author: O’NIELL, Chief Justice. FOURNET, Justice McCALEB, Justice MOISE, Justice

text:
    214 La. 791
    TANNER et al. v. BEVERLY COUNTRY CLUB, Inc., et al. ELLZEY et al. v. ORIGINAL CLUB FOREST, Inc., et al.
    Nos. 38658, 38728.
    Supreme Court of Louisiana.
    Nov. 8, 1948.
    Rehearing Denied Feb. 14, 1949.

      J. I. McCain, of New Orleans, for plaintiffs-appellants.
    Fred A. Middleton, of New Orleans, for defendants-appellees.
   O’NIELL, Chief Justice.

These cases were by consent of the parties consolidated, in this court, and were argued and submitted as one case, because each case presents for decision the same question. The question as presented by the defendants is whether section 3 of Act No. 192 of 1920, as amended, is unconstitutional.

In tl^e case No. 38,658, Tanner et al. v. Beverly Country Club, Inc., et al., twenty individuals, alleging that each one of them was a taxpayer residing and domiciled in the Parish of Jefferson, brought this suit against the Beverly Country Club, Inc., alleging that the defendant corporation was conducting a gambling hoüse, and hence a public nuisance as defined in Act No. 192 of 1920, on its property in- the Parish of Jefferson. The plaintiffs alleged that Philip Kastel, also residing and domiciled in the Parish of Jefferson, was president of the Beverly Country Club, Inc., and was the agent for the corporation in the operation of its gambling house. Hence they made Kastel a party defendant in the suit to abate the alleged nuisance.

In the case No. 38,728, entitled Ellzey et al. v. Original Club Forest, Inc., et al., sixteen individuals, eight of whom were plaintiffs in the case of Tanner et al. v. Beverly Club, Inc., et al., brought a similar suit to abate an alleged nuisance consisting of the operation of a gambling house in the Parish of Jefferson by a corporation called Original Club Forest. In this latter suit the plaintiffs also alleged that each of them was a taxpayer residing and domiciled in the Parish of Jefferson; that one Lawrence J. Luke, also residing and domiciled in the Parish of Jefferson, was the president of the Original Club Forest, Inc., and was the agent for the corporation in the operation of its gambling house. Hence Luke was made a party defendant.

In each case the defendants filed a plea to the jurisdiction of the court ratione matériae. The plea was founded upon the omission from section 3 of the Act of 1920, originally and as amended by the act of 1940, Act No. 120 of 1940, of the words which were inserted in section 3 of the act of 1938, Act No. 49 of 1938, “having jurisdiction thereof”. It was contended in the plea to the jurisdiction of the court that section 3 of the statute therefore violated the due process clause in the 14th Amendment of the Constitution of the United States and in section 2 of article 1 of the Constitution of Louisiana, and violated also the provisions in article 7 of the Constitution of Louisiana, dividing the state into a given number (originally twenty-six now twenty-eight) judicial districts, and defining the territorial jurisdiction of the district judge or judges in each judicial district.

In each case, the judge, after hearing arguments on the plea to the jurisdiction, gave judgment for the defendants, sustaining their plea to the jurisdiction of the court, declaring section 3 of Act No. 192 of 1920, as amended, unconstitutional, and dismissing the suit. The plaintiffs in each case have appealed.

It is not necessary to decide in the present cases, whether section 3 of the statute in question conflicts with the general arrangement of the judicial districts throughout the state as defined or limited in article 7 of the Constitution of Louisiana; nor is it necessary to decide here whether section 3 of the statute violates the due process clause by authorizing the filing of an abatement suit, such as these suits, in any district court which the plaintiff may select without regard for the place of residence or domicile of the defendant and without regard for the location of his place of business which the plaintiff seeks to abate as a gambling house and hence a public nuisance.

There are two distinct reasons why the defendants in these cases have no right to plead that section 3 of the statute in question is unconstitutional for conferring upon the plaintiff or plaintiffs in an abatement suit, such as these suits, the right to select the district court in which he will institute his suit. The first of these reasons is that the statute does not purport to give the plaintiff in an abatement suit of this kind the right to select the district court in which he will institute his suit. The second of these reasons is that the present suits were brought in the parish in which all of the defendants have their domicile, and in which the alleged gambling houses are located, — that is, in the Parish of Jefferson. It is true that, in the case of Mongogna et al. v. O’Dwyer, 204 La. 1030, 16 So.2d 829, 152 A.L.R. 162, it was said that the constitutionality of section 10 of the statute which we are now considering did not depend upon what was done under authority of that section, but depended upon what might be done under its authority. But that expression was not necessary for the decision. The case was a proceeding by mandamus to compel the district judge to grant a temporary restraining order to close the alleged gambling house, under authority of the JLOth section of the statute, on a mere affidavit of the plaintiff, Mon-gogna, and of twelve other individuals, swearing that the defendant’s establishment, known as O’Dwyer’s Club Forest, was a gambling house and should be suppressed as a public nuisance under the provisions of the act. The judge of the district court refused to issue a restraining order closing the establishment, ex parte, or without giving the defendant notice and allowing him an opportunity to be heard. The judge maintained that such a proceeding would not be due process of law, and hence would violate the 14th Amendment of the Constitution of the United States, and the corresponding provision in section 2 of article 1 of the Constitution of Louisiana. This court sustained the district judge in his refusal to grant the restraining order ex parte, and rejected the rela-tors’ petition for a writ of mandamus. In deciding the matter, in Mongogna v. O’Dwyer, the court cited the case of Coe v. Armour Fertilizer Works, 237 U.S. 413, 35 S.Ct. 625, 59 L.Ed. 1027. But the citing of that case was not appropriate in the decision rendered in Mongogna v. O’Dwyer. The decision in the Coe case did not turn upon what might have been done under authority of the statute, but what actually was done under authority of the statute. The statute, a statute of Florida, purported to authorize a seizure of the defendant’s property without giving him judicial notice and an opportunity to be heard. His property was in fact seized without giving him notice or an opportunity to be heard. He pleaded that the statute and the proceedings had thereunder were violative of the due process clause in the 14th Amendment of the Constitution of the United States. The seizing creditor claimed that the defendant had actual notice and therefore could not complain that the statute did not require that he should have judicial notice before the levying of the seizure. What the court decided was that the alleged actual notice could not serve as a substitute for the judicial notice required by the due process clause of the 14th Amendment.

The statute in question in the present cases was enacted to carry into effect article 188 of the Constitution of 1898 and of 1913, declaring that gambling is a vice and the Legislature shall pass laws to suppress it. The same provision is retained in the Constitution of 1921 as section 8 of article 19. The statute defines gambling houses and declares them to he public nuisances; and in the third section of the act, as originally enacted, it was declared: “Section 3. Be it further enacted, etc., That any taxpayer, whether a natural or an artificial person and whether a citizen or non-resident, shall have the right to file a suit in any District Court in this State, or in the Civil District Court for. the Parish of Orleans to abate the nuisance created by such gambling house and to have the owner, lessee, sub-lessee, agent or other occupant declared guilty of maintaining a public nuisance.”

In 1938, by Act No. 49 of that year, the Legislature amended section 3 of Act No. 192 of 1920, by increasing the number of taxpayers, necessary to maintain an action to suppress a gambling house as a public nuisance, from one taxpayer to twenty-five taxpayers, and by requiring that they should be real estate taxpayer’s, and that they should have resided and voted continuously for five years in the parish wherein the nuisance was alleged to exist. In this amendment and re-enactment of section 3, in 1938, the words “having jurisdiction thereof” were inserted, after the provision that the twenty-five taxpayers should have the right to file a suit in the district court. As amended by the act of 1938, section 3 of the act read thus: “Section 3. Twenty-five real estate taxpayers, who shall have resided and voted continuously for five years preceding in the place or parish wherein said nuisance is alleged to exist, shall have the right to file a suit in the district court, or in the civil district court for the Parish of Orleans, having jurisdiction 'thereof, to abate the nuisance created by such gambling house and to have the owner, lessee, sub-lessee, agent or other occupant declared guilty of maintaining a public nuisance.” [Italics ours.]

In 1940, by Act No. 120 of the session of that year the Legislature again amended section 3 of Act No. 192 of 1920. By the amendment of 1940 the number of taxpayers, required by the act of 1938 to maintain an action to abate the nuisance, was reduced from twenty-five to ten taxpayers. In all other respects the wording of section 3, as originally enacted in 1920, was copied literally, thus: “Section 3. That 10 taxpayers, whether natural or artificial persons and whether citizens or non-residents, shall have the right to file a suit in any District Court in this- State, or in the Civil District Court for the Parish of Orleans, to abate the nuisance created by such gambling house and to have the owner, lessee, sub-lessee, agent or other occupant declared guilty of maintaining a public nuisance.”

It is argued for the appellants that the omission of the'phrase “having jurisdiction thereof”, in section 3 of Act No. 120 of 1940, which phrase “having jurisdiction thereof” was inserted in the corresponding section of the act of 1938, had the effect of conferring upon every district court in the twenty-six, now twenty-eight, judicial districts throughout the state, state-wide jurisdiction to entertain a suit of this kind, against a defendant domiciled or residing anywhere in the state, to abate an alleged public nuisance, by suppressing a gambling house, located anywhere in the state. There might be some soundness in that argument if the omission of the words' “having jurisdiction thereof,” in the act of 1940, was the only change made in section 3 of the act of 1938. But the obvious purpose of the amendment of section 3 of the act, in 1940, was to reduce the number of taxpayers required by the act of 1938, from twenty-five to ten taxpayers, and to abolish the other requirements or qualifications for the taxpayers to maintain such a suit under section 3-of the statute. Under the original act, of 1920, any one taxpayer could maintain such a suit. By the act' of 1938 the number of taxpayers necessary to maintain such a suit was increased from one taxpayer to twenty-five taxpayers, and certain qualifications for the taxpayers to maintain such a suit were required by the act of 1938. By.the amendment of 1940, the number of taxpayers required to maintain the suit was reduced from twenty-five to ten, and the qualification that the plaintiffs should have resided and voted for five years in the place or parish where the nuisance was alleged to exist was abolished. The fact that these were the only objects or purposes of the amendment of 1940 is made manifest by the fact that in all other respects section 3 of the act of 1940 is an exact copy of the corresponding section of the original statute, Act No. 192 of 1920. There is no reason to believe that, by the omission of the words “having jurisdiction thereof,” in the amendment of 1940, the Legislature intended -to confer upon all of the district courts, in a case of this kind, state-wide jurisdiction to suppress a nuisance, regardless of the\ place of residence of the- defendant and regardless of the place where the alleged nuisance is being conducted.

