author: TALIAFERRO, Judge.

text:
    HOLLIDAY v. HARTFORD ACCIDENT & INDEMNITY CO.
    No. 7261.
    Court of Appeal of Louisiana. Second Circuit.
    Jan. 6, 1949.

      W. T. Holloway, of Jonesboro, for plaintiff-appellant.
    Gist, Thornton & Murchison, of Alexandria, for defendant-appellant.
   TALIAFERRO, Judge.

Both parties to this suit appealed from a judgment in favor of the plaintiff for $608.59. Defendant, Hartford Accident and Indemnity Company, argues that the lower court erred in awarding plaintiff judgment for any amount, whereas plaintiff complains ®f the inadequacy of the award.

The facts of the case are simple and mainly undisputed. The accident giving rise to the suit occurred on the principal business street of the Town of Jonesboro, Louisiana, in the day time, December 16, 1946. Edward L. Peevy, employee of General Gas Corporation, driver of the one and one-half ton truck involved in the accident, parked same close and parallel to the street’s left curb, headed up-grade. He thought he set the emergency brakes effectively. The motor was left running. He walked to the opposite side of the street into a business house and after the lapse of a few minutes the truck was seen by him and others, from gravity, rolling diagonally backward, and after traversing some seventy-five feet, crashed into the twelve cylinder Lincoln-Zephyr automobile of A. S. Holliday, parked on the opposite side of the street. The brakes are mechanical, as distinguished from hydraulic. Damages herein sought by Holliday are itemized as follow:

Cost of repairs to car $311.59
Amount necessary to complete repairs 40.00
Depreciation of value of car 300.00
Loss of use of car 700.00
Total $1,351.59

The specific acts of negligence charged to Peevy, driver of the truck, alleged to have been the cause of the accident are these:

Parking the truck on an incline in the street and leaving it there unattended, with motor running; failure to properly set the brakes; not doing any other prudent act to prevent the car rolling down hill should the brakes fail to hold.

The General Gas Corporation was protected. against loss from accidents in which its motor vehicles were involved, by policy of insurance issued by the Hartford Accident and Indemnity Company. This company alone was impleaded as defendant. Answering the suit, it denied that the true facts convict Peevy of any sort of actionable negligence in connection with the accident. But, on the contrary, it alleges that the accident resulted solely and entirely from an unforeseeable mechanical failure in the emergency brakes for which neither Peevy nor his employer was in any manner responsible. Defendant further alleged that when Peevy parked the truck he “pulled on the emergency brakes to prevent said truck from moving, made a proper check of same, found that they were holding, and then got out of the truck and walked across the street”; that a few minutes later the truck rolled backward and into plaintiff’s car; that immediately after said accident, examination of the truck by Peevy revealed that the emergency brakes were still set; that he had frequently parked the truck on the streets of Jonesboro in the same manner he parked it the day of the accident, without a single unfavorable result; that for this, among other reasons, he was not negligent in assuming that the truck would remain stationary on this occasion; that he ■did all that could be expected of a prudent driver to insure the truck’s immobility.

In alleging the specific acts of negligence committed by Peevy, .one of omission, was overlooked. It was proven by his own testimony, elicited by plaintiff’s counsel, and it consists of the failure to turn the front wheels of the truck toward the curb before he left it. No objection was offered to the admissibility of this testimony. It is in the record unchallenged. For this reason, its status is not unlike testimony adduced to establish the specifically alleged acts of negligence. We shall accord to it the legal significance it deserves.

As a witness, Peevy did not unequivoca-bly testify that he set the emergency brakes before he alighted from the truck. This is clearly shown from the following excerpt from his testimony, viz.:

“I pulled up the emergency. I had had my foot on the foot brake. When I got out of the truck, I presumed the brake was holding. I stood on the outside of the truck for a minute before the boys decided to get the coffee.”

Peevy testified that he drove the truck from the scene immediately after the collision, made tests of its braking power and found the same to be in first class condition. He did not testify, however, as the answer alleges, that after the accident the brakes were still set. The record is silent on this material fact.

It is shown, as alleged, that the gas corporation had its motor vehicles inspected and check-up thereof made regularly to determine their mechanical condition. It was testified that the truck in question was so examined and inspected not very long prior to the date of the accident, and was found to be in satisfactory mechanical,condition.

From the foregoing, it is reasonable to conclude that the brakes of the truck were not set by Peevy as firmly as they could and should have been, or, if so set, the vibration fr®m the running motor caused release thereof sufficient to allow the truck from gravity to roll down the street as it did. The latter action is more than a mere possibility. Effort was made to prove the possibility of mud or gravel getting into the brakes’ mechanism, and, if so, this would prevent efficient enmeshing of the cogs and thereby the braking power would be rendered, to some degree, impotent. This, we believe, to be not-more than a mere possibility.

Since the brakes were efficient prior to and immediately after the accident, the inference perforce arises that had they been efficiently set the truck would not have moved so long as that condition remained. In view of the truck’s movements, so soon after Peevy left it, the inference also arises that the brakes were not set in the manner required by law. The burden rested squarely upon defendant to prove that the brakes were efficiently set by Peevy. -There were two men in the truck besides Peevy, one of whom died before trial and the testimony of the other was not adduced. The testimony of Peevy alone is depended upon to establish the contention that he did set the brakes, but he only says: “I presume the brakes were holding”. This is not sufficient. He had no right to presume anything in connection with immobilizing the truck. He should have known, and have taken every possible precaution to know, that the brakes were “holding”. The record does not disclose that he did this.

Parking upon an incline is of itself a dangerous position in which to leave a heavy motor vehicle. The strain upon its braking mechanism is great and constant. Nothing within reason should be left undone to guarantee the vehicle’s immobility. Peevy’s failure to make certain that which was susceptible of being made certain convicts him of negligence.

