendant that the insurance company escaped liability because of the cancellation retroactively of defendant’s policy contract, we must consider the subject matter as if the policy was in full force and effect.

The record does not disclose the character of the damages or extent of the damage, nor what part of the tug was damaged and for us to make a proper determination of this litigation, in order to ascertain if the policy contract insured the perils and the loss which are now being claimed in the interest of justice, this case should be remanded to the district court for further proceedings according to law and consistent with the views herein expressed.

For these reasons the judgment appealed from is reversed and set aside and the case is remanded for further proceedings according to law and consistent with the views herein expressed. Each litigant shall pay one-half of the costs of this appeal. All other costs shall await the final determination of the litigation.

O’NIELL, C. J., takes no part.


author: FOURNET, Justice.

text:
    215 La. 1078
    DOBROWOLSKI et al. v. DOBROWOLSKI et al.
    No. 39300.
    Supreme Court of Louisiana.
    June 30, 1949.
    Rehearing Denied Nov. 7, 1949.

      Richard Kilboume, Clinton, for appellants.
    Ashton L. Stewart, Baton Rouge, for plaintiffs-appellees.
   FOURNET, Justice.

The four children of Simon John Do-browolski (deceased) by his first marriage, instituted this suit against the six surviving children of his second marriage for a partition by licitation of two contiguous tracts of land situated in East Baton Rouge Parish approximately fifteen miles from the city of Baton Rouge and containing in all approximately eighty-two acres, such property having been acquired by Dobro-wolski during the existence of his second marriage. There was judgment ordering the partition of this property in kind and the defendants are appealing.

By his first marriage to Kordula Wai-leska, who died in 1886, Dobrowolski had seven children, three of whom died in their infancy, the remaining four being the plaintiffs in this partition suit, i. e., Clara Louise Dobrowolski Rogers, Frank Stanis-laus Dobrowolski, Florence Dimple Do-browolski Roy, and Louise Angela Do-browolski. There were nine children born of his second marriage to Amanda White, who survived him, namely, Simon John Dobrowolski, Jr., Benjamin Franklin Do-browolski, Annette Dobrowolski McClain, Aurelia Dobrowolski Fisher, Arthur J. Dobrowolski, Valentine Dobrowolski Floyd, Herbert Dobrowolski, Lowell Do-browolski, and Mildred Dobrowolski Moody. Following the death of Simon John Dobrowolski intestate in 1909, his succession was opened and his thirteen surviving children, who were recognized as his sole heirs, were placed in possession of his undivided half of the immovable property owned by the community, including the property here sought to be partitioned. His surviving widow, who was the owner of the other half of the property, died in 1939, leaving as her surviving heirs her nine children, but her succession has never been opened. Lowell and Benjamin followed their mother in death in 1942, the former, whose succession has never been opened, died intestate and. without issue but leaving as his sole heirs his brothers and sisters and his half brothers and sisters; while the latter, whose succession is now in the course of administration, left a surviving widow who is contesting' the right of his surviving brothers and sisters and half brothers and sisters to be recognized as his sole heirs. Simon John Dobrowolski, Jr., who had been appointed administrator of the succession of his brother Ben, died himself in 1948, leaving a will wherein he named as his sole heirs his surviving brothers and sisters, and they have been recognized as such by judgment of court. Consequently, at the time this partition suit was instituted, the parties made defendant were the surviving children of the second marriage, Mrs. McClain, Mrs. Fisher, Mrs. Floyd, Mrs. Moody, Herbert Dobrowolski, and Arthur J. Dobrowolski. The latter was not only cited individually, but also as the administrator of the succession of Ben, his deceased brother.

The defendants first filed a plea to the jurisdiction of the court rationae materiae, the basis therefor not being set out in the plea, but this was abandoned when it was overruled by consent of counsel. The defendants then excepted to the plaintiffs’ petition on the ground that it disclosed neither a cause nor a right of action because four of the co-owners who had originally been placed in possession of this property by judgment of court have since died and the succession of only one of them has been closed, that of Ben F. Dobrowolski now being under administration and involved in a litigation with his surviving widow who is claiming the amount in excess of the inventoried value of its assets, while those of the two remaining deceased co-owners, Amanda White and Lowell Do-browolski, have never been formally opened.

On the other hand, the plaintiffs contend there is no merit to this claim since the basis of the action for partition is not possession, but ownership, and, therefore, since all of the co-owners are parties to the suit, it is not necessary that they be placed in possession of their respective interests before a partition suit is instituted, particularly since the administrator of the succession of Benjamin Dobrowolski neither offered evidence to show it was necessary to obtain the interest that would fall to Benjamin in order to pay the debts of his succession nor prayed that such interest be set aside for that purpose.

We are of the opinion that the plaintiffs, co-owners in indivisión with the defendants of the property here sought to be partitioned and unwilling to continue such ownership in indivisión, have an absolute right to have this property partitioned, Raceland Bank & Trust Co. v. Toups, 173 La. 742, 138 So. 652; Mitcham v. Mitcham, 186 La. 641, 173 So. 132; and Fabacher v. Fabacher, 214 La. 940, 39 So. 2d 426, and the fact that the successions of some of the deceased co-owners have not as yet been administered is immaterial as their heirs have all been made parties to the proceedings. Johnston v. Burton, 202 La. 152, 11 So.2d 513. The matter of their right to have the interest of these deceased co-owners in the property relegated to their respective successions is one that is to be determined from the pleadings and the evidence in support thereof.

While the defendants in their answer did not specifically pray that the interests of these deceased co-owners be relegated to their respective successions, they did allege in their exceptions of no cause and no right of action their unwillingness to accept the succession of Benjamin Do-browolski in its present condition and we find they introduced in evidence the inventory of the assets of his succession, the opposition of his surviving widow wherein she claims to be his forced heir and asserts her right to an amount in excess of these inventoried assets, as well as the answer of the then administrator to this opposition. In fact, this matter is now pending determination in this court on appeal. We think, therefore, the trial judge erred in ordering the partition not to make provision in his judgment for the relegation of the interest of Benjamin Dobrowolski to his succession, in order that it may be there distributed as one of his assets.