The most plausible and obvious' reason why the Legislature, in the amendment of 1940, omitted the words, “having jurisdiction thereof,” was that those words were deemed unnecessary. The act of 1920, which did not contain the words “having jurisdiction thereof,” was in existence for eighteen years, before it was amended by the act of 1938, and we are not aware that anyone ever construed section 3 of the act as giving state-wide jurisdiction to all of the district courts throughout the state to suppress a nuisance, under the provisions of the act, regardless of the domicile or place of residence of the defendant and regardless of the location of the alleged nuisance, or gambling house.

In this connection it is important to note that in the amendment of section 3 by the act of 1940, the Legislature tracked the wording of that section of- the act of 1920 literally, except for the fact that section 3 of the act of 1940 requires that there shall be ten taxpayers as plaintiffs to maintain such a suit, whereas section 3 in the act of 1920 required that only one taxpayer might maintain such a suit.

In other jurisdictions throughout this country the term “any district court” has been interpreted consistently to mean “any district court having jurisdiction”. On this subject we quote the late Justice Brandeis, in Robertson v. Railroad Labor Board, 268 U.S. 619, 45 S.Ct. 621, 624, 69 L.Ed. 1119, thus: “We are of opinion that by the phrase ‘any District Court of the United States’ Congress meant any such court ‘of competent jurisdiction.’ The phrase ‘any court’ is frequently used in the federal statutes and has been interpreted under similar circumstances as meaning ‘any court of competent jurisdiction.’ By the general rule the jurisdiction of a District Court in personam has been limited to the district of which the defendant is an inhabitant or in which he can be found.”

In Mattler v. Schaffner, 53 Ind. 245, the Supreme Court of Indiana held that the words “any court of record” meant “any-court of record having jurisdiction”. In. the course of its opinion the court quoted; from State ex rel. Wildman v. Board of' Commissioners of Vanderburgh County, 49-' Ind. 457, in answer to an argument similar to the one advanced by the defendants in, the -present cases, thus: “We do not think: the legislature intended any such results,, or to work so wide a departure from the general judicial system of the State. We must therefore seek some other than a literal interpretation of the language employed. And we think the legislature, by the phrase ‘in any court of this State/' meant nothing more nor less than if they had said ‘in any court of this State having competent jurisdiction.’ This construction will harmonize with the general law of the State, and carry out what we are justified in concluding was the intention of the legislature.”

In State v. Turnpike Company of Middletown, 65 N.J.L. 73, 46 A. 569, 570, the Supreme Court of New Jersey, interpreting a statute of that state, declared: “It is manifest that the language, ‘by virtue of any process or decree of any court of this state,’ cannot be held to include every court of this státe, because -that would give the power to justice’s courts and courts of common pleas. Therefore, -the words used cannot be taken in their most comprehensive sense.”

Our conclusion is that the words “shall have the right '*o file a suit in any District Court”, as used in section 3 of the act of 1920, originally and as amended’ by the act of 1940, means “shall have the-right to file a suit in any district court having jurisdiction”. In other words the-Legislature did not intend, by the amendment made in 1940, to allow the plaintiff; in a suit to abate a nuisance, under the third section of the statute, to select the district court in which he would file his suit, regardless of the place of residence or domicile of the defendant or defendants, and regardless of the location of the alleged gambling hou'se.

It is argued for the defendants that there are provisions in section 6 of the statute which confirm their view that the purpose of section 3 was to allow a plaintiff in an abatement suit brought under the provisions of the act to select the district court in which he would file his suit, regardless of the place of residence or domicile of the defendant or defendants and regardless of the location of the alleged gambling house. The provisions referred to, in sec-tion 6, are that the maintenance or operation of a nuisance, as defined in the act, by •any person or persons previously enjoined under the act in any jurisdiction in the state from maintaining such a nuisance, shall be, ipso facto, contempt of court in the jurisdiction where such nuisance is maintained, punishable upon the mere showing of the previous injunction and the maintenance of such nuisance. Our opinion is that the phrase “in the jurisdiction where such nuisance is maintained” has reference to the jurisdiction in which the contempt is committed by a violation in that jurisdiction of any judgment, interlocutory order or decree, or injunction or restraining order, theretofore issued by a distict court in another jurisdiction in the state. In other words, the phrase' “contempt of the court in the jurisdiction where such nuisance is maintained” does not mean contempt of the court of the jurisdiction, etc. It would be unreasonable to construe section 6 to mean that a violation, in another jurisdiction, of an injunction or a restraining order issued by a court having jurisdiction, should be deemed contempt of the court in the other jurisdiction, even though that court had not issued an injunction or a restraining order or any other order forbidding the defendant to operate a gambling house.

The judgment appealed from, in each of these cases, is annulled and reversed; the defendants’ plea to the jurisdiction of the district court is overruled; and the cases are ordered remanded to the district court to be proceeded with in accordance with the views herein expressed. The costs incurred to this date, in each case, are to be borne by the defendants, appel-lees; the question of liability for court costs hereafter incurred, in each case, shall abide the final disposition of the case.

McCALEB, MOISE, and FOURNET, JJ., concur and assign reasons.

PONDER, J., concurs in decree.

FOURNET, Justice

(concurring).

With all due respect to the views expressed in the majority opinion, I cannot agree that defendants were without right to attack the validity of Act No. 192 of 1920, as amended, since if such attack were successful it would render the act ineffective in its entirety. Nor can I subscribe to the construction therein placed on Section 3 of the act, particularly when this section is considered in connection with the other sections thereof and the changes that have been made by the amendments thereto. Nevertheless, I am not aware of any constitutional restriction on the legislature’s right to enact such legislation, and for this reason I am concurring in the result that has been reached by the majority.

McCALEB, Justice

(concurring).

Under the well-settled jurisprudence, see Mongogna v. O’Dwyer, 204 La. 1030, 16 So.2d 829, 152 A.L.R. 162 and State v. Baggott, 212 La. 795, 801, 33 So.2d 523, the defendants have the right to attack the validity of Act No. 192 of 1920 if that statute, as contended for by them, is- wholly unconstitutional.

I am also of the opinion that a consideration of Act No. 192 of 1920 in its entirety and the amendments thereto, - particularly the amendment to Section 3 by Act No. 49 of 1938 and as finally amended and reenacted by Act No. 120 of 1940, discloses an unmistakable intention on the part of the Legislature to grant to taxpayers of the State, 10 or more in number wherever domiciled, the right to file a suit to abate a gambling nuisance, as defined in the Act, in any district court of the State without restriction as to where the defendants reside or where the nuisance is maintained. However, I cannot discern that this grant by the Legislature confers upon the district courts throughout the State any additional jurisdiction ratione materiae and is, therefore, violative >of the provisions of Section 31 and 35 of Article VII of the Constitution, as claimed by defendants, or, for that matter, any other constitutional provision, State or Federal.

Section 31 of Article VII of the Constitution provides that there shall he 26 judicial districts in the State, .other than the Parish of Orleans, and enumerates the Parishes composing those districts. There is nothing contained therein relative to the jurisdiction of the district courts which are created.

Section 35 of the same Article, among other things, defines the jurisdiction of the district courts, excepting the Parish of Orleans, and declares that they shall have' original jurisdiction in all civil matters regardless of the amount in dispute or the fund to he distributed “and in all cases where the title to real estate, or the right to office, * * * are involved, and in all cases where no specific amount is in contest * * * ”. It further provides for unlimited and exclusive original jurisdiction in all criminal cases, except as otherwise provided, and in all probate and succession matters, etc.

The grant of jurisdiction contained in Section 35 is a statement of the subject matter over which all district courts of this state are given authority to render judgment There is nothing which I have found (from a careful reading of numerous provisions of the Constitution) limiting the power of the Legislature to provide for the place in which civil actions may be brought. Accordingly, it is plain to m‘e that counsel for defendants, in their claim of constitutional invalidity of Section 3 of Act No 192 of 1920, have confused jurisdiction ratione persona with jurisdiction ratione materiae or “venue” with “jurisdiction”. The distinction between “jurisdiction” and “venue” is firmly established and has been often recognized. In 21 C.J.S. Vertram, Courts, § 15 c, page 33, the difference is stated thus: “Jurisdiction connotes the power to decide a case on the merits, while venue connotes locality, the place where the suit should be heard. The word ‘venue,’ unless it is given jurisdictional effect by localizing the action, relates only to the place where or the territory within which either party may require the case to be tried, and unless it is a localized action, the question of jurisdiction of subject matter is not involved.”

