author: REGAN, Judge.

text:
    McCLUNG v. DELTA SHIPBUILDING CO., Inc. et al.
    No. 19109.
    Court of Appeal of Louisiana. Orleans.
    March 28, 1949.
    Rehearing Denied April 11, 1949.
    Writ of Certiorari Denied May 31, 1949.
    Dart, Guidry & Price, Edward F. Weg-mann and Henry J. Read, all of New Orleans, for appellant.
    H. L. Hammett, of New Orleans, for ap-pellees.
   REGAN, Judge.

Louis A. McClung, plaintiff, brought this suit against his former employer, Delta Shipbuilding Company, Inc., and its insurers, the Fidelity and Casualty Insurance Company and American Motorists Insurance Company, defendants, for workmen’s compensation in the sum of $20 per week for a period of four hundred weeks, claiming he was totally and permanently disabled as a result of severe injuries sustained by him on February 27, 1945, when he injured his back while working in the hold of a ship at defendant’s shipyard.

The defendants filed exceptions of no right and no cause of action and a plea of prescription. The exceptions of no right and no cause of action were overruled and the plea of prescription referred to the merits. Defendants then answered denying that plaintiff had sustained the injuries complained of.

There was judgment below sustaining the plea of prescription as to the defendant Fidelity and Casualty Insurance Company, and dismissing plaintiff’s suit as to this -defendant. There was further judgment in favor of the plaintiff and against the Delta Shipbuilding Company, Inc., and American Motorists Insurance Company, in solido, awarding plaintiff compensation at the rate of $20 per week for a period not exceeding four hundred weeks, plus an additional $500 to cover medical expenses incurred and to be incurred, with legal interest from date of maturity of each weekly payment, until paid, and with legal interest on - the medical expenses of $500 from date of judicial demand until paid. From this judgment Delta Shipbuilding Company, Inc., and American Motorists Insurance Company prosecuted an appeal to this court.' The plaintiff also appealed from that part of the judgment dismissing his suit as to the Fidelity & Casualty Insurance Company.

While the suit was pending in this Court the defendants filed a motion'to remand the case on the ground of newly discovered evidence regarding the disability of the plaintiff and, on the further ground that the judgment below was obtained by fraud and perjury on the part of the plaintiff. Defendants attached to this motion various still photographs of the plaintiff made from motion pictures taken subsequent to the trial of the case in t-hé lower court. Plaintiff opposed the motion to remand. This court, after a hearing on both the motion to remand and the merits affirmed the judgment of the lower court as to the defendant Fidelity and Casualty Insurance Company and remanded the case to the lower court “for the reception of additional evidence respecting plaintiff’s disability”. McClung v. Delta Shipbuilding Company, Inc., et al., La.App., 33 So.2d 438, 443, decided January 21, 1948. Plaintiff applied for a rehearing which was refused with written reasons on March 1, 1948, La.App., 34 So.2d 70. Writs of certiorari and review were applied for and refused by the Supreme Court.

When the case was remanded, the lower court heard additional evidence and rendered judgment in favor of the defendants dismissing plaintiff’s suit at his cost. Plaintiff prosecuted the present appeal to this Court.

Counsel for plaintiff vigorously contend that the lower' court had no authority, jurisdiction, or basis in law, to adjudge at the second -hearing of the case -that the accident did not occur and that the plaintiff did not suffer a compensable injury as a,result of -the accident of February 27, 1945, because the lower court in its judgment rendered upon the original trial of the case,, held that an accident had occurred as alleged, and that the plaintiff had sustained a compensable injury, and that.this court, in our opinion rendered on January 21, 1948, affirmed the findings of the lower court insofar as these two issues are concerned, by stating t-hat the case is remanded to the lower court “in order that further evidence might be adduced respecting the nature, extent and duration of plaintiff’s, disability sustained in the accident of February 27th, 1945,” Briefly counsel -contend that the lower court has failed to follow the mandate of this Court and, without any basis in law for its actions, has now held, that the accident, which this court says occurred, never did occur.

Counsel for plaintiff presented to this; Court a very scholarly brief and made an eloquent argument which was, to say the least, logically consistent and which, of course, produced logical conclusions. They maintain that this court did decide that an, accident occurred on February 27, 1945, and that we remanded this case solely for the purpose of permitting the lower court to -hear additional evidence as to whether the plaintiff was totally and permanently disabled or, in the alternative, only temporarily disabled and, if temporarily disabled, when that disability ceased to exist-

We are of the opinion that we should not indulge in pure sophistry in order to defend a finding which we inadvertently made in our original opinion. When we-remanded this case to the lower court our decree read: “ * * * it is now ordered that this cause be remanded to the lower court for the reception of additional evidence respecting plaintiff’s disability, in order t-hat the trial court might adjudicate the matter on the basis of the evidence heretofore taken and also upon whatever new evidence might be introduced. * * * ”,

íñ the course of the second trial below, evidence was adduced which convinced the district judge that no accident had occurred and consequently there could be no resulting injuries and he, therefore, dismissed the suit. Plaintiff's counsel are correct in their contention that in our original decree we did find that an accident occurred on February 27, 1945, but if we should pursue their argument to its logical conclusion, and close our eyes to the new evidence, because, we had already decided that an accident occurred, it would mean that in order for us to preserve and sanctify a mechanical technicality of the law, we would, in fact, be giving legal benediction to a process whereby we would defeat the fundamental- reason why we -have any procedural system at all — namely to attain the ends of justice. We are of the opinion that whenever the mechanics o’f -our law or the technicalities involved therein work a hardship or, in the final analysis are so designed as to defeat the ultimate ends of justice then, in that event, “the mechanics or technicalities” of the law should be abandoned in order that the ends of justice might, in every instance, be served. This is entirely in conformity with the reasoning which we employed in' the recent opinion of Home Services v. Marvin, La.App., 37 So.2d 413, 415, in which we said: “If we were to accept the reasoning of defendant’s counsel with respect to ‘technicalities’ and apply it with all of its implications to this case we would, in effect, be recognizing the validity of the sophistry that prevailed during the regime of ‘technicalities’ in Louisiana, usually referred to as the Augustan age when, in the heyday of that era, pleadings were deemed to be an end in themselves rather than merely a means to an end. Apparently, a dilemma which systemized legal philosophy must face and solve is a combination of a due regard for the claims, of justice and equity with a procedural system rigid enough .to be workable. When we favor one system of thought as diametrically opposed t.o the other, it is usually with the result that, one of two things happens, either all system is abandoned, or the system becomes su'ch a labyrinth of technicalities that the reasoning of the courts is influenced almost entirely by the desire to apply and adhere to its procedural rules andj in the final analysis, only incidentally by the merits of the cases per se.”

We have viewed the motion pictures, apparently surreptitiously taken about ninety days after the original trial in the district court, showing plaintiff painting his house while standing upon the top rung of a six or seven foot ladder, poised and balanced on one foot — both arms extended in opposite directions as a ballet dancer — and again, with both feet firmly planted on the top rung; of the ladder, he “jack knifed” and dipped the brush in the paint bucket, located on the platform of the ladder, w.hich is six to twelve inches below the fop rung of the ladder; mowing his lawn and in other various postures which are entirely incompatible with the theory that he was totally or temporarily disabled to perform “the work of a ship fitter”, the employment he was engaged in on February 27, 1945. ‘ In our opinion he could not have performed these various feats of dexterity and assumed these unusual postures with the agility of an acrobat if he had ever suffered the injuries which he alleged he received as a result of the accident of February 27, 1945.

Assuming arguendo, however, that ■the trial judge did exceed- the mandate of this court, a view most favorable to the plaintiff, the result so far as the plaintiff is concerned, would be the same for a careful reading of all of the evidence in the record convinces us that, if an accident did occur on February 27, 1945, that the' plaintiff did not suffer any compensable injuries as a result thereof, consequently, and

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

Affirmed.


source: Caselaw Access Project

author: HARDY, Judge

license: Public Domain

text:
    COLBERT v. SMITH & CAMPBELL et al.
    No. 7297.
    Court of Appeal of Louisiana. Second Circuit.
    Feb. 21, 1949.
    Rehearing Denied March 30, 1949.
    Roberts & Hammett, of Shreveport, for appellants.
    Campbell & Campbell, of Minden, for appellee.
   HARDY, Judge

This is a compensation suit in which the plaintiff claims total, permanent disability and prays for judgment for an award of $20 per week not exceeding 400 weeks, less 5 weeks compensation heretofore paid by the employer. After trial there was judgment in favor of plaintiff as prayed for, from which judgment defendants appeal.

Plaintiff claims to have been injured on October 18, 1947, in the regular performance of his duties, which were connected with the loading and hauling of pulpwood, when, in picking up a large stick of wood, he suffered severe sprains and strains and other attendant injuries in the neighborhood of the sacro-iliac region of his back.

The only question presented on this appeal is one fact as to whether plaintiff was actually disabled as the result of the accident alleged, and, if so, if his disability continued.

' This' cáse involves three of the most troublesome and difficult factors- in connection. with compensation claims, namely, a ■ sacro-iliac injury, an irreconcilable conflict of medical testimony, and a dependence in large degree- upon the establishment of 'thfe'claim through subjective rather than objective symptoms.

Plaintiff was first treated by Dr. J. M. Garrett, who found no objective evidence of injury and who prescribed sedatives for the relief of pain in connection with the administration of the approved treatment for back injuries. Dr. Garrett’s testimony is positive on the point that plaintiff Was suffering from no disabling injury at the time of trial. In further • support of this position defendants offered the testimony of Dr. Gene D. Caldwell, a specialist in orthopedic surgery, the gist of which was to the effect that he was unable to find any “positive objective evidence of disability”. It is to be observed that this witness did not testify that plaintiff was not disabled, but that he found no evidence of disability.