We are of the opinion, however, that a decision in this case may also safely be based upon Peevy’s negligence in another respect. '

The lawmaker has wisely seen fit to provide rules for the regulation of traffic on the highways of the state, including the parking of motor vehicles on such highways. The rule that has peculiar application to the facts of the present case is No. 15(e) of section 3 of the Plighway Regulatory Act, Act No. 286 of 1938, which reads as follows:

“No person having control or charge of a motor vehicle shall allow such vehicle to stand on any highway unattended without first effectively setting the brakes thereon and stopping the motor of said vehicle; and, when standing upon any grade, without, in addition, turning the front wheels of such vehicle to the curb or side of highway.”

By leaving the truck parked in the manner admitted, its driver, even though it be conceded arguendo that he did set the brakes and they failed from latent mechanical defects, violated two important provisions of the quoted rule, to-wit: he left the motor running while unattended, and the front wheels were not turned toward the curb. Whether the running of the motor contributed to the accident will never be definitely known. The requirement that the wheels be turned toward the curb, in this case, at an angle to the left, is a most important one. It was designed to prevent a vehicle, so parked, from running wild in the event the brakes, for any reason, failed to hold it fast in place. In this case had the front wheels been turned in the position required by the statute and the brakes failed to hold, if set, the vehicle automatically would have backed at an angle to its left until the rear left wheel rested against the curb. Had this statute been observed, the accident would not have occurred. The non-observance of the statute in the respects mentioned, in our opinion, was at least a proximate cause of the accident. The violation of a traffic law is per se negligence. Such negligence is actionable if it is a or the proximate cause of an accident.

Defendant argues that the street on which the accident happened has not been shown to be a highway or part of a highway within the purview of the quoted rule. This contention is not well founded. Subsection (n) of Section 1 of said Highway Regulatory Act is determinative of this question. This section is to be found under title “Definitions and General Authority.” It reads:

“The term ‘Highway’ includes every way or place of whatever nature open to the use of the public, for the purpose of vehicular travel.”

■ There is no controversy with respect to the amount of the repair bill, fixed by the lower court at $308.59.

We do not believe that plaintiff has established his alleged financial loss for being deprived of the use of the car for a month or more following the accident. The car was not disabled ito the extent -that it did not run.

Plaintiff follows the occupation of water well contractor. The business, according to his own testimony, is quite prosperous. He owned two automobiles besides the damaged one, five trucks, and an aeroplane, all of which were employed in whole or part in promoting the water well business. He did not buy or lease a car or truck to replace the injured car, which he made no effort to have repaired for thirty days or more after the accident. He said he expected and waited on defendant to repair the automobile and offers this as the reason for not taking prompt steps to have the repairs made. It may 1?e that de- ■ fendant’s adjuster delayed unreasonably long to investigate the accident and damage to the car and make suggestions to plaintiff concerning repairs, but plaintiff was not at all at the adjuster’s mercy on this score. He could have taken action, clearly within his right, that would have bound the defendant for necessary repairs to the damaged vehicle, if held liable for the payment of such damages.

It is likely true that the temporary disability of the car necessitated some rearrangements and shifts in the supervisory phase of plaintiff’s business, but the business continued without interruption and, so far as the record reveals, without provable financial loss because of lack of use of the damaged automobile.

This brings us to a consideration of the alleged depreciation in value of the car as a direct result of the accident.* Recovery for this sort of damages has been, in a few cases, recognized by the courts of this state. The lower court awarded $300.00 on this phase of the demand;

. The car was purchased in 1943 for $2,-500.00. It had évidently been subjected to hard use as plaintiff testified that not long before the accident he expended $300.00 on it for general repairs, etc. He used it for nine months after it was injured and then sold it for $1,050.00, the best price he was offered therefor.

It is plausibly argued by defendant’s counsel that damage to the car from the slowly moving truck, requiring an expenditure of only a little more than $300.00 to repair, could not have also caused depreciation to the extent of $300.00; nor, in fact, to any amount.

It is shown, a fact well known to all, that at the time the car was sold the used car market was eagerly seeking to acquire used cars and high prices were ■being paid for them, but automobiles of the Lincoln-Zephyr type did not move so readily as Fords, Chevrolets, and cars of lesser price. The higher priced used cars were not bringing prices so near the original cost as were used cars of lower prices. As respects higher priced cars, after use for four or five years, outright sale thereof for as much as forty per cent of the original price generally would be considered a fair price.

As argued by defendant, plaintiff’s car was struck on its left hand side about the rear door. It does not appear that the motor or other important parts of its mechanism were injured. Body injuries, while expensive to repair, may be restored to former good condition and appearance by competent mechanics. To substantiate a claim for depreciation in the value of a passenger car due to collision, the proof, should be of a clear and not uncertain character. 1

It does occasionally occur that a damaged motor vehicle cannot be restored to its former running condition and appearance. If this cannot be done, of course, the vehicle for all practical purposes is totally destroyed. In the instant case, following the accident, the car was continuously driven on short errands before delivery to a mechanic in Monroe, Louisiana, for repairs.

It is our opinion that the claim for depreciation has not been established to' ,that degree sufficient to warrant a judgment therefor.

For the reasons herein assigned, the judgment from which appealed is reduced to Three Hundred Eight and 59/100 ($308.-59) Dollars, and, as thus reduced, said judgment is affirmed. Plaintiff is cast for costs of appeal; all other costs shall be paid by the defendant.


source: Caselaw Access Project

author: HARDY, Judge.

license: Public Domain

text:
    JUSTICE v. COMMERCIAL STANDARD INS. CO. et al.
    No. 7142.
    Court of Appeal of Louisiana. Second Circuit.
    April 30, 1948.
    Thompson, Thompson & Sparks, of Monroe, for appellants.
    Fink & Fink, of Monroe, for appellee.
   HARDY, Judge.

This is an action for the recovery of damages sustained by an automobile, of which plaintiff is the alleged owner, as the result of a collision with a car operated by the defendant, Youngblood. The liability insurer was made a party defendant. After trial on the merits there was judgment in favor of plaintiff and against the defendants in the full sum of $352.79, together with interest and costs, from which judgment defendants have appealed.

