text:
    SUMMERS v. E. I. DU PONT DE NEMOURS & CO.
    No. 2305.
    Court of Appeal of Louisiana. First Circuit.
    Nov. 19, 1941.
    E. R. Stoker and R. F. Walker, both of Baton Rouge, for appellant.
    Taylor, Porter, Brooks & Fuller, of Baton Rouge, for appellee.
   DORE, Judge.

This is a suit for workmen's compensation wherein plaintiff alleges that on September 26, 1938, he was in the employ of defendant as a carpenter at a weekly wage of $41.60, and that, in the course of his employment, he was carrying a bundle of lumber when suddenly he tripped on a wire on the ground and fell on his arm and side and the bundle of lumber or part of it fell on him; that as a result of the accident he suffered injuries which have disabled him permanently from doing manual labor, the type of work for which he is fitted and trained. He prays for compensation at the rate of 65% of his weekly wage, that is, $27.04 per week for a period of 300 weeks, plus $250 for medical expenses.

uThe defendant, in its answer, admits the employment of plaintiff as alleged, and admits that plaintiff suffered a fall on the date alleged; but denies that any lumber fell on plaintiff or that plaintiff suffered anything but slight injury, or that he was in any way disabled as a result of the accident. Defendant also denies that plaintiff is entitled to compensation at the rate of $27.04, if he is disabled, correctly averring that the maximum amount provided by the act is $20 per week.

On trial of the case, the district court concluded that the plaintiff had failed to prove to a legal certainty that he had received a compensable injury in his accident, and dismissed his suit. Plaintiff has appealed.

Since plaintiff’s employment and rate of pay and the fact that he sustained a fall on September 26, 1938, while in the performance of his duties, are admitted, the only question involved in the case is whether or not he has proved to a legal certainty that he sustained any disabling injury as a result of the accident. And since the finding of the trial court on that question is adverse to plaintiff, our sole duty on appeal is to consider whether or not the lower court committed any manifest error in such finding of fact. In so far as the law is concerned, if the plaintiff suffered a disability he is entitled to compensation at the maximum rate of $20 per week, instead of $27.04 as prayed for, for a period of not to exceed 400 weeks, instead of 300 weeks as set forth in his petition, and medical expenses up to $250.

Reviewing the transcript we find that on the day of the accident plaintiff reported to defendant’s plant physician stating that he had hurt his arm and shoulder. The plant physician testified that he found no objective symptoms of injury to plaintiff’s arm or shoulder, and that his only treatment or prescription was some liniment with which to rub the shoulder. It is significant to note that plaintiff, at that time, right after the accident, did not complain to the physician of any injury or pain in his back, while his claim is based almost entirely, if not entirely, on injury to his back. It does not appear that he complained of his alleged back injury until several months after the accident. In fact, he continued to work without complaint until October 4th, a little over a week after his fall, when he reported to the plant hospital because of feeling ill and at which time the doctor found that he was suffering with a high fever caused by la grippe or influenza. It appears that he then went home to recuperate from his “flu” and on October 17th, about two weeks later, resumed his work and worked until October 26th, when he again reported to the plant physician who found that plaintiff was then suffering from a kidney infection and who advised plaintiff to see his family physician.

Up to this time, that is, from September 26th, 1938, the date of the accident, to October 24th, 1938, plaintiff was paid his full wages, and for thirteen weeks thereafter he was paid $25 per week under some insurance plan operated by the defendant company for its employees, covering nonoccupational diseases. Plaintiff’s' physician, Dr. Pipes, in filling out a medical report to the defendant company, reported that plaintiff was suffering from pyeli-tis, and infection of the kidneys, pros-tatitis, an infection of the prostate gland, and alveolar infection, an infection of the socket of the tooth. It is apparent that at that time it was known by the employee, employer and the insurer that plaintiff was totally disabled by a non-occupational disease or diseases.

The plaintiff was under the treatment of Dr. Pipes from the latter part of October, 1938, until the trial, December 7, 1939, and it was not until some time in February, 1939, that plaintiff began to complain of pain in the upper part of his back, just below his right shoulder blade. It is significant 'that while Dr. Pipes treated plaintiff for more than three months for disabling illness, and, on his recommendation, to alleviate the illness four of plaintiff’s teeth were extracted, yet during all this time plaintiff’s disability was not attributed to the alleged back injury now relied upon to prove his claim for compensation.

Nevertheless, Dr. Pipes’ testimony is to the effect that plaintiff’s kidney trouble and prostatitis had cleared up completely in the spring of 1939, but that plaintiff complained of pain in his back, especially when raising up after stooping, and that upon application of pressure between the sixth and seventh dorsal vertebrae plaintiff would flinch with pain. This physician expressed the opinion that the pain in plaintiff’s back is caused from injuries to the muscles, tendons and nerves in that region, and he does not think that plaintiff can engage in manual labor for a full day, nor can he say when he will be able to do so.

Plaintiff’s case rests almost wholly, if not wholly, on his own testimony, supported by the medical testimony of his physician, Dr. Pipes. We feel that Dr. Pipes has given his opinion of plaintiff’s injury in good faith, yet that opinion is based almost entirely on subjective symptoms, and is not convincing for that reason and for the further reason that three other physicians testified that they had examined plaintiff during 1939 and that they found nothing wrong with plaintiff’s back and nothing to cause pain, and that in their opinion plaintiff was able to do manual labor.

As far as plaintiff’s testimony with reference to his alleged back injury is concerned, we are not impressed, for the reason that, as set forth above, he remained silent for several months subsequent to his fall before complaining of a back injury, and for the further reason that while his accident occurred in the presence of one or more employees, he fails to introduce any testimony in corroboration of his testimony as to the accident itself. The basis of his claim would be more convincing if he had seen fit to support his statement, that lumber fell on him when he fell, by the testimony of a co-employee who saw the accident. • Even then, however, in view of his medical history and the preponderance of the medical testimony, we could not conclude that the trial court erred in finding'that plaintiff has failed to prove, to a legal certainty, that he sustained the injury on which he predicates his claim or any other compensable injury. '

The judgment is affirmed.


source: Caselaw Access Project

author: SIMON, Judge.

license: Public Domain

text:
    FRANZ v. MOHR et al.
    No. 17618.
    Court of Appeal of Louisiana. Orleans.
    Nov. 17, 1941.
    Rehearing Denied Dec. 1, 1941.
    Writ of Certiorari Denied Jan. 5, 1942.
    Daniel Wendling, of New Orleans, for appellants.
    Geo. A. Dreyfous, of New Orleans, for appellee.
   SIMON, Judge.

This is a petitory action in which plaintiff seeks to be recognized as owner of a parcel of ground described as follows: a depth between parallel lines of one hundred twenty feet, lying- within the lines between points M, N, O and P indicated in a plan of survey of E. L. Eustis, C. E. and Surveyor, dated February 14, 1938.”

“A certain portion of ground, commencing at a distance of 108 feet from the corner of Jena and Chestnut Streets, and measuring thence two (2) feet front on Jena Street, the same width in the rear, by

She alleges that defendants are in actual possession thereof without color of title.

This suit was originally instituted jointly against W. Ethelbert Brown and his wife, Katie Mohr Brown. W. Ethelbert Brown having died just prior to its filing, his son and sole heir, Frank W. Brown, joined with his mother in opposition to the demands of plaintiff.

For answer defendants admitted their physical possession, deraigning their rights and title thereto, urged a plea of estoppel, the prescription of ten years acquirendi causa, and, in the alternative, pleaded the prescription of ten years relative to the acquisition of a continuous and apparent servitude, the latter under the provisions of Article 765 of the Civil Code.

After a trial on the merits, there was judgment overruling the pleas of estoppel and prescription and recognizing plaintiff as the true and lawful owner of the parcel of ground herein involved. Defendants have appealed.

The record shows that both plaintiff and defendants deraign their titles to a common author, Mary E. Finnerty, who, on April 15, 1921, acquired a tract of land measuring one hundred and sixty feet front on Jena Street by a depth of one hundred and twenty feet. She divided the property into five lots, each of thirty-two feet frontage by the full depth acquired, and which are described on the original Eustis plan as “B”, “C”, “D”, “E” and “F” respectively. To make the lots more attractive to prospective purchasers, she decided to increase the frontage of the lots to be sold, and accordingly, on May 14, 1921, she sold to I. F. Freret the whole of lot “F”, plus eight feet of lot “E”; thus leaving twenty-four feet remaining in lot “E” as originally formed. On August 29, 1921, she sold to Vincent Mascari, from whom plaintiff deraigns her title, twenty-two feet of lot “E” and eighteen feet of lot “D”. It is thus observed that, though there remained twenty-four feet in lot “E” as a result of the first sale mentioned, the deed to Mas-cari called for twenty-two feet. On March 9, 1922, she sold to the defendant, Mrs. Brown, sixteen feet of lot “D” and twenty-four feet of lot “C”. Since lot “D” had a frontage of only thirty-two feet, she actually sold a frontage in that lot of thirty-four feet, or, in other words, sold two feet of that lot twice, conveying eighteen feet to Mascari and sixteen feet to Mrs. Brown. From this error in executing over-lapping titles results this controversy.