Opposed to the conclusions of these witnesses, the record contains the testimony of three medical experts on behalf of plaintiff, all of whom were of the opinion that plaintiff had received a disabling injury from which he continued to suffer up to the time of trial. This evidence was supported by the consistent testimony of plaintiff himself as to pain and discomfort of a nature and degree which would indicate disability, and further by the testimony of a lay witness, a neighbor of plaintiff, whose conclusions as to plaintiff’s disability were drawn from observations as to the difference in plaintiff’s appearance and degree of activity before and after the accident,

In assigning written reasons for judgment, our learned brother of the District Court called attention to the fact that plaintiff is a young Negro, 31 years of age, with a good work record and no previous accident claims, and that denial of his claim would be to brand him a malingerer, which conclusion he did not think justified. We are in complete accord with this finding of fact.

As to the duration of the disability, the District Judge made the following observation, which we think appropriate: .“There is no testimony in the record to fix any particular time for full recovery of plaintiff. In this situation the only thing to be done is to award him compensation for not exceeding 400 weeks from the date of his injury, less five weeks already paid. The defendants may reopen the case at the end of six months and have plaintiff examined again.”

Finding no manifest error of fact in the judgment of the District Court, it follows that the same must be affirmed.

Accordingly the judgment appealed from is affirmed at appellant’s cost.


author:
HAWTHORNE, Justice. O’NIELL, Chief Justice
      McCALEB, Justice (concurring).

text:
    215 La. 25
    GORDON v. UNITY LIFE INS. CO., Inc.
    No. 38781.
    Supreme Court of Louisiana.
    Jan. 10, 1949.
    Rehearing Denied March 21, 1949.
    Herman L. Midlo, of New Orleans, for relator.
    Normann & Jones and Russell J. Schone-kas, all of New Orleans, for defendant-appellee.
    Wade O. Martin, Jr. and G. F. Purvis, Jr. both of Baton Rouge, amicus curke.
   HAWTHORNE, Justice.

Plaintiff, Marie O. Gordon, instituted this suit in the First City Court of New Orleans, Section “B”, seeking to recover the sum of $192.00, the alleged face value of an industrial life insurance policy issued by defendant, Unity Life Insurance Company, Inc., .on the life of Lillian Hardin, who died on August 27, 1945. The policy of insurance, in which the plaintiff was named beneficiary, was issued on May 3, 1943.

The First City Court rendered judgment for plaintiff in accordance with her prayer. On appeal-to the Court of Appeal, Parish of Orleans, this ■ judgment was reversed, and judgment was rendered in favor of defendant, dismissing plaintiff’s suit. 30 So. 2d 880. On application of plaintiff-relatrix, this court granted a writ of certiorari, and the matter is now before us for review.

The defendant insurance company does not take the position that the insurance policy in the instant -case was void or was forfeited for any reason whatsoever, but as a defense urges that the death of the insured resulted from a venereal disease, and that death from such cause was not covered by the policy but was expressly excepted therefrom. The provisions of the policy on which the defendant relies are found in Paragraph 6 thereof, as follows : “ * * * Benefits will not be paid at any time for death resulting from * * * venereal diseases or from an intentional act of any person other than the Insured.”

Plaintiff, on the other hand, although conceding that the insured died from a venereal disease, takes the position that, since the insured died more than one year after date of the policy, the defense urged by the insurer is not available to it because the policy became incontestable after such period under the incontestability clause. In support of this position she relies on the holding of this court in construing such a clause in the cases of Bernier v. Pacific Mut. Life Ins. Co. of California, 173 La. 1078, 139 So. 629, 88 A.L.R. 765, and Garrell v. Good Citizens Mut. Ben. Ass’n Inc., 204 La. 871, 16 So.2d 463.

The incontestability clause is found in Paragraph 5 of the policy and reads thus:

“Incontestability. — This Policy shall be incontestable after one year from date of issue except for non-payment of premiums, and except as to the following provisions and conditions relating to misstatement of age; death resulting from disease as herein limited; accidental death; suicide; total and permanent disability, aeronautics, military and naval service.” (Italics ours.)

This incontestability clause in plain terms provides that the policy shall be - incontestable after one year except from “death resulting from disease as herein limited”, and immediately following this provision, in the next paragraph of the policy, we find the equally clear provision that benefits will not be paid at any time for death resulting from venereal diseases. These provisions are unambiguous, certain, clear, and susceptible of only one interpretation, that is, that, if the'insured dies as a result of a Venereal disease, such death is riot covered under the terms and provisions of the policy, which is the contract between the parties, and benefits will not be paid thereunder.

Undoubtedly the insurance company could have urged the cause of death as a valid defense in an action to recover the face amount of the policy if death had occurred as a result of venereal disease within one year from the date of the issuance of the policy, and it could urge after that period also the defense of death resulting from venereal disease because, under the paragraph immediately following the incontestability clause, the benefits under the policy would not be'paid at any time for death resulting from a venereal disease. Thus it was clearly the intention of the parties that, even after the expiration of the period of one year provided in the incontestability clause, a death caused by a venereal disease was still not one covered by the'terms of the policy but one expressly excepted therefrom. - •

Further, the incontestability clause standing alone excepts from its provisions “death resulting from disease as herein limited”. This clause clearly and directly informs the insured that death resulting from, certain diseases is excepted from the provisions of the incontestability clause.

Subject to the laws and statutes of this state, a policy of insurance is a voluntary contract between the'parties thereto. The parties may make it on such terms, and •incorporate such provisions and conditions, as they see fit to adopt, and the contract as made measures their rights. See Lado v. First Nat. Life Ins. Co., 182 La. 726, 162 So. 579. Under the provisions of Article 1945 of our Civil Code, legal agreements have th'e effects of law upon the parties; none but the parties can abrogate or modify them, and upon this principle of 1-aw is established the rule that the intent of the parties to the contract is to be determined by the words of the contract when these are clear and explicit and lead to no absurd consequences. Moreover, a contract which is plain and unambiguous will be enforced as it is- written and will not be rewritten .by this court, for we-cannot make the contract for the litigants, it being our province to construe contracts according to their terms if the language used is clear and unambiguous and leads to no absurd, consequences. Union Tank Car Co. v. Louisiana Oil Refining Corporation, 184 La. 121, 165 So. 638; Hello World Broadcasting Corporation v. International Broadcasting Corporation, 186 La. 589, 173 So. 115; American Mfg. Corporation, Inc., v. National Union Fire Ins. Co. of Pittsburgh, Pa., 203 La. 515, 14 So.2d 430; Higgins Mfg. Co. v. A. S. Spiess Sales Co. et al., 9 La.App. 403, 120 So. 496; J. R. Watkins Co. v. Hoggatt et al., 13 La.App. 512, 128 So. 180; Brown v. Life & Casualty Ins. Co., of Tennessee, La.App., 146 So. 332; United Gas Public Service Co, v. Eaton et al., La.App., 153 So. 702; Jones v. Metropolitan Life Ins. Co., La.App., 157 So. 147; Dockson Gas Co. v. S. & W. Const. Co. et al., La.App., 12 So.2d 847.

In our opinion, the insurance policy in the instant case in clear and unambiguous language provides that the risk — that is, death by venereal disease — is not covered by the contract. The Court of Appeal so found, and we think correctly so.

The decisions in Bernier v. Pacific Mul. Life Ins. Co. of California and Garrell v. Good Citizens Mut. Ben. Ass’n, Inc., both cited supra, relied upon by relatrix, in our opinion are not controlling here. In each of those cases, this court construed an incontestability clause in an insurance policy which it considered to be ambiguous, uncertain, and not clear, and resolved the ambiguity in favor of the insured under the principle of law that insurance policies should be liberally construed in favor of the object to be accomplished, and that, in case of doubt, ambiguity, or uncertainty, the conditions and provisions should be strictly construed against the insurer. As we have seen, in the instant case no such ambiguity exists in the incontestability clause.

The respondent insurance company contends that the decisions in the two cited cases are contrary to the rule that an incontestability clause relates to the validity of the insurance contract and not to its coverage; or, stated somewhat differently, that such a clause means, as was said in Metropolitan Life Ins. Co. v. Conway, 252 N.Y. 449, 169 N.E. 642, that within the limits of the coverage a policy shall stand unaffected by any defense that it was invalid in its inception or thereafter became invalid by reason of a condition broken, or, further, that the kind of insurance one has at the beginning, that, but no more, one retains until the end. Respondent contends that for this reason these cases should be overruled. Since we have concluded that they are not controlling here, it is unnecessary for us to answer this argument or express any opinion with reference thereto.

In support of her position, relatrix relies also on a provision found in Act 140 of 1938, reading as follows: “ * * * Provided further, that upon and after the effective date of this Act any industrial life insurance policy issued in this State shall be incontestable after it has been in force, during the lifetime of the insured, for one year from its effective date of issue, except for nonpayment of premiums." This provision of the act cannot affect our decision in this case, for certainly it was not the intention of the Legislature by the use of such language to write into a policy of insurance a risk which was not covered by, and included in, the contract, or to rewrite, enlarge, or change a contract the terms of which are clear and free from ambiguity, as are the terms of the contract in the instant case.

For the reasons assigned, the judgment of the Court of Appeal is affirmed; relatrix to pay all costs.

O’NIELL, C. J., concurs and assigns reasons.

McCALEB, J., concurs with written reasons.

PONDER, J., absent.

O’NIELL, Chief Justice

(concurring in the decree).