In the instant case, it cannot be gainsaid that any one of the district courts of this state has jurisdiction to try a case involving the abatement of a nuisance— for, as above shown, Section 35 of Article VII of the Constitution vests in the district courts original jurisdiction in all civil matters regardless of the amount in dispute. Hence, the Legislature, in prescribing special civil remedies under Act No. 192 of 1920 for the abatement of a gambling house and authorizing a padlock penalty upon the owner of the establishment in certain instances, unquestionably had power to provide that such actions be brought in the district courts. The complaint of defendants, therefore, is not that district courts, as such, do not have jurisdiction but that the Legislature transcended its power in permitting taxpayers to bring suits of this sort in the district courts of their own choice and not necessarily in the district court of the Parish in which the defendant resides or in which the nuisance is maintained. But, in advancing this proposition, defendants are unable to point to any constitutional provision restricting the authority of the Legislature on this score. As a matter of fact, there are none as the provisions regulating the place where civil actions may be brought are not contained 'in the Constitution. They are to be found in the Code of Practice, Articles 162 through 168, Section 2 of Chapter 2 of Title I of Part II dealing with civil actions The general rule, Article 162, Code of Practice, is that, in civil matters, the defendant, must be sued before his own judge. But that rule is subject to many exceptions and the Legislature is invested with plenary power to make such changes as it deems advisable, provided it does not violate any constitutional limitation on its authority.

The Supreme Court of the United States has many times recognized that the Congress (although clothed only with the authority given it by the Constitution) “clearly has the power to authorize a suit under a federal law to be brought in any inferior federal court” and also to provide “that the process of every District • Court shall run into every part of the United States.” See Robertson v. Railroad Labor Board, 268 U.S. 619, 622, 45 S.Ct. 621, 622, 69 L.Ed. 1119, 1121; see also Toland v. Sprague, 12 Pet., U.S., 300, 328, 9 L.Ed. 1093, 1104; United States v. Union Pac. R. Co., 98 U.S. 569, 604, 25 L.Ed. 143, 151 and Mississippi Pub. Corp. v. Murphree, 326 U.S. 438, 442, 66 S.Ct. 242, 90 L.Ed 185, 190.

In United States v. Union Pac. R. Co. supra, defendant attackéd a statute of 1873, 17 Stat. 509, which authorized the ¡ Attorney General to bring a suit against it “in the circuit court in any circuit” .on the ground (among other things) that Congress was without constitutional power to permit the government to select its own tribunal before which it would litigate a particular case. The Supreme Court, after alluding to the general rule, recognized by Congress in the enactment of the Judicial Code,. 28 U.S.C.A. that a defendant must be sued within the jurisdiction of his residence or where he is found, held that this does not mean that Congress'did not have authority to legislate otherwise as there is “nothing in the Constitution which forbids Congress to enact that, as to a class of cases or a case of special character, a circuit court — any circuit court — in which the suit may be brought, shall, by process served anywhere in the United States,, have the power to bring before it all the-parties necessary to its decision.”

For the foregoing reasons, I respectfully concur in the decree.

MOISE, Justice

(concurring).

Eliminating the pursuits of all shadows reflected by constitutional restrictions and looking at the substance of this action for the purpose of determining the sole and: only exception to the jurisdiction of the court in the Parish of Jefferson, we will find that the residents of Jefferson Parish, brought this suit to abate a nuisance, at the-domicile of the defendants, within a location in the Parish of Jefferson where the nuisance exists. Here are all of the elements to constitute the jurisdiction of that court. From the prayer of relators’ petition for general and equitable relief this action, is sustainable, under the general injunction law of Louisiana, independent of any of the terms and provisions of Act No. 192 of 1920, as amended. For these reasons, I concur in the de'cree of the majority of this Court to the extent that the district court for the Parish of Jefferson has jurisdiction.

       Counsel for plaintiffs conceded during oral argument of this case that, if Section' 3 of the Act be viewed as giving jurisdiction to any district court in the State other than that in which the nuisance exists or the defendants reside, it would be unconstitutional. We, of course, cannot be bound by this acknowledgment of counsel. It is the duty of the court to determine whether laws are violative of the Constitution. They cannot be stricken with nullity by admission of the litigants.

       Compare the case of venue in criminal prosecutions. Section 9 of Article I of the Constitution fixes the venire of all criminal trials by providing “that all trials shall take place in the parish in which the offense was committed, unless the venue be changed; provided further, that the Legislature may provide for the-venue and prosecution -of offenses committed within one hundred feet of the-boundary line of a parish,.”'


source: Caselaw Access Project

author: McCALEB, Justice.

license: Public Domain

text:
    214 La. 812
    DE MAUPASSANT v. CLAYTON.
    Nos. 38741, 38742.
    Supreme Court of Louisiana.
    Jan. 10, 1949.
    Rehearing Denied Feb. 14, 1949.

      James G. Schillin, of New Orleans, for plaintiff-appellee.
    Weiss & Weiss, of New Orleans, for defendant-appellant.
   McCALEB, Justice.

The parties to these consolidated cases were married on August 8, 1941. One year later, the husband entered the United States Navy and remained absent from the state (except for a short furlough in 1944) until November 1945, when he was separated from the service. On February 2, 1946, he instituted suit for a divorce (under Act 430 of 1938) on the ground that he and his wife had lived separate and apart since August 8, 1942, when he enlisted in the Navy. As an incident to the demand, he applied for" a preliminary injunction to restrain his wife from withdrawing funds out of a certain bank account kept by her in the National Bank of Commerce of New Orleans on the ground that the balance of $4,321.50 contained therein belonged to the comrtiunity of acquets and gains. He obtained a temporary restraining order and, after a hearing, a preliminary injunction issued without bond prohibiting defendant and the bank from removing any of the funds on deposit.

Things remained in this state until March 1, 1946, when plaintiff instituted another suit against his wife for a divorce charging that she lived in open adultery with a man named Hortenstein, with whom she had contracted a bigamous marriage on October 28, 1943, while plaintiff was in the military service. In this action, a preliminary injunction similar to that in the two-year divorce suit was prayed for and granted, after hearing, by the court. Plaintiff also filed a supplemental petition in the adultery action praying, in the alternative, for a separation from bed and board on the ground of cruelty. On April 25, 1946, he obtained an order dismissing, as of non-suit, his demand for a divorce under the two-year separation law.

Prior to the time that plaintiff dismissed the two-year divorce suit, the defendant appeared and filed an answer thereto, admitting the allegations of the petition and praying in reconvention that she be granted the divorce. She also appeared in the adultery action and filed exceptions of lis pen-dens and misjoinder of causes of action. These exceptions were overruled and defendant answered admitting that she had contracted a bigamous marriage (annulled by judgment of court) but alleging that plaintiff had condoned her conduct. She also vigorously, but unsuccessfully, resisted the issuance of the preliminary injunction restraining her from withdrawing funds from the bank account in her name.

The cases were consolidated for trial— that is, the reconventional demand of defendant for a divorce under the two-year law and the adultery action. After hearing, there was judgment for plaintiff in both suits and the preliminary injunction theretofore issued was made perpetual. Defendant prosecuted appeals from the adverse decision and the cases have been consolidated again for our consideration and decision.

At the outset, it is obvious from a mere statement of the proceedings below that the only matter in serious contest is. whether the bank account in the name of the wife is community property. And, since the funds in the bank were acquired during the marriage, defendant is confronted with the presumption of law that they are community funds and it devolved upon her to show by clear and convincing evidence that they belong to her separate and paraphernal estate. Civil Code Articles 2334, 2402 and 2386; Succession of Land, 212 La. 103, 31 So.2d 609. Defendant has assumed this burden and contends, primarily, that the bank account is to be regarded as her separate property under Article 2334 of the Code because it represents her earnings (as a professional piano player) while she was living separate and apart from plaintiff.

A perusal of the record makes it apparent that some of the funds deposited in the bank account during 1943, 1944 and 1945, (while plaintiff was in the Navy) represented salary earned by defendant in her employment as a professional musician. However, she had wholly failed to prove that she was living separate and apart from plaintiff in the manner contemplated by Article 23348 during the period when these deposits were made. In truth, defense ■counsel, in their efforts to earmark the bank account as paraphernal property, have, perforce, resorted to a reliance upon a number ■of propositions which, though ingenious, are not meritorious. We shall discuss these points in the order of sequence in counsels’ brief.

Defendant claims, initially, that the judge erred in granting a temporary restraining order and a preliminary injunction without requiring plaintiff to furnish a bond.

This contention is not pertinent to the present inquiry because the temporary restraining order and the preliminary injunction are no longer extant; this appeal ■being taken from a final judgment making the injunction permanent. A bond is required by law for the issuance of restraining orders and preliminary injunctions but mot for permanent injunctions.

Defendant next claims that forasmuch as plaintiff alleged in his first petition for a divorce that the parties had been living separate and apart since August 8, 1942, he has judicially confessed that such was the case and that he may not contradict that averment even though it was made through error of fact or law.

This claim is not tenable for. many reasons but mention of one will suffice. It is firmly established that a litigant is not estopped from contradicting his sworn allegations where there is nothing to exhibit that his adversary was misled or damaged by reason of the averment. Farley et al. v. Frost-Johnson Lbr. Co. 133 La. 497, 63 So. 122, L.R.A.1915A, 200 Ann.Cas. 1915C, 717; Tyler v. Walt, et al., 184 La. 659, 167 So. 182; Sanderson v. Frost, 198 La. 295, 3 So.2d 626; Robinson v. Hunt, et al. 211 La. 1019, 31 So.2d 197; Janney v. Calmes, 212 La. 756, 33 So.2d 510 and Slaton v. King, 214 La. 89, 36 So.2d 648.

The third complaint of defendant is that the judge should have sustained the plea of lis pendens which was filed in the adultery suit. It is said that, since the two-year divorce suit was pending at the time the adultery action was filed, the plea is well taken under Article 94 of the Code of Practice.

This contention ignores plaintiff’s dismissal of the two-year divorce suit prior to the trial of the exception of lis pendens and, therefore, insofar as plaintiff was concerned, there was only one action pending, i. e., the adultery suit. The fact that defendant filed a reconventional demand in the two-year action could not prevent plaintiff from dismissing the main demand. Article 491, Code of Practice.

The next complaint is that the judge erred in overruling the exception of mis-joinder of actions. Counsel suggest that it is improper to cumulate a demand for a divorce with an alternative plea for separation from bed and board.