An action of boundary between the same parties was recently before us. Franz v. Mohr, La.App., 186 So. 114. Therein we decreed the boundary line of Miss Franz, adjoining that of Mrs. Brown, to include the parcel of ground here involved. The former’s title being the most ancient, we concluded, and we believe correctly, that the quantity of land called for by her title must first be satisfied. Though defendant in that instance had pleaded the prescription of ten years, we held that, under Article 847 of the Civil Code, the prescription of thirty years alone was contemplated, and we declared that a petitory action was necessary to vindicate the conflicting titles, at which time the merits of the plea of ten years’ prescription, if renewed, could be determined. This petitory action followed.

The evidence discloses that shortly after his purchase, Mascari built thereon a home and garage, one side of the garage being flush with the 18-foot line in lot “D” called for in his title. Defendants having. subsequently acquired sixteen feet frontage in lot “D”, then discovered that the garage in question encroached a distance of two feet within the line of measurement called for by their title. Thereupon defendants made demands for removal of this encroachment, undoubtedly without success, for it is shown that, on February 28, 1923, they brought suit to be recognized as owners of the area called for by their title. No trial was had on the merits, judgment being rendered rejecting the demands made. It is not amiss to say that the judgment as rendered was the result of an oral agreement had between these present defendants and their author in title, Miss Finnerty. Though we readily concede that agreements orally entered into cannot serve as evidence of title to realty, the evidence before us shows that these present defendants, from the date of their purchase, persisted in demanding a full and complete delivery of the measurements called for by their title. It further shows that it was only after their author in title had orally promised to complete their title, followed by judgment, dismissing the suit referred to, that we find Miss Finnerty re-acquiring the lot previously sold to Mascari. The record discloses that, on June IS, 1923, Mascari sold the lot he had acquired to the Dixie Homestead Association and, on the same date,, it was in turn purchased by Miss Finnerty. Thereupon, in August, 1923, the garage, as constructed, was removed to the Brown lot and the possession of the two-foot strip in question was then ceded and delivered to defendants by the then owner, Miss Fin-nerty. It is further shown that, immediately thereafter, defendants constructed a seven-board fence, sixty feet in length, running along the line of their property as called for by their title, though not extending along its full depth. In the year 1933, this fence was reconstructed along the same location, at the joint expense of defendants and the Dixie Homestead Association, the latter then owning the lot presently owned by plaintiff.

The evidence further shows that, on May 17, 1933, plaintiff purchased from Leonard J. Franz the lot originally purchased by Mascari.

Being convinced that defendants’ plea of prescription of ten years acquirendi causa is decisive of the issues presented, we are relieved of the necessity of determining the additional pleas urged.

To acquire ownership of immov-ables by the prescription of ten years, four conditions must concur, to-wit:

(1) Good faith on the part of the possessor. Revised Civil Code Articles 3451, 3479 and 3480.

(2) A title translative of property. Revised Civil Code Articles 3474, 3478, 3479, 3483 and 3486.

(3) Possession accompanied by the following incidents:

(a) As owner—when it shall be sufficient to complete actual possession once begun by the civil possession provided the civil possession be preceded by corporeal possession. Revised Civil Code Article 3487, and,

(b) The possession shall be continuous and uninterrupted, peaceable, public and unequivocal; clandestine possession will not suffice. Revised Civil Code Article 3487.

(4) An object which may be acquired by possession. Revised Civil Code Article 3479.

It is our opinion that all four of these conditions concur in this case. Defendants acquired a city lot by a deed regular in form, passed before a notary public and two witnesses, signed by the vendor and vendee, describing the property conveyed by definite and fixed measurements, the sale being made under full and complete warranty of title, with an expressed consideration, and duly recorded. A “just title” being called in law “a legal and transferable title of ownership in the possessor” (Article 3478 Revised Civil Code, et seq.), unquestionably defendants acquired the property by “just title”, as defined.

It is proved beyond question that, immediately following their purchase, defendants demanded of their vendor a full and complete delivery of the measurements called for by their title, the adjoining owner, Mascari, being then in possession of the two-foot parcel here involved. It is conclusively shown that defendants’ vendor, recognizing the validity of this demand, and desirous of correcting the error she had committed in selling over-lapping titles, on June 18, 1923, re-purchased the property formerly acquired by Mascari. Thereupon she ceded and delivered to defendants the two-foot parcel, thus consummating defendants’ title. It is amply shown that defendants then took actual possession of the strip in question, moving the garage onto their property, and, in August, 1923, constructed a fence along the line fixed by their deed. This fence extended a distance of sixty feet, running from the garage to the rear of defendants’ kitchen. It is also proven that, in the early part of 1933, a new fence was constructed in the same location at the joint expense of defendants and the Dixie Homestead Association, the latter then owning the original Mascari lot, and from whom plaintiff subsequently purchased. This fence extended practically the entire depth of defendants’ property and is presently existing.

The evidence clearly establishes that defendants have been in physical and corporeal possession of the parcel of ground in question since August, 1923, a possession open and public, continuous and undisturbed, up to the filing of this suit on March 16, 1939. They constructed a home on the lot purchased by them, built a fence on each side fixing the limits of their property, and exercised complete dominion over the entire enclosure with the positive and affirmative intention to possess as owners to and within the full extent of their title. We are firmly convinced of the good faith of defendants in exercising possession within these limits.

Article 3451 of the Civil Code, which is found in the chapter which treats of possession, reads as follows:

“The possessor in good faith is he who has just reason to believe himself the master of the thing which he possesses, although he may not be in fact, as happens to him who buys a thing which he supposes to belong to the person selling it to him, but which, in fact, belongs to another.”

Undoubtedly, having purchased property by a “just title”, which called for definite limits, and having taken possession of the area within these fixed measurements, it cannot be seriously urged that they did not have just reason to believe themselves the masters of the thing they possessed.

Plaintiff argues that defendants were in bad faith when their possession began because of the suit filed by them in 1923 seeking the recovery of the identical strip here involved and in which judgment was rendered rejecting their demands. Though judgment was rendered as stated, we are satisfied that this was as a result of an agreement in which the demands of defendants would be complied with. That such a compliance was fulfilled is made evident by defendants’ vendor re-acquiring the contested strip and the delivery thereof to defendants, followed by their actual occupancy to this date. Having constantly demanded of their vendor a complete delivery of the area called for by their title, and having taken possession of that which they actually purchased, unquestionably their good faith in so doing is a self-evident fact. The question of good faith on the part of the person pleading the prescription of ten years is always a question of fact to be determined by the circumstances of the particular case. In matters of prescription, good faith is always presumed, and the burden of proof rests upon the party alleging had faith. Revised Civil Code Article 3481.

Plaintiff further argues that defendants were in bad faith when they purchased the property because they could have discovered, by an examination of the conveyance records, that their author in title had previously sold the two-foot strip in question to Mascari. If no one could invoke successfully the prescription of ten years who could have discovered, by an examination of the public records before buying the property, that the seller had no title, the plea would never be available, because no one could invoke it except one having a valid title and having, therefore, no need for the prescription.

In the case of Delouche v. Rosenthal, 143 La. 581, 586, 78 So. 970, 972, it was said:

“Bad faith is not to be imputed to a purchaser merely because an examination of the records would have disclosed a defect in the vendor’s title. What is meant by a deed valid in form, or prima facie translative of property, is one that has no defect apparent upon its face. Pattison v. Maloney, 38 La.Ann. 885; Heirs of Ford v. Mills & Phillips, 46 La.Ann. [331], 339, 14 So. 845; Guarantee Trust [& Safe Deposit] Co. v. [E. C.] Drew Inv. Co., 107 La. [251], 252, 31 So. 736; Blair v. Dwyer, 110 La. [332], 337, 34 So. 464.”

This doctrine was re-announced in Land Development Company v. Schulz, 169 La. 1, 2, 124 So. 125.

Our conclusion is that defendants’ plea of prescription of ten years is well taken and should have been sustained. They have held possession, under a just title, in good faith, for more than the required ten years.

For the reasons assigned, the judgment appealed from is reversed and set aside, and it is now ordered that plaintiff’s demands be rejected and that her suit be dismissed at her cost.

Reversed.


author: DORE, Judge.

text:
    FINGER v. M. ROMANO & SON et al.
    No. 2308.
    Court of Appeal of Louisiana. First Circuit.
    Nov. 19, 1941.
    Blanche, Hebert & Wilson, of Baton Rouge, for appellant.
    Frank T. Doyle, of New Orleans, and Johnson & Kantrow and Barnett & Cou-villon, all of Baton Rouge, for appellees.
   DORE, Judge.

This is a suit for damages for personal injuries and damage to an automobile, arising out of a collision in which two automobiles and a truck were involved shortly after dark on the night of July 1, 1938, at a point on the airline highway between Baton Rouge and New Orleans, at a point some five miles above Reserve in the Parish of St. John the Baptist. Plaintiff was driving south towards New Orleans in his automobile accompanied by his Negro chauffeur. A truck owned by M. Romano & Son, being driven at the time by Arm-stead Phillips, in the direction of Baton Rouge, was stopped partly on the pavement on its right side of the road, slightly at an angle. D. K. Summers, driving his own automobile north towards Baton Rouge, struck the left rear end of the truck, causing his automobile to cut across his left lane of travel and to strike plaintiff’s car, causing such damages for which this suit was instituted. The defendants in the case are: M. Romano & Son, the owners of the truck, Armstead Phillips, the driver of the truck, the Plartford Accident & Indemnity Company, the liability insurer of the truck, and D. K. Summers, owner and driver of the other automobile.