While I concur in the decree affirming the judgment of the court of appeal in the present case, I do not see why the court should leave a doubt now about the correctness of the decision which was rendered' in the case of Bernier v. Pacific Mutual Life Insurance Company of California, 173 La. 1078, 139 So. 629, 630, 88 A.L.R. 765. The reason why we held in the Bernier case that the beneficiary was entitled to full recovery on the life insurance policy was that the clause making the policy incontestable after one year, declared that it should be incontestable except for either of two causes, namely, (1) nonpayment of premium or (2) violation of the conditions of the policy relating to military or naval service in time of war, but did not except from the incontestability clause violation of the provisions relating to aerial navigation. The insured was killed by the falling of an airplane in which he was riding, more than a year after the policy had been in force. The company pleaded that the riding in the airplane otherwise than as a fare-paying passenger in a licensed commercial air craft, etc., was violative of the clause in the policy relating to aerial navigation, and-hence -that the risk was not covered by the policy. We held merely that there was no such exception “as to coverage” in the incontestability clause, which excepted only “non-payment of premium or for violation of the conditions of the Policy relating to military or naval service in time of war”. Hence we applied the maxim in-clusio unius est exclusio alterius. I quote-from 173 La. 1092, 139 So. 629, 633, near the end of our opinion, thus: “In the case before us, considering that the incontestability clause makes 'but one exception, of a cause or circumstance of death for which the policy should remain contestable after one year, the natural and plausible inference is that the policy became incontestable for any other -cause or circumstance of death at the end of the year. Inclusio uni-us est exclusio alterius. Vice versa, the exclusion from the effect of the incontestability clause of only the one cause or circumstance of death, death while engaged in military or naval service or within six months thereafter but during the period of the war, was the inclusion of death ‘from engaging in aerial navigation’ under any or all conditions.”

I quote also from pages 1083-1084 of 173 La:, pages 630-631 of 139 So., from the decision in the Bernier case, as follows: “The conditions relating to military or naval service in time of war, stated substantially, were that if within five years from the date of the policy the insured should engage in military or naval service in time of war the liability of the company, in the event of the death of the insured while so engaged, or as a result thereof within six months thereafter but within the period of the war, would be limited to any outstanding dividend additions, etc. These conditions, relating to military or naval service in time of war, constituted a limitation of the so-called coverage or risk assumed, as plainly as did the conditions o-n which alone the insured could engage in aerial navigation, without affecting the obligation of the insurer, constitute a limitation of the coverage or rislc assumed by the insurer; and yet it was deemed necessary to except the conditions relating to military or naval service in time of war from the provision making the policy incontestable after one year, in order that the obligation of the insurer to pay the amount stated on the face of the policy might remain contéstable after the expiration of the year, on the ground of violation of the conditions relating to military or naval service in time of war. Our opinion therefore is that, inasmuch as only the one exception was made in the provision making the policy incontestable after having been in force for a year, the intention, at least of the insured, was that there should be no other exception. If the insurance company intended to except also, from the incontestability clause, a violation of the conditions relating to aerial navigation, that exception, like the exception of violation of the conditions relating to military or naval service in time of war, should have been expressed. Article 1958 of the Civil Code declares that, if any douibt or ambiguity in a contract has arisen from the want of some necessary explanation which one of the parties to the contract ought to have given, the construction favorable to the other party shall prevail. The rule is universally recognized, particularly with regard to insurance policies, that any ambiguity in a contract made on a form prepared by one of the parties to the contract ought to be construed against him.”

It is plain therefore that the doctrine of the decision in Bernier v. Pacific Mutual Life Insurance Company of California is not at all appropriate to the insurance policy on which the present suit was -brought. Lienee, as I say, there is no reason why the court in its opinion rendered in the present case should leave a doubt about the soundness of the decision rendered in Bernier v. Pacific Mutual Life Insurance Company of California.

It is my opinion also that the decision which this court rendered in the case of Garrell v. Good Citizens Mut. Ben. Ass’n, 204 La. 871, 16 So.2d 463, can be reconciled with the decision which the court is rendering in the present case. In fact it is so reconciled, to my satisfaction, in the opinion written by the late Judge Wester-field, for the court of appeal, in the instant case, reported in 30 So.2d 880.

McCALEB, Justice

(concurring).

While I heartily support the result in this case, I encounter difficulty in perceiving a substantial difference between the provisions of the instant policy and those of the policy considered in Garrell v. Good Citizens Mut. Ben. Ass’n, 204 La. 871, 16 So.2d 463, 464.

In the Garrell case, the insured died of tuberculosis and the policy contained a provision declaring that only one-fourth of the maximum insurance would be paid if the assured died from certain specified diseases (i. e. tuberculosis) contracted within twelve months from the date of the policy. The plaintiff nevertheless insisted upon recovering the face amount of $113 by reason of the incontestibility clause, which provided: “This policy shall be incontesti-ble after two years from date except as stated in conditions and for nonpayment of Premiums.” (Emphasis mine.)

After rejection of 'her claim by the Court of Appeal, plaintiff secured a writ of review and this court permitted a full recovery on the ground that “From our appreciation of the case of Bernier v. Pacific Mutual Life Ins. Co. of California, 173 La. 1078, 139 So. 629, 632, 88 A.L.R. 765, the holding is to the effect that a defense is barred when the policy becomes incomesti-ble, except where it is preserved in the in-contestibility clause, irrespective of whether it is based on a denial of coverage or a plea of breac|h of the conditions of the policy. In other words, all defenses not specially excepted in the clause making the policy incomestible are barred when the period of time fixed in the incontestibility clause has elapsed.” (Emphasis mine.)

It takes no more than a casual reading of the Bernier decision to exhibit the error in the above quoted reasoning — for the court did not hold in the Bernier case that all exceptions relative to forfeiture or coverage were required to be stated in the incontestibility clause. The resolution of the court was that an exclusion from coverage, while the assured was engaged in aerial navigation (not as a fare paying passenger on commercial aircraft), could not be availed of as a defense after the policy had been in force for one year, in view of another clause making the policy incomesti-ble “except for non-payment of premium or for violation of the conditions of the Policy relating to military or naval service in time of war.” The court said that the condition relating to military and naval service, referred to in the incontestibility clause, was one affecting coverage and that, since it was the only condition contained in the clause, the maxim “inclusio unius est exclusio alterius” would be applied. In other words, it was decided that, where the incontestibility clause contained but one exception relating to coverage, the policy would be rendered ambiguous and inconsistent if the condition relating to death resulting from air travel be considered applicable after the policy had been in effect for over one year.

The holding in the Bernier case does not, in my opinion, provide any basis for the decision in the Garrell case. The clause considered in the Garrell case provided for incontestibility after two years “except as stated in conditions”. Surely, there could be no conflict between this provision and the other conditions of the policy to which the exception referred.

So, in the case at bar, there can be no conflict or ambiguity (as the majority opinion clearly states) where the incontestibility clause refers specifically to the conditions relating to “death resulting from disease as herein limited”. But to say that there is a difference between this and the Garrell case is to overlook the reality of the situation. Indeed, the court has passed an opportunity to correct its erroneous conclusion in the Garrell case and supplant it with the logic and well-grounded reasoning set forth in the case at bar.

I respectfully concur in the decree.


author: HAWTHORNE, Justice. HAMITER, Justice

text:
    215 La. 40
    STATE v. MURFF et al.
    No. 39220.
    Supreme Court of Louisiana.
    Feb. 14, 1949.
    Rehearing Denied March 21, 1949.

      Cawthorn & Golsan, of Mansfield, for defendants-appellants.
    Bolivar E. Kemp, Jr., Atty. Gen., M. E. Culligan, Asst. Atty. Gen., J. Reuel Boone, Dist. Atty., of Many, Jack L. Simms, Asst. Dist. Atty., of Leesville, and R. C. Gamble, special counsel, of Mansfield, for appellee.
   HAWTHORNE, Justice.

Defendants, Jacob D. Murff, Joseph J. Anders, Jr., Marshall K. Bruce, and J. C. Deason, Sr., were convicted by a jury of attempted aggravated criminal damage to property, and were sentenced by the court to 18 months at hard labor in the state penitentiary. From these convictions and sentences they have appealed.

For a proper understanding of the various bills of exception taken in this matter, it is necessary that we give a short resumé of the facts as gathered by us from the trial judge’s per curiams, certain other portions of the record itself, and briefs filed by counsel. There does not seem to be any dispute as to these facts, and the ■trial judge informs us in one of his per curiams that each of the defendants made a full and complete statement or confession as to his participation in the series oi events which resulted in the charge of the crime of attempted aggravated criminal damage to property.

The four defendants resided in Caddo Parish, Louisiana. On the night of July 7, 1948, they went into DeSoto Parish for the purpose of damaging a passenger auto-bus owned and operated by Southern Bus Lines, Inc., their former employer and a public carrier. The bus traveled each night upon a regular schedule, and on -the night in question was travelling from Shreveport south on Highway 171.

The defendants brought with them 36 mowing machine blades, some three or four inches long, each of which had been pre-sharpened to a point, and welded at its base to a flat piece of metal to hold it upright when placed upon the pavement. Three metal rods, approximately three feet long, had been specially constructed to hold 12 blades each and, when placed on the highway, would cover one entire side of the 18-foot paved surface. Defendants intended to place these blades in the highway so as to cut the tires of the bus, causing them to go flat, and causing the bus to go out of control.

The defendants had arrived with the blades and the rods at the place along the highway where they intended to effect their purpose a short time before the bus was due to arrive, and. were waiting for it to come along so that they could carry out their plan. They had arranged a system of signals to assure the identification of the particular bus.

The crime was never completed because a farmer detected' the presence of one of the defendants near his home, and, becoming alarmed at his actions, began shooting. This defendant immediately fled, and the others, hearing the shooting, did likewise. All four were apprehended and brought to trial.