There is no merit in the point. Even if the demands he viewed as inconsistent, it is perfectly proper to join them in one action by alternative pleading. See Templet v. Babbitt, 198 La. 810, S So.2d 13 and cases there cited.

Finally, it is said that the husband has condoned the wife’s adultery and bigamous marriage because he testified that, while he heard rumors relative to defendant’s relationship with Hortenstein during 1944 (when he was on leave), he failed to ask either his wife or Hortenstein to confirm or deny the reports despite the fact that he was constantly in their company. Counsel contend that this statement ^of plaintiff is incredible; that he is not telling the truth and that, therefore, we must assume that he had full knowledge of defendant’s illicit relationship with Hortenstein and hold that he has condoned her conduct.

Even though we might suspect that plaintiff’s knowledge (in 1944) of defendant’s relationship with Hortenstein was greater than he was willing to admit, we do not see how this would authorize a holding that he condoned her conduct. There is no evidence whatever to show that he forgave her or that he cohabited with her following his return from the service, notwithstanding the fact that he lived in the same house with her (the residence of her stepmother) for a few days prior to the institution of the first suit.

The judgments appealed from are affirmed.

PONDER, J., absent.

       Defendant is not entitled to a divorce under Act 430 of 1938 because the separation resulting from plaintiff’s entry into the Navy was not a “voluntary” separation as contemplated by the statute. See Otis v. Bahan, 209 La. 1082, 26 So. 2d 146, 166 A.L.R. 494. Conversely, there can be no doubt as to plaintiff’s right to a divorce in view of defendant’s admitted open adultery resulting from her bigamous marriage.

       Article 2334 of the Code provides that “The earnings of the wife when living separate and apart from her husband * * * are her separate property.” This envisions the’ same sort of volun-ary separation held in Otis v. Bahan, supra (Note 1) to be essential -for a divorce under Act 430 of 1938 and does not include separations brought about by military duty, which are of an involuntary nature.


text:
    214 La. 822
    STATE v. GORDON.
    No. 39025.
    Supreme Court of Louisiana.
    Jan. 10, 1949.
    Rehearing Denied Feb. 14, 1949.

      J. Bennett Johnston and Mitchell T. Monsour, both of Shreveport, for defendant and appellant.
    Bolivar E. Kemp, Jr., Atty. Gen., M. E. Culligan, Asst. Atty. Gen., and Edwin L. Blewer, Dist. Atty., of Shreveport, for ap-pellee.
   McCALEB, Justice.

On September 24, 1946, appellant pleaded guilty in the First Judicial District Court to two bills of information charging him with the crime of gambling. He was sentenced on each charge to pay a fine of $350 and to serve one year in jail, the sentences .to run consecutively. Execution of the jail sentence was suspended in each case.

Prior to the expiration of the term of the suspended sentences, appellant pleaded guilty in the United States District Court for the Western District of Louisiana to charges of violating Section 336 [now § 1302], Title 18, U.S.C. (felonies under the laws of the United States), in that he used the mails to conduct a lottery and was sentenced to pay a fine of $5000.

Thereafter, the State filed a motion in the First Judicial District Court reciting the foregoing facts and prayed for the revocation of the suspension of the sentences. A bench warrant was issued for appellant’s arrest; he was taken into custody and, after a hearing, the suspended ■sentences were recalled and the execution •of the judgment ordered. Wherefore this appeal.

■ The'(sole contention of appellant is that thje trial judge was without legal authority to revoke the suspension of the sentences for violation of a federal law.

Imprimis, the State maintains that we may not consider the contention as appellant failed to perfect bills of exception.

The point is not well founded for the reason that the alleged error is patent on the face of the record. Appellant is not denying that he was convicted of a felony under the federal law during the period of the suspension of the sentences imposed by the court below. Nor does he raise any other questions which require that the record in the case be' supplemented by evidence or other data. His proposition is that the judge was without authority to revoke the suspension of the sentences for conviction of any offense which is not denounced as a crime under the law of Louisiana. If he is correct, the error appears on the face of the record— for the action of the judge in revoking the suspension of the sentences was, perforce, predicated upon the motion or suggestion of the district attorney that the suspensions should be recalled because appellant had been convicted of a felony under the federal law.

The cases cited by the State, notably State v. Bateman, 209 La. 1036, 26 So.2d 130, which set forth the things comprising the record of a criminal case, exclusive of the bills of exception, are inapplicable to a matter such as this where the proceedings under attack occur after entry of the judgment of conviction. In a case involving the recall of a suspension of a sentence, the motion to recall is as much a part of the record on appeal as the indictment or information.

We therefore pass on to the question presented by the appeal. Appellant maintains that, a consideration of Articles 536 and 538 of the Code of Criminal Procedure makes it manifest that the Legislature .did not intend that the suspension of a sentence may be revoked for conviction of a crime not punishable under the laws of this State.

Article 536 of the Code of Criminal Procedure provides that, whenever any person has been found guilty of a misdemeanor, “* * * the judge may sentence the defendant but suspend such sentence and release the offender during his good behavior; * * * The term ‘good behavior,’ as used herein, means that the offender shall not be convicted of any other crime during the time of such suspended sentence.” (Emphasis ours.)

Counsel argue that the words “any other crime” were intended to connote only a crime against .the laws of this State and, as a basis for the contention, they refer to Article 7 of the Criminal Code, which declares that crime is that conduct defined as criminal in the Code or other acts of the Legislature or in the Constitution.

The postulation is not impressive. There is nothing in the language used in Article 536 evidencing a legislative design to restrict the condition of suspended sentences to cases where the offender has been convicted of an offense punishable under the laws of this State. On the contrary, the words of the statute are “any other crime” which, in their ordinary use, would include all convictions whether local, federal or foreign.

Furthermore, the argument of counsel completely disregards the underlying purpose of the suspended sentence law. It is for the rehabilitation of the criminal and comes as an act of grace to one convicted of a crime. Escoe v. Zerbst, 295 U. S. 490, 492, 493, 55 S.Ct. 818, 79 L.Ed. 1566, 1568, 1569. Probation was designed to aid the rehabilitation of a penitent offender and that is why abstinence from crime is made the sole condition of the suspension of the sentence. Hence, in the absence of clear expression to the contrary, it would be fatuous to say that the Legislature intended, in conditioning the suspension of sentences on “good behavior”, to countenance the continuance of the unlawful conduct by the offender just so long as he did not transgress the criminal laws of this State.

But counsel persist that Article 538 of the Code of Criminal Procedure establishes this unseemly conclusion. That Article reads:

“Upon the final conviction of the. offender of any other felony or misdemeanor, during the suspension of the sentence, the court granting such suspension shall cause the arrest of the defendant if he is not then in the custody of the court, and during a term of the court shall pronounce sentence upon the original judgment of conviction, and shall cumulate the punishment of the first with the punishment of cmy subsequent conviction or convictions, and in such case no new trial shall be granted in the first conviction.” (Emphasis ours.)

It is asserted that the clause making it obligatory upon the court to cumulate the punishment of the first and subsequent convictions clearly denotes that the convictions referred to are those cognizable only in the State courts.

Superficially, it would seem that the language used in Article 538 might give some substance to this'argument. But, on investigation, it will be readily seen that the contention is hinged upon a misconception of the use of the word “cumulate” as employed in the statute which would require that the word be given such a narrow meaning so that a suspended sentence could never be revoked unless the offender was convicted of an offense in the same district court that pronounced the suspended sentence. However, the verb “cumulate” cannot be thus restricted in scope and the Legislature surely did not intend such a result. “Cumulate” means adding to or adding one to another. And, under normal interpretation, the clause “shall cumulate the punishment of the first with the punishment of any subsequent conviction” merely declares that the court shall order the sentence to be served in addition to the punishment given for the subsequent conviction. In other words, the sentences shall not, under any circumstances, run concurrently. This was the view of the district judge and we subscribe thereto.

. In stressing their point, counsel cite Article 709.1 of the Code of Criminal Procedure, Act No. 45 of 1942, § 1, relative to habitual criminals and argue that the declarations therein apply by analogy to the case at bar. Suffice it to say that we cannot perceive that the provisions relied on are apposite or that they furnish any basis for an analogy.

The judgment appealed from is affirmed.

PONDER, J., absent.

       This court has the right to consider errors patent on the face of the rec-' ord. Articles 502, 503, 558, Code of Criminal Procedure; In re Dickerson, 154 La. 114, 97 So. 334.

       See also Brown v. State, 105 Tex. Cr.R 586, 289 S.W. 682; Clare v. State, 122 Tex.Cr.R. 211, 54 S.W.2d 127; Edwards v. State, 134 Tex.Cr.R. 512, 116 S.W.2d 711 and Broyles v. State, 143 Tex.Cr.R. 556, 159 S.W.2d 881, where the Texas Court of Criminal Appeals, in construing provisions similar to those contained in Articles 536 and 538 of our Code of Criminal Procedure, arrived at the same conclusion.


author: TALIAFERRO, Judge.

text:
    Succession of JONES.
    No. 7282.
    Court of Appeal of Louisiana. Second Circuit.
    Feb. 21, 1949.
    Gahagan & Pierson, of Natchitoches, f-or appellants.
    J. D. Kus-ca and John Makar, both of Natchitoches, for appellee.
   TALIAFERRO, Judge.

Elijah J. Jones, -a frugal colored man, resident o-f Natchitoches Parish -for many years prior -to -his death on the 31st day of October, 1947, left an estate in the parish -consisting of a tract of improved land -containing fifty (50) acres, more or less, and personal property. It appears that he married but once and that the wife of that marriage survived him. He -left no forced heirs and hi-s nearest collateral relations were two brothers, Shelton and Clinton Jones, and two sisters, Beulah Jones Williams and Annie Jones S-immon-s.