The facts concerned are set forth in detail in our opinion in a connected case entitled Burke v. Commercial Standard Insurance Company et al., 38 So.2d 644, in which we lhave this day rendered a judgment, on appeal from the Twenty-Eighth Judicial District Court in and for Caldwell Parish.

Under the facts stated in the case referred to, we found the negligence of the defendant, Youngblood, to have been the proximate cause of the accident, and, further, exonerated the driver of the automobile, for damages to which this plaintiff seeks recovery, on the charge of contributory negligence.

This finding would dispose" of this case except for the fact that defendants strenuously contend that plaintiff is not in truth and in fact the-owner of the automobile which sustained damages in the accident. We think it unnecessary to indulge in any exhaustive discussion of this point. While we concede the somewhat suspicious nature of the transaction by which plaintiff claims ownership of the vehicle as the result of conveyance from his aunt, Mrs. Burke, and while there are certain discrepancies in th.e testimony of plaintiff and the witness, Burke, in our opinion, these are not of sufficient importance to justify a finding in favor of the contention made by defendants.

The burden was upon defendants to support by a preponderance of the evidence the position which they assumed. Plaintiff made out a prima facie case sustaining his claim of ownership and defendants have failed to overcome this showing by the required weight of evidence.

For the reasons assigned the judgment appealed from is affirmed at appellant’s cost.


author: HAMITER, Justice.'

text:
    214 La. 560
    TUCKER et al. v. EDWARDS et al.
    No. 38690.
    Supreme Court of Louisiana.
    Dec. 13, 1948.
    Rehearing Denied Jan. 10, 1949.
    J. H. Inman, of Baton Rouge, for plaintiffs-appellants.
    Bolivar E. Kemp, Jr., in pro. per., Carroll Buck and Ponder & Ponder, all of Amite, for defendants-appellees.
   HAMITER, Justice.'

This action in tort is a sequel to Gravity Drainage District Number Two v. Edwards et al., in which this' court heretofore ordered a dismissal of the appeal on the joint motion of all parties thereto.

In that case Gravity Drainage District Number Two of Tangipahoa Parish (referred to hereinafter as Drainage District), through its then president (Edward W. Vinyard), sued to recover from A. M. Edwards, Sr., A. M. Edwards Company, Inc., and the Poncbatoula Bank & Trust Company, Inc., in Liquidation, jointly and in solido, the sum of $28,000 (with interest and attorney’s fees), .being an amount allegedly lost by the Drainage District upon the closing and failure of the named bank in which it had funds deposited. Edwards (a member of the Board of Commissioners of the Drainage District and President of ■the Bank) and the A. M. Edwards Company, Inc. (of which Edwards was president) were sought to be held liable .therein on a depository bond executed by them.

That suit was dismissed by the district court, it having sustained exceptions of lack and want of authority in the .then president of the Drainage District to institute and prosecute the proceeding. An appeal to this court followed.

On November 9, 1944, the day fixed for a hearing of the appeal, there was filed •here a copy of a purported resolution adopted on November 6, 1944, by the Board of Commissioners of the Drainage District, which copy was attested by the Board’s Secretary, C. Paul Phelps, and read in part as follows:

“Now .therefore be it resolved ,by the Board of Commissioners of the Gravity Drainage District No. 2 of Tangipahoa Parish, Louisiana, that .the appeal herein taken in its behalf by J. H. Inman, Attorney, 'be dismissed; that a certified copy of this resolution be forwarded immediately to Mr. Inman with instructions to dismiss the appeal in this cause; and in the event of his failure or refusal to do so, that the present attorney for the Board, Bolivar Kemp’, District Attorney, be instructed to file a motion to dismiss the appeal in the suit of Gravity Drainage District No. 2 of Tangipahoa Parish vs. A. M. Edwards, Sr., et al; and that a certified copy of this resolution be forwarded to the Supreme Court of .Louisiana.

“The above resolution was seconded by Mr. Thibodeaux and on the vote being called resulted as follows:
“For the resolution Butler, Thibodeaux and Corbin.
“Against the resolution none.
“A. M. Edwards, Sr., absent and not voting.
“And the resolution was therefore declared adopted.”

Upon Mr. Inman’s refusal to dismiss the appeal, the district attorney, pursuant to the instructions contained in the mentioned resolution, presented a motion to that effect. Attached thereto was the written consent of counsel for all of the appellees that it be granted. By virtue of the joint motion the appeal was ordered dismissed on December 11, 1944, Gravity Drainage Dist. No. 2 v. Edwards, 207 La. 1, 20 So.2d 405.

Subsequently, on September 5, 1945, four persons, in the capacity of taxpayers within the territorial limits of the Drainage District, instituted the present action in tort, praying for a solidary judgment in the sum of $28,000, as actual damages, and the further sum of $10,000, as exemplary damages, for the use and benefit of the Drainage District and against R. Alex Corbin, Walter J. Thibodeaux, C. Paul Phelps, Bolivar E. Kemp-, A. M. Edwards, Sr., and A. M. Edwards Company, Inc.

In their petition plaintiffs outline the proceedings of the former suit, both in the district court and here. Also, they show that three of the original members of the Board of Commissioners of the Drainage District who authorized the institution of that suit were succeeded (their terms had expired) by R. Alex Corbin and Walter J. Thibo-deaux (two of the defendants herein) and Turner K. Butler (recently deceased); and that the succeeding or new board adopted the resolution of November 6, 1944, directing the dismissal of the appeal in that suit which was effected through a motion filed by Bolivar E. Kemp', District Attorney. Then, and for their cause of action herein, plaintiffs allege that the appointment of C. Paul Phelps as Secretary of the Board, the selection of the new board members, and the adoption of the November 6, 1944, resolution (directing a dismissal of the appeal) were all steps in a conspiracy designed to release A. M. Edwards, Sr., and A. M. Edwards Company, Inc., from their obligation under the depository bond and thereby to defraud the Drainage District of an asset given as security for its lost deposits; and that the conspiracy to defraud was consummated upon Bolivar E. Kemp’s filing" in the Supreme Court of the motion to dismiss the appeal, to the granting of which motion A. M. Edwards, Sr., and the A. M. Edwards Company, Inc., had consented.