Bill of Exception No. 1 concerns a ruling of the trial judge in regard to the bond forfeitures in this case.

The defendants failed to appear for arraignment on October 14, 1948, and their bonds, over their counsel’s objection, were ordered forfeited on motion of the district attorney. Thereafter, on October 18, the defendants through counsel appeared in open court, and in behalf of each defendant a demurrer and motion to quash and a motion for a bill of particulars were filed, and counsel again moved that the bond forfeitures be set aside. Upon objection of the State, this last motion was overruled. Counsel for defendants then stated that they were ready to plead to the indictment, subject'to the ruling on the demurrer and the motion for a bill of particulars previously filed. After the court had acted upon the motion to quash and the motion for a bill of particulars, the defendants, waived formal arraignment and entered pleas of not guilty, and the case without objection was fixed for trial for October 22, 1948. On October 22, after the attorneys for both the State and the defendants had announced themselves ready for trial and the case was called,, counsel for defendants again moved that the bond forfeitures be set aside. This motion was-taken under advisement by the court. After trial, conviction, and sentence of the defendants, upon motion of the district attorney the bond forfeitures were set aside.

Bill of Exception No. 1 was taken to the overruling by the trial judge of defendants’1 motions to set aside the bond forfeitures which had been previously entered against all of them.

The trial judge in his per curiam sets forth that he knew of no law which required the court under the circumstances to set aside a forfeiture of these bonds; that the law applicable is Article 108 of the Louisiana Code of Criminal Procedure, the pertinent portion of which reads as follows: “Any judgment forfeiting an appearance bond rendered under the provisions of this article may, at any time within five days after rendition, be set aside upon the appearance, and trial and conviction or acquittal of the defendant, or upon a continuance granted upon motion of the district attorney after such appearance.” The judge then states that none of these conditions was complied with, and that the question had become moot, as the forfeitures had been set aside upon motion of the district attorney.

Counsel for defendants contend that the trial judge erred in his denial of their motions to set aside the forfeitures, and that this denial, in the presence of the jury, prejudiced these defendants because it was equivalent to a charge of fleeing from justice.

It is unnecessary for us to decide whether the trial judge erred in his denial of the motions, for after trial, as pointed out hereinabove, the forfeiture of these appearance bonds was set aside upon motion of the district attorney. Furthermore, on October 18 the case was fixed for trial for October 22 without objection, and on that latter date no objection was made to proceeding with the trial. Counsel themselves, for the first time in the presence of the jury, on that date moved that the forfeitures be set aside, and the trial judge did not deny this motion at that time but merely took .it under advisement.

We cannot agree that the judge’s denial of the motion was tantamount to a charge to the jury that the accused were fugitives from justice. Furthermore, counsel have not pointed out, nor do we know of, any legal rights of which these accused were deprived on the trial of the case on its merits before the jury by the trial judge’s rulings with reference to these bond forfeitures, and we do not think that defendants were in any manner prejudiced by such rulings.

The indictment in this case charges that the ' defendants “ * * * on or about the 7th day of July in the year of our Lord One Thousand Nine Hundred and Forty-eight at and in the Parish, District and State aforesaid: having a specific intent to commit a crime, did lie .in wait with dangerous weapons and in-strumentalities, to-wit: mowing machine blades, in the night time, on Highway 171 between Mansfield and Benson, in DeSoto Parish, Louisiana, for the purpose of and tending directly toward the intentional damaging of a passenger auto-bus occupied by several persons and owned and being operated by Southern Bus Lines, Inc., wherein it was foreseeable that human life might be endangered * *

To this indictment the defendants filed a demurrer and .motion to quash, which was overruled, and Bill of Exception No. 2 was reserved.

In brief filed, in this court counsel state that criminal attempt is a separate but lesser grade of the intended crime, and that the necessary specific intent must be to commit that particular offense; that the indictment in this case charges defendants with reference to intent as “ * * * having a specific intent to commit a crime * * that, since the indictment does not charge any specific intent to commit the crime of aggravated criminal damage to property or to commit any other specific substantive crime, it is invalid.

There is no merit in this contention. The specific intent charged in the indictment is to commit the crime of aggravated criminal damage to property, and the substantive offense is set forth in the indictment in the language of the statute defining it. A reading of the pertinent portions of the indictment shows that it charges that these defendants, having a specific intent to commit a crime, did lie' in wait with dangerous weapons and instrumentalities for the purpose of and tending directly toward the intentional damaging of an auto-bus. We consider this indictment suf-. ficient to charge a specific intent to commit the substantive crime which defendants were charged with attempting, and that any other interpretation would be a strained one.

Counsel next call our attention to the definition of “dangerous weapon” found in Article 2 of our Criminal Code, as follows: “ ‘Dangerous weapon’ includes any gas, liquid or other substance or instrumentality, which, in the manner used, is calculated or likely to produce death or great bodily harm.”

They then, state that mowing machine blades are not inherently dangerous, and that nothing in the indictment alleges their use in any manner; that, unless the indictment ' alleges that the so called dangerous weapons were used in some manner calculated or likely to produce death or great bodily -harm, it has failed to charge any crime under the criminal attempt statute, and that, for the indictment to come within-the provisions of-the statute, an allegation of . the manner of use of the mowing machine 'blades is necessary and essential.

In the' instant case the indictment is drawn in the language of Articles 27 and 55 of the Criminal Code, arid charges every necessary element or ingredient of the crime of attempted aggravated criminal damage to property.

Article 27 of the Criminal Code defines “attempt” as follows:

“Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.
“Mere preparation to commit a crime shall not be sufficient to constitute an attempt; but lying in wait with a dangerous weapon with the intent to commit a crime, or searching for the intended victim with a dangerous weapon with the intent to commit a crime, shall be sufficient to constitute an attempt’ to commit the offense intended.”

Article' 55 of the Louisiana Criminal Code reads:

“Aggravated criminal damage to property is the intentional damaging of any structure, water-craft, of movable, wherein it is foreseeable that human life might be endangered, by any means other than fire or explosion. * * * ”

As pointed out in the comment to Article 27, the elements of an attempt are a specific intent to commit a particular crime and an overt act done for the purpose of and tending directly .toward the accomplishment of the object. The article points out that mere preparation to commit a crime is not sufficient to constitute an attempt, but the article malees it clear that lying in wait with a dangerous weapon with the intent to commit a crime and searching for the intended victim with a dangerous weapon with the intent to commit a crime are in themselves overt acts, especially recognized by’ the statute, and shall be sufficient to constitute an attempt to commit the offense intended.

-The indictment in this case charges specific intent to commit the substantive offense intended, and further charges an overt act, specifically recognized by the statute to be such, that is, lying in wait with "a dangerous weapon, and it fully meets the test which this court has said is necessary to determine the sufficiency of an- indictment or information, that is:

“1. Is thé indictment or information sufficient to inform the court what offense is being charged in order that the court might properly regulate the evidence sought to be introduced?
“2. Does the indictment or information inform the accused of the nature and cause of the offense with which he is being charged ?
“3. Is the indictment sufficient on its face to support a plea of former jeopardy in event there is an attempt to try the defendant more than once for the same offense?” State v. Ward, 208 La. 56, 22 So.2d 740, 741.

In State v. Humphries, 35 La.Ann. 966, the contention was made.that the omission from the indictment of the. statutory words "with a dangerous weap.on’’ was of. such moment as to be fatal. In holding the indictment to be valid because the defendant was charged with “shooting”, which necessarily implies the use of a dangerous weapon, the court in that case made the following observation, which, we think is pertinent, and applicable here: .

“Niceties in judicial construction of criminal statutes, such as that urged upon us here, were deplored by Lord Hale more than two centuries ago when he wisely and feelingly said, ‘that the strictness required in indictment's had grown to .be a blemish and inconvenience in the law and the administration thereof; and that more offenders escape by the over easy ear given to exceptions to indictments than by the manifestation of their innocence, and that the greatest crimes had gone unpunished by reason of these unseemly niceties.’ ”

The members .of the commission appointed to frame' our Code of Criminal Procedure .were 'apparently of the' same view as Lord Hale with reference to the construction of criminal statutes and the strictness required, of an indictment, as reflected by Article 227 of that-Code, which was adopted by the Legislature.

This .article is set out and an excellent discussion thereof is found in the case of State v. Dark et al., 195 La. 139, 196 So. 47, 52. In that case it was held that an indictment is sufficient if it charges the offense in the language of the statute when the statute creating the offense sets out the facts constituting it. We quote from the opinion in that case as follows: “ ‘The indictment must state every fact and circumstance necessary to constitute the offense, but it need do no more, and it is immaterial whether the language of the statute creating the offense, or words unequivocally conveying the meaning of the statute, be used.’ Article 227, Code of Criminal Procedure. ‘It is sufficient to follow the words of the statute, when those words describe the act's constituting the offense with such precision and certainty as to fully inform defendant as to the nature of the charge against which he is to prepare his defense, and to furnish him a complete plea of autrefois acquit or convict, in bar of another indictment. When a statute creating an offense sets out the facts constituting it, it suffices to charge the offense in the language of the statute, but the use of the identical words is not sacramental, but sufficient, since any words may be used that will unequivocally convey the meaning of the statute, so that defendant cannot be misled as to the charge he is to answer, the test being, was defendant fully informed of the crime with which he was charged, for nothing can be taken by intendment.’ 1 Marr’s Criminal Jurisprudence 483, Section 325. If ‘ * * * the indictment is couched in the language of the statute, it is sufficient and sets forth a crime denounced by our laws.’ State v. Newton, 166 La. 297, 117 So. 231, 232. (Italics ours.)” See also State v. Sonier, 107 La. 794, 32 So. 175; State v. Kilshaw, 158 La. 203, 103 So. 740; State v. Goldstein, 187 La. 353, 174 So. 873; State v. Clark, 208 La. 1047, 24 So.2d 72.