On December 26, 1946, the deceased -executed a last will -and testament in olo-graphic form, wherein and whereby he bequeathed unto Doris Jones, a niece, daughter of his brother, Shelton Jones, one-half interest in his property and named her executrix of the will, -and unto his nieces, Katherine Jones Dupre, Lillian Frances Jones, also Shelton’s daughters, and Naris-sa Williams, daughter of Beulah Jones, each an undivided one-sixth interest in his property.

Accepting as correct allegations of the opposition and statements of counsel in briefs, this last will and testament, presumably on the application of Doris Jones and the other legatees therein, was tendered if or probate on January 12, 1948, and thereafter, no opposition being offered thereto, was probated by the District Court of Natchitoches Parish, and Doris Jones was confined as executrix thereof.

It appears that not long after executing ■the above mentioned last will and testament, allegedly on February IS, 1947, while on a visit to the City of Shreveport, and in the home of his sister, Beulah Williams, Elijah J. Jones undertook to write and execute another olographic will whereby he beqeathed his estate to his said brothers and sisters. It is about this instrument that the present litigation revolves.

On January 14, 1948, three of the legatees named in the latter will, to-wit: Clinton Jones, Beulah Jones Williams and Annie Jones Simmons, petitioned the court for its probate, but only presented what purports to be a duplicate original (carbon) thereof. It is alleged that the prior will had on January 12, 1948, been offered for probate, but that the same is not in reality the last will and testament of the deceased, Elijah J. Jones.

It is further alleged by the petitioners ■that the testator executed duplicate origi-inals of the will on February IS, 1947; ■that said duplicate will, tendered for probate, was given to Beulah by the testator the day it was prepared and executed by him “with the request that it be safely kept so that in the event anything happened to the original it could be probated”. There was no prayer for notice to any o!f the other interested persons, of the intention to have this latter will probated, but Doris Jones, individually and as executrix of the first one, appeared and filed opposition to the proposed probate. In her original opposition two grounds a-re assigned why ithe instrument should not be admitted to probate, to-wit:

1. That it being a duplicate original, probate thereof is not permissible prior to it being shown that the original had been destroyed in some manner other than by the testator himself;

2. In the alternative, the instrument is not entirely written, dated and signed by the testator.

By supplemental and amended opposition, probate of the said purported last will and testament -is opposed on other grounds, to-wit:

3. That the same was prepared and signed by the testator while in a weakened mental and physical condition, due to worry and sorrow, and under duress of his sister, Beulah Williams;

4. That Elijah J. Jones destroyed the original of said -last will a few days after signing same, by burning it;

5. That it is neither a duplicate nor an original because:

(A) A portion thereof is written in pencil and a portion is carbon;

(B) The penciled portion is not in the same handwriting as the carbon portion;

(C) That the date inserted therein was not written at the time other portions of the instrument were written;

(D) That the handwriting is not that of the testator.

After trial of the issues tendered by the mentioned pleadings, there was judgment •in favor of the opponent sustaining her opposition, denying the application of the petitioners to have the will probated and dismissing their petition.- They appealed to this court.

During the time covered by the transactions herein .related, Elijah J. Jones was in bad health, augmented by senile decay. He was constantly under treatment of phy-cians and often came to Shreveport to consult one or more of them. He did so -in December, 1946, and was a patient in a sanitarium of this city for several days. Prior to entering the sanitarium he placed •in the custody of his sister, Beulah, some papers deemed by him to be of value. She thereafter declined to deliver the papers to Elijah.

On the day of the execution of the embattled will, Elijah, with his brother, Shelton, came to Shreveport with Mrs. Leon Friedman, a prominant white lady of Nat-chitoches Parish, who drove them directly to the -home of Beulah. She, 'her husband and daughter, Narissa, were present. Immediately -after -entering the home, Elijah demanded of Beulah that -she deliver the papers to -him. She -and her husband testified that hi-s request was at once -acceded to, but Shelton testified that Beulah -refused t-o -gi-ve the papers to Elijah until and unless he made a new will to -his 'brothers -and si-sters; that -she provided him with pencil, writing paper and a -sheet -of carbon paper and insisted that the will be written -as -a condition precedent to delivery of t-he papers to him. It -is unnecessary, as we view the matter, to -resolve this -controverted question of fact. It is simply related here as a part of -the history of the -controversy -among these colored -people over the small estate of their kinsman.

Shelt-on testified that -he stepped outside the room and did not see nor hear all that was done and said while the will was being written. Beulah -and her -hu-shand both testified that -the instrument presented -for probate is a duplicate (carbon) o-f the original -instrument and was entirely written, -dated and signed by the testator. It was stipulated by counsel that the daughter, if introduced -as a witness, wo-ul-d testify on this subject the same as did her parents. We are constrained to -be-lieve and -hold that this testimony -is not entirely correct. This carbon copy of the will was continuously in the possession of Beulah Williams -from the ti-m-e it was delivered to her by Elijah until tendered -for probate. It begins with the following words and figures, to-wit: “Natohitoc-he La Feb 15/1947”.

Whatever else may be said Of the remaining part of the instrument as a last wil-1 a-nd testament, it is -clear t-o even the non-expert eye that the quoted words and figures were not impressed upon t-he paper by the use of a carbon sheet; but, on the contrary, were written with a lead pen-ci-l. The balance of the writing, it is clear, is in carbon. In -addition to all -of this, the quoted words -and -figures, we are sure, are not in the -same handwriting as is the balance -o-f the instrument. To create added -suspicion against the quoted word-s and figures being the genuine handwriting of the testator, we are convinced from the testimony that Mrs. Friedman drove Elijah and 'Shelton to Shreveport on March 8th and not -on February 15-th.

A 1-ast will and te-stament, in whole or partly written in lead pencil is not invalid -for that reason. See: Succession of Swanson, 131 La. 53, 58 So. 1030.

Nor is a last will invalid because the -date thereof wa-s not thereon written at the same time the will was written. See: Jones et al. v. Kyle, 168 La. 728, 123 So. 306; Succession of Guiraud, 164 La. 620, 114 So. 489; Succession of Cunningham, 142 La. 701, 77 So. 506.

B-ut, whether written in whole or part in lead pencil, or whether the date was written at time the will was written -o-r af-terward, all -of the writing must be in the -genuine handwriting o-f the testator.

These .foregoing -conclusions perforce impel us to hol-d that the instrument offered for probate, -so -far as it purports to be the last wil-1 and testament of Elijah J. Jones, i-s -an -absolute nullity. The -law -is inexorable in its -requirement's. It is Article No. 1588 o-f the C-ivil C-ode, to-wit:

“The o-lographic testament is that which is written -by the testator himself.
“In order to be valid, it must be entirely written, dated -and signed by the hand o'f the testator. It is subject t-o no other form,, -and .may be made anywhere, even o-ut of the State.”

There is another an-d equally important reason why this purported -duplicate original will an-d -testament is null -and-void and -cannot receive judicial approval by probate. Beulah testified that Elijah stated -to her and her husband and daughter that he would place this instrument in his private box in a bank in the City of Nat-chitoches, together with the papers -she delivered to him for -safe-keeping. However, when the bank box was opened under order -o-f the court, the will was not therein, hut the other papers were. Shelton Jones 'testified that a 'few days after he and Elijah returned -from -Shreveport, following the day this instrument was signed, he saw his brother burn the original document in his (Elijah’s) home. Th-i-s testimony is diametrically opposed to Shelton’s own interest as he is one of the four legatees o'f this will.

It is -argued that as Doris had a key to the bank box, she went into it, removed the will therefrom -and destroyed it. We understand that the key of a box renter alone -cannot unlock a box of this kind. It requires the use o'f the bank’s master key and that -o-f the renter to gain -entrance to the box. No official or employed of the bank was introduced to testify in support of appellants’ contention. Doris denied that she ever saw inside the bank box -except one time when she accompanied Elijah.

The record is -replete with -evidence that Doris J-ones was much loved by her -uncle, Elijah; that in hi-s affections she occupied first -place. He and his wife had practically reared -her fr-om infancy. She was partially -educated by him. She, in -turn, ■rendered to Elijah in his last years, so far a-s she was able, services and attention that would be expected -of -a dutiful child. She was working in the City of Chicago in the year 1947, and gave up her job to be with Elijah in the last months of his life. In this connection, it is worthy -of note that on August 9, 1947, Elijah consulted an attorney in the City of Natchitoches for the purpose of having papers prepared for -the adoption o:f Doris so that she would inherit the entirety of his property, but was -advised by the attorney that it would be more simple, -and the same result would be more easily -attained by the execution of a last will in her favor. The attorney prepared a will in his own handwriting wherein Doris w-as named sol-e heir, -and evidently advised Elijah to copy -an-d sign the same. He only -signed what ithe attorney wrote out.

The foregoing related facts go far to prove, if they do not conclusively pro-ve, that the will signed -at Beulah’s home did not correctly 'reflect the true wishes and desires of Elijah Jones; and 'this was an impeding reason why this 'last instrument should have been -revoked by him by its destruction.

If is -our opinion that the trial judge -correctly adjudicated the -issues tendered in this -proceeding, -and, -for the reasons herein assigned, the judgment fro!m which appealed, is affirmed at appellants’ cost.


author: KENNON, Judge.

text:
    McTIRE et al. v. GREMILLION et al.
    No. 7290.
    Court of Appeal of Louisiana. Second Circuit.
    Feb. 21, 1949.
    Gahagan & Pierson, of Natchitoches, for appellants.

      Cook,'Clark & Egan, of Shreveport, for appellees.
   KENNON, Judge.

Alleging that her husband died from injuries sustained when -he was thrown to the pavement as the result of the negligence of the driver of a truck, owned by one of the defendants and insured by the other, in suddenly stopping his vehicle while her husband was riding on the running board, plaintiff filed this suit on behalf of herself and minor children for $25,000.