Among the numerous exceptions tendered by the defendants were exceptions of want of interest or capacity and of no' right of action in plaintiffs to institute the proceedings for .and on behalf of the Drainage District, a political corporation of the state. The district court sustained .the named exceptions and dismissed, the suit. From the judgment plaintiffs are appealing.

For the success of .this tort action plaintiffs’ counsel relies largely on the following observation contained in State v. Tensas Delta Land Company, Limited, 126 La. 59, 52 So. 216, 221:

“Again, it is true that if the governing body of one of these corporations fails in its duty to bring a suit which clearly it ought to bring, the courts may (only, however, under highly exceptional circumstances) allow any citizen or taxpayer of the district to bring the -suit; * *

However, the court also -said, immediately following such observation, that:

“ * * * and, -in such a case, the same privilege might for the same reason be extended to the state; but nothing of that kind is pretended in this case. There is no suggestion that the board of commissioners of the district has failed to bring suit, or is unwilling to do so. In fact, this court knows the 'Contrary from thé -public prints.”

That suit, instituted by the attorney general in the name of the State of Louisiana, had for its purpose the annulling of a sale of real estate made by the Tensas Basin Levee District (a political corporation) to the defendant therein, and the petition had alleged that the sale, consummated through a conspiracy -to defraud, was fraudulent, corrupt and illegal and further that it was a mere disguised donation.

In keeping with the above quoted observation (relied on by plaintiffs’ counsel) from the Tensas Delta Land Company case, with reference to the right of taxpayers to question the non-performance by a political corporation of a discretionary act, is the following found in 52 American Jurisprudence, verbo Taxpayers’ Actions, Section 19:

“The rule is well settled that a municipality, using that term in a general sense as including not only cities and towns, but any division or subdivision of a state, has, through its governing officers or body, control of the property belonging to it, and general supervision over its ordinary business. It follows that when an act in question is within the discretion of such officers or body to do or not to do, the general rule is that a private citizen and taxpayer cannot, by bill in equity, mandamus, quo warranto, or other judicial proceeding, question the action or non-action of such officer or body; nor can a private citizen in such a case rightfully undertake to do that which he thinks such body ought to do. To justify the interference of a court of equity, at the suit of a taxpayer, with the action of a municipality in a matter within the discretion of its officers or board, some clear ■ ground of equitable relief, such as fraud, must be presented; otherwise, the court cannot interfere. * * * ”

If the instant action were an attempt by the plaintiff taxpayers to recover, for the use .and benefit of the Drainage District, on the depository bond executed by A. M. Edwards, Sr., and A. M. Edwards Company, Inc., it might be said (although we do not so hold) that their petition, in view of the above authorities, discloses an interest or right in them to institute such a proceeding, for they do specifically allege the failure and refusal of the new Board of Commissioners, by reason of a conspiracy to defraud, to prosecute to conclusion a suit for recovery on the bond. The action we are now considering, h'ow-ever, is not of that character; it is one sounding in tort, the individual members of the board, along with the other defendants, being allegedly liable in damages (actual and exemplary) to the Drainage District solely because of their fraudulent acts. As stated in the brief of plaintiffs’ counsel;

“The case. at bar is an action against the Board of Commissioners individually, and third parties, charging them with conspiracy to defraud the taxpayers. The Commissioners are necessarily hostile to the action; would not enter the suit against themselves, and, if they did, could not be expected to prosecute it in good faith and vigorously.”

This brings us to the question immediately posed by the litigation: Do1 these plaintiff taxpayers have the right to bring an action of this kind ?

In 52 American Jurisprudence, verbo Taxpayers’ Actions, Section 10, it is said:

“If a taxpayer is permitted to maintain a taxpayer’s suit,-it is not in his individual right, but as the representative of the district whose interests are alleged to be jeopardized by the inefficiency or maladministration of its officers, and he has no other or higher right than the district or municipality itself could claim if the action were prosecuted in its name, and hence he can maintain the action only in cases where the district or municipality itself could do so. * * * ”

This statement of the law is predicated to a great extent on an observation contained in City of New Orleans et al. v. New Orleans Water Works Company et al., 142 U.S. 79, 12 S.Ct. 142, 147, 35 L.Ed. 943, as follows:

“Little need be said with regard to the appeal of Conery and the other taxpayers. They sue in the right of the city, the rights of the city are their rights, and they have no other or greater rights upon this appeal than has the city. * * * ”

The defendant members of the Board of Commissioners are not charged by plaintiffs, as representatives of the Drainage District, with misappropriation of public funds or with negligent acts in excess of their authority or with the refusal to perform a ministerial duty which the law absolutely requires of them. At the most, plaintiffs charge them only with non-fea-sance, asserting that they fraudulently failed and refused to prosecute to a conclusion a suit on a depository bond given as security for funds of the Drainage District, a matter obviously within their jurisdiction and concerning which they are vested with some discretion.

With respect to non-feasance by a public officer the law appears to be:

“A public officer who knowingly or negligently fails or refuses to do a ministerial act which the law or legal authority absolutely requires him to do may be compelled to respond in damages to one to whom performance was owing, to the extent of the injury proximately caused by the nonperformance. Honest intentions and a mistake as to his duty will not excuse the offender. On the other hand, failure to perform discretionary and quasi-judicial powers does not in general subject an officer to personal liability so long as he is acting within the scope of his authority . or jurisdiction. * * *» 43 American Jurisprudence, ver-bo Public Officers, Section 278.