No evidence was introduced to prove the successions of Amanda White and Lowell Dobrowolski owe any debts. Their estates do not, therefore, have to be administered. And since under our doctrine of le mort saisit le vif the heirs become the owners of their interest in the property of the decedent at the moment of death, there is no necessity for opening these successions in order that they may be placed in possession. The heirs to these two successions are all parties to this suit and there is no necessity, therefore, that the judgment appealed from be amended to provide for the relegation of the interest of these two deceased co-owners to their respective successions.

The contention urged in argument here, i. e., that the heirs of the deceased co-owners are without right to take possession of their interest in this property until the .inheritance taxes due have been adjudicated and paid, was neither pleaded below nor passed on there. It does not, therefore, present an issue for our consideration on this appeal.

Since this case was argued here and this opinion was written, Mrs. Florence Dobrowolski Roy, alleging that one of the plaintiffs in this cause, Louise Angela Do-browolski, has died and her succession must be administered because of the debts due, has moved that she be made a party to this suit as the legal representative of the deceased, and it has been so ordered.

For the reasons assigned the judgment appealed from is annulled and set aside and the case is remanded to the lower court for further proceedings therein consistent with the views herein expressed.

O’NIELL, C. J., takes no part.


author: JANVIER, Judge.

text:
    SANGREE v. GRILLETTA.
    No. 19311.
    Court of Appeal of Louisiana. Orleans.
    Jan. 3, 1950.
    Alex W. Swords, New Orleans, for plaintiff-appellant.
    Frank T. Doyle and Nicholas Masters, New Orleans, for defendant-appellee.
   JANVIER, Judge.

The ■ automobile collision from which this suit results took place shortly after 9:30 o’clock on the night of September 7, 1947, at the corner of South Carrollton and South Claiborne Avenues in New Orleans.

Plaintiff, Billy S.angree, was driving his Plymouth Coach on Carrollton Avenue, going in the direction of St. Charles Avenue. Mrs. -Sangree was on the front seat alongside him. Defendant, Steve Grilletta was driving his automobile on Claiborne Avenue in a downtown direction, being on his way home from Jefferson Parish. With him in his car were.his wife, his daughter, his father,' and another very young child.

Both avenues are wide, double driveway thoroughfares, each having a very wide neutral ground separating the two roadways, the neutral ground of Claiborne Avenue being extremely wide, although the record does not give its exact width. Since both avenues have neutral grounds, there is a large rectangle of neutral ground which is what may be termed a double neutral ground, being between the two roadways of both avenues.

The two cars met in the intersection which is formed by the upper roadway of Carrollton Avenue and the river or St. Charles Avenue side roadway of Claiborne Avenue.

Sangree brought this suit in the First City Court of New Orleans, alleging that his a-utomobile had been damaged and that he had expended $195.88 in making the necessary repairs. He prayed for judgment against Grilletta in this amount.

- .He charged that Grilletta was negligent in entering the intersection when the traffic signal lights were showing red towards Grilletta and that he was especially negligent in that, although other automobiles which had been going down Claiborne Avenue and had stopped because of the .unfavorable lights- remained stationary, Gril-letta drove his car past these other vehicles and entered the intersection in spite of the red light and ran into plaintiff’s car, striking it on the right side near the rear.

Sangree charges also that Grilletta was at fault in operating his car at an excessive rate of speed and without due regard to traffic laws and regulations.

Grilletta filed answer admitting the occurrence of the accident but denying that he had been at fault in any way. He averred that the accident was caused solely by negligence on the part of Billy Sangree. He particularly averred that Sangree operated his car with ifutter disregard to the traffic signal * * * ” and that he attempted “to cross Claiborne Avenue when the traffic light controlling traffic on Car-rollton Avenue was red.” In the alternative that it appear that he, Grilletta, was in any way at fault, he specially pleaded that the negligence of Sangrees constituted contributory negligence and was the proximate cause of the accident.

There was judgment' dismissing plaintiff’s suit, and he has appealed.

It is quite necessary to an understanding of the accident that the locus in quo be described. As we have already said, both avenues have double driveways, each having a wide neutral ground. The double neutral ground, which separates the driveways on Carrollton Avenue and also the driveways on Claiborne Avenue, is'a large rectangle. There are two' traffic signal lights at that intersection. One is on the corner of that rectangle, which is nearest Jefferson Parish and is also nearest the lake side driveway on Claiborne Avenue. The other is not in that rectangle, but is located on the neutral ground of Claiborne Avenue on the downtown side of the downtown driveway and on the corner nearest the Mississippi River.

As the Sangree car was coming in Car-rollton'Avenue toward St. Charles Avenue, Sangree faced the first of these lights which was slightly to his left across the first driveway of Claiborne Avenue and on the nearest corner of the rectangular double neutral ground. As Grilletta’s car approached Carrollton Avenue it • faced the other traffic light which was across both driveways on Carrollton Avenue.

There is much conflicting testimony concerning the colors of these two traffic lights' as the two cars entered the intersection, though it is conceded that they operated in unison-. "

Sangree did not appear as a witness, his counsel seeking to explain -his- absence by stating that he lives in Michigan and that a visit to New Orleans would have been unjustifiably expensive.

Mrs. Sangree says that when the Sangree car entered the first roadway of Claiborne Avenue the light, which Sangree saw and which was slightly to his left, was green, and she says that after their car passed that first traffic light, she did not notice whether the lights changed. She says that it is possible that while the Sangree car was traversing the neutral ground- the lights might have changed to amber and that it is also possible that . they might have changed to red by the time their car “got into the river side roadway of Claiborne Avenue.”