Plaintiff alleged that the defendant Gre-million was engaged in the business of delivering morning newspapers to the residents of the town of Cloutierville and nearby towns and cities and used a panel truck for this purpose; that on the morning of October 15, 1945, her husband Mr. E. Mc-Tire, paid the driver the sum of twenty-five cents for the privilege of riding in this truck from Cloutierville to Natchitoches; that at the time there were two boys already seated in the cab with the driver and her husband was told to stand on the running board and ride a few blocks until the truck reached the point at which one of the inside passengers was expected to leave the truck, after which he could get inside; that when the truck had proceeded a short distance, Mr. McTire’s hat blew off and one of the boys sitting in the truck yelled to the driver that the hat was lost; that the driver suddenly and without warning applied the brakes, throwing Mr. McTire forward from the running board to the pavement; and that his death on June 3, 1946 came as a direct result of the injuries received when he was thus thrown from the running board of the truck.

The answer denied that Mr. McTire paid any fare and admitted that he was told to ride on the running board until a seat in the cab was available; that his hat blew off while he was so riding, but set forth that the accident complained of arose through no fault of the driver but rather through the negligence of plaintiff’s husband in alighting from the running board while the vehicle was in motion; in riding on the running board when a safe position was available elsewhere in the truck, and in not maintaining a secure position while riding on the running board.

In the alternative, in the event the Court should hold the truck driver negligent, the defendants pleaded that the above acts by Mr. McTire ^constituted contributory negligence and barred plaintiff’s recovery.

The District 'Court in a comprehensive writtén opinion concluded that the evidence did not show that Mr. McTire was a paying passenger, nor did it establish that the driver of the truck was negligent in the manner in which he brought the truck to a stop after the hat was blown from Mr. Mc-Tire’s head and gave judgment for defendants. Plaintiff has appealed.

We first consider plaintiff’s contention that her husband was a paying passenger and find that this is not established by the evidence. The driver of the truck denied that he received any money from Mr. Mc-Tire. The other two passengers in the truck were Louis Radial, a student who lived at Cloutierville and was on his way to school at Natchitoches, and the boy employed by defendant to deliver newspapers in Cloutierville. Both of these witnesses^ testified that they heard no arrangements made as to the payment of fare and saw no money paid. Rachal, who was a native of Cloutierville and had known plaintiff and her husband for many years and who was a disinterested witness, testified that he had ridden the paper truck four times to Natch-itoches and on no occasion did he pay any fare nor was any fare asked of him. The driver admitted taking twenty-five cents in fare from a colored passenger on several occasions but testified that he never required any payment and that payments when made were entirely voluntary and that none was made by Mr. McTire. There were no other witnesses who could shed light on this controversial point and we agree with the District Judge that plaintiff failed to establish that a charge was made by the driver or paid by her husband for the ride from Cloutierville to Natchitoches.

Since the status of plaintiff’s husband was not that of a fare paying passenger, it is encumbent upon plaintiff, in order to recover, to establish that her husband’s fall to the pavement came as the result of the negligent operation of the truck owned and insured by the defendants.

The driver of the truck was called by plaintiff on cross-examination and testified again' when placed upon the stand by defendants. His testimony was that Mr. Mc-Tire flagged the truck down, asked for and obtained permission to ride to Natchitoches and was told that he could ride on the running board for a few blocks until one of the two boys riding with the driver in the cab got out before the truck left Cloutierville. lie testified that he saw Mr. McTire’s hat blow off and that Mr. McTire reached back to grab it, but fell off.

Louis Radial was riding on the right side of the truck. He testified that after Mr. McTire got on the running board, the truck proceeded about 300 yards and his. hat blew off; that he told the driver what had taken place and “before the truck could come to a complete stop, he (Mr. McTire) stepped off and fell” and when questioned as to the suddenness vel non of the stop, he stated, “it was an average stop.”

The other passenger, the boy, testified that Mr. McTire’s hat blew off his head “and he asked the driver to stop to get his hat. Before he stopped completely, he stepped off * * but on cross-examination, stated that he did not see the hat fly off but saw it on the ground after the truck stopped. When asked whether the stop was sudden or average, his reply was, “I don’t know.”

The record discloses that Mr. McTire was elderly, rather heavy, and that he had been sick considerably prior to the truck incident. (His reason for going to Natchi-toches, on the morning of the accident was to secure medicine for himself at one of the drug stores there). His weight, age and physical condition would make him more likely to fall than if he had been younger, lighter on his feet and in better health. There was neither allegation or proof that the truck was operated other than at a prudent speed. We think the most likely conclusion to be reached from the evidence is that Mr. McTire in his desire to promptly retrieve his headgear, fell when he stepped from the running board, either just before or at the moment the truck stopped.

The record does not establish by the preponderance of evidence that the truck driver was guilty of any negligence in the manner in which the truck was brought to a halt. Under these circumstances, the District Court correctly concluded that the evidence was insufficient to show that the driver was negligent. .A similar situation existed in the case of Bennett v. Pugh et al., La.App., 177 So. 112, in which this Court concluded, as we do in the case before us, that the plaintiff failed to make out her case in accordance with law and with the preponderance of evidence.

Our finding being the same as that of the District Court, the judgment appealed from is affirmed, with costs.


author: HARDY, Judge.

text:
    HOOPER v. HARPER.
    No. 7220.
    Court of Appeal of Louisiana. Second Circuit.
    Feb. 21, 1949.

      G. P. Bullís, of Vidalia, for appellant.
    Wedon T. Smith, of Harrisonburg, and Philip Watson, of St. Joseph, for appellee.
   HARDY, Judge.

This cause was remanded to the District Court for the purpose of fixing the jurisdictional amount involved, La.App., 37 So. 2d 566, and has been returned to us for action on the appeal on the basis of a stipulation of counsel for parties plaintiff and defendant to the effect that the amount involved is more than $100 and less than $2,000. On the basis of this stipulation, •therefore, we proceed to a consideration of the merits of the appeal.

This is a summary proceeding having for its purpose the eviction of defendant from a 200 acre tract of land located in Concordia Parish, Louisiana, of which plaintiff asserts ownership. There was judgment in favor of plaintiff, from which defendant has brought this appeal.

The basis of the appeal is predicated upon a number of assignments of error, of which we find it necessary to consider only one. After interposing an exception of no right or cause of action and a plea of lis pendens, defendant filed answer to plaintiff’s petition. The answer consisted of some 21 articles, and plaintiff in turn filed a motion to strike from the' answer 16 specifically numbered articles thereof. The motion was allowed by the District Judge.

Before this Court defendant contends that the allowance of the motion to strike is highly prejudicial in that it foreclosed the defendant from tendering evidence bearing upon the question of title of plaintiff in and to the property involved.

Conceding the well established proposition that a tenant is not privileged to attack the title of his lessor, our examination of the pleadings does not sustain a finding that this is the basis of the defense. On the contrary, numerous articles in defendant’s answer hear out the contention made that he is attacking plaintiff’s right on the ground that defendant was not holding under a lease either from plaintiff or plaintiff’s author in title.

The major part of the argument and briefs of opposing counsel before this Court has been devoted to. a discussion of the question involving title. It is quite true that the determination of this question may be, and likely is, the focal point of this case. But, however that may be, 'we are of the opinion thát we are not at liberty to consider this proposition under the present condition of the record in this case. It is obvious that by the unauthorized allowance of plaintiff’s motion to strike defendant has •been deprived of his right to offer testimony in support of the allegations set forth in his answer. Whether this testimony, if and when tendered, should .be received or excluded, is another matter and one upon which we have no right to express an opinion unless and until defendant has been accorded the right to proceed with the effort to accomplish his purpose. To make any pronouncement on this point would be in effect to prejudge the issue.

As we have above noted, the allowance of the motion to strike was unwarranted. It is conclusively established in our jurisprudence that a “motion to strike” has no place in our pleading and practice. Davies v. Consolidated Underwriters, La.App., 14 So.2d 494; Atchley v. Horne, La.App., 13 So.2d 75; Central Savings Bank & Trust Company v. Oil Field Supply & Scrap Material Company, La.App., 12 So.2d 815; Id., 202 La. 787, 12 So.2d 819; Perez v. Meraux, 195 La. 987, 197 So. 683; State ex rel. Sutton et al. v. Caldwell, 195 La. 507, 197 So. 214; Babst v. Hartz et al., 161 La. 427, 108 So. 871.

' Regardless' of the 'question of the admissibility or merits of evidence próposed to be offered by defendant, 'there can bé no doubt as to his right to make the tender in support of the allegations of his answer. It necessarily follows that the ruling of the District Judge in sustaining the motion to strike constituted reversible error.

For the reasons assigned, the judgment appealed from is reversed and set aside, and this cause is remanded to the Honorable the Seventh Judicial District Court in and for the' Parish' of Concordia, State of Louisiana, for further proceedings in accordance with the holdings set forth herein. Costs of this appeal are assessed against plaintiff-appellee.

TALIAFERRO, J., recused.


author: KENNON, Justice.

text:
    KNOX v. ANDRUS.
    No. 7288.
    Court of Appeal of Louisiana. Second Circuit.
    Feb. 21, 1949.

      Irion & Switzer and Harry A. Johnson, Jr., all of Shreveport, for appellant.
    Critz, Kuykendall, Bauknight & Stevenson, of Austin, Tex., and Huckabay, Seale & Kelton, of Baton Rouge, for appellee.
   KENNON, Justice.

Defendant has appealed to this Court from a judgment condemning him to pay $250.00 to plaintiff as receiver of the Southern Underwriters.