Further, in the succeeding Section 279 we find:

“As is elsewhere mentioned in this article, officers performing discretionary duties, may become personally liable for negligent acts in excess of their authority. But no action lies for the negligent performance of an official duty which is judicial or discretionary in its nature, however gross or corrupt such neglect may be, so long as the acts are wholly within the officer’s jurisdiction. The remedy in all such cases is by indictment or impeachment. * * *”

Continuing, that authority states in Section 280, with reference to liability for acts of board members, as follows:

• “In a number of cases, public officers or the sureties on their bonds have been held personally liable for resulting damage where they fail to perform a duty expressly and positively imposed on a body of which they are members, or where they violate express provisions of law forbidding their action, or where they otherwise cause injury by violating or disobeying the law, although they act in concert as a body. * * * On the other hand, it is held in various cases that the neglect or breach of duty is the default of the board and not of the individuals composing it, and that the members may not be held personally liable. If there is refusal to exercise the power of such body, it is the refusal of the body, and not of the individuals composing it. The official action of its different members is merged into the official action of the board itself as an entity. * * * ”

This non-liability doctrine was considered and applied in Monnier v. Godbold et al., 116 La. 165, 40 So. 604, 608, 5 L.R.A., N.S., 463, 7 Ann.Cas. 768, the court commenting therein:

“In the case before us the act complained of was not one of commission, but of omission (a refusal to grant a certificate), and the action or nonaction of the corporate body was one with which the defendants were connected exclusively in their positions as members of the board. Nothing which they did or could do, simply as individuals, could alter the situation. As individuals, they were strangers to the act complained of. The official action of the different members became merged in the ultimate action of the board itself as an entity.”

Under these authorities clearly the defendant board members are not liable in damages to the Drainage District for the neglect of duty alleged herein. The prosecution to a conclusion of a suit on the depository bond was a matter with which the Board of Commissioners had some discretion, and the members’ failure and refusal to so prosecute was the official action of the Drainage District itself.

This being true, it follows logically that the remaining defendants are likewise not liable in damages. “The general rule is that a conspiracy cannot be made the subject of a civil action unless something is done which, without the conspiracy, would give a right of action.” Cooley on Torts, Fourth Edition, Volume 1, Section 74. Certainly, the Drainage District could not successfully sue in tort the defendants Phelps, Kemp, Edwards and the A. M. Edwards Company, Inc., concerning a matter which its governing board officially approved.

And since the Drainage District cannot recover in tort from the defendants, these plaintiffs (taxpayers of the district), as pointed out above, are without right to sue for and on behalf of that political corporation.

The judgment is affirmed.

PONDER, J., recused.


author: HAMITER, Justice.

text:
    214 La. 573
    In re BRYANT.
    No. 38642.
    Supreme Court of Louisiana.
    Dec. 13, 1948.
    Rehearing Denied Jan. 10, 1949.

      Thomas E. Furlow, of New Orleans, for Rufus C. Bryant, appellant.
    Henry G. McCall, City Atty. and W. Blair Lancaster, Jr., Asst. City Atty., both of New Orleans, for R. A. Johnson, defendant-appellee.
   HAMITER, Justice.

The relief sought in this action by plaintiff, Rufus C. Bryant, is the annulment of a judgment rendered on December 17, 1945, by .the Civil District Court of Orleans Parish, committing, him and 15 others, as indigent insanes and incapable of taking, -care of their persons, to the East Louisiana State Hospital at Jackson.

With respect to this plaintiff, an application to commit him was filed on December 11, 1945, by R. A. Johnson who acted for and on behalf of Dr. C. Grenés Cole, Coroner for the Parish of Orleans. On the following day the court commanded, in a warrant attached to the application, that he appear on December 20, 1945, at 10:30 o’clock a. m., “to show cause why you should not be adjudged an indigent insane, and committed as such to one of the State Hospitals for the' Insane of the State of Louisiana, as provided by Act No. 303 of 1944.” Further, it ordered him “to inform this court within five days from the service hereof the name and address of your physician, if you have any, as well as the names and addresses of any witnesses that you may desire to have summoned on your behalf.” Also, the court commanded the civil sheriff, or any other peace pfficer for the Parish of Orleans, to take Bryant into custody and confine him in the City Mental Hospital until December 20, 1945, and on that date to produce him before the court so that he might be dealt with according to law.

Accompanying the application, as required by Sections 12 and 13 of Act No. 303 of 1944, was a certificate signed by the Coroner, Dr. C. Grenes Cole, and by Dr. Edmund Connely. This certificate, among other things, stated:

“Pt. thinks that everybody is against him. Thinks that the neighbors are watching him and talking about him. Imagines that his wife and the doctors are working against him and trying to do him harm. He talks to voices and voices talk to him. Says his father is not dead, because he comes to see him. He also talks to his dead brother. Says his wife wants to get rid of him so she can get someone else. Wanted! his wife’s salary and says it is-his and she should give him the money to spend; attempted to choke her when he could not. get it.”

Further, therein each of those physicians certified:

“I hereby certify that the patient mentioned in the application is not related to me-by blood ■ or marriage and that I am not connected with the hospital in other than a professional capacity and I further certify that for the reasons furnished in said application that the patient is in need of mental observation and hospital care.”

And on the back of the certificate was-the following:

“Date Nov. 30, 1945.
“I hereby agree to transfer of Rufus-C. Bryant to Jackson if the doctors advise- and- the Courts commit.
“(Signature) Frankie Bryant “wife.”

According to the written return of a deputy sheriff of Orleans Parish, there was-served on Rufus C. Bryant on December 14,. 1945, a copy of the mentioned application and attached orders, one of the latter of which commanded him to appear before the; court on December 20, 1945.

Instead of hearing the charges of insanity on the scheduled date of December 20, 1945, however, the count on December 17, 1945, or three days earlier, considered them ■and rendered a judgment reading in part:

“ * * * Court convened this day at the City Hospital for Mental Diseases.
“Present: Hon. Harold A. Moise, “Judge of Division ‘C’, “Parish of Orleans;
'“and Drs. Edmund Connely and C. Grenes Cole having certified that the defendants are insane and should be committed in accordance with the Statute, having been sworn and having deposed to the same effect, and the Judge, after seeing and conversing with the defendants, being of the ■same opinion:
“It Is Ordered, Adjudged and Decreed that the said defendants, * * * Rufus C. Bryant, * * * be adjudged indigent insanes and incapable of taking care of their persons and that they be committed to the East Louisiana State. Hospital at Jackson, La., in accordance with law.”