The negligence charged to defendants Romano & Son, the driver of the truck, and the liability insurance carrier are: (1) In parking the truck on the paved portion of the. highway without allowing a clearance at least IS feet to the left, whereas there was sufficient space to stop or park the truck on the shoulder; (2) in failing to place flares to warn the traffic; (3) in parking said truck without any lights. Defendant Summers is charged with negligence (1) in driving too fast, (2) in failing to see the parked truck, and (3) in failing to have his automobile under proper control. Plaintiff further alleges that the combined negligence of the driver of the Romano truck and that of Summers was the proximate cause of the accident.

After the filing of several motions and exceptions by the defendants, none of which is necessary to mention, save and except an exception of want of jurisdiction ratione personae filed by defendant Summers which will be hereinafter discussed, the defendants answered. The answer of Romano & Son, Phillips, and the insurance carrier, was separate from that of Summers. In their answer, they deny any negligence on the part of the truck driver, and allege that the proximate cause of the accident was the negligence of defendant Summers in driving at a rapid rate of speed and without keeping a proper lookout. In the alternative, they allege and plead contributory negligence on the part of plaintiff (1) in travelling at an unlawful rate of speed, (2) in failing to dim his lights for the approaching Summers’ automobile, (3) in failing to see the truck, and (4) in failing to take the necessary precautions to avoid the accident. Defendant Summers, in his answer, admits that he struck the truck and then swerved to his left, striking plaintiff’s car coming in the opposite direction; he alleges that the cause of the accident was the unlawful parking of the truck on the paved portion of the highway without lights and flares. In the alternative, he pleads the contributory negligence of the plaintiff for the same reason as pleaded by the other defendants.

On the trial of the merits, the trial' judge rendered a judgment wherein he absolved the defendants M. Romano & Son, the driver of the truck, and its insurance carrier, of any negligence and dismissed the suit as to them. The trial judge also found that the plaintiff was free of any negligence. He came to the conclusion that the sole and proximate cause of the accident was the negligence of defendant Summers and accordingly rendered, a judgment in favor of plaintiff and against Summers in the sum of .$543.34.

As previously stated, Summers had interposed an exception of jurisdiction ra-tiOne personae before filing his- answer, which plea had been referred to the merits. The basis of this plea is that since the accident had occurred in the Parish of St. John the Baptist, and since ’the suit was filed in the Parish of East Baton Rouge, the domicile of defendant Romano &• Son, and since he is-a resident of the Parish of Livingston, and that, unless it be decreed that he was a joint tort-feasor, he could not be sued in the District Court for the Parish of East Baton Rouge. After judgment having been rendered against him, and absolving the other defendants of any liability,. Summers filed an application for rehearing, again urging his exception to the jurisdiction. His application was granted; and upon rehearing, the trial court sustained the exception of want of jurisdiction and dismissed plaintiff’s suit as to him also.

Thereafter, a final judgment was rendered dismissing plaintiff’s suit on the merits as against defendants M. Romano & Son, the individual partners composing the same, Armstead Phillips, and the Hartford Accident & Indemnity Company, at his costs; and further ’ judgment sustaining the exception to the jurisdiction as to defendant D. H. Summers, dismissing plaintiff’s suit as to Summers, also at plaintiff’s cost. From this judgment, plaintiff prosecutes this appeal.

The first and most important point to be considered is the holding of the lower court that the truck driver was not guilty of any negligence contributing to the accident. If his conclusion is correct, then it follows that he has correctly sustained the exception to the jurisdiction of the court in that the accident happened in St. John the Baptist Parish, and defendant Summers is domiciled in Livingston Parish, the suit being filed in East Baton Rouge, the domicile of Romano & Son. See Gordon et al. v. Bates-Crumley Chevrolet Co. et al., 182 La. 795, 162 So. 624.

As we view the evidence, the facts show that the truck was stopped in the position in which it was for the reason that the supply of gas in one of the tanks had given out and that the truck driver had driven slightly to the right before he came to a stop. As is .usual in these cases, the evidence is conflicting as to' the exact position of the truck in reference to the paved portion of the highway. Phillips, one of the defendants, the Negro truck driver, died before the case was ’tried. Mike Romano, the senior partner of M. Romano & Son, was in the truck at the time of the accident. Mr. Romano states that as the gas tank became empty, the .Negro driver drove the truck off' of the pavement so that the rear end of the truck occupied only about three feet of the pavement; that the front wheels were off of the pavement and on the shoulder of the road. Walker, plaintiff’s chauffeur, who was not driving but who was riding in the automobile with him, testified that the truck was parked almost completely off of the pavement on its right side; that the truck only extended two or three feet on the pavement. Summers testified that the right rear dual wheel of the truck was on the shoulder of the highway, but that the remainder of the rear of the truck extended over his lane of traffic on the pavement. The testimony of two or three witnesses who came to the scene of the accident shortly thereafter is to the effect that the rear end of the truck projected over and on the pavement seven or eight feet and to within one or two feet from the center line. The trial judge put considerable stress on the testimony of Mr. Romano and gave but little weight to the testimony of the two or three witnesses who came upon the scene of the accident shortly thereafter, for the reason that the truck could have been moved toward the center by the impact of Summer’s automobile, the impact having been a left angling blow. The trial judge came to the conclusion that the rear end of the truck extended some four or five feet on the pavement, which is 20 feet in width, and that there were left 15 or 16 feet to the left of the truck as clearance, in satisfaction of Act No. 21 of 1932, Sec. 3, Rule 15, the Act thus prevailing. After due consideration of the evidence, we cannot say that the trial judge committed. any error in his finding of fact.

On the question of want of flares as required by the statute, Act No. 21 of 1932, supra, the evidence shows that the truck was momentarily stopped by the truck driver in order to loosen the valve in a reserve gas tank, the regular gas tank being empty. In accordance with Mr. Romano’s testimony, which testimony was believed by the trial judge, Mr. Romano had had just enough time to step out of the cab on the right hand side and loosen the valve to the reserve tank when he perceived Summers’ automobile approaching from the rear; that such procedure did not require more than a minute; that he was awaiting the passing of Summers’ automobile to proceed on his journey; that the time elapsing from the complete stop to the actual collision did not consume but a few minutes; less time than that required to get out and install the flares. The evidence shows that it would have required several minutes to install the flares and that under the circumstances then existing they could not have been installed prior to the accident. Following our decision in the case of Bourgeois v. Longman, 199 So. 142, and the case of Beach v. Union Brewing Corp et al., 187 So. 332, by the Orleans Court of Appeal, we are of the opinion that the failure to put out flares cannot be considered as the proximate cause of the accident.

As to the third and last charge of negligence as against defendants Romano & Son, et als, the evidence preponderates that the headlights and the clearance lights were burning. There is a question as to whether or not the truck was equipped with a tail light. Mr. Romano positively testified that the truck was fully equipped with all lights as required' by law; that when he left the City of New Orleans the tail light of the truck was burning; that when the truck stopped, and when he connected the reserve gas tank, he saw the reflection of the tail light on the pavement. Defendant Summers testified that he did not see any lights on the truck, but this is explained by his own testimony wherein he states that he failed to see the truck on account of the bright lights of plaintiff’s automobile until he was right upon it. Mr. Thos. C. Jackson testified that he passed this truck at the spillway bridge south of Laplace, several' miles below the scene of the accident, and that at that time the truck was not equipped with a tail light or the same was not burning. On that question, the trial judge evidently believed Mr. Romano and came to the conclusion that the truck was fully equipped with all lights, including a tail light, which was burning at the time of the accident. We see no reason to disagree with him and we confirm his finding of fact.

Considering the case as a whole, we are of the opinion that the trial judge did not err in his finding of fact and the law applicable thereto and we approve of his conclusion that the driver of the truck was not guilty of any negligence and correctly dismissed plaintiff’s suit as to M. Romano & Son, Armstead Phillips, the driver of the truck, and the Hartford Accident & Indemnity Co.

Having come to the above conclusion, we are also of the opinion that the exception to the jurisdiction filed by defendant Summers was properly sustained and plaintiff’s suit dismissed. As to defendant Summers, plaintiff had the alternative of filing his suit in the District Court for the parish wherein the accident occurred, St. John the Baptist, or where defendant was domiciled. He elected to sue in the District court wherein M. Romano & Son was domiciled alleging that the defendants were joint tort-feasors, and has failed to prove that they were.

For these reasons, the judgment appealed from is affirmed.


author: OTT, Judge. DORE, Judge LE BLANC, Judge

text:
    STATE ex rel. SANCHEZ, Dist. Atty., et al. v. DIXON.
    No. 2301.
    Court of Appeal of Louisiana. First Circuit.
    Nov. 19, 1941.

      Jos. A. Loret, Asst. Atty. Gen., for appellant.
    D. J. Sanchez, Dist. Atty., of Baton Rouge, for appellees.
   OTT, Judge.