Grilletta and his witnesses say that as his car approached Carrollton Avenue the light which had been red was changing to amber when his car was about 30 feet from the intersection; that Grilletta reduced his speed, and that when his car was 8 or 10 feet from the intersection the light turned to green and that he proceeded into the intersection, but that just as he entered it, the Sangree car suddenly emerged and entered the roadway ahead of him.

There was a row of automobiles to the left of the Grilletta car alongside the neutral ground of Claiborne Avenue, and there is a dispute over the question of whether the first of those cars had started forward just before the Grilletta car passed it to its right. Grilletta says. that this car had -already started forward, but, on behalf of plaintiff, it is contended that this car and the others back of it were standing still waiting for the light to change when Grilletta’s car went past that stationary car and crashed into the Sangree car before it could clear the intersection.

Our conclusions on these disputed facts are that when the Sangree car entered the first roadway the light facing it was green, and that as it traversed the neutral ground the light changed to amber and 'then to red before it entered the second roadway. We find also that as Grilletta approached Car-rollton Avenue the light facing him was red, and that it changed to amber and then to green just before he entered the intersection. We find, too, that- after Sangree entered the first roadway of Carrollton Avenue and after the light had changed to amber, there was ample 'distance and opportunity for him to have brought his car to a stop before entering the second roadway had he been paying attention to the traffic signals and had he been proceeding 'at a reasonable speed. His counsel contends that it was almost impossible for him to see the traffic signals since he had passed the first- which was- to his left and since the second was so far across the lower driveway of Carrollton Avenue that he could not have seen it without diverting his attention from the roadway ahead. We do not find this explanation acceptable. The rough diagram, which is introduced in evidence, and the testimony as to the location of the traffic signals convince us that had Sangree merely glanced to his -left he would have seen this other traffic light and would have noticed that it was changing to amber and also later to red.

As a result of this finding of facts there is presented the very interesting question of whether a motorist, in crossing a very wide, double driveway thoroughfare between which two roadways there is an extremely wide neutral ground, exercises proper care if he enters the first roadway on a favorable light, proceeds to cross that driveway and the neutral ground, an'd then attempts to cross the second roadway without again looking at the traffic signal to see that it is safe for him to do so.

A somewhat similar question was presented to us when we considered the case of Kientz v. Charles Dennery, Inc., La.App., 17 So.2d 506. In that case we held that even though a motorist in such a situation may enter the first roadway on a favorable light, there yet remains in him some slight duty to glance at the second roadway before he enters it to make certain that in spite of the fact that he enters the first on a favorable light, no other motorist may be approaching the second intersection. One of the then judges of this Court dissented and in a dissenting opinion said that he was unable to agree that the driver, who enters the first intersection on a favorable light, is under any obligation to again look for possible traffic on the second roadway. The Supreme Court granted a writ of certiorari and reversed our decision. See Kientz v. Charles Dennery, Inc., 209 La. 144, 24 So.2d 292, 294. That decision of the Supreme Court is now cited as authority for the view that a favorable light in such a situation does not relieve the. favored driver of the duty to exercise some slight caution to make certain that other drivers may not have entered the intersection in spite, of an unfavorable light. The Supreme Court said: “It can not and will not be disputed that a motorist, who recklessly and without exercising some degree of caution enters an intersection on a favorable, light, is not free from negligence if .he collides with another motorist who enters an intersection on an unfavorable light. And it can not and will not foe disputed that a motorist can not, in the face of imminent danger, rely upon the right of way accorded him by law. * * *

That was exactly the view expressed in the majority opinion in the decision of this Court in the Kientz case. If we felt that the Supreme Court intended to adopt the views set forth in the dissenting opinion rendered in this Court and to hold that when a motorist enters the first roadway of a double driveway thoroughfare on a favorable light he • need look no-more, but may. proceed across that roadway and the wide neutral ground and then enter the second roadway without again looking for traffic, we would willingly,follow the pronouncement, though we could not accept it as sound. But we do not think that the Court meant to announce any such doctrine.’

We readily agree that a motorist, situated- as was Grilletta, should not, immediately upon being faced by a favorable light, dash into the intersection without first making certain that there is not in the intersection some other vehicle which had entered it and had been unable to clear it before the change in the light. We so stated in Thomas v. Roberts, La.App., 144 So. 70.

We, therefore, feel that Grilletta was at fault in entering the intersection immediately after the light had changed and without making certain that no other vehicle had entered it or was about to enter it.

But the fact that Grilletta should not have driven into the intersection, even on the favorable light, without first looking to see that it was safe to do- so, does not mean that Sangree is entitled to recover for the damage sustained by his car. On the contrary, we think that Sangree was at fault in entering the second roadway when the light had turned against him for the reason that there was ample space in the neutral ground for him to have brought his car to a stop if he had been paying any attention at all to the traffic signals.

While the exact width of that neutral ground does not seem to be shown in the record, we gather from the evidence- — -if we did not know it as a fact — 'that that neutral ground is extremely wide and there are no street car tracks on it.

We are convinced from the record that while Sangree was traversing the first roadway, and possibly just as he entered the neutral ground, 'the light turned to amber. A glance to his left would have disclosed to him the danger. He should then have realized that before he could clear the neutral ground and the second roadway the light might change to red. He either did not look at the light, or he decided to- dash across in the hope that he could complete the crossing before any other car could enter. In either event, he was guilty of negligence.

We have no doubt at all that when there is a neutral ground sufficiently wide to afford space for an automobile to stop, it is the duty of the driver of' the car to pay some attention to the lights and, even though he may have crossed the first roadway on- a favorable light, to bring his car to a stop in the neutral ground rather than to attempt to continue across in the face of the changing light.