Pursuant to this judgment of commitment, and under a warrant issued by the court on the same date, Bryant was delivered to and received by the Superintendent of the East Louisiana State Hospital on December 20, 1945.

A short time thereafter, perhaps in January, 1946 (this date is not definitely shown by the record), the patient was discharged by such Hospital as being “without psychosis,” meaning not insane.

Bryant instituted the instant action against R. A. Johnson on February 26, 1946, .praying that the judgment of commitment rendered on December 20, 1945, be decreed null and void ab initio and be set aside. For a cause of action, as is disclosed by his original and supplemental petitions, he alleged only that:

“Said judgment should be ‘decreed null and void ab initio and set aside, because of the ill practices in the proceedings leading to the rendition and signing of said judgment, which, together with said judgment, were and are a fraud upon petitioner and •deprive him of his rights and his liberty without due process of law, in contravention of Section 2 of Article I of the Constitution of Louisiana and Section 1 of the Fourteenth Amendment to the Constitution of the United States.”

The defendant filed several exceptions and an answer.

Ultimately, after a trial of the merits, the district court rendered judgment dismissing the suit at plaintiff’s costs.

On an appeal to the Court of Appeal, Orleans Circuit, that judgment was affirmed. 30 So.2d 233.

The cause is now before us for consideration by virtue of a writ of certiorari issued, on plaintiff’s application, to the Court of Appeal.

As we appreciate his pleadings, the argument of his counsel here (both oral and in brief), and certain admissions made during the trial, plaintiff does not contend (and he did not allege) that he was not mentally ill when the judgment of commitment was rendered on December 17, 1945. His sole complaint appears to be that he was denied the opportunity of being heard in the insanity proceeding, the commitment having been adjudged three days before the da*e (December 20, 1945) scheduled and fixed in the court’s order (a copy of which was served on plaintiff) for the hearing. Thus, in his petition as before shown, he alleged that the judgment should be decreed null “ * * * because of the ill practices in the proceedings leading to the rendition and signing of said judgment * * Again, in the brief of his counsel it is said:

“ * * * The essential fact here is, that, as appears on the face of the record itself and as admitted by counsel for defendant and by both the district judge and the Court of Appeal, the judgment was rendered against Bryant, without notice and without an opportunity to be heard.”

And during the trial the following colloquy between counsel occurred:

“Mr Lancaster: (Counsel for defendant)
“Will you admit, Mr. Furlow, for the sake of argument only, that if he had been heard on the 20th he would have been committed?.
“Mr. Furlow: (Counsel for plaintiff)
“I will admit he could have been legally heard.
“Mr. Lancaster:
“And if he had been heard it would have been valid?
“Mr. Furlow:
“Yes.”

Plaintiff’s position herein being as thus stated, we turn to a consideration of Act No. 303 of 1944, especially Section 13 thereof which treats of commitment by the court. That section recites:

“Section 13. Commitment by the Court: Upon the application of any responsible person, accompanied by a certificate from the coroner and one other qualified physician, as set out in Section 12, the judge of the civil district court may commit to any mental institution any person within his jurisdiction who is mentally ill, mentally defective, epileptic or inebriate, when, in his opinion, the welfare of the individual and the community is served best by his commitment to safd institution.
“The judge may or may not request the presence of the mental patient; Pending the hearing on the petition, the patient may not be detained in any place provided for the detention of persons charged with, or convicted of, any criminal or quasi-criminal offense, except in emergency.
“The judge within his discretion, may commit such person for a limited period of observation before the termination of which time the superintendent shall report the hospital’s findings to the judge for further disposition of the case.
“In the case of children within the jurisdiction of the juvenile court, proceedings shall be exclusively before the -judge of the juvenile court.”

It is to be noticed that among the provisions of Section 13 are none outlining a procedure to be followed by the judge in hearing the application for commitment filed by “any responsible person,” a status unquestionably enjoyed by the Coroner of Orleans Parish. In fact, on the hearing, the presence of the mental patient is not even required. For a commitment by the court, however, it is essential that the application (made by a responsible person) be accompanied by a certificate from the Coroner and one other qualified physician, as set out in Section 12; also, that the judge conclude that the welfare of the individual and the community is served best by committing him to the institution.

- To aid in reaching his conclusion, the judge may appoint a commission to inquire into the facts (this is not required except when demanded by the patient as hereinafter pointed out), for which provision is made in Sections 14 and IS as follows :

“Section 14. Commission to Inquire Into the Facts: Upon application to the judge, as set out in Section 13, the judge may appoint a commission composed of the coroner and one or two other qualified physicians, which commission shall hear the evidence, take statements, examine the patient, and render to the court a full report of its findings and the reasons therefor. The commission shall have the power to summon witnesses and compel their attendance in order that all the evidence may be made available before it. * * *
“Section IS. Report of the Commission and Hearing: Upon receipt of the report of the commission, which shall be made-within thirty days of its appointment, the-judge of the appropriate court shall hold; a hearing at which the person suspected1 of being mentally ill, mentally deficient, epileptic or inebriate, shall be summoned to appear. If, as a result of the report of the commission and of the hearing, the judge-believes that the person should be committed, he shall specify that an order of commitment be issued and that a certified copy of this order be sent to the superintendent of the institution where such person is to-be committed.”

In rendering the judgment of commitment attacked in the instant- action, the judge did not have before him a report of a duly appointed commission, nor did he-hold the hearing, provided for in said Sections 14 and IS; without such aid, evidently, he was able to conclude that the welfare of the patient and the community would best be served by the commitment. But his. conclusion was influenced, as the judgment, itself discloses, by the certificates of Dr. Cole (the Coroner) and Dr. Connely that Bryant was mentally ill and in need of observation and hospital care; by the sworn testimony of those medical experts to that effect; and by himself having seen and conversed with the patient. These infl-ences appear to adequately satisfy the requirements of Section 13.