On May 20, 1941, the Governor of this State, acting on an interpretation by the Attorney General’s office of Act 12 of the Extra Session of 1940 relative to the election of additional police jurors in those wards of parishes showing an increase in population to a certain extent, appointed four additional police jurors for the Parish of East Baton Rouge, namely: Millard W. Dixon, Ward 1, Edgar B. Allen, Ward 3, Scott A. Kleinpeter, Ward 6, and Gordon C. Ogden, Ward 9. Commissions were issued to these appointees and they qualified by taking the oath of office and began the discharge of their duties as members of the police jury of said parish.

In June, 1941, a suit was filed in the District Court of East Baton Rouge Parish against the District Attorney by several citizens, taxpayers and qualified voters of the parish seeking to have a mandamus issue against said District Attorney commanding him to institute intrusion into office suits against the above-named appointed police jurors to have them ousted from office on the ground that the Governor had no authority to appoint them and, consequently, they were illegally usurping, holding and exercising the functions of said offices. A judgment was rendered in that suit by Judge Holcombe, in which a mandamus was issued, commanding the District Attorney to institute ouster proceedings against said appointees.

In compliance with that judgment, the District Attorney filed separate suits against all four of said appointees and made parties plaintiff the citizens, taxpayers and qualified voters at whose instance and request the ouster proceedings were brought. These four suits were consolidated in the lower court for the purpose of trial, but separate judgments were rendered and separate appeals taken in each case. The cases involve only questions of law, and what is said in this opinion will apply to all cases as the issues and pleadings in all four cases are practically the same, except as to the case against Ogden where an additional ground is urged as to the illegality of his appointment which will he mentioned hereafter. The trial court rendered judgment in favor of relators declaring the appointment of these four additional jurors unauthorized and decreed that they were illegally usurping, intruding into and holding said offices. From this judgment ousting them, they have appealed.

The legality of the appointment of these four additional police jurors is attacked on the ground that the Governor had no authority to make the appointment. The first two sections of Act 12 of the Extra Session of 1940 read as follows:

“Section 1. Be it enacted by the Legislature of Louisiana, That at the general State election to be held in April, 1940, and at each general State election thereafter, there shall be elected as many police jurors for each ward of each parish in this State, by the qualified voters of said wards, as provided by law, the Parish of Orleans excepted.
“Section 2. For each parish ward, there shall be elected, in the manner provided by law, in addition to the police juror to which the ward is entitled, one additional police juror for each ten thousand (10,000) inhabitants which the said ward contains, said apportionment to be based upon the last preceding United States census; also one additional police juror for each additional ten thousand (10,000) inhabitants, or part thereof in excess of seven thousand five hundred (7,500), to be selected from the resident voters of the ward. Provided that this section shall not apply to parishes having a population of less than 50,000 inhabitants.”

It is admitted that the Parish of East Baton Rouge has a population of more than 50,000 inhabitants; that the United States census released in January, 1941, showed that the first ward of said parish has a population of 19,022, the third ward 21,971, the sixth ward 12,708 and the ninth ward 7,573. At the time the census figures were released, all positions in the police jury for these four wards had been regularly filled at the preceding general election in April, 1940, or appointments duly made to take the place of those who had been elected at that election and subsequently resigned. It is also conceded that as to Wards 1, 3 and 6, each of these wards has a sufficient population as shown by the census released in January, 1941, to entitle it to another police juror if the Governor had the right to make the appointment. As to the additional police juror for Ward 9 to which Gordon C. Ogden was appointed, it is contended by relators, in addition to the grounds of attack leveled against the other three appointees, that as this ward has a population of less than 10,000, as shown by said census, it is not entitled to an additional police juror under the above-mentioned act.

It is the contention of relators that, as the above-quoted act provides for the election of the additional police jurors by the voters of the respective wards at the general election in 1940, and each general state election thereafter, no vacancy or vacancies existed in these offices, as no election could be held to fill same until 1944; that as these additional offices will not come into existence until the next general election, there is no-vacancy therein and consequently the Governor had no authority to fill the offices by appointment.

It is the contention of defendants that the release of the census in January, 1941, had the effect of bringing into existence these additional offices for these four wards, and' consequently as no one had been elected or could be elected to the same until the general election in 1944, there existed a vacancy which the Governor was authorized to fill under the provisions of Act 236* of 1916.

Certain exceptions were filed by defendants in each suit, but it is only necessary to-mention two of these. One exception is. grounded on the failure of relators to set forth the name of the person rightfully entitled to the office from which they seek to. oust defendants. The other exception is one of no cause or right of action which involves the same question of law presented on the merits, and it is unnecessary to-discuss this exception separately from the merits. Before taking up the legal question presented by the exception of no cause of action as well as that presented by the-merits, we will discuss the first exception, above mentioned.

In the former suit against the District Attorney for a mandamus, the question-was raised by him that the citizens and. taxpayers who requested him to bring the ouster proceeding were required to give the name of the person rightfully entitled to the office, which could not be done in this case as no one claimed a right to these offices, but on the contrary, claimed that no such offices existed. This contention was made in that suit by reason of Section 2597 of the Revised Statutes, as amended by Act 102 of 1928, which section, as amended, provides that when the district attorney brings an action against a person for usurping or intruding into a public office, he must set forth in the complaint the name of the person rightfully entitled to the office with a statement of his right thereto. Judge Holcombe, in the former suit, overruled that contention and held that where there was no other person claiming the office o.ther than the person against whom the proceedings are brought, it would be impossible to name any other claimant, and his interpretation of this section, as amended, was to make it mandatory on the District Attorney to name the person rightfully entitled to the office where there was another claimant to the office; that the purpose of this requirement is to declare the occupant of the office an intruder and not to establish title to the office in some one else. We agree with this interpretation of this section as amended.

The exception filed by defendants in the present suits merely reurges the same points involved in the previous suit. The Revised Statutes, Sections 2593 and 2594, previous to the amendment by the Act of 1928, gave the district attorney the right, and made it his duty, when required so to do, to bring a suit against a party usurping, intruding into or unlawfully holding and exercising the functions of a public office. Section 2597 of Revised Statutes, before the amending Act of 1928, provided that when bringing such a suit, the district attorney, in addition to the statement of the cause of action, might also set forth the name of the person rightfully entitled to the office, with the statement of his right thereto. Act 102 of 1928 amended Sections 2593 and 2594 so as to permit a person demanding possession of a public office to bring an ouster proceeding against a person claiming or exercising the functions of the office in the name of the state, and it was further provided in the act which amended Section 2597 so as .to require the district attorney to name the person rightfully entitled to the office, obviously for the purpose of showing that the person who occupied the office had no right to hold it. As Sections 2593 and 2594 gave the party claiming the office the right to bring an ouster suit against the usurper, it was evidently .thought necessary to require the district attorney to name the rightful claimant in order that he, in the same suit, might be put in possession of the office if he was entitled .to it and the usurper or intruder was ousted therefrom. Obviously, if there was no one claiming the office, or if no one could occupy such office, there would be no occasion for naming a person entitled to the office as, indeed, no one could claim it.

In our opinion, the Act of 1928 did not affect or change the right and duty of the district attorney to bring an ouster proceeding against a person attempting to hold and exercise the functions of a public office where no such office existed, or where no one could hold and exercise the functions of such an office. As was said in the case of Thomas et al. v. Fuller, Dist. Atty., 166 La. 847, 118 So. 42, a suit may be brought against one usurping, intruding into, or unlawfully holding office, where there is no one claiming the office, except .the one holding it. While relators contend that the defendants are usurping and unlawfully exercising the offices of police jurors, they claim that no such office has come into existence and. for that reason the exercise by them of the powers and functions as members of a public body acting in the aggregate affects the official action of the body as a whole, and according to the holding in the cited case, it is the right and duty of the district attorney to question their right to hold and exercise these functions. While this case was decided prior to the passage of the Act of 1928, we do not think this act has changed the principles announced in that case on this point.

In any event, and if it be conceded, that it was necessary to name the persons entitled .to hold the office or offices of police juror in East Baton Rouge Parish, relators have complied with this requirement by setting forth in their petition the names of those who they claim are entitled to hold and exercise the office of police jurors in said parish; that no persons other than those named in their petition holding said offices before the appointments were made, are entitled to hold and exercise the functions of said offices. Therefore, we conclude that the exception was properly overruled.

Coming now to the principal legal question in the case, that is, the authority of the Governor to make these appointments, it is important to consider when the office of additional police juror in the ward of a parish entitled to such additional police juror under Section 2 of the quoted act, comes into existence. If the office comes into existence, or is created, when the census is released showing the necessary increase in population to justify the additional police juror, it is conceded by relators that a vacancy in the office would exist from that moment, as they recognize the general rule that a newly created office becomes ipso facto vacant when it is created and remains vacant until it is filled by an incumbent.

Section 1 of said act provides for the election by the qualified voters of each ward of each parish in the State the number of police jurors to which that ward is entitled by law, such police jurors to be elected at the general State election to be held in April, 1940, and at each general State election thereafter. Section 2 of the act further provides for the election of an additional juror, at the same .time and in the same manner as the police jurors to which the ward is entitled under the law are to be elected under Section 1, for each 10,000 inhabitants which each ward contains, based upon the last preceding United States census. The act was passed prior to the general election in April, 1940, and at that election the voters of each ward in East Baton Rouge Parish elected the number of police jurors in their ward to which they were entitled under the law. When the census of 1940 was released in the following January, its only effect was to serve as a basis for a new apportionment of the number of police jurors that the voters in each ward would be entitled to elect at the next general State election.