We find that the opinion of the learned Judge of the District Court clearly and correctly disposes of the points at issue and- we adopt and quote same as the opinion of this Court:

“Plaintiff, as the receiver of the Southern Underwriters, sues the defendant for $250.-00, on the following cause of action. The Southern Underwriters was a reciprocal insurance exchange of which W. S. Andrus was a subscriber for a policy of workmen’s compensation. We might say that the Southern Underwriters was a mutual insurance company, where the subscribers were at once the insured and the insurers of all other subscribers. W. S. Andrus,' by written application, became insured and as a part of the contract agreed:
“ '8. Our Attorney-in-Fáct is authorized to issue Contracts whenever and however applied for by us, which Contracts and Renewals thereof we hereby agree to accept, and to make the payments required as a result thereof. We agree to keep our Advance deposit intact as a Surplus for the payment of our proportion of losses and expenses, and to pay promptly all demands for monies to be used for the purposes set forth in this Agreement. Failure to pay promptly such demands shall be cause for legal enforcement of same at our expense, and our Attorney-in-Fact is specifically authorized to bring such proceedings in the name of The Southern Underwriters, or in its own name as Attorney-in-Fact, for Subscribers at The Southern Underwriters.’

“The advance deposit due by Mr. Andrus under the application was $250.00, which he paid to the agent which issued and delivered the policy to him, and which agent in turn paid the Southern Underwriters. The terms for which Mr. Andrus was insured under that original agreement was from September 7, 1937, to September 7, 1938, a term of ohe year. The -Southern Underwriters was insolvent from December 31, 1936 to July 20, 1938, and was placed in the hands of a receiver, at which time there were claims against the Southern Underwriters of $114,148.83, and the only assets of the Southern Underwriters were $6,792.42, and that the advanced deposits referred to above amounted to $249,161.96, hence these deposits had they been maintained would have prevented the insolvency of the' Southern Underwriters, and since they were not maintained by the Southern Underwriters, the'receiver was authorized to institute suits against the subscribers for the amount. See Glenn H. McCarthy, Inc. v. Southern Underwriters, Tex.Civ.App., 192 S.W.2d 469, for a statement of the facts from which the foregoing is taken.

“Defendant denies liability on the following grounds:

“1. That the Southern Underwriters was insolvent at the time when it issued to defendant the workmen’s compensation policy, and that the contract was not binding as there was no consideration flowing to defendant.
“2. That the Employer’s Casualty Company took over the assets of the Southern Underwriters and assumed all of its liabilities, therefore, plaintiff as the receiver of the Southern Underwriters has no cause or right of action herein.
“3. That both the Southern Underwriters and the Employer’s Casualty Company were represented in Shreveport by Victor P. Maynard with whom defendant dealt, and to whom the advance deposit and all premiums on policies were paid, and that subsequently the latter company failed and Victor P. Maynard made a final settlement with its receiver which was approved by the Court, and included all claims against defendant for deposit premiums or premiums of any kind whatsoever, including the claim asserted in this suit, which settlement is pleaded in bar of the demand.

“1. Defendant cites no authority to the effect that a corporation or individual cannot make a valid contract while insolvent and we know of none. The insolvency referred to is a result of the non-action of the policyholders themselves. If they had complied with their agreement to keep the $250.00 deposits (or whatever deposit was required from each depositor) intact there would have ’been no insolvency.

“2. The receiver here is representing the creditors of the Southern Underwriters, for whose benefit the ‘deposits’ were to be kept intact. Mr. Andrus was under the obligation with other policy holders to see that these deposits were maintained, for the benefit of the claimants. Along came the Employer’s Casualty Company and says, T will pay these creditors.’ The evidence fails to show that they were so paid or that the creditors agreed to accept the Employers Casualty Company as their creditor, if, as stated by defendant that the Employers Casualty Company did agree to pay these claims and became insolvent. We think that both are legally liable to the receiver for the creditors. The Court so held in Williams v. Knox, Tex.Civ.App., 207 S.W.2d 151, wherein Williams was sued for his deposit, and the Court of Civil Appeals held him liable. Since it is not shown that the Employers Casualty, upon agreeing to pay the liabilities of the Southern Underwriters, secured the consent of the creditors of the latter to release the policyholders of the latter from liability under their agreement to keep their deposits intact, it appears that such policyholders are still liable to the claimants against the Southern Underwriters and upon making good their deposits they may claim a refund from the Employers Casualty Company on their assumption agreement.

- “3. The evidence shows that Victor P. Maynard of Shreveport was the local agent of both the. Southern Underwriters Corporation and the Employer’s Casualty Company, that when the former failed all of their policies were re-writtep.in the latter company and the accounts of the policyholders transferred over .to .the, latter, and this was true with respect to the" defendant here. Mr. Andrus had paid in his $2'50.00 deposit ,to Mr. Maynard, who in turn had settled with the Southern Underwriters, according to their custom and agreement, but at the end of the policy contract with Mr. Andrus a settlement was made with him by giving him credit on his ‘premium’ account for’ the $250.00 ‘deposit’ account, which had the effect of withdrawing the ‘deposit’ made at the commencement of the relationship, so as matters thus stood Mr. Andrus did not have up any ‘deposit’ for the benefit of his 'and the Underwriter’s claimants.

“Mr. Andrus is claiming the benefit of a settlement made between Mr. Maynard and the Employer’s Casualty Company. We do not see how this can be claimed by Mr. Andrus, under the evidence in the case. We must bear in mind that there is a vast differencé between the ‘Deposits’ required under the insuring agreement and the ‘premiums’ due on the pay-rolls each quarter. The evidence does not show that the controversy was- between Mr. Maynard and the Employer’s Casualty Company, but from the judgment approving the settlement made between them, it is said that the receivers report reporting ‘the settlement of an account captioned- Premiums in Course of Collection Due by Victor P. Maynard * •* * ’ for which Mr. Maynard was to pay $875.00 cash and the surrender of accounts receivable totaling $973.83 ‘for direct collection.’ . In the first place we note that the .settlement referred to was for ‘premiums in Course of Collection’ and not ‘policy deposits; ’ and in the second place, it is not shown the account of Mr. Andrus was included, in the cash settlement or whether he was due any amount at the time for premiums, or if so, whether the amounts due by him was ‘premium’ or ‘deposit’ and surrendered to the Employer’s Casualty Co. for ‘direct collection.’ Furthermore, the Southern Underwriters Corporation was not a party to that settlement and whatever.it was for, is not binding on the latter.

“It has been argued on and off the record that 'to hold Mr. Andrus liable herein will likely cause him, to pay the amount more than once and that may be true, however, he is not out anything so far. He made the deposit and then obtained credit on his premium account to that extent, which, as stated, has the effect of withdrawing the deposit. Further, by the very terms of the agreement Mr. Andrus was both an insurer and an insured. He paid ‘premiums’ for his insurance coverage and he was to pay ‘deposits’ to cover his liability as an insurer, and we take it that it would work this way :

“All policyholders would put up the deposits as required by their respective agreements; that once each year, the Southern Underwriters would calculate the losses in excess of the premiums collected, take this loss out of the ‘deposit’ and then call on each policyholder to pay their proportion of the loss up to the amount of their original deposit, and from the cited cases it appears that the deposits were used and no effort made to have the policyholders renew their deposit, or if the effort was made, Mr. Andrus says that he has never paid or renewed his deposit, but on the contrary, received credit for same on his premium account. We are of the opinion that plaintiff is entitled to judgment, * * ”

The judgment appealed from is affirmed, with costs.


text:
    LOUISIANA FIRE INS. CO. v. ROYAL INDEMNITY CO. et al.
    No. 7292.
    Court of Appeal of Louisiana. Second Circuit.
    Feb. 21, 1949.
    Rehearing Denied March 30, 1949.
    Morgan, Baker & Skeels, of Shreveport, for appellants.
    Irion & Switzer and Harry A. Johnson, Jr., all of Shreveport, for appellees.
   KENNON, Judge.

Plaintiff, a fire insurance company, paid the sum of $1963.52 to one R. E. Mitchell, Jr., to whom it issued a fire insurance policy with a builders’ risk indorsement covering a 'building in course of construction by Mitchell at No. 1210 Waller Street, Bossier City, Louisiana. The petition set forth that the damage to the unfinished building resulted from the negligence of an employee of W. T. Beckett (doing business as W. T. Beckett Plumbing Company) and that plaintiff, having paid Mitchell and having been subrogated by him to all his rights, was entitled to judgment against the defendant plumbing company and the defendant, Royal Indemnity Company, carrier of liability insurance ' covering defendant Beckett’s “legal liability arising out of the operation of his business, known as W. T. Beckett Plumbing Company.”

Defendants filed a general exception of no cause or right of action and a separate exception which was entitled “Exception of No Right of Action, Want of Interest, Lack of Standing in Court and Plea of Estoppel.” In the second exception, defendants set forth that plaintiff had issued to R. E. Mitchell, Jr. a builders’ risk policy covering the' building described in plaintiff’s petition and that' the said policy "provided coverage for all materialmen, laborers and sub-contractors,” and that the defendant and exceptor, W. T. Beckett, was a, sub-contractor engaged' in doing the plumbing work on the premises covered and was therefore “one of the assureds and was insured under said policy of insurance writr ten by said plaintiff herein.”

The exception further set forth that after the fire loss sustained by the builder .Mitchell, said builder had requested defendant Beckett to submit “the amount of his (Beckett’s) loss in said fire for plumbing, labor and fixtures, which amounted to the sum of $175.00, which amount was submitted to said plaintiff by said Mitchell as a part of the loss from said fire” and that subsequently, plaintiff paid to Mitchell an amount covering the entire fire loss and including the $175.00 damage to the plumbing fixtures and that the contractor Mitchell paid said amount to defendant Beckett and that plaintiff, as subrogee of Mitchell, is estopped by its payment to Mitchell and Mitchell’s payment to Beckett, from prosecuting its suit against Beckett and his liability insurer.

The District Court, after taking testimony, gave judgment sustaining the exception of no right of action and the case is before us on appeal from that decision.

A reading of plaintiff’s petition, defendants’ exception (which contains a detailed recital of the facts) and of the record discloses that there is little if any conflict between the parties as to the facts upon which the District Court’s decision was based.