Of course, plaintiff alleges, and his counsel argues forcefully, that to deny him an opportunity to be heard is to deprive him of his rights and liberty without due process of law in contravention of Section 2 of Article I of the Constitution of Louisiana and Section 1 of the Fourteenth Amendment to the Constitution of the United States. Were it not for two concurring and important factors such contention might have considerable merit. In the first place a commitment to an insane asylum under a statute such as Act No. 303 of 1944 is merely a matter of police ■regulation, purposing to protect both the patient and the general public; it produces none of the effects of a formal interdiction. Vance v. Ellerbe, 150 La. 388, 90 So. 735; Succession of Connor, 165 La. 890, 116 So. 223; and Nash v. Bowden et al., 178 La. 602, 152 So. 305. In the second place this plaintiff was not denied the opportunity of being heard. Even after the judgment of •commitment was rendered under Section 13 of Act No. 503 of 1944 he could have obtained both the appointment of a commission and the hearing provided for in Sec tions 14 and 15 of that statute. Thus, Section 16 states: “Section 16. Right to Hearing : Any person committed under Sections 11, 12, 13 or 17, but without a hearing as provided in Sections 14 and 15, shall be entitled to a hearing by presenting a petition to the judge, demanding a hearing and the appointment of a commission as set out in said Sections 14 and 15. All proceedings under this Act shall be by summary process.”

But he did not avail himself of that opportunity and privilege.

The rulings of the district court and of the Court of Appeal in this cause were based largely on our holding in Oliver v. Terrall, 152 La. 662, 94 So. 152, 153, which involved a commitment to an insane asylum under the provisions of Act No. 68 of 1918. Therein, we observed that the release of a committed person “put an end to the whole matter, a commitment to an insane asylum not being an interdiction within the meaning of the Civil Code aforesaid, and no formal proceeding to revoke it being at all necessary.” Whether or not that case is decisive of the issue here, we do not determine. We prefer to and do predicate this decision solely on the provisions of Act No. 303 of 1944 under which plaintiff was committed.

The judgment is affirmed.

MOISE, J., recused.


author: MOISE, Justice.

text:
    214 La. 586
    SUGAR FIELD OIL CO., Inc. v. CARTER et al.
    No. 38640.
    Supreme Court of Louisiana.
    Dec. 13, 1948.
    Rehearing Denied Jan. 10, 1949.

      Clint L. Pierson and Fred G. Benton, both of Baton Rouge, for appellant.
    Moss & Graham, of Lake Charles, for Frank L. Hereford, Creditor Trustee.
    Liskow & Lewis, of Lake Charles, for Defendants-Appellant Reese E. Carter and another.
   MOISE, Justice.

The plaintiff instituted this suit against the defendants to recover a commission of $25,000 for alleged services rendered in securing a purchaser for the properties owned by the defendant Carter; and for a preliminary injunction restraining the other named defendant, Frank L. Hereford, the trustee for the creditors of Carter, from disbursing the assets in his possession. The-district court maintained defendants’ plea, of prematurity, denied a preliminary injunction, and dismissed the suit. The plaintiff perfected appeals - devolutive from the-refusal to grant the preliminary injunction, and suspensive from the dismissal of the suit.

On the original hearing in this Court (207 La. 453, 21 So.2d 495) the judgment of the district court was affirmed. On rehearing, ■ however, that part only of the-judgment relating to the exception of prematurity directed at the claim for a commission on a sale was affirmed, as no sale had been made, but the preliminary injunction was reinstated and the case was remanded for trial on the alternative prayer of the petition for recovery on the basis of quantum meruit, 207 La. 464, 21 So.2d 498.

After the case was remanded for trial on: the merits, the district court rendered judgment in.favor of plaintiff and against defendant Carter for the sum of $3750. This judgment was based on the district court’s-finding that out of the option Carter profited to the extent of $75,000, resulting from Jones’ services in bringing the parties together, and that plaintiff should receive the usual brokerage commission of 5% of the option price under its claim for relief on quantum meruit. -The proceedings against Hereford were dismissed.

From this judgment both the plaintiff and the defendant Carter -have appealed.

The record discloses that Reese E. Carter was the owner of certain oil interests, leases- and drilling equipment. He was indebted in. the amount of approximately $260,000. A meeting of his creditors was called and at this meeting Frank Hereford, Turner Briggs and A. S. Vandefvort, Jr. were named as a board of trustees to administer Carter’s property, which had been surrendered for the benefit of his creditors. Subsequent to the creation of -the trusteeship,. Carter had orally agreed with J. Edward Jones, the president oif the plaintiff company, that he would sell a three-fourths interest in all of his property for $275,000,. Carter agreeing to reward Jones, provided Jones found a purchaser, -by holding out from the property a rig and a half. In other words, the agreement between Carter and Jones was that the drilling rig and a half would not be included in Carter’s assets and that Jones would sell three-fourths interest in the remaining assets of Carter for $275,000. Subsequently, Jones, by virtue of his agreement with Carter, contacted the Midland Oil Corporation and interested that company in Carter’s property. During the negotiations between the Midland and Carter and Hereford, it developed that the rig and a half would have to be included in Carter’s assets -in order to make the offer sufficiently attractive. Jones was asked by the defendants to release his claim to the rig and a half, and he agreed to waive any claim that he might have had thereto, in order that the deal might be ■consummated. Thereafter, Jones did not participate in the negotiations. Carter and Hereford procured an agreement under which the Midland obtained an Option to purchase four-fifths of Carter’s property ■for $258,000, the exact amount of Carter’s indebtedness. The Midland, upon signing ■of the option agreement, paid the sum of '$65,000, and later, $10,000 additional for the privilege of extending the option agreement, or a total of $75,000, which amount went towards the payment of Carter’s obligations. The Midland did not exercise its option to purchase and the sale was never consummated.