The act by which the additional offices were to come into existence provided specifically that the incumbents who were to fill them were to be elected at the general State election following the determination of the population of the ward as shown by the last United States census preceding the election, which census was to serve as a basis to determine whether or not the voters would be entitled to elect additional police jurors in their ward at that election. The act does not provide for the creation of the office by the release of the census, but provides for its creation when the voters fill it in the general election held after the official United States census shows that they have a right to elect an additional member of the police jury from their ward at the same time they elect those to which the law already entitles them.

The general rule is that, where no time is fixed for the beginning of the term of an elective office, it begins at the time the office is filled by an election, and if the office is an appointive one, the term begins when the appointment is made. So, where an election is necessary, the term does not begin until after that election is held. 46 C.J. pages 965, 966; 22 R.C.L. p. 550, Sec. 251; State v. Rogge, 80 Mont. 1, 257 P. 1029; State v. Halladay, 52 S.D. 497, 219 N.W. 125 et seq.; People v. Hamrock, 74 Colo. 411, 222 P. 391.

Since the act specifically requires an election to fill the office of additional police juror and makes no provision for an appointment to fill the office until the general election is held, we conclude that no such office can come into existence until an election is held to fill it, and there can he no vacancy in an office that has not come into existence. Conceding, therefore, that the Governor has authority to fill a vacancy in a newly created office where no incumbent is provided for the office, there was no vacancy in any of these offices at the time the appointments were made as no such offices'existed.

While the writer of this opinion believes that the above reasons justify an affirmance of the judgment, yet, in his opinion, there is another reason sounder and more forceful than that given above for holding that the appointments made in these cases were not authorized. It is conceded that the only authority for making the appointments was under Act 236 of 1916 which provides that in case there shall occur a vacancy in certain offices, including that of police juror, whether the vacancy is created by death, resignation, or otherwise, the Governor is authorized to fill by appointment such a vacancy “for the remainder of the unexpired term”.

It will thus be seen that the very act under whose authority these appointments were made does not give the Governor the right to fill vacancies generally in the office of police juror, but only for the remainder of an unexpired term. Obviously, there can be no remainder of an unexpired term where there has never been an incumbent in the office to leave the remainder of an unexpired term. The courts have frequently held that the power to fill vacancies generally is much broader than that authorizing the filling of vacancies for an "unexpired” term, or for the "remainder of the unexpired term”.

In the case of State ex rel. Hoyt v. Metcalfe, 80 Ohio St. 244, 88 N.E. 738, the court said that the phrase “unexpired term” is not synonymous with “vacancy”. The former is the remainder of a period prescribed by law after a portion of such time has passed. A vacancy exists when there is no person lawfully authorized to assume and exercise at present the duties of the office.

In the case of Gold Bluff Mining & Lumber Corp. v. Whitlock, 75 Conn. 669, 55 A. 175, the court held that a statute giving the board of directors of a corporation the right to fill vacancies in the board for the unexpired term did not give the board the right to fill a newly created office as director.

The case of People ex rel. Herndon v. Opel, 188 Ill. 194, 58 N.E. 996, strongly supports this view. A statute of Illinois provided that an elective office became vacant by the death, resignation, removal, insanity, failure to take the oath or conviction of the incumbent of a crime. The court held that before there could be a vacancy in such an office, it must first be filled by an incumbent; that a new office, arising from an increase in population of a county, did not' become vacant on the official census report showing the necessary increase in population to create the new office.

The case of People ex rel. Snyder v. Hylan, 212 N.Y. 236, 106 N.E. 89, Ann. Cas.l915D, 122, cited and largely relied on by the defendants, rather supports the construction here under consideration than that contended for by defendants. While the court did hold that when an office takes effect there is a vacancy in it (which point is conceded to be correct), but, as the court indicated, this is only true where the law creating the office does not import futurity of selection of an incumbent. While the court held in that case that the Governor had a right to fill by appointment the offices of additional county judges where the law creating the offices came into effect before the election at which the offices were to be filled, but there was a statute of New York providing that where a new office or an additional incumbent of an existing office is created, such office shall, for the purposes of an appointment or election, be deemed vacant from the date of its creation until it shall be filled by election or appointment. It will be seen that the Legislature of New York thought it necessary to declare by special legislation that a vacancy would exist in a newly created office for the purpose of appointment or election until the new office was regularly filled by an incumbent. This State has no such law.

This interpretation of the Act of 1916 would seem to be supported by other acts of the Legislature relative to police juries. From an early date the law with reference to filling vacancies in office generally has been different from the law with reference to filling vacancies in the office of police juror. The Revised Statutes of 1870, Section 2606 (based on Act 27 of 1868) provided for filling vacancies in state and parish offices by appointment of the Governor, however, Section 2737 of the Revised Statutes provided for filling vacancies in the office of police juror by a special election to be called and held as provided for in this section. Up to 1870, there was no provision made for filling vacancies in the office of police juror by appointment of the Governor, nor was there any law providing for an increase in the number of police jurors in a ward of a parish by reason of the increase in population in that ward.

But by Act 97 of 1871 the Governor was authorized to appoint five police jurors in each parish of the State (except the parishes of Orleans and Jefferson) who were to serve until the election in November, 1872, at which time and every two years thereafter, five police jurors were to be elected in each parish. Section 4 of said act provided that any vacancy occurring in the police jury from death, removal, resignation or other lawful cause, should be filled as vacancies in such positions are now filled, meaning of course by special election as provided for in Revised Statutes, Section 2737, above mentioned. The said Act 97 of 1871 was superseded by Act 57 of the Extra Session of 1877 which authorized the Governor to appoint in such country parishes as he may see fit additional police jurors not exceeding five, who, with those police jurors elected at the last general election, should constitute the police jury of the .parish until the next general election, and Section 4 of the act provided for filling vacancies in the police jury by a special election. It is significant that in both the Acts of 1871 and 1877 the Governor was authorized by these acts to appoint the additional police jurors provided for in the acts who were to serve until the next general election, and both of the acts provided for the filling of a vacancy for the unexpired term by a special election.

Act 161 of 1894 provided for the election at the general State election of 1896, and at each general election thereafter, of the number of police jurors in each ward of the parish as is allowed by law, and this act was amended by Act 196 of 19Q6 so as to provide for the election of additional police jurors for the wards in a parish shown to have increased in population to a certain extent as shown by the last United States census. This seems to have been the first act authorizing the election of additional police jurors for the wards in a parish shown to have increased in population to a certain extent. No provision was made in that act for the appointment by the Governor of the additional police jurors, but Act 59 of 1906 provides that all vacancies in the office of police juror in any parish caused by death, resignation, removal, or otherwise, or by failure to qualify of a person elected to said office, shall be filled by special election. It will thus be seen that up to 1916 no authority was given the Governor to appoint police jurors for any reason, except the authority given him to make appointments under the special provisions made in the Acts of 1871 and 1877, above referred to.

It may be contended that when the Legislature passed Act 12 of the Extra Session of 1940 it can be assumed that it had in mind the filling of the additional offices of police juror in a ward entitled to an increase by appointment of the Governor under Act 236 of 1916, above referred to. But, as already stated, that act does not authorize the Governor to fill a new office created by the Legislature, or brought into existence by an act of the Legislature, where the act itself creating the office provides that the office is to be filled by an election. The presumption, on the other hand, if any presumption is to be indulged, is that the Legislature intended that any office created by it, or which might come into existence by reason of the Act of 1940, should be filled by an election of the voters of the ward as the aet specifies, and that only vacancies arising in an office already filled by election should be filled by the Governor for the remainder of the unexpired term.

The case of Thomas et al. v. Doughty, 163 La. 213, 111 So. 681, did not pass on the question raised in this suit. In that case the appointment of an additional school board member was attacked on three grounds: (1) That the census taken by the police jury did not correspond with the Federal census previously taken; (2) that the census was taken in an irregular manner and was erroneous; and (3) that Act 279 of 1908 was unconstitutional. The right of the Governor to make the appointment was not an issue in the case, and the court merely stated, as it had to do under the issues as presented, that the commission of the Governor gave the school board member a prima facie right to hold the office until his right to do so was properly attacked. The court held that the plaintiffs who sought to oust the appointee were without interest to question his right to hold the office and, of course, the appointee had a right to continue in the office until he was ousted in the proper way and by the proper authority.

It is true that the office of the Attorney General for several years past has construed the acts giving wards the right to additional police jurors where they have increased in population to a certain extent, as authorizing the Governor to make appointments to fill these additional offices until the next election. While such interpretations of these acts by the eminent lawyers who occupy and have occupied positions in the legal department of the State must be accorded great weight, especially where these interpretations have been acted upon by the Executive Department, yet the final duty and responsibility for interpreting and construing laws rests upon the courts. In none of the copies of the opinions of the Attorney General’s office filed in the record, nor in any of the opinions that we have read from the Reports and Opinions of the Attorney General for the past several years, do we find that the point discussed above was raised or considered.