The situation is no doubt quite different where the neutral ground is so very narrow that it will not afford protection to the crossing motorist, and it is- also different from that in which there are street car or train tracks on the neutral ground which might render it dangerous for the crossing motorist to stop. But, as we have said, we are certain that he should do so where the neutral ground is wide enough to afford protection and he has space and time to bring his car to a stop. That the other motorist may expect him to stop in such a neutral ground where the light has changed against 'him, we said in Manuel v. Bradford, La.App., 166 So. 657.

In the decision in Kientz v. Charles Den-nery, Inc., supra, the Supreme Court approved our holding in the Manúel case,saying: “ * * * a motorist crossing a roadway against a red light on a neutral ground street on which he was traveling, was justified in assuming that the other motorist would obey the law and stop on the neutral ground so long as it was possible for him to do so. * * ,

Since Sangree should have noticed the changing light and should have stopped before leaving the protection which was afforded him by the neutral ground, he was negligent in not stopping. This contributory negligence bars recovery by him.

The judgment appealed from is affirmed at the cost of appellant.

Affirmed.


author: McCALEB, Justice.

text:
    215 La. 1086
    PACIFIC TRADING CO., Inc. v. LOUISIANA STATE RICE MILLING CO., Inc.
    No. 39017.
    Supreme Court of Louisiana.
    June 30, 1949.
    Rehearing Denied Nov. 7, 1949.
    Breazeale, Sachse & Wilson, Baton Rouge for. appellant.
    Kaufman, Anderson & Leithead, Lake Charles, John Nugier, Abbeville, for appel-lee.
   McCALEB, Justice.

This is an action for damages allegedly flowing from defendant’s nonperformance of contracts of sale and purchase of milled and cleaned rice. The suit is brought in the name of Pacific Trading Company, Inc., a corporation organized under the laws of California, but professedly for the benefit of the .United States which, through its alien property custodian, appropriated over 92% of the stock of the corporation under Vesting Order No. 367, executed on November 17, 1942 and supplemental Vesting Order No. 4613, executed on February 17, 1945. These Vesting Orders were issued upon a determination by the Government that 8003 shares (or 96.76%) of the company’s capital stock were actually beneficially held and owned 'by Japanese nationals and, particularly, that 6291 of those shares, issued in the names of American citizens, belonged to Gunzo Sugihara, an enemy alien, whose last known address was Japan.

The petition sets forth that, on October 24 and 25 and November I and 22, 1941, Pacific Trading Company and the defendant, Louisiana Rice Milling Company, Inc., a domestic corporation, entered into certain transactions through a broker in San Francisco for the purchase and sale of rice. Specifically, it is asserted that, on October 24, Monroe D. Green, as broker for both buyer and seller, confirmed the purchase by plaintiff from defendant of 6000 pockets of rice at a price of $4.20 per pocket f. o. b. Arkansas Mill, to ‘be shipped during November and December Í941, 3000 each month, at buyer’s option; that, on October 25th, Green confirmed another purchase of 6000 pockets at the same price f. o. b. Arkansas Mill, 3000 pockets to be shipped during November and 3000 in December, at buyer’s option; that defendant accepted and confirmed 'both of the transactions on November 1, 1941 'by its contracts No. 243 and 244; that, on November 22, Green confirmed the purchase by plaintiff from defendant'of 5000 pockets of rice, price $5,375 doubles f. o. b. Arkansas Mill, 2500 to be shipped during January and 2500 during February 1942, at buyer’s option; that the rice sold under defendant’s contract No. 243 was. delivered and that contract completed but that defendant, on December 9, 1941, undertook to cancel the other contracts without legal right and that, as a result of defendant’s breach, plaintiff has sustained damages in the sum of $23,825.

Defendant admits the making of the contracts- (Nos. 243 and 244) but denies that the confirmation of Green dated November 22, 1941, for the purchase and sale of 5000 pockets of rice, became a binding obligation for the reason that it did not give its consent t'o the broker to conclude such an agreement. With respect to its alleged breach of contract No. 244 -by cancellation on December 9, 1941, defendant maintains that it was entitled to terminate the agreement 'because (1) plaintiff failed to order the shipment of rice for November; (2) that war with Japan on December 7, 1941 dissolved the contract as plaintiff, a Japanese national, did not have use of its funds except under licenses from the United States; (3) that the war frustrated the contract rendering it impossible of performance and (4) that, at all events, plaintiff was in default by failure to give shipping instructions during the month of December.

Upon these issues, the parties stipulated the facts and the case was thereafter submitted to the court below for decision. Following a dismissal of its suit, plaintiff prosecuted this appeal.

The facts essential to a proper consideration of the questions involved are as follows: Prior to the outbreak of the Second World War, the United States, through the President, “blocked” the bank accounts of businesses believed to have connections with Germany, Italy and Japan. Subsequently, the rigid restrictions were lifted and, through the Federal Reserve Banks, the government issued limited licenses to such firms in order that they might use their funds for business within this country but; import and export transactions were prohibited. The plaintiff was believed to have connections in Japan and its bank accounts were “blocked” 'but, later, it was issued a limited license to do 'business by the Federal Reserve Bank at San Francisco pursuant to Executive Order No. 8389 of April 10th 1940, 12 U.S.C.A. § 95a note. , .

The defendant corporation was without knowledge of the fact that plaintiff’s funds, had been “blocked” and knew nothing of the limited license under which it was operating. Its initial contact with plaintiff' was through the broker, Monroe D. Green,, who was distributor for its produce in San. Francisco.

As stated above, contract No. 243 for-the sale of 6000 pockets of rice was fully completed and forms no part of this suit. Contract No. 244, which called for the delivery of 3000 pockets of rice f. o. b. Arkansas Mill in November, at buyer’s option,, and the same quantity under the same conditions in December, had not been even partially performed in November, as plaintiff failed to exercise its option of notifying defendant of the time of delivery during that month. The confirmation order of November 22, which defendant claims did not-ripen into a contract, was also executory at the outbreak of the war as the deliveries stipulated therein were for January and February 1942.