Counsel contend, however, that this indictment should have been amplified to allege the use of the instrumentalities named as the dangerous weapons therein.

A somewhat similar problem has been before this court on various occasions in the past. For instance, in the case of State v. Beebe et al., 127 La. 493, 53 So. 730, it was contended that, since the indictment did not describe or name the weapon alleged to be a dangerous weapon, it was-fatally defective. We quote the following, from that case:

“Defendant, charged with cutting and. wounding with a dangerous weapon, withi ‘the felonious intent * * * to kill and' murder,’ moved to quash the indictment,, on the ground that ‘it does not allege the kind and character, name and description: of the dangerous weapon with which the alleged assault was committed,’ and, the-motion having been denied, he reserved': a bill.
“The indictment was framed under Rev; St. § 791, as amended by Act No. 43 of 1890, which reads (in part):
“ ‘Whoever shall cut * * * any person with a dangerous weapon, with intent to commit murder * * * shall, on conviction, suffer imprisonment, at hard labor,, or otherwise, for not less than one, nor more than twenty-one .years.’
“The charge is in the language of the statute, and, we think, is sufficients * * * »

In that case this court pointed out that any instrumentality might be a dangerous, weapon, depending upon the use made of it, and that that question was one for the jury to determine, but that it was unnecessary to amplify the indictment to show the name, character, etc., of the weapon, used. '

In State v. Scott, 39 La.Ann. 943, 3 So. 83, 84, the contention was made that the indictment charging wounding less than mayhem was defective because the weapon named therein, a pocket knife, was not a. dangerous weapon. In disposing of this, contention this court said:

“It may well be that the accused couldi not, under section 932, Rev.St., have been convicted for carrying a dangerous weapon concealed on or about his person, because a pocket-knife is not, eo nomine, a dangerous weapon; but it does not follow, that when, under section 794, Rev. St., the charge is that the accused did with such a knife feloniously inflict a severe wound, less than mayhem, such weapon may not be considered by the court and jury as a dangerous weapon, by the use miade of it, within the meaning of that .section, particularly as the description of .the weapon is not necessarily required by the statute, which merely mentions a dan■gerous weapon, i. e., any dangerous weapon, which may be so by its use or in itself.”

In State v. Brown, 41 La.Ann. 345, 6 So. 541, the information charged that the ■ defendant “did wantonly and maliciously, ■with a dangerous weapon, to-wit, a knife, feloniously inflict a wound less than may.hem”. In that case, as well as in State v. Scott, supra, the defendant was charged under Revised Statutes, § 794, which made it an offense for any one unlawfully and maliciously with a dangerous weapon to .inflict a wound less than mayhem upon .another person. The statute there, as well .as the attempt statute here under consideration, did not describe any particular kind ■of weapon as dangerous. In affirming the ■conviction in the Brown casé, this court in the course of its opinion said:

“ * * * j-fog statute does not describe any particular kind of weapon as dangerous, and the character of the weapon is a fact to be determined by the jury. * * *
“The grievance of the offense in them [the statutes] is the inflicting of the wound less than mayhem; the stabbing, cutting, and thrusting; and it may be well left to the jury to determine the dangerous character of the weapon with which the wound is inflicted.”

In State v. Stewart et al., 117 La. 476, 41 So. 798, 802, the accused was charged in a bill of indictment with having cut with ■a dangerous weapon with intent to murder. In answer to one of the contentions raised therein, this court said:

“The complaint of appellant that the court should [not] have permitted the witness Caffery to prove that the instrument with which he was cut was a razor, over his objection that such testimony was inadmissible under the recitals of the indictment which did not describe the character of the weapon used, is not well founded. Objection of no kind had been made to the indictment. When the case went to trial the evidence was admissible to show the cutting; whether the weapon used was a dangerous one was for the jury to determine. The indictment followed the language of the statute. The weapon used was not named, but the cutting was alleged to have been done ‘with a dangerous weapon.’ * * * ”

When the cases cited above were decided, the definition of a “dangerous weapon” was found in the jurisprudence, whereas now the same definition, broadened to include gas, liquid, or other substance or instrumentality, is found in Article 2 of the Criminal Code. Moreover, in none of those cases was the contention made that the manner of use had to be recited in the indictment. In these cases it was held that it was not necessary to name the weapon itself .in the indictment, that the words “with a dangerous weapon” were sufficient, and that the question of whether the instrumentality used was a dangerous weapon was dependent upon the use made of it and was a question for the jury to determine. But we consider the reasoning in those cases decisive of the issue here, so that, in the instant case, it is unnecessary for the indictment to allege the manner of use of the weapons.

The question of whether these instrumentalities were in fact. dangerous weapons was a question for determination by the jury on the trial of the case on its merits, and is not properly presented by means of a demurrer or motion to quash.

A thorough analysis of appellants’ brief shows that what they are really urging upon this court is that a weapon not inherently dangerous cannot be a dangerous weapon under the lying in wait provision unless it has been used, when they contend that, if the weapons or in-strumentalities named in the indictment, which are not in themselves inherently dangerous, have not been alleged to have been used, the charge then does not come within the lying in wait provision of the attempt article. The basis for this argument is the words “in the manner used” in the definition of dangerous weapons in Article-2 of the Code.

Bearing in mind Article 3 of the Criminal Code, which declares that all provisions of the-,Code shall be given a genuine construction according to the fair import of their words, taken in their usual sense, in connection with the context, and with reference to the purposes of the provisions, let us now examine Articles 2 and 27 insofar as they define “dangerous weapon” and provide that lying in wait with a dangerous weapon is sufficient to constitute an attempt, in order to ascertain whether they indicate any intention on the part of the lawmakers to attach to the words “in the manner used” the significance attached to them by counsel for defendants.

The purpose of the provisión in Article 27 relative to lying in wait is fully explained in the comment appearing after the article. The redactors of the Code considered that such conduct was sufficient to constitute an act beyond mere preparation, and, to prevent the confusion as to this matter which, as pointed out in the comments, exists in other jurisdictions, a provision was specifically inserted in the definition of the crime of attempt to make lying in wait with a dangerous weapon an act beyond mere preparation. A fair import of the words found in Paragraph 2 of Article 27, taken in their usual sense, in connection with the context, shows that the framers of the Code had in min,d distinguishing mere preparation from lying in wait with a dangerous weapon, but there is nothing to indicate that they intended by the above provision t'o distinguish lying in wait with a weapon which is inherently dangerous, or which has been used in a manner calculated or likely to produce death or great bodily harm, from lying in wait with a weapon which is just as dangerous potentially by virtue of the use which the one lying in wait intends to make of it.

Can such a distinction be made by reading the definition of “dangerous weapon” in Article 2 in connection with the lying in wait provision in Article 27? Again, here the reading of the comment to the article shows the purpose of the provision. Dangerous weapons were defined so that a very 'broad meaning would be given to the term, and so that no thing could be rejected as a dangerous weapon because of its substance or quality. If counsel’s construction of this definition in Article 2, which contains the words “in the manner used”, were correct, a serious question would be presented to this court We are of the opinion that to place such great emphasis on those words in the definition would, in effect, be saying that, an indictment charging lying in wait with an inherently dangerous weapon without stating that the weapon was used would not charge an offense, and would be invalid under Article 27, because, under a strict interpretation of the definition contained in Article 2, no instrumentality would be dangerous until used. Such a construction would defeat tire purpose and intent of the provisions of Article 27 relative to lying in wait, and would, in effect, write them out of the Code. This is true from the practical viewpoint -because, if a weapon has been used, the State would not be relegated to charging attempt under the lying in wait provision, for an act beyond lying in wait would have been committed.

We conclude, therefore, that for the purpose of the lying in wait provision of the attempt article an instrumentality, etc., may be a dangerous weapon if the one lying in wait intends to use it in a manner calculated or likely to produce death or great bodily harm.

For the purpose of clarity, let us restate that the statutes creating the offense charged set out the facts constituting it— that is, (1) the specific intent of any person, (2) while lying in wait with a dangerous weapon, (3) intentionally to damage •a movable, (4) wherein it is foreseeable that human life might be endangered. The indictment in the instant case, -being drawn in the language of the statutes, states every fact and circumstance to constitute the offense, and fully meets the test as to sufficiency laid down by this court in State v. Ward, supra.

Under the established jurisprudence of this court, as shown by-the cases cited and discussed hereinabove, which we think are decisive, it is necessary only for the indictment here to use the words “with dangerous weapons”, and the name of the weapons themselves could have been omitted. In case of such omission, the defendant could always, if necessary for his defense, ask for, and obtain, the nature of the weapons by means of a bill of particulars.

The question, therefore, of whether the instrumentalities designated in the indictment as dangerous weapons were actually dangerous weapons was a question of. fact for the determination of the jury on the trial of the case on its merits according to whether the manner of their use or intended use was calculated to produce death ■or great bodily harm, and was not properly presented here by means of the demurrer or motion to quash.

Prior to arraignment, counsel for nil defendants filed a motion for a bill of particulars, in which among other things they requested that the State inform them what passenger auto-bus was referred to in the indictment, what persons occupied it, and what human life, or lives it was foreseeable were endangered. ' In answer to this motion for a bill of particulars, the 'State set forth, among other things, that the bus referred to in the bill of indictment was owned and being operated by the Southern Bus Lines, Inc., and was being driven south on Highway No. 171, its terminal destination being unknown to the ■State; that the bus was scheduled to leave Mansfield at approximately 9:10 p.. m. on the date alleged in the bill of indictment; that the persons whose lives might be -endangered were several persons who were riding in the bus and the driver of the bus, whose names were unknown to the State.