It is argued that to hold that these additional offices cannot be filled until the election in 1944 would deprive these wards of representation on the police jury to which they are entitled until the general election in 1944. However, if the Legislature intended for these additional police jurors to take office before the next general election, it could easily have provided for their appointment. Moreover, there is nothing to prevent the Legislature at its next session from amending the act of 1940 so as to give the Governor the right to appoint the additional police jurors provided by the act until the next election, or by providing that they shall be elected at the Congressional Election in 1942. The courts have nothing to do with the policy of the Legislature in this respect.

For the reasons assigned, it is ordered that the judgment appealed from in the case of State ex rel. Dewey J. Sanchez, Dist. Atty. et al. v. Millard W. Dixon be and the same is hereby affirmed at the cost of appellant in both courts.

DORE, Judge

(concurring).

The governing authority for the parishes, Orleans excepted, in Louisiana, is the police jury; the members composing the same are elected at the general election for State officers, as Governor, etc. I am of the opinion that Act 12 of the Extra Session, 1940, merely provides the method of ascertaining the number of police jurors which shall compose the said police jury and no further. It has divided the several parishes into two classes, first, the parishes having a population of 50,000 inhabitants and over, and, second, less than 50,000 inhabitants. However, a different method of ascertaining the membership of the police jury is set up. It is evident from the reading of the act that when a parish moves from class two to class one, the membership of the police jury is reduced, for example: In a parish having a population, say, of 45,675, and having five wards, or 9,135 to each ward, the membership of the police jury would be 15 police jurors, but when the population of this parish would reach 50,000, equally divided amongst the wards, the membership would be only 10 police jurors, a decrease of five. Likewise, a ward may lose representation of a member by a decrease in population, the parish remaining in its. former class. The act provides the method of ascertaining the census of the parishes and wards, and definitely fixes the time at which a change, if any, in the class a parish may fall, the change of membership, if any, and the number of police jurors a ward is entitled to, and that is at the general election following a United States census. The act does not create any new office, increase or decrease the existing offices, or cause any vacancy until then. I therefore concur in the final decree.

LE BLANC, Judge

(dissenting).

In this case I agree with the conclusion reached in the majority opinion that the exception of failure on the part of the relator to set forth in his petition the name of the person rightfully entitled to the office, and the exceptions of vagueness and of no cause or right of action, were properly overruled, but inasmuch as I disagree with the reasons assigned and the conclusion reached by which the judgment appealed from was affirmed, I find it necessary to hand down this dissenting opinion.

It is my opinion, in the light of the jurisprudence as I understand it, that the additional office of police juror for the certain wards of the Parish of East Baton Rouge which are involved in this and the companion suits, came into existence at the time the release of the United States census for the year 1930 showed that they were entitled to an additional member of that body in view of the required increase in population. That to me is specifically what the Supreme Court of our State held in the case of Thomas et al. v. Doughty, 163 La. 213, 111 So. 681, in which the suit brought by the plaintiffs was dismissed on an exception for want of proper interest to maintain their action. It is rather important to consider that case in a bit more detail in connection with the question under discussion.

The statute involved in that case was Act 279 of 1908 which like Act 12 of 1940,. in this case, provided for the office of police jurors in the State. Its language was almost verbatim with the present act in stating that in each ward of each parish in the-State having a population of less than 50,-000 inhabitants “there shall be elected in-the manner provided by law in addition to the police juror to which said ward is entitled, an additional police juror for each, five thousand inhabitants which said ward contains; * * • The only difference that I can see is that under the present act,. No. 12 of 1940, parishes of over 50,000 inhabitants are dealt with where the additional population increase required is 10,--000, and besides that, which makes the act. a good bit more specific, there is contained a provision of apportionment which is based upon the last preceding census of the United States.

In the Thomas case it was the office of an additional member of the Parish School Board which was at issue, but that made no difference in interpreting the provisions of the statute because by Act 100 of 1922, it was provided that there shall be a member of the Parish School Board for each member of the police jury of each ward. The ward involved in that case was Ward 3 of Lasalle Parish. The increase in population in the ward was apparently noted by the police jury of the parish and as Act 279 of 1908 did not provide a basis of apportionment, as does Act 12 of 1940, the opinion of the Attorney General was sought on how to proceed in ascertaining if the ward was entitled to additional representation on the School Board. The police jury was advised, following the decision of the Supreme Court in the case of McFarlain v. Town of Jennings, 106 La. 541, 31 So. 62, that it should direct the taking of the census of the ward by competent parties. Following that advice the police jury provided by ordinance for the taking of the census which was done and which disclosed a population slightly in excess of the required inhabitants. After setting out these facts, the Supreme Court then states in language so positive that it can hardly be questioned, “and thus it came about that ward 3 became entitled to an additional member on the parish school board;” and then, as though covering the further point involved in the present controversy, it added, “and, there being no incumbent in said office, the Governor appointed the present relator to fill the vacancy thus existing.” [163 La. 213, 111 So. 682.]

The member who had been thus appointed and qualified apparently intended to take part in the next meeting of the board but before the date of that meeting several residents and taxpayers of the ward sought and obtained from the district court a restraining order prohibiting him from exercising his functions as a member of the board, not on the ground that they questioned the creation of a new office as it were, or that he had been improperly appointed by the Governor, but because, as they allege, the census taken by the police jury did not correspond with the Federal census taken in 1920 and that it was taken in an illegal manner and was therefore erroneous. It did not seem to have occurred to anyone to even question the fact that the ward had become entitled to this additional representation and the right of the Governor to fill the office at the time. In my opinion, it was necessary, for the purpose of deciding the issue that was presented to it, for the court to hold, as in effect it did, that the ward had become entitled to the additional member and that it was clear that the incumbent who had been appointed had prima facie rights in the premises by virtue of the formal finding of the police jury which disclosed the additional number of inhabitants in the ward and also by virtue of his appointment by the Governor.

In the case before us the statute, Act No. 12 of 1940, specifically provides that the apportionment giving the ward additional representation on the police jury of the parish, shall be based on the Federal census, and therefore the grounds of attack which were levelled against the incumbent in the Thomas case are foreclosed. If, under a census about which there could have been some question concerning its correctness, the court held in that case, after the census as taken had showed the required increase in population, that it “thus * * * came about that [the ward] became entitled to an additional member on the parish school board,” and that a vacancy existed because there was no incumbent, it seems to me that it could be held with a good bit more logic and soundness that when the United States census, which is made the basis of apportionment under the present statute, showed the required increase in population, that it also, “came about,” that the wards involved in these cases were entitled to an additional member of the parish police jury, that vacancies existed as there were no incumbents, and the Governor had the right to fill the same.

Once the office has been shown to have come into existence and there was no incumbent, under the vast weight of authority, as I have been able to find, the Governor was authorized to fill it during the period of such vacancy which can only mean, for the remainder of the “unexpired term,” all as is provided for under Act 236 of 1916. The authorities seem to be unanimous on the point that the word “vacancy,” as applied to a public office, has no peculiar or technical meaning and there is no basis for the distinction that it applies only to an office which has been vacated by death, resignation or otherwise. See Commonwealth v. McAfee, 232 Pa. 36, 81 A. 85; State v. Irwin, 5 Nev. 111; Yates v. McDonald, 123 Ky. 596, 96 S.W. 865; Williams v. Mabry, 176 Tenn. 343, 141 S.W. 2d 481. Indeed, in one of the very cases cited in the majority opinion, People v. Opel, 188 Ill. 194, 58 N.E. 996, the court recognizes that it has been held that a vacancy may exist when an office is created and no one has been appointed to fill it. In the light of all the jurisprudence which could be found on the question, the court could hardly have stated otherwise, no matter what the particular issue involved before it at the time was. How the majority opinion in this case could construe anything that was said in the case of People ex rel. Synder v. Highland, 212 N.Y. 236, 106 N.E. 89, Ann.Cas.1915D, 122, otherwise, I am unable to understand, as the decision which upheld the appointment of the officers therein involved to newly created offices, by reason of the vacancies therein existing, is based on the very same principle enunciated in the numerous decisions just cited, and, I may add, that quite a number of others which are equally as strong in support of that principle are reviewed and favorably considered. by the court. Neither is it surprising to me that the Supreme Court of our State in the case of Thomas et al. v. Doughty, supra, made such definite statements as are found in the opinion, and which I have quoted herein.

As is conceded in the majority opinion the interpretation which I give to the statute and which follows what I consider to be that placed by the Supreme Court on the similar Act of 1908, in the Thomas case, is the same which has been consistently given by the Attorney General’s office of this State to the Governor or other officials since the decision by the court in that case. In the Report and Opinions of the Attorney General for the years 1932 to 1934, there is found an opinion by Mr. George M. Wallace, Assistant Attorney General, addressed in the form of a letter to the Secretary of the Governor on July 13, 1932, in which he seems to be firmly of the opinion that the Governor had the right to appoint additional members of police juries if they had not been elected. Rather significantly on the same page of the same report appears an opinion rendered by the Attorney General himself at that time, the present Judge Gaston L. Porterie, in the form of a letter written to the Governor himself in which he intimates that the' Governor not only had the right and authority to make such appointments, but that it was his duty to do so.