On December 7th 1941, shortly after the attack on Pearl Harbor by the Japanese, the Secretary of the Treasury issued Public Circular No. 8, revoking all licenses issued under Executive Order No. 8389, April 10, 1940, authorizing any transaction by or from Japan or any national thereof. On the following days, December 8 and 9, the defendant was advised of the following facts:

(1)’That plaintiff’s place of 'business in San Francisco was closed by the military authorities.

(2) The interest of Gunzo Sugihara, an enemy alien, in the plaintiff corporation caused it to be viewed as a Japanese national ;

(3) That the Federal Reserve Bank had stated that all trading with any alien must be stopped;

(4) That an official of the bank had stated that any rice enroute to Japanese nationals might be seized by the Government ;

(5) That all rice enroute to Japanese buyers would have to be repacked as .no American concern would accept rice packed under Japanese brands, and

(6) That no decision had been made by Federal authorities as to what action might be taken in the future regarding the handling of the affairs of concerns operated by the Japanese.

On December 9, 1941, defendant telegraphed Monroe D. Green in San Francisco as follows:

“Notify Pacific Trading Company we have cancelled all unshipped portions of their contracts.”

Later, on the same day, another telegram was sent to Green over the signature of Frank A. Godchaux, Chairman of defendant’s Board of Directors, reading:

“Follow our instructions. Notify Pacific Trading cancellation as per our first tele-, gram today. Don’t flirt with Japs. They' are untrustworthy and you know it their action has proven it. Wire me that you have carried out my instructions”.

Green complied with defendant’s demand and communicated the cancellation notice to plaintiff on the same day. Plain-, tiff did not respond as, at that time, its affairs were in charge of U. S. Treasury officials and guards were posted at its place of business. On December IS, however, the officers and employees of the company were permitted ' to have access to its business records and files for the purpose of securing data and preparing applications for a Treasury license to engage in limited transactions. On December 30, it made application to complete contract No. 244 with defendant corporation and, on the following day,' the request was granted. Plaintiff thereupon telegraphed the defendant to ship the December rice immediately to San Francisco. This telegram was not received until January 2, 1942, due to the holiday season. Upon defendant’s failure to comply, plaintiff made another demand by letter on January 14, 1942, which was answered by-defendant’s President on January 17th, denying any liability under the contracts.

The principal question for decision is whether the circumstances and conditions prevailing on December 9, 1941 were such as to justify the cancellation of the contracts by, defendant. The solution of this problem depends upon the effect of war on pre-existing contracts between citizens and enemy aliens and also involves the interrelated doctrine of frustration or impossibility of performance resulting from war, embargo or other supervening events. As would be expected, there is a wealth of authority on these questions but the conclusions of the courts have not been wholly uniform in the various cases which have ■arisen. It is, of course, generally recognized. that, whereas contracts made with alien enemies during the existence of war without specific license or permission of the government are to be considered void .insofar as they are inconsistent with the state of war, those made in-time of peace with citizens of another country are not necessarily dissolved by the subsequent declaration or existence of war against that country. Am.Law.Inst.Restatement, Contracts, Sections 595 and 596.

In 56 Am.Jur. Section 118, Verbum “War” it is stated: “Such existing contracts are generally considered to be either discharged as from the commencement of war or suspended, according to the nature of the contracts and the extent to which they have been performed when war breaks out.”

It is-well settled that contracts which have been performed completely on one side as to create an indebtedness on the other are not dissolved by war but that the right to collect is suspended during war and revived on the restoration of peace. Sutherland v. Mayer, 1925, 271 U.S. 272, 46 S.Ct. 538, 70 L.Ed. 943, and cases there cited.

With respect to contracts made before the outbreak of war between the countries of the contracting parties which are executory at the onset of hostilities, the rule is that they are dissolved “when their performance, either during or after the war, would be inconsistent with the duties or allegiance which the parties owe to their respective countries, as in cases where performance involves trading with the enemy or communication across the line of hostilities, or would give aid and comfort to the enemy, or where the parties would be relieved from performance on principles common to cases of intervening impossibility”. See 56 Am.Jur. Section 119.

Excepting the principle of supervening impossibility, it would seem that the case at bar could not be placed within any of the other above mentioned categories forasmuch as the rice was to be delivered here in the United States and it is not contended that a performance of the contract involved trading with the enemy or that it would have given him aid and comfort. It has been stated that a contract for the sale of goods to be delivered to an enemy alien in this country is not terminated by war and that public policy does not necessarily forbid performance during the existence of hostilities. Sutherland v. Mayer, supra.

Restatement of the Law of Contracts, Section 596(c) declares:

“If performance of a contract is rendered illegal during the continuance of war, and prolonged delay in performance is likely to change the burden or nature of the performance promised, either party is justified in changing his position, and if he does so, or if the burden or nature of the performance is in fact changed, the contract is discharged.”

In the instant case, performance of the contract of sale was rendered illegal on December 7, 1941, as the Secretary of the Treasury revoked plaintiff’s license to do business and its establishment was sequestered by the military authorities. Counsel for plaintiff, however, argue that this was a temporary order, merely suspending performance until the restriction on plaintiff was removed by grant of a limited license on December 31, 1941, which did not authorize defendant’s patriotic, but unlawful, action in cancelling the contracts.

Whether the conditions obtaining on December 9, 1941 warranted defendant’s cancellation can be properly determined only by examining the contracts (in respect to subject matter and time of performance) in connection with the particular facts and circumstances which prompted the defendant’s action.