Counsel for defendants objected to the sufficiency of the State’s answer for the reason that the position of the bus had not been definitely located therein. This objection was overruled by the court, and JBill of Exception No. 3 was reserved.

The trial judge in his per curiam states that it would have been impossible for the State to give a definite location of the bus, which was operating on schedule, at thé time these defendants took their respective positions on the highway shortly before the bus was to come along.

We do not think that a definite and fixed location of the bus at the time these defendants were stationed along the highway awaiting its arrival constituted an essential particular for the preparation of the defense in this case, and consequently in our opinion the trial judge did not abuse his discretion in overruling the objection. Furthermore, a reading of the motion for a bill of particulars discloses that no request was made therein by the defendants to fix definitely the location of the bus in question.

Bills of Exception Nos. 4 and 5 were taken to the overruling of defense counsel’s objections to questions propounded by the district attorney to two State’s witnesses.

Bill No. 4 does not have attached thereto the question objected to, its answer, or the court’s ruling on the objection. The trial judge’s per curiam informs us that the witness was asked whether he had seen a man at the scene of the crime and had shot at him as he ran away; that the question propounded was material, relevant, and proper in view of the evidence which had preceded the propounding of the question, and that one of the defendants subsequently admitted that he was the man who was present at the scene and had run away when this witness shot at him.

Article 500 of the Louisiana Code, of Criminal Procedure provides that the bill 'of exception must show the circumstances under which, and the evidence upon which, the ruling complained of is based, and, since the note of evidence is not attached to ‘this bill, we are not in a position to say that the low'er court erred in its ruling.

Bill No. 5 was reserved in connection with a question propounded by the district attorney to Hugh Bennett, a State’s witness, on re-direct examination. This question was: “Mr. Bennett, in answering the question asked you by defense counsel, why written statements were not taken down and filed in this case, I ask you what sort of statements you are referring to in your answer to his question?”

Counsel for defendant objected to this question on the ground that it was leading, and suggested to the court that no such question had been propounded to the witness -on cross-examination. This objection was overruled, a bill was reserved, and the district attorney then elicited the following testimony: “By Mr. Bennett: A. You want to know what I'meant by statements being taken down?

“Q. Yes, in your answer to him [defense counsel], what were you referring to? A. What I was referring to, some of the officers wrote down the names and what might have been said when they were acknowledging to being on the highway and what they were there for.”

Article 377 of the Code of Criminal Procedure provides that the re-direct examination must be confined to the subject matter of the cross-examination and to the explanation of statements elicited on, cross-examination, but that the application of this rule is within the discretion of the trial judge. In propounding these questions the district attorney in the present case was seeking explanations of statements elicited from the witness by defense counsel on cross-examination, and the questions were entirely proper.

Bills Nos. 6 and 7 were taken to the overruling by the trial judge of a motion in arrest of judgment and a motion for a new trial. These two bills simply reurge contentions which we have already discussed and answered herein, and present nothing further for our consideration.'

The convictions and sentences appealed from are affirmed.

HAMITER, J., dissents from refusal to grant a rehearing.

O’NIELL, C. J., does not take part.

HAMITER, Justice

(dissenting).

The indictment herein charges that the four defendants, on or about July 7, 1948, “ * * * having a specific intent to commit a crime, did lie in wait with dangerous weapons and instrumentalities, to-wit: mowing machine blades, in the night time, on Highway No. 171 between Mansfield and Benson, in DeSoto Parish, Louisiana, for the purpose of and tending directly toward the intentional damaging of a passenger auto-bus occupied by several persons and owned and being operated by Southern Bus Lines, Inc., wherein it was foreseeable that human life might be endangered.” Amplifying that charge the district attorney, through his answer to a motion for a bill of particulars, states (among other things) that, “ * * * The mowing machine blades referred to in the bill of indictment were to be uced by placing the same in the paved highway standing them¡ on a base to hold the blades up so as to cut the tires -on the bus causing them to go flat and the bus to go out of control.” (Italics-ours.) In a per curiam, attached to one-of the bills of exceptions reserved by defendants, the district judge comments on-the evidence adduced at the trial as follows-r

“ * * * the mowing machine blades which were in the process of being placed upon the highway and used by these accused were specially prepared instruments in-which the points had been pre-sharpened. These blades were in' the possession of one of the defendants, and it was confessed ■by all of the defendants that these were to be used by placing them in three separate sticks with guides on them, and they have welded'to the base á ‘T’ which causes-them to stand upright on the highway. The three sticks with guides hold twelve blades each and are three feet long, which would cover.one entire side of the eighteen-foot paved highway. They were in the process of being placed on the highway by the four defendants, three of whom were present on the ground immediately before the bus was scheduled to arrive on the highway; two of whom were to use flash lights for signals and the other in a car operated for the purpose of advising of the appearance of the -bus.” (Italics mine.)

And the majority opinion herein observes :

“ * * * Defendants intended to place these blades in the highway so as to cut the tires of the bus, causing them to go flat, and causing the bus to go out of control.” (Italics mine.)

From the foregoing (the indictment as amplified, the trial judge’s comment on the evidence, and the majority opinion), it is apparent that the defendants never assembled the mowing machine blades on sticks or placed them on the highway, in order to cut the tires of the bus, although they possessed the blades, at the time and place alleged by the state, to be used in such manner and for the -particular purpose set forth. This being true it is my opinion that defendants’ motion for a new trial, if not their motions to quash and in arrest •of judgment, should have been sustained. In the motion for a new trial the allegation ■was made, “That no evidence was adduced •in Court or presented to the jury that •defendants Used any weapon, and particularly mowing machine blades, in any manner calculated or likely to produce death -or great bodily- harm.”

In the brief filed on behalf of the state it is said:

“The bill of indictment in this -case seeks ■to charge the defendants with Attempt To 'Commit Aggravated Criminal Damage To Property under the provisions of Articles 27 and 55 of the Louisiana Criminal Code, .Act No. 43 of 1942. * * * ”

Article 55 of the Criminal Code defines ■.the substantive offense of aggravated criminal damage to property as:

“* * * the intentional damaging of •any structure, water-craft, or movable, wherein it is foreseeable that human life might be endangered, by any means other than fire or explosion.”

Article 27 of that Code, insofar as pertinent, states:

“Any person who, having a specific intent to.commit a crime, does or omits, an ■act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the (offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.
“Mere preparation to. commit a crime ••shall not be sufficient to constitute an •attempt; but lying in wait with a dangerous weapon with the intent to commit a •crime, or searching for the intended victim with a dangerous weapon with the intent to ■commit a crime, shall be sufficient to constitute an attempt to commit the offense intended.”

As to the interpretation to be given the provisions of our. Criminal Code we observed in the comparatively recent case of State v. Truby et al., 211 La. 178, 29 So.2d 758, 759, as follows:

“It is so well settled that citation of authority is unnecessary that in Louisiana there are no common-law crimes, and that nothing is a crime which is not made so by statute.
* * * ' * * *

“It is true, as stated' hereinabove, that in the construction of a provision of the Criminal Code the words used therein are to be taken according to their fair import, in their usual sense, in connection with the context, and with reference to the purposes of the provision. However, it is equally true that a penal statute must be strictly construed and cannot be extended to cases not included within the clear import of its language, and that nothing is a crime which is not clearly and unmistakably made a crime. Articles 3 and 7, Louisiana Criminal Code; State v. Breffeihl, 130 La. 904, 58 So. 763, 40 L.R.A., N.S., 535, and authorities therein cited; State v. Comeaux, 131 La. 930, 60 So. 620.”

In the later case of State v. Vallery et al., 212 La. 1095, 34 So.2d 329, 331, this court made reference to a Tulane Law Review treatise prepared by one of the draftsmen of the Criminal Code wherein he criticized the Truby decision, and, in answer to the suggestion that the rule of strict interpretation, should not be applied to the provisions of the Code, we said:

“With all due respect to the opinions entertained 'by the learned trial judge and the author of this treatise, we think the error in their ratiocination lies in the fact that under our basic law no one can be held accountable, or subjected to criminal prosecution, for any act done by him unless and until that act has been denounced as a crime and has been made punishable in a statute that defines the act sought to be denounced with such precision the person sought to be held accountable will know his conduct is such that it falls within the purview of the act intended to be prohibited.”

With this rule of strict construction in mind let us consider the mentioned Article 27, along with the indictment and facts of this case, under the provisions of which the defendants were sought to be charged with an attempt and were convicted for it.

The first paragraph of the article, it is noticed, prescribes two elements essential to constitute an attempt to commit an ‘offense. One of these is the existence of a specific intent to commit the crime, and the other is the performing of an overt act, either of omission or commission, tending directly toward the accomplishing of the accused person’s object. These defendants, according to the record before us, did possess the specific intent to commit the crime defined and denounced by Article 55. However, the second essential element — defendants’ performing of an overt act tending directly toward the execution of that intent — was neither charged in the indictment nor disclosed by the trial judge’s per curiam relating to the merits. The assembling by defendants of the small individual mowing machine blades on the sticks and placing them on the highway, even though the bus never arrived at the place in question, would have been such an overt act; but, as before shown, that did not take place.

The state seemingly concedes that defendants committed no overt act in connection with the specific intent which they entertained. It relies, however, on that provision of the second paragraph of Article 27 reading, “ * * * but lying in wait with a dangerous weapon with the intent to commit a crime * * * shall be sufficient to constitute an attempt to commit the offense intended”; and it contends and argues that the mowing machine blades, which admittedly are not inherently dangerous, fall within the definition found in Article 2 of the Criminal Code that “ ‘dangerous weapon’ includes any gas, liquid or other substance or instrumentality, which, in the manner used, is calculated or likely to produce death or great bodily harm.” (Italics mine.)