R. E. Mitchell, Jr. contracted to build a residence at 1210 Waller Street, Bossier City, Louisiana. Plaintiff, some days prior to February 13, 1948, issued to Mitchell a policy of fire insurance with the usual builders’ risk indorsement. Defendant Beckett entered into a contract with Mitchell to install the plumbing fixtures and do the necessary plumbing work. It is alleged that on February 13, 1948, the premises were damaged by fire to the extent of the amount sued for by virtue of the negligent operation of a blowtorch by one of defendant Beckett’s employees.

After the fire, defendant Beckett was asked by Mitchell to estimate the cost of restoring the damaged bathroom and other plumbing to its condition before the fire, and gave an estimate of $175.00. Mitchell, after receiving estimates on other damage and after making his'own survey, submitted a claim to plaintiff and on February 18th was paid by 'plaintiff the sum of $1963.52 in full settlement for the damage done by the fire.

After receiving the $1963.52 settlement from plaintiff and executing the subrogation in its favor, Mitchell paid defendant Beckett $175.00 to be used by Beckett as the cost of replacing the damaged fixtures and restoring the plumbing at the Waller Street premises to the condition which existed prior to the fire. In the District Court Beckett testified that this $175.00 figure included the cost of replacing his helper’s fools and leather jacket damaged in the fire, and also the damage done to the fixtures not yet installed but which had been placed in the bathroom preparatory to installation.

Defendants in brief urge that plaintiff cannot maintain its action against Beckett (and his insurer) because Beckett was “one of the persons for whose benefit the policy was written by plaintiff” and rely upon the following paragraph from the policy in-dorsement : or contained in said building or temporary structures or while in cars on switches or side tracks on premises described, or within 100 feet of building described in this policy, or while in the open on premises described, or when adjacent thereto while on sidewalks, streets or alleys.”

“This policy also covers items of labor, materials, equipment, supplies, forms and temporary structures of all kinds to be used in the construction of said building, and (when not otherwise insured, and provided that values of same are included in the amount of insurance carried under this policy) builders’ machinery, tools and equipment; all while forming a part of

The Louisiana Supreme Court in the case of Parks v. Hall et al., 189 La. 849, 181 So. 191, set forth the proven rule to guide courts in determining coverage under an omnibus clause in an automobile policy. The same principles apply to other types of policies, namely, that the policy should be construed, according to the evident intent of the parties to be derived from the words used, the subject matter to which they relate and the matters naturally or usually incident thereto.

A reading of the builders’ risk indorsement as a whole makes it evident that the parties intended to cover either all or “this company’s percentage” of the entire construction project. The very heading of the indorsement indicates coverage of both the materials used in the construction and the hazards incident to the building process. The indorsement specifically includes in the coverage materials, equipment, supplies, builders’ tools, etc. of All Kinds, while forming a part of or contained within the building. The only other qualifications being that same be not otherwise insured and that its value be included in the amount of insurance carried under the policy. It is true that the indorsement does not provide specifically that the named materials, etc. need not be the property of the named insured. However, the language used, the evident intent of the parties, and the customs and practices of the building trade all make the conclusion plain that the indorsement covered the building materials and tools brought into the building by the various workmen, sub-contractors, specialists and artisans whose combined handiwork would result in the completed residence. Conceding, arguendo-, that the failure of the indorsement to specifically provide that persons other than the named insured were protected, makes the language subject to a double construction — one in favor of the full coverage indicated so plainly, and the other limiting the coverage to the fraction of the materials, etc. owned by the named insu'red— then the applicable rule is that the indorsement language will be construed against-the company which composed and issued the indorsement.

Applying the rules of interpretation set forth by the Supreme Court in the Parks-Hall case, supra, to the facts and circumstances of the present case, we conclude' that the “builders’ risk” indorsement before1 us is a sort of omnibus clau’se and had the effect of making the issuing company an insurer of defendant Beckett and of the other sub-contractors and “builders” to the extent that their labor, materials, builders’ machinery, tools, etc. were brought into the building for construction purposes.

The testimony shows that at the time of the fire, only the tub had been set in or connected and that neither the lavatory or toilet had become a part of the building. Under these circumstances, these two fixtures remained the property of defendant Beckett and when plaintiff, through its subrogator Mitchell, paid Beckett for the damage done • to these fixtures, its action constituted a recognition that Beckett was an insured under its builders’ risk indorsement. A portion of the above quoted paragraph covers “builders’ $ * * tools and equipment * * * contained in said building.” Plaintiff’s paying (through its subrogator) Beckett for the damage done his plumbers tools, is a further indication that Beckett was an insured under the terms of the policy and so considered by plaintiff.

In a late case, Glens Falls Insurance Company et al. v. Globe Indemnity Company et al., 214 La.Sup. 467, 38 So.2d 139, the Glens Falls Insurance Company paid a building owner the amount of the fire damage done to a building, the construction of which had not been completed by one C. H. Treadwell, contractor. Taking a subrogation from the owner, the, Glens Falls company, as subrogee Of the owner, filed suit against the contractor ’for the amount paid the owner, alleging that the fire was caused by the negligence of the contractor, his agents or employees. The lower Court dismissed'plaintiffs’ suit on ah exception of no cause or right of action and the judgment.was affirmed by the Supreme Court. The Supreme Court considered the rule too well established to require citation of authorities that an insurance company, which has paid a claim and taken a sub-rogation, has no right of action against a co-insured of the subrogor, even though the fire loss may have been caused by the negligence of the co-insured, and provided, of course, as is true in the case before us, that there is no design or fraud on the part of defendant.

For the reasons set forth, plaintiff, as subrogee of Mitchell, is without right of recovery against Beckett or his liability insurer.

The judgment appealed from is affirmed, with costs.


text:
    HOYE & WILLIAMS v. FARMER.
    No. 7299.
    Court of Appeal of Louisiana. Second Circuit.
    Feb. 21, 1949.
    Love & Bailey, of Shreveport, for appellant.
    Meadors, Shaw & Meadors, of Homer, for appellee.
   HARDY, Judge.

Plaintiff brought suit to recover the sum of $1,412.70 alleged to be due by defendant for labor, materials and machinery furnished between dates of September 26th and October 15th, 1947. A writ of attachment was issued upon showing of the non-residence of defendant. In answer defendant denied the indebtedness and reconvened for the sum of $11,309.30 alleged to be the amount of damages resulting from the false representations, fraud, bad faith, defective materials and inefficiency of plaintiff. After trial there was judgment in favor of plaintiff as prayed for and further judgment in favor of defendant on his reconventional demand in the sum of $500.-00 as a credit against plaintiff’s claim. From this judgment both parties have appealed.

The facts show that in the early part of September, 1947, defendant undertook a contract for the construction of a pipeline between Springhill and the Haynesville oil field, a distance of 17.15 miles, more or less; that while engaged in the construction of the line the engine of defendant’s ditch digger broke down and plaintiff was called upon to repair the engine by furnishing a new block assembly and performing such! other services as might be required; that the repaired engine was operated for some ten days, during which its service was unsatisfactory, until it reached a point of such lack of efficiency that it could no longer be used, whereupon plaintiff was again called^ upon to repair the trouble; that the work of assembling and installing a second engine was completed about October 11th and additional repairs found necessary were made, after which, on October 12th, the job of overhauling, repairing and installation was finally completed.

Defendant’s reconventional demands are made up of items comprehending loss of time, rental of a ditching machine during the period of repairs, loss of salaries and wages paid to employees, and loss of time alleged to have been due to the faulty performance of the engine between dates of October 12th and November 4th, 1947.

With regard to the plaintiff’s claims, we find, as did the District Judge, that the record established the furnishing of labor and material charged in the amount claimed, and it therefore follows that the judgment in favor of plaintiff is correct. The only remaining question bears upon the correctness of the judgement as to the reconven-tional demands of defendant. Before this Court defendant urges that the amount of his judgment in reconvention should be increased from the sum of $500.00 to the sum of $7,608.10.

On the other hand, it is strenuously contended on behalf of plaintiff, who has appealed from this part of the judgment, that the trial Court erred in allowing the sum of $500.00 on defendant’s reconventional demand. ’

The real facts are difficult of certain ascertainment by reason of the violent conflict in the testimony of the witnesses tendered by plaintiff and defendant, respectively. Reducing the points of difference to the simplest material elements, we find that there are equitable considerations on both sides of the dispute. Study of the record leaves us in no doubt as to the fact that, plaintiff’s work was not satisfactory. On the other hand, we are as firmly convinced that a considerable degree of the difficulties experienced were due to the fault of’defendant.

We think the record bears out the conclusion that, in large measure, the unsatisfactory performance of the machines repaired by plaintiff was due to the practice of defendant’s operator in neglecting to use an air screen or cleaner. As a result dust and dirt entered the working parts of the engine and unquestionably caused appreciable damage. Examination of the pistons and rings disclosed the fact that the latter was so badly worn that the engine could not operate efficiently. This wearing was caused by the abrasive action of dust and dirt which were permitted to enter the machine as the result of the negligence of defendant’s employees.

The record satisfactorily'establishes the fact that engine breakdowns are not uncommon as the result of the heavy work and hard wear and tear incident to operation of the nature in which defendant was engaged. As a matter of fact, interruption of operations due to mechanical defects are more or less expected. We do not find that plaintiff has been at fault with respect to the delays occasioned by the time consumed in the repairs to the engine and defendant has failed to establish any agreement or obligation on the part of plaintiff to undertake and complete the necessary repairs within a given time limit.

Defendant has failed to prove by the requisite preponderance of evidence the gravamen of his charges of bad faith, fraud and deceit, but he has established the fact that the repairs attempted by plaintiff’s employees were not of the proper quality and efficient nature which he had the right to expect. It therefore follows that defendant is entitled to some consideration in the nature of a reduction in price. The district Judge fixed this amount in the sum of $500.00, and though he did not state the basis of computation which enabled him to arrive at this figure, we find no justification for disturbing his conclusion.

! Under the circumstances presented, finding no manifest error of fact in the judgment appealed from, the same is affirmed at appellant’s cost.