In Report and Opinions of the Attorney General for the years 1934 to 1936, page 835, there appears again an opinion in a letter by Judge Porterie in which he indicates the thought that in view of an increase in population of a certain ward of the parish therein referred to, on the basis of the Federal census of 1920, it would be a useless expenditure of money for the police jury to have another census taken to determine whether the ward was entitled to additional representation on its police jury, but in any event he is firmly of the opinion that if the ward showed the required increase, upon proof being submitted to the Governor, “he would be empowered under the law to make the appointment.” In Report and Opinions of the Attorney General for the years 1936 to 1938, page 761, there appears another opinion written by Judge Porterie to the same effect, and in Report and Opinions of the Attorney General for the years 1938 to 1940, at page 830, appears a letter by Special Assistant Attorney General Wade O. Martin, Jr., in which he recalls a former opinion to the contrary which he had given and states that “undoubtedly the proper construction” is that given by Attorney General Porterie in the Report and Opinions for the years 1936 to 1938, pages 761 and 697,

The opinions given by the present Attorney General’s office are not yet published, but copies are found in the record and they are all to the same effect as those which I have previously referred to.

It is stated in the majority opinion that whilst the interpretations placed on these acts by the office of the Attorney General should be accorded great weight, the final duty and responsibility for interpreting and construing laws rests upon the courts. It is true that such opinions are not binding as authority on the courts, but when there is such a unanimity of agreement as is found to be the case in the opinions handed down on the questions with which we aire here concerned, I must say that they have very strong persuasive force and they should not be lightly overruled by the courts. The men who occupy the office of Attorney General are men who are learned in the law and are elected by the people of the State at large to be at the head of the Department of Justice of the State, and ■certainly their opinions are entitled to the greatest respect. Moreover, the question herein involved was so frequently considered by them and their advice so often acted upon by various heads of the Executive Department that it would seem that they should be entitled to greater weight for that additional reason.

A careful consideration of the issues involved in these cases leads me to conclude that whilst the additional office created under the act is an elective one to which undoubtedly the person who is to fill it for the term’ beginning with the General State Election next following the time it comes into existence has to be elected, yet whenever a ward becomes entitled to the additional representation and there is a statute which, like Act 236 of 1916, authorizes the appointment of an incumbent during the interim, the people of that ward should not be made to wait three years or more, as in the cases before us, before obtaining the advantages of, and uniformity in that representation to which they are entitled under the law because of the increase in population. By reason of the already existing statute, Act 236 of 1916, it was unnecessary, as suggested in the majority opinion, that Act 12 of 1940 should have further provided for such appointment to fill the vacancy that existed during that interim.

For the reasons herein stated, I respectfully dissent from the decree rendered in the majority opinion.


author: OTT, Judge. LE BLANC, Judge

text:
    STATE ex rel. SANCHEZ, Dist. Atty., et al. v. OGDEN.
    No. 2304.
    Court of Appeal of Louisiana. First Circuit.
    Nov. 19, 1941.
    Jos. A. Loret, Asst. Atty. Gen., for appellant.
    D. J. Sanchez, Dist. Atty., of Baton Rouge, for appellees.
   OTT, Judge.

In addition to the grounds urged in the case of State ex rel. Sanchez, Dist. Atty., et al. v. Millard W. Dixon, 4 So.2d S91, and the reasons given in the opinion in that case, this day handed down, an additional ground, stated in the opinion in the other case, is urged in the alternative in this case. The conclusion reached by the majority in the other cases renders it unnecessary to pass on the alternative and additional ground urged in this case. However, in order to clarify the matter, we may state that, in our opinion, as Ward 9, from which this defendant was appointed, contains less than 10,000 inhabitants, under the provisions of Section 2 of Act 12 Extra Sess. of 1940, the ward is not entitled to an additional police juror. To entitle the ward to its first additional police juror, the ward must have a population of 10,000 or more; for the second additional police juror, a population of not less than 17,500 etc.

For these reasons, and for the reasons given in the case of State ex rel. Sanchez, Dist. Atty., et al. v. Millard W. Dixon, 4 So.2d 591, this day decided, it is ordered that the judgment herein'appealed from be and the same is hereby affirmed at the cost of appellant in both courts.

DORE, J., concurs.

LE BLANC, Judge

(concurring).

In this case as I agree with the majority opinion on the question of the lack of the required increase in population to entitle the ward to the additional representation claimed, I concur in the decree therein rendered.


text:
    STATE ex rel. Dewey J. SANCHEZ, District Attorney, et al. v. Edgar B. ALLEN.
    No. 2302.
    Court of Appeal of Louisiana. First Circuit.
    Nov. 19, 1941.
    Jos. A. Loret, Asst. Atty. Gen., for appellant.
    D. J. Sanchez, Dist. Atty., of Baton Rouge, for appellees.
   OTT, Judge.

For the reasons assigned in the case of State ex rel. Dewey J. Sanchez, Dist. Atty., et al. v. Millard W. Dixon, 4 So.2d 591, this day decided, it is ordered that the judgment herein appealed from be and the same is hereby affirmed at the cost of appellant in both courts.

DORE, J., concurs.

LE BLANC, Judge

(dissenting).

For the reasons stated in the dissenting opinion filed by me in the case of State ex rel. Sanchez v. Millard W. Dixon, 4 So.2d 591, I respectfully dissent '.from the decree handed down in the majority opinion herein.


text:
    STATE ex rel. Dewey J. SANCHEZ, District Attorney, et al. v. Scott A. KLEINPETER.
    No. 2303.
    Court of Appeal of Louisiana. First Circuit.
    Nov. 19, 1941.
    Jos. A. Loret, Asst. Atty. Gen., for appellant.
    D. J. Sanchez, Dist. Atty., of Baton Rouge, for appellees.
   OTT, Judge.

For the reasons assigned in the case of State ex rel. Dewey J. Sanchez, Dist. Atty., et al. v. Millard W. Dixon, 4 So.2d 591, this day decided, it is ordered that the judgment herein appealed from be and the same is hereby affirmed at the cost of appellant in both courts.

DORE, J., concurs.

LE BLANC, Judge

(dissenting).

For the reasons stated in the dissenting opinion filed by me in the case of State ex rel. Sanchez v. Millard W. Dixon, 4 So.2d 591, I respectfully dissent from the decree handed down in the majority opinion herein.


author: SIMON, Judge. PER CURIAM.

text:
    TYSON v. VICTORY INDUSTRIAL LIFE INS. CO.
    No. 17596.
    Court of Appeal of Louisiana. Orleans.
    Nov. 3, 1941
    On Rehearing Nov. 17, 1941.
    Ernest J. Robin, of New Orleans, for appellant.
    Charles J. Mundy, of New Orleans, for appellee.
   SIMON, Judge.

Dora Tyson, the beneficiary of a policy of industrial insurance issued by the defendant, Victory Industrial Life Insurance Company, upon the life of Estella Brum-field, brought this suit to recover from it the avails of insurance, which she asserts to be the sum of $201. She alleges the issuance of the policy by the defendant on August 7, 1939; that the insured died on October 8, 1940, while the policy was in full force and effect; and that, notwithstanding amicable demand, payment of the proceeds has been refused by the defendant.

The defendant admits the issuance of the policy, the insured’s death and that all premiums have been fully paid. It resists liability on the ground that the assured was guilty of fraud in the procurement of the insurance in that she wilfully misrepresented the true condition of her health and made false answers to questions propounded to her at the time she made written application to its agent for the issuance of the policy. It charges that, whereas Brum-field stated in her written application that she had never suffered with disease and had never been treated in any hospital, in truth and in fact, she had been admitted and treated at the Charity Hospital of New Orleans on five separate occasions for a disease of fifteen years’ standing, and from which she subsequently died, she having full knowledge of this ailment at the time she applied for the insurance.

After a trial in the lower court on this issue, there was judgment in plaintiff’s favor for the amount claimed and the defendant has prosecuted this appeal from the adverse decision.

In support of the charge of fraud and wilful misrepresentation on the part of the assured, the defendant submitted the testimony of its agent, Albert Simpson. He testified that he propounded the questions contained in the written application to one “pointed out” to him as Estella Brumfield, and the answers thereto were written in by him; that he had one Sophie Kennedy, who was then present, and who, according to his understanding, transacted all business for Dora Tyson, plaintiff, sign Estella Brumfield’s name on the written application; that he thereafter delivered the policy at 2123 Clio Street in New Orleans, the address from which the application was procured.

Plaintiff, a sister of the assured, testified that she resided at 2123 Clio Street and that, at the time the written application was obtained, Estella Brumfield resided at 1212 Freret Street; that Simpson, defendant’s agent, called at her home and there filled in the application; that Estella Brum-field was at no time present, she then being at work; that the only question asked by its agent was the name and age of the assured, which she furnished, all other answers contained in the application being filled out by him; that the only other person present was a woman named Sophie Kennedy, the latter signing the assured’s name on the application at the request of the agent.

Plaintiff’s testimony is fully corroborated by the testimony of Sophie Kennedy, she also positively stating that, at the time of the filling out of the application, Estella Brumfield was not present; and that she, Kennedy, signed the name of the assured to the application, as requested.