By this definition, obviously, the Legislature intended to classify as dangerous weapons all of those substances and instru-mentalities not ordinarily or inherently dangerous that are rendered dangerous by the manner in which they are ■ actually used; they, in other words, ■ become dangerous weapons if and when, and only when, they are actually used as such. Thus, if the mowing machine blades involved in this cause, which ordinarily and inherently are not dangerous, had been assembled and placed on the highway (actually used) in a manner calculated and likely to produce great bodily harm to the passengers of the bus (even though the bus never reached or neared the scene) they, in that event, would have become and would be classified as dangerous weapons. But until so used they could not be termed, under the quoted definition of Article 2 of the Criminal Code, dangerous weapons.

That the blades were never used as dangerous weapons is made clear by the record. As 'Stated in the district attorney’s answer to the motion for a bill of particulars, “The mowing machine blades referred to in the bills of indictment were to be used by placing the same in the paved highway standing them on a base to hold the blades up * * Further, as pointed out above, the per curiam of the trial judge (referring to the merits) recites : “These blades were in the possession of one of the defendants, and it was confessed by all of the defendants that these were to be used by placing them in three separate sticks with guides on them * * (Italics mine.)

Since the blades, therefore, were never used in a manner rendering them dangerous weapons, these defendants did not violate the portion of Article 27 of the Criminal Code, relied on herein by the state, which provides that lying in wait with a dangerous weapon with the intent to commit a crime shall be sufficient to constitute an attempt to commit the offense intended. Rather, their actions (standing on the highway with the unassembled blades in the possession of one of them, although with the specific intent to use those blades in causing damage to the bus) are covered, in my opinion, by the first sentence of paragraph 2 of said Article 27 which reads: “Mere preparation to commit a crime shall not be sufficient to constitute an attempt”.

It cannot be gainsaid that the specific intent or plan entertained in concert by these defendants was atrocious and most reprehensible. Perhaps, in view of that intent and the preparation made to carry it out, they could - and should have been charged, tried and convicted for the offense of criminal conspiracy. But a specific intention to commit a crime, no matter how heinous it may be, is insufficient íoí a conviction of an attempt under Article 27 of the Criminal Code unless there is present also the other essential discussed above and provided for in such article. To obtain the result sought herein by the state and that which has been reached by the trial court and by a, majority of the members of this court, it is necessary, to change materially the definition of dangerous weapon found in Article 2 of the Criminal Code. Instead of applying the definition as written: “Dangerous weapon includes any * * * instrumentality, which, in the manner used, is calculated or likely to produce death or great bodily harm”, it must be changed to read: “Dangerous weapon includes .any * * * instrumentality, which, in the manner intended to be used, is calculated or likely to produce death or great bodily harm.” That this change has been effected in reaching the majority decision is clearly shown by the following extract from the supporting opinion: “We conclude, therefore, that for the purpose of the lying in wait provision of the attempt article an instrumentality, etc., may be a dangerous weapon if the one lying in wait intends to use it in a manner calculated or likely to produce death or great bodily harm.” The ’adding of the words “intended to be” to the definition certainly is not in keeping with the doctrine of strict construction announced in the Truby and Vallery cases, supra, in the latter of which we specifically said: “Courts can do no more than interpret and construe statutes. They cannot, under the guise of intrepretation, assume legislative functions.” (Italics mine.)

It seems appropriate to point out here that the discussed definition is important with respect to numerous crimes, denounced in the Criminal Code, in which the possession of a dangerous weapon is an element; it is not confined in its application to the instant alleged offense. And if the interpretation placed on it by the majority is adhered to much confusion is likely to result in the future. Thus, “Armed robbery is the theft of anything of value from the person of another or which is in the immediate control of another, by use of force or intimidation, while anted with a dangerous weapon.” Article 64. Now let us suppose that a person commits a theft from another, by use of force, he at the time having in his pocket an unopened pen knife placed there with the specific intention of using it on his victim but which was never withdrawn. In such a case has that person committed armed robbery or only simple robbery, theft by force or intimidation, but not armed with a dangerous weapon — Article 65 ? Under a literal or strict construction of the definition of a dangerous weapon the offense would be simple robbery, for the pen knife (which is not inherently dangerous) was never used. But under the interpretation announced by the majority opinion it would be armed robbery, because the person intended to use the knife in a manner calculated or likely to produce death or great bodily harm. The same illustration is pertinent also to the crimes of simple and aggravated battery, simple and aggravated assault, burglary in the night time or day time and simple burglary.

Interesting, and with which I have no quarrel, are the several cases cited in the majority opinion in support of the holding that the defendants’ motion to quash and demurrer were correctly overruled, namely: State v. Scott, 39 La.Ann. 943, 3 So. 83; State v. Brown, 41 La.Ann. 345, 6 So. 541; State v. Stewart et al., 117 La. 476, 41 So. 798; State v. Beebe et al., 127 La. 493, 53 So. 730. As. correctly pointed out they announce the doctrine that the indictment need not name or describe the dangerous weapon alleged on, the employing of the .words “with a dangerous weapon” being sufficient, and that the question of whether the instrumentality used was in fact a dangerous weapon is for the jury’s determination. But those cases are not at all applicable here. Therein the indictments specifically alleged cutting, wounding, etc., showing clearly that the offending instrumentalities had actually been used in producing bodily harm. The instant indictment as amplified names and describes the alleged dangerous instruments as mowing machine blades, which are not dangerous per se, and then discloses that those blades were never used in a manner calculated or likely to produce bodily harm.

I respectfully dissent.


author: PER CURIAM.

text:
    215 La. 79
    Succession of LEWIS.
    No. 38765.
    Supreme Court of Louisiana.
    Feb. 14, 1949.
    Rehearing Denied March 21, 1949.
    Annie C. Lewis and Agnes E. Lewis, in pro. per., for plaintiffs and appellants.
   PER CURIAM.

Petitioners, Misses Agnes E., Annie C., and Bessie Elizabeth Lewis, alleging that their grandmother, Mrs. Camilla Sauvinet Lewis, died on January 6, 1899, leaving a last will and testament in holographic form, •dated May 19, 1882, prayed that this will be admitted to probate, and that one of the petitioners, Miss Agnes E. Lewis, be named and confirmed as testamentary executrix.

In this matter issue was not joined with any' person, and these proceedings, are strictly ex parte. The district judge refused to admit the will to probate, from which ruling petitioners have appealed to this court. We approve and adopt the trial judge’s reasons for judgment, which we quote as follows:

“On December 3, 1946, Agnes E. Lewis, Annie C. Lewis and Bessie Elizabeth Lewis filed a petition asking for probate of the will of Mrs. Camilla Sauvinet Lewis, Wife of Major Theodore Lewis, alleging that said decedent died in New Orleans, where she had her domicile, on the 6th day of January, 1899. There is attached to the pleadings a photostatic copy of the alleged last will and testament of the decedent, dated New Orleans, Louisiana, May 19, 1882, made in the holographic form, which bears the paraph ‘Ne Varietur’ of F. A. Monroe, the then presiding Judge of Division ‘C’ of the Civil District Court for the Parish of Orleans.
“The Court finds that this will was duly probated, registered and executed and a judgment rendered placing the heirs of the decedent in possession on the 17th day of February, 1899, in cause entitled ‘succession of Mrs. Camilla Sauvinet Lewis,’ No. 58,526 of the docket of this Court.
“Since the records of the Civil District Court reflect the proper probate of this will and the judgment of the Court placing the heirs in possession, the relief sought by petitioners in this matter is denied. * * * ”

For the reasons assigned, the judgment of the lower court is affirmed; appellants to pay all costs.

O’NIELL, C. J., does not take part.


author: HAWTHORNE, Justice.

text:
    215 La. 81
    MANFRE v. CORBELLO et ux.
    No. 38919.
    Supreme Court of Louisiana.
    March 21, 1949.

      Alcide J. Weysham, of New Orleans, for defendants and applicants.
    Marion Seeber, of New Orleans, for plaintiff and respondent.
   HAWTHORNE, Justice.

A writ of certiorari was granted in this case so that we might review a judgment of the Court of Appeal for the Parish of-Orleans which dismissed defendants-appellants’ appeal on the ground that it was not timely filed in that court.

Plaintiff-appellee instituted suit in the First City Court of the City of New Orleans for possession of premises leased by her to the defendants from month to month at a rental of $15. ' The city court rendered judgment for plaintiff as prayed for, and defendants applied for, and were granted, an appeal to the Court of Appeal for the Parish of Orleans, made returnable on or -before December 20, 1947. The transcript or record was filed in the Court of Appeal on. December 30, whereupon plaintiff-ap-pellee filed a motion in that court to dismiss the appeal, alleging among other grounds that it had not been filed on or before the return day or within three days thereafter. From a judgment dismissing the.appeal, appellants applied for, and were granted, a writ by this court.

Under Article 7, Section 91, of the Constitution of this state, -the First City Court of the City of New Orleans, has exclusive original jurisdiction in all cases when the amount in dispute or the fund to be distributed does not exceed $100 exclusive of interest, including suits by landlords for the possession of leased premises when the monthly rent does not exceed $100, and 'has concurrent jurisdiction with the Civil District Court for the Parish of Orleans in all suits, except those specifically excepted, when the amount in dispute or the fund to be distributed exceeds $100 but is not more than $300.00 exclusive of interest and penalties.

Since the monthly rent, in the instant case is the sum of $15, this suit is one within the exclusive original jurisdiction of the First City Court of the City of New Orleans, and is governed by the general laws .in force regulating proceedings before justices of the peace.