The Court of Appeals of New York, in Neumond v. Farmers’ Feed Co., 244 N.Y. 202, 155 N.E. 100, 101, expresses the law to be applied here, thus:

“The effect of war upon an existing contract between belligerents will vary with the nature of the obligation that is yet to be fulfilled. * * * if the contract is still executory at the beginning of the war, if there are mutual obligations that are yet to be fulfilled, the contract will be terminated when the essential purpose of the parties would be thwarted by delay, or the business efficacy of value of their bargain materially impaired. Williston on Contracts, §§ 1749, 1957, 1958, 1978; Distington Hematite Iron Co. Limited, v. Possehl & Co., 1916, 1 K.B. 811; Metropolitan Water Board v. Dick, Kerr & Co., 1917, 2 K.B. 1, 21, affirmed 1918 A.C. 119; New York Life Ins. Co. v. Statham, 93 U.S. 24, 23 L.Ed. 789; Sands v. New York Life Ins. Co., 50 N.Y. 626, 10 Am.Rep. 535; Cohen v. New York Mut. Life Ins. Co., 50 N.Y. 610, 10 Am.Rep. 522.”

When we consider the facts of the instant case, we have no hesitancy in upholding the propriety of defendant's action in cancelling the contracts as it seems clear that, by the advent of war, “the essential purpose of the parties would be thwarted by delay” and “the business efficacy or' value of their bargain materially impaired”. To begin with, the subject matter of the contracts was the, sale and delivery of rice during specified months. Time was of the essence and the parties were dealing in a commodity which is subject to sudden fluctuations in value. Obligated to deliver at buyer’s option, defendant, upon the advent of war, ascertained (within a three day period) that plaintiff corporation was reputedly Japanese ; that the government had seized its offices, revoked its limited business license and frozen, its bank account.

Can it be said that all these circumstances, coupled with Federal Reserve Bank warnings against dealings with Japanese, did not afford the defendant lawful ground, • as a prudent business operator, in believing that the contracts could not be fulfilled within the time specified therein? We think not. Moreover, it is to be borne in mind that defendant did not know, prior to Pearl Harbor, that plaintiff corporation had been operating on a restricted basis or that it was suspected of being under Japanese control. Therefore, the swift and effective measures taken by the government on December 7th against plaintiff corporation came no doubt as a surprise to defendant and gave additional justification for the belief that the' government would never sanction a delivery of rice to a Japanese national during the existence of hostilities even though delivery would be made in this country.

Our conclusion that there was a frustration of the contracts makes unnecessary a determination of the other contentions of defendant.

The judgment appealed from is affirmed.

O’NIELL, C. J., takes no part.

      . In Allanwilde Transportation Corp. v. Vacuum Oil Co., 248 U.S. 371, 39 S.Ct. 147, 149, 63 L.Ed. 312, 3 A.L.R. 15, the Supreme Court of the United States, in dealing with the question of whether an embargo imposed by war was a temporary measure or one which frustrated performance so as to dissolve the contract, observed: “Necessarily, the embargo would be continued as long as the cause of its imposition, - that is, the submarine menace, - and that, as far as then could be inferred, would be the duration of the war, of which there could be no estimate or reliable speculation. The condition was, therefore, so far permanent as naturally and justifiably to determine business judgment and action depending upon it. The Kronprinzessin Cecilie (North German Lloyd v. Guaranty Trust Co.), 244 U.S. 12, 37 S.Ct. 490, 61 L.Ed. 960.

      . Mr. Arnold D. McNair, in an excellent treatise entitled “Frustration of Contract by War”, 56 L.Q.R. 173 (Loc.Cit.205) submits the following test to be applied in cases of this kind: “Would a reasonable man in the position of the party alleging frustration, after taking all reasonable steps to ascertain the facts then available, and without snapping at the opportunity of extricating himself from the contract, come to the conclusion that the interruption was of such a character as was likely to last so long that the performance or further performance of. the contract would really amount to a performance of a new contract? If so, there is frustration. And in considering the probability of the duration he is entitled to assume that insofar as the outbreak or the existence of a war is the cause of the interruption that cause is of uncertain duration. Moreover, the Court will not let him suffer for a determination thus reached if subsequent unexpected events show that he was unduly pessimistic in his forecast.”


text:
    215 La. 1099
    WALSH v. WALSH.
    No. 39022.
    Supreme Court of Louisiana.
    June 30, 1949.
    Rehearing Denied Nov. 7, 1949.

      Wilson, Abramson & Maroun, Shreveport, for appellant.
    Lee & Emery, Shreveport, for appellee.
   McCALEB, Justice.

On February 28, 1944, Bernard A. Wa-lsh filed suit against his wife, Mrs. Effie E. Walsh, in the Twenty Sixth Judicial District Court for the Parish of Bossier, praying for an absolute divorce on the ground that he and his wife had been living separate and apart for more than two years. Upon 'his allegation that his wife was and had 'been a resident of Washington, D. -C., the court, in conformity with law, appointed a curator ad hoc to represent her in the divorce proceedings. After citation, through the curator, and the expiration of legal delay, a judgment for divorce was rendered by default and confirmed on March 27, 1944.

Subsequently, Walsh -contracted a second marriage with one Roovie House, with whom he lived until 'his death on September 22, 1944, at Dallas, Texas as the result of an automobile accident. Shortly after his demise, Mrs. Effie E. Walsh filed a petition in the divorce proceedings, seeking a nullity of the judgment on the ground that the Court was without jurisdiction ratione materiae and, alternatively, because it was allegedly obtained through fraud and misrepresentation of the plaintiff.

The substance of the allegations of the petition for annulment is that plaintiff recently learned that her husband had obtained a final judgment of divorce against her by default; that he had falsely alleged in the divorce proceedings that he moved to Bossier Parish -in 1932, 'with the intention of making his home there and that he had continuously resided there since that date, whereas, in truth, he was never domiciled in Bossier Parish 'but was merely temporarily stationed there on several occasions, when assigned to military duty at Barks-dale Field. In the alternative, it was averred that, if it be found otherwise, the judgment of divorce should nevertheless be annulled because Walsh had untruthfully represented to the court that he and the plaintiff had separated on December 29, 1931 and that • they had been living separate and apart since that time when, as a matter of fact, they had. never lived separate and apart within the meaning of the law.