Jones claims that at the time' he waived his interest in the rig and a half, Hereford, on behalf of the creditors, and Carter, agreed to pay him in place of the rig and a half the amount of $25,000. Upon the refusal of the defendants to pay Jones this amount, he filed suit.

The case resolves itself' into the ■question of the credibility of the witnesses. The plaintiff Jones offered no proof to support his claim except his own uncorroborated testimony. Hereford contradicted the testimony of Jones. Hereford had no authority, under the trust agreement, to disburse funds to persons other than creditors. J*ones was not a creditor. Carter, although admitting the oral agreement, likewise contradicted Jones. Carter at the time was insolvent. He had no funds, derived no revenue from his property, and was in no position to pay a commission of $25,000, or any amount. The district judge summed up the matter by declaring in his reasons for judgment that “ * * * The court can not reconcile the testimony of the witness Jones with the facts as brought out by all of the other witnesses, as well as the documentary evidence”. We, however, as did the district judge, find that Jones was instrumental in producing the prospective purchaser for the property. That prospective purchaser was the Midland but that prospective purchaser did not buy Carter’s assets — an option agreement only was signed; and as a result of this agreement, the Midland paid $75,000. The Midland lost the money paid on this option because the right to purchase granted by the option was not exercised nor was a sale perfected. It was through the efforts of Jones that the creditors of Carter were enriched to the •extent of the amount paid for the option and this sum went towards the liquidation of their claims. It is apparent that Carter did profit directly by the activities of Jones in interesting the Midland and the amount that was received on account of the introduction made by the plaintiff is fixed at. $75,000. Jones is, therefore, entitled to recover on quantum meruit. The district judge allowed the usual fee for real estate brokers and found for the plaintiff in the amount of $3750. We believe this award is fair and reasonable.

The plaintiff prayed for interest from date of judicial demand. The recovery in this suit is predicated on quantum meruit. It is, therefore, an unliquidated claim. Under Article 554 of the Code of Practice “Interest at the rate of five per cent shall be allowed on all debts from the time they become due, unless otherwise stipulated”. (Emphasis ours.) It is true that interest is permissible from date of judicial demand in all ex delicto suits but this is purely statutory - see Act No. 206 of 1916, § 1. In this suit the district judge correctly allowed interest from the date of judgment. On that date the claim had become certain and liquidated by reason of the judgment. Connette v. Wright, 154 La. 1081, 1090, 98 So. 674.

It is particularly noted that under our early jurisprudence interest on an unliqui-dated claim was not allowed even from date of judgment, because it was held, in effect, that a judgment was not a debt within the meaning of the Article of the Code of Practice. Pierce v. Flower, 5 Mart., O.S., 388; Andry v. Foy, 6 Mart., O.S., 689; Lafon’s Executors v. Riviere, 1 Mart., N.S., 130; Buquoi v. Hampton, 6 Mart., N.S., 8; Parker v. Walden, 6 Mart., N.S., 713; Pressas v. Mendiburn, 4 La. 128; Cline v. Caldwell, 4 La. 137; Dyer v. Seals, 7 La. 131; Featherstone v. Robinson, 7 La. 596; Beal v. McKiernan, 8 La. 569; Bertrand v. Frazier, 11 La. 236; Goldenbow v. Wright, 13 La. 371; and Camfrancq v. Pilie et al., Executors, 1, La.Ann. 197. It has become the general practice of this Court to permit the allowance of interest from the date of judgment upon the principle that the judgment itself makes the claim a liquidated one.

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

O’NIELL, J., does not take part.


author: O’NIELL, Chief Justice.

text:
    214 La. 593
    TOWN OF MADISONVILLE v. DENDINGER.
    No. 38722.
    Supreme Court of Louisiana.
    Dec. 13, 1948.
    Ellis, Ellis & Lancaster and James W. Ellis, all of New Orleans, for plaintiff-ap-pellee.
    J. Monroe Simmons, of Covington, for defendant-appellant.
   O’NIELL, Chief Justice.

The Town of Madisonville is suing to compel the defendant to move or destroy a warehouse owned by him and located on the west bank of the Tchefuncte River in the corporate limits of the town. The suit was brought under authority of article 861 of the Civil Code, which provides:

“Works which have been formerly built on public places, or in the beds of rivers or navigable streams, or on their banks, and which obstruct or embarrass the use of these places, rivers, streams, or their banks, may be destroyed at the expense of those who claim them, at the instance of the corporation of the place, or of any individual of full age residing in the place where they are situated.
“And the owner of these works can not prevent their being destroyed under pretext of any prescription or possession, even immemorial, which he may have had of it, if it be proved that at the time these works were constructed, the soil on which they are built was public, and has not ceased to be s'o since.”

The defendant, answering the suit, denied that the warehouse was on the bank of the river, as defined in the Civil Code, article 457, and averred, in the alternative, that, if the court should find that 'a part of the warehouse extended over or upon the river bank, as so defined, that part of the warehouse would be only an encroachment upon tliQ river bank “without preventing its use”, and that as it could not be removed or destroyed without causing “signal damage” to the defendant, it should be permitted to remain where it is, under the provisions of article 862 of the Civil Code, which provides :

“If the works, formerly constructed on the public soil, consist of houses or other buildings, which can not be destroyed, without causing signal damage to the owner of them, and if these houses or other buildings merely encroach upon the public way, without preventing its use, they shall be permitted to remain, but the owner shall be bound, when he rebuilds them, to relinquish that part of the soil or of the public way, upon which they formerly stood.”

The judge of the district court after hearing the case gave judgment for the plaintiff, ordering the defendant to remove or destroy his warehouse at his own expense within 60 days from the date of the judgment. The defendant obtained a sus-pensive appeal, which has prevented the execution of the judgment and which will continue to prevent it until the 60 days have elapsed from the time when and if the judgment shall become final.

The Tchefuncte River is a navigable stream, having a