The Court of Appeal for the Parish of Orleans in the case of Vallon v. Morris Cleaners & Dyers, Inc., La.App., 167 So. 887, 888, recognized that in appeals to that court from the city courts of suits involving $100 or less, exclusive of interest, the procedure applicable is that of appeals from justice of the peace courts. In that case that court said:

“The amount in dispute in the case at bar involves less than $100, and therefore the general laws now in force regulating the proceedings before justices of the peace are applicable to this case. See Act No. 45 of 1880, § 7, amended and re-enacted by Act No. 22 of 1888, § 1.”

The law applicable to the transmission of the record in an appeal from a justice of the peace court is set forth in Article 1135 of the Code of Practice, which provides: “The justice of the peace shall transmit to the office of the clerk of the appellate court on or before the return day an exact copy certified to by him of all the proceedings had in the case, and oí his judgment, together with the statement of fact if any has been agreed on by the parties, and of the original citation issued to the appellee, together with the return thereon.”

Under the provisions of that article, there is no duty upon the appellant in such a case to prepare the transcript or record and transmit it to the Court of Appeal, as the performance of these acts is by law made the specific duty of the judge of the city court in appeals of cases solely within the exclusive original jurisdiction of that court

It therefore follows ' that, if the judge of the city court fails to transmit to the Court of Appeal an exact copy, certified by him, of all the proceedings had in the case, pursuant to the provisions of Article 1135 of the Code of Practice, on or before the return day, such failure in the performance of his duty is not imputable to the appellant, but on the contrary there is effected by such delay an automatic extension of the return day until the record is actually so transmitted to -the Court of Appeal.

In Osborne v. Mossler Acceptance Corporation et al., 210 La. 1048, 29 So.2d 58, this court reviewed a judgment of the Court of Appeal, First Circuit, 24 So.2d 655, dismissing an appeal which had not been timely filed in that court. We pointed out that the duty to prepare the record and file it with the Court of Appeal, First Circuit, was that of the clerk of the district court, who was the custodian of the original papers making up the record, and. that the failure of that official to file the record on or before the return day was not imputable to the appellant, and, further, that it was not incumbent upon the appellant to prepare the record and file it with the Court of Appeal. Of course, in that case, it was the duty of the clerk of the district court to prepare and transmit the record, while in the instant case the duty to transmit the record to the Court of Appeal for the Parish of Orleans is imposed upon the judge of the city court under the provisions of Act No. 45 of 1880, as amended, and Article 1135 of the Code of Practice.

In the record in the instant case we find a certificate signed by the judge of the First City Court of the City of New Orleans, certifying the record and indicating in the certification that the record was transmitted on the same date on which it was certified. This certificate is dated December 18, 1947, which was prior to the date the appeal was made returnable, that is, December 20, 1947. Although this certificate indicates that the record was transmitted prior to the return day of the appeal, for some reason which the record does not disclose the appeal was not filed with the Court of Appeal until December 30, 1947, some 10 days after it had been made returnable. There is nothing in the record, however, disclosing why it was not filed until December 30. If the delay in filing this appeal was the fault of the appellants, their appeal was properly dismissed — if, for instance, after the transcript was transmitted to the appellate court, the failure timely to file the appeal bond in that court was due to appellants’ failure to pay the filing fee as fixed by Act No 63 of 1908 in such cases.

We are unable to determine from the record whether the delay in filing the record in the Court of Appeal was the appellants’ fault, or whether it was due to the failure of the judge of the city court to transmit the record to the appellate court on or before the return day. Under these circumstances, we deem it advisable to remand the case to the Court of Appeal so that it may determine this question.

We wish to point out that.no argument was made to the Court of Appeal that the duty of filing the transcript was not the appellants’. That argument was made, and. the- law applicable thereto was cited, for the first time in application to this court for the .writ of certiorari. •

For the reasons assigned, this case is remanded to the Court of Appeal for the Parish of Orleans, to be proceeded with according to the views herein expressed; costs of the proceedings in this court-to be borne by defendants-appellants.

O’NIELL, C. J., takes no part.


text:
    215 La. 88
    BREAUX v. SAVOIE et al.
    No. 38969.
    Supreme Court of Louisiana.
    March 21, 1949.
    N. Curtiss Petitjean, of Rayne, and Noble M. Chambers, of Crowley, for plaintiff-appellant.
    C., L. Chappuis, of Crowley, and- A. C. Chappuis, of Rayne, for defendants-appel-lees.
   HAWTHORNE, Justice.

Plaintiff, Mrs. Agathe Guidry Breaux, instituted this suit seeking to have declared null and void a donation inter vivos, made by her to the defendants, Mrs. Hilda Lavio-let Savoie and her two minor children, Brunella and Calvin Patrick Savoie, of certain property containing 135 acres more or less, situated in Acadia Parish, upon the ground that the donation was made through ■fraud and error.;

From a judgment in favor of defendants, dismissing plaintiff’s suit, she has appealed.

Plaintiff, widow of Albert Breaux, was 65 years of age at the time of the trial. Although the record does not disclose whether the plaintiff and the defendant Mrs. Sa-voie were related by blood, the trial judge informed us in his reasons for judgment that Mrs. Savoie was an orphan child reared by the plaintiff in her home, and Mrs. Savoie- referred to plaintiff throughout her testimony as her mother.

On March 31, 1947, Mrs. L. P. Thomas, who had known the plaintiff for about 14 or 15 years, at plaintiff’s request went to see a reputable attorney and notary public in the Town of Rayne, informed him that Mrs. Breaux would like to make a donation to Mrs. Savoie and her children, and asked that-he go to the home of Mrs. Savoie to interview Mrs. Breaux in regard to the matter. Mrs. Thomas was accompanied to the attorney’s office by Mrs. Savoie. Pursuant to this request, the attorney went to the home of Mrs. Savoie on that same afternoon, March 31, and at that time Mrs. Breaux informed him that she desired to make a donation to Mrs. Savoie and her children of the 135 acres subsequently described in the act of donation. The attorney then returned to his office and prepared the act. On the following day, accompanied by his stenographer, he again went to the home of Mrs. Savoie. In the presence of the stenographer, Mrs. Thomas, and Mrs. Savoie, he carefully read the document to plaintiff paragraph by paragraph, and translated each paragraph from English into French because Mrs. Breaux could not read or clearly understand the English language. He explained to plaintiff that the act would vest immediate ownership of the property in the donees. After the act had been read and explained to the donor in detail, she signed the act of donation, and the donee named therein, in behalf of herself and her minor children, also signed it. Both signatures were affixed in the presence of the notary, and the stenographer and Mrs. Thomas signed as witnesses. By mutual agreement it was at that time decided that the donor was to receive the proceeds of the crop then being grown and cultivated on the property by tenants, and that she would pay the taxes for that year.

This act of donation, which is dated April 1, 1947, recited that Mrs. Breaux declared that the donation was made in consideration of the love and affection which she bore for Mrs. Savoie and her two children, and that she looked upon these children as her own, since Mrs. Savoie had been reared in her home. This act also recited that the property therein donated was only a part of the property owned by the donor, that it did not exceed the disposable portion, and that she had sufficient other property to take care of her needs for the remainder of her natural life.

Plaintiff alleged in her petition that she signed the act of donation believing at the time that she was making a last will and testament bequeathing the property to Mrs. Savoie and her two minor children; that the attorney who read the act to her made the following statement in French prior to her signing: “That is going to be for Hilda and her children after your death”; and that defendant Mrs. Savoie, who knew of her desire and intention to make a last will, perpetrated a fraud upon plaintiff by silently and without action standing by while the alleged donation was signed by plaintiff.

The trial judge found that the proof did not disclose even a suggestion of fraud, and after reading the record we are fully in accord with his finding. As a matter of fact, although fraud was alleged, the plaintiff herself did not testify to any fact showing or even suggesting fraud, for her testimony, in sum, merely reiterated that she did not understand the effect of the document which she signed, and in our opinion her testimony as to this is successfully rebutted by that of other witnesses. The attorney who prepared and notarized the act of donation testified in the case, and his testimony is substantiated by that of his stenographer, Miss Josie Petitjean, and Mrs. Thomas, two disinterested witnesses. After reading and analyzing all the testimony, we entertain no doubt that the document was fully explained to plaintiff; that she understood that she was making a donation inter vivos, to take effect immediately, and that she was not told at any time that the document was a last will and testament under which the property was to go to Mrs. Savoie and her children only after plaintiff’s death. Moreover, as pointed out by the trial judge, the attorney’s testimony that he informed her that the act was to take effect immediately is not contradicted anywhere by the plaintiff herself.

As bearing upon the motivation behind the bringing of this suit to annul the act of donation, we find both interesting and significant the testimony of Mr. Leroy Breaux, one of plaintiff’s witnesses. Mr. Breaux is the son of a deceased foster son of the plaintiff and her husband. After the death of plaintiff’s husband, Mr. Leroy Breaux acted as manager and overseer for her, and was farming a portion of the 135-acre tract described in the donation. Mrs. Breaux made a last will and testament leaving all her property to Leroy Breaux and his two brothers, and he unhesitatingly admitted in testimony that he was very much interested in the outcome of this suit, and that, if the plaintiff were unsuccessful in having the donation declared null and void, there was no chance for him to receive any interest in this piece of property under her will. This suit was filed within a few months after Leroy Breaux discovered the existence of the act of donation by a visit to the courthouse where it was recorded, and it was he that employed the attorneys who represented the plaintiff in this case, although he maintained that he did so at the request of the plaintiff. From all this the conclusion is inescapable that this is Mr. Leroy Breaux’ suit, and that he is more interested in the outcome of the litigation than is the plaintiff.

For the reasons assigned, the judgment appealed from is affirmed at plaintiff-appellant’s costs.

O’NIELL, C. J., takes no part.