Alleging Walsh’s death and that he was survived by several brothers and sisters, who were all non-residents of this State, plaintiff prayed for and obtained the appointment óf a curator ad 'hoc to represent them as parties defendant to the action. She also set forth that Walsh’s succession had been opened in proceedings in the First Judicial District Court for the Parish of Caddo; that Mrs. Roovie House Walsh, who was pretending to be his "widow and was applying for appointment as adminis-tratrix of his succession, was. a necessary party and that, accordingly, she be cited as a defendant.

In due course, Mrs.'Roovie House Walsh (the second wife) appeared and filed exceptions of no cause or right of action, estoppel and res adjudicata. The other defendants did not personally appear and the matter has deviated into a contest between the decedent’s first and second wives. The exceptions of the second wife were overruled and she answered, denying the material averments of the petition, praying that plaintiff’s demands be rejected.

On the issues thus formed, a hearing was had and the trial court, 'being of the opinion that the contentions of plaintiff were well founded, entered judgment in her favor vacating and setting aside the judgment of divorce. All' of the defendants have appealed from .the adverse decision.

The record reveals the following facts, which are not seriously disputed. Bernard Walsh was ‘a professional soldier. His •initial enlistment in the Army was in 1917 at his home in Oakland, California. He was assigned to the Quartermaster Corps and served in France during 1918. Thereafter, his record shows a multitude of assignments of duty at various forts, camps and airfields located in and out of the United States over a period of approximately twenty-seven years. On December 19, 1927,. while stationed at Bolling Field, Washington, D. C., he married plaintiff at Annapolis, Maryland. Plaintiff was then and thereafter employed and residing in Washington and, for a short period following the marriage, she and Walsh lived together in an apartment in that city. In January 1932, Walsh was transferred to March Field, California on duty with pursuit and bombardment squadrons and subsequently, in October 1932, he was assigned to Barksdale Field. From the time he left Washington, in 1932, Walsh did not live with plaintiff as she remained at her job in Washington throughout the years while he was being shifted from one army post to another. However, the parties visited each other for short intervals on a few occasions (plaintiff says that they cohabited on these visits) and throughout the years (up to 1944) they corresponded.

The trial judge correctly sums up their relationship thus: “Apparently after 1932 these people did not actually live together, and saw each other in 1936, 1940,. and 1941, when she visited in Louisiana and in 1937 when he was on his way to Hawaii he visited her in Washington. He seems to have written her a number of letters all along, and she says she planned to come down in 1943, but her husband could not find a place to live. She did not see him after 1941..”

From 1932 until his death, Walsh was on duty at Barksdale Field during the following periods: October 14, 1932 to May 21, 1933; May 21, 1934 to July 26, 1937 and September 28, 1939 to November 1, 1941. In his verified petition for a divorce, Walsh alleged that he moved to Bossier Parish on November 1, 1932 with the .intention of making it his home and “has continuously resided in said parish ■since said date with the exception of such times as he has been transferred from place to place on account of his occupation and especially shows that he has continuously lived in Bossier Parish Louisiana for more than two years * * * ”,

The attack upon the jurisdiction of the court is premised on the contention that Walsh was never a bona fide resident of Louisiana; that his sojourns in this State were temporary, while assigned to duties at Barksdale Field, and that his residence had never been changed from his home in Oakland, California since 1917, when he enlisted in the armed forces. And, relying on the well-established rule that persons in the military service do not surrender their residence or domicile by being transferred to other places, see Zinko v. Zinko, 204 La. 478, 15 So.2d 859; Spring v. Spring, 210 La. 576, 27 So.2d 358 and Walcup v. Honish, 210 La. 843, 28 So.2d 452, and certain evidence to which we will hereafter advert, counsel for plaintiff maintain that lack of jurisdiction has been shown beyond any doubt.

The trial judge sustained this contention but we think he erred in his decision. While it is settled that a person in the military service is presumed to retain his residence in the State from which he was inducted, the presumption is subject to rebuttal and obtains only in cases where the proof fails to show that he established a new residence elsewhere. Moreover, there is another circumstance to be considered in the case at bar, that is, that the matter of Walsh’s residence in Louisiana had already been determined by the judgment in the divorce proceedings, wherein it is recited that due proof had been made of the allegations of the petition. That judgment, even though it was taken by default, is presumptively correct and plaintiff, who is now seeking to have it vacated, carries the burden of proving a lack of jurisdiction of the Court which does not appear on the face of the record as the proceedings are regular and formal in all respects. Succession of St. Ange, 161 La. 1085, 109 So. 909 and Gennusa v. Gennusa, 189 La. 137, 179 So. 60.

An examination of the evidence and circumstances touching on the question of domicile has satisfied us that plaintiff has failed to establish that Walsh did not effect a change of his domicile to Bossier Parish. The proof submitted by her consists of her own testimony that Walsh told her several times during their marriage that some day they would settle down in Oakland, California and the fact that he stated, in an application to the government for life insurance made on August 3, 1943, that his home address was Oakland, California.

On the other hand, defendants tendered the testimony of relatives and friends of Walsh that he had stated on numerous occasions that Barksdale Field was his home. In addition to this, it was disclosed that, despite the fact that Walsh did not remain in any location for a great length of time due to various transfers from one military camp to another, he kept all of his property (war bonds, insurance policies, etc.) in a safety deposit 'box in the Bossier Bank & Trust Company and that, prior to 1937 and continuously thereafter to his death, he maintained his checking account in that bank. In this connection, the testimony of Mrs. Louise Baumgardner, Assistant Cashier of Bossier Bank & Trust Company (a wholly disinterested witness) is particularly impressive. After stating that she had been acquainted with Lieutenant Walsh for a number of years and that she performed banking services for him, she declared that he had told her on numerous occasions, when he would return from other assignments of duty, that he considered Barksdale Field as his home.