We are fully convinced that the charge of fraud and wilful misrepresentation cannot find the slightest support in the foregoing testimony. The record discloses that defendant’s agent had severed his connections with another insurance company the day previous to obtaining the application in question, this being his first day of employment with defendant. As a consequence, he admits that he was “most eager” to obtain business, and that, having previously obtained other applications at plaintiff’s home, he concluded that that place was preferable .rather than soliciting, as he says, “cold-business”. Though he admits having known Estella Brumfield for over ten years, having seen and spoken to her on many occasions, he testifies that the assured was “pointed out” to him at the time the application was obtained, and that the questions called for therein were propounded to one “he supposed”, or who “apparently”, was Estella Brumfield. Certainly, personally knowing the assured, it is incredible that there would have been any need for identification, or indulgence in supposition or uncertainty.

Against this rather unbelievable version of this agent, we have the positive testimony of plaintiff and the witness who, it is admitted, was present at the time, and from which flows every appearance of sincerity and truthfulness. We are fully convinced that the assured was not present at the confection of the application in question, and that all answers therein recorded were the agent’s own will and initiative, prompted, undoubtedly, by the commission to be earned gnd his desire to display to his employer his skill and cleverness as an aggressive solicitor. If any fraud was perpetrated, certainly it was that of its agent alone — fraud in submitting to his company a written application containing self-conceived representations of the health of the insured. Unquestionably, no stigma of fraud or wilful misrepresentation can be laid at the assured’s door.

It is now well settled that the knowledge of the agent is that of his principal. Bordelon v. National Life & Accident Insurance Company, La.App., 187 So. 112. In the case at bar, defendant does not question its agent’s conduct in the performance of his duties, or that he exceeded the scope and authority of his employment. Neither does it charge a conspiracy to defraud between its agent and the insured. The fraud and misrepresentation charged being solely that of its agent, it cannot now be heard to avoid liability upon a policy issued by it and upon which it has received all premiums due.

Though its sole defense was an avoidance of liability upon the ground of fraud, counsel for defendant now urges before us, in argument and brief, that defendant’s liability under the policy is limited, in any event, to one-fourth of the full death benefit, or $50.25. The reason urged in support of limitation of liability is that the insured died of a chronic disease within eighteen months from the date the policy was issued.

The evidence shows the contract was issued on August 7, 1939, and that the insured died on October 8, 1940.

The condition of the policy upon which the defendant relies to defeat recovery of the full death benefit reads as follows:

“2. * * * This contract shall be void if the Insured before its date, has been rejected for insurance by this or any other Company, or has been attended by a physician for, or has had before said date any scrofula, tuberculosis, paralysis, high blood pressure, diseases of the respiratory organs, cancer, epilepsy, or any disease of the brain, heart, liver or kidneys, syphilis or any venereal disease, * * *, or if the Insured shall die from any of the aforementioned diseases or any chronic disease contracted or occurring within eighteen months from the date of policy, one-fourth of the stipulated sum othenvise payable will be paid. * * * ” (Italics ours.)

Plaintiff does not question the fact that the insured died of chronic ulcerative colitis with other diseases of the liver and attending complications' more than six months, but less than eighteen months, after the issuance of the policy. She asserts that there should be no limitation of recovery in view of another clause in the policy which reads as follows :

“One-half of the above (full death benefit) if death occur within six months from date, and the full amount if death occur thereafter, except that in event of death from accident within six months from date full amount shall be payable.”

Plaintiff contends that the foregoing condition is repugnant to and in conflict with the condition relied upon by defendant and that, since this provision states that the policy is one in full benefit after six months from its date of issuance, we should hold that it prevails over the other condition.

We are unable to discern any conflict or repugnancy between these two provisions. That' relied upon by defendant declares that it shall pay no more than one-fourth of the full death benefit should death occur more than six months, but less than eighteen months, after the date of the policy, if death results from one of the named ailments. The other stipulation, relied upon by plaintiff, merely fixes the amount of the death benefit in case death should result from any cause within a fixed time from the date of the issuance of the policy. On the heading of the policy in question we find in bold type the following:

“Hereby insures the life of the person designated in the following schedule, and promises to pay the sum of money stipulated in such schedule, sub feet to the conditions and privileges contained on this and the succeeding pages hereof and which constitute a part of this contract.’1 (Italics ours.)

Upon examination of the policy, we find that the schedule, referred to in the last quoted proviso, therein fixes and makes payable the amount of the full death benefit after six months has elapsed from the date of issuance. The words “ * * * to pay the sum of money stipulated in such schedule, subject to the conditions and privileges contained on this and the succeeding pages hereof * * * ” were obviously made part of this contract for the purpose of avoiding a conflict between the various conditions contained therein, and clearly exhibit that, because of the other provision of the policy, the full death benefit does not necessarily become payable even though it be shown that the policy has been in full force and effect more than six months. Here, the stipulation of the policy relied upon by defendant is dependent solely upon the death of the insured within a fixed time as a result of named diseases. We are convinced that its provisions are decisive of the issues presented. Our jurisprudence is well settled to the effect that such a condition is not unreasonable and will be enforced. Gray v. Louisiana Industrial Life Insurance Company, La.App., 193 So. 278; Moore et al. v. Southern Life & Health Insurance Co., La.App., 195 So. 857.

Plaintiff contends that, having failed to. plead a limitation of recovery as a defense, defendant should not now be permitted to do so. The obvious answer to that contention is that plaintiff is seeking recovery upon a contract of insurance and her ultimate recovery must either stand or fall upon its terms and conditions. The policy of insurance being the source of her claim, she is bound by its provisions and is entitled only to such relief as the contract specifically affords. Defendant, having denied liability, and having prayed for all general and equitable relief, it is fully warranted, should recovery be allowed, in urging before us the enforcement of the contract in accordance with its provisions.

For the reasons assigned, the judgment appealed from is amended by reducing the amount awarded to Dora Tyson from the sum of $201 to $50.25, and in all other respects the said judgment is affirmed; ap-pellee, Dora Tyson, to pay the costs of this appeal, and all other costs to be paid by the defendant.

Amended and affirmed.

On Application for Rehearing.

PER CURIAM.

On November 3, 1941, we rendered a final opinion and decree in this matter. The case came from the First City Court of New Orleans, and therefore application for rehearing could not be considered unless presented prior to the expiration of the fifth calendar day after the rendition of the decree. See Act 16 of 1910, Sec. 1, Dart’s Statutes, Sec. 1450.

At 3:58 P. M. on November 10, 1941, there was delivered at the office of the Clerk of this court a collect telegram reading as follows:

“Dora Tyson vs Victory Ins. Co.
“Court of appeal Civil Courts Bldg.
“Please grant a rehearing in above case on question of costs.
“Charles J. Mundy Touro Infirmary.”

The Charles J. Mundy, whose name appears in this telegram, was counsel for plaintiff-appellee. May we consider this telegram as an application for a rehearing?

Par. 2 of Rule 10 of this court requires:

“The application for rehearing shall be made by petition, filed within the legal delay and containing a statement of the points of law and fact upon which it is founded. * * *>>

This rule is based on Art. 912 of the Code of Practice, which provides that — ■

“A party dissatisfied with the judgment may apply to the court for a new hearing in the cause, and for this purpose shall present a petition, in which he shall state substantially the reasons for which he thinks the judgment erroneous, and shall cite the authorities in support of his opinion.”

The question then is: Does such a telegram constitute a petition, and if so, does it contain the essentials required by our rule and by the article of the Code of Practice?

We find no case in the jurisprudence of this state which sets forth what is a petition within the contemplation of that article of the Code of Practice. We do find that the Code itself defines a petition in Article 171, and Article 172 makes many requirements as to what must be set forth in a petition. Again we find no jurisprudence on the question of whether these articles apply to a petition for a rehearing, but we do find in Alfred Hiller Co., Ltd., v. Hotel Grunewald Co., Ltd., 138 La. 305, 306, 70 So. 234, that the Supreme Court has held that these articles do not apply to a petition for an appeal.

In Armbruster v. Behan, 3 Orleans App. 184, this court considered the question of whether or not the so-called petition for rehearing complied with the rules of this court and with the cited article of the Code of Practice, and held' that since the said so-called petition did not set forth the grounds on which it was based, it did not constitute a petition within the contemplation of the article of the Code and of the Rule of this Court.

In Lacroix v. Camors et al., 34 La.Ann. 639, the Supreme Court considered a similar question in which a petition for rehearing stated that thé grounds would be set forth in a printed brief to be filed. When this petition was filed there was inadvertently signed in the Supreme Court an order permitting the filing of the said brief, and later the brief was filed setting forth the grounds on which the application for rehearing had been based.

When the court came to consider whether the petition constituted an application within the contemplation of the rule of the Supreme Court and of the article of the Code of Practice, the majority of the court held that it did not. See also Brown v. Stroud, 34 La.Ann. 374.

In Walker v. Mills Engineering Construction Co., 153 So. 344, 345, the Court of Appeal for the First Circuit considered an application for rehearing which did not specifically point out any error. The court held that the application was not in proper form, since it “does not point out specifically any error in the opinion and judgment handed down herein.”

For the reasons set forth in these authorities, that is to say because no reasons are set forth in the telegram, we believe that the said telegram cannot be considered as a petition within the contemplation of our rule and within the contemplation of Art. 912 of the Code of Practice. Furthermore, we are of the opinion that a telegram, which does not contain the signature of the attorney, cannot be considered as a petition. Further, we consider it a novel proceeding to send to the court collect telegrams.

Application not considered.