Residence, as used in Act 430 of 1938, is synonymous with domicile and envisions the principal domestic establishment of the individual. Article 38 of the Civil Code; Mosely v. Dabezies, 142 La. 256, 76 So. 705 and Zinko v. Zinko, supra.

In Spratt v. Spratt, 210 La. 370, 27 So.2d 154, we said: “Residence essential to jurisdiction in a divorce proceeding instituted under the provisions of Act No. 430 of 1938 means actual residence coupled with the intention to make the place of residence a permanent place of abode. Lepenser v. Griffin, 146 La. 584, 83 So. 839.”

A consideration of all the evidence, in conjunction with the particular circumstances of the case, makes it manifest to us that Walsh considered Barksdale Field as his home and that his legal residence was Bossier Parish. It must be borne in mind that the facts here are quite different from cases like the Spring and Zinko and other matters where the court was dealing with armed force inductees of recent origin who were attempting to have the court say that they had acquired a domicile merely because they had been stationed in this State for two years or more. But, here, Walsh, a career soldier, had spent twenty-seven years of his life moving from one place to another. During this span he was at Barksdale Field longer than any other place, remaining there for over two years on one occasion (1939-1941) and three years (1934-1937) -on another. To say the least, it would require a strained interpretation of the evidence to conclude that, in spite of the fact that he kept 'all his property in Bossier Parish and transacted his business there, he still considered Oakland, California (which he had left in 1917) as his home.

Since we are of the opinion that plaintiff’s attack on the jurisdiction of the court must fail, we pass on to a consideration of her alternative contention that the divorce was obtained as a consequence of fraud and ill-practice. The main charge on this score is that the allegation of Walsh in his petition “That he and his said wife separated on December 29, 1931 and that he and his said wife have been living separate and apart since said time” is false and untrue for the reason that he and the plaintiff frequently cohabited after that date.

We find much difficulty in perceiving that the allegation relied upon by plaintiff’s counsel was a false and fraudulent averment' nor do we consider that the testimony which evidently was tendered in support thereof constituted ill-practice or misrepresentation authorizing an annulment of the judgment. The facts of the case, as found by the' trial judge, show that Walsh and the plaintiff separated in 1932, and except for sporadic occasions in 1936, 1937, 1940 and 1941 (when plaintiff says cohabitation took place) they did not actually live together or even see each other. .There is nothing to show that Walsh misrepresented these facts to the court in the proof submitted by him in support of his petition for divorce.

The argument of counsel for plaintiff is based on the predicate that, since Walsh corresponded with plaintiff during the entire period of separation and did not at any time, until shortly after filing the suit, indicate a desire to abandon the marriage, the allegation that he lived separate and apart from her since 1931 was false because, under the jurisprudence, see Otis v. Bahan, 209 La. 1082, 26 So.2d 146, 166 A.L.R. 494, it is necessary, to obtain a divorce under Act 430 of 1938, to show that the living separate and apart of the husband and wife is a voluntary act on the part of either one or both of the spouses with a view of discontinuing the marital relationship. In other words, counsel say that, since the evidence shows that the continued separation of Walsh and plaintiff was occasioned by his profession and her employment in Washington, the judgment of divorce was fraudulently obtained because Act 430 of 1938, when properly construed, does not authorize the granting of a divorce under such circumstances.

In this postulate, counsel fail to take into account the difference between a judgment which may be erroneous as a matter of law, because of an insufficiency of evidence or otherwise, and one procured by fraud, ill-practice or misrepresentation. It is only in the latter case that the action of nullity is permissible under Article 607 of the Code of Practice — for it is firmly established that the remedy cannot be employed as a substitute for an appeal. State v. Sommerville, 112 La. 1091, 36 So. 864; Emuy v. Farr, 125 La. 825, 51 So. 1003; Miller v. Miller, 156 La. 46, 100 So. 45 and Vinson v. Picolo, La.App., 15 So.2d 778.

It is true that our courts have given Article 607 of the Code of Practice a very broad interpretation so as to afford relief “when the enforcement of the judgment would be unconscientious. and inequitable.” See Succession of Gilmore, 157 La. 130, 102 So. 94, 95. But this does not mean that the action of nullity performs the office of an appeal or that it can be used to set aside a final judgment where there is no showing of mischief or imposition, merely because the judgment was rendered by default. And this is particularly true in a case such ás this, where the status of another would be seriously impaired if the judgment of divorce was to be set aside — for, here, in dealing with the equities, we are bound to give -consideration to the second marriage which was contracted on the faith of the judgment under attack and also scrutinize the motives which prompted plaintiff to seek the annulment of the judgment after her former husband’s death.

The judgment appealed from is reversed and the suit is dismissed at the cost of Mrs. Effie Emerson Walsh.

O’NIELL, C. J., takes no part

      . We find it unnecessary to discuss the exceptions in view of the conclusion we reach on the merits.

      . Compare Zinko v. Zinko, 204 La. 478, 15 So.2d 859; Spring v. Spring, 210 La. 576, 27 So.2d 358 and other cases not involving annulment where it is correetly held that the 'burden is upon plaintiff to .establish jurisdiction ratione ma-teriae.

      . This Article reads: “A definitive judgment may be annulled in all cases where it appears that it has been obtained through fraud, or other ill practices on the part of the party in whose favor it was rendered; as if he had obtained the same by bribing the judge or the witnesses, or by producing forged documents, or by denying having received the payment of a sum, the receipt of which the defendant had lost or could not find at the time, but has found since the rendering of the judgment.”

      . See 27 C.J.S., under the title Divorce, § 171, and authorities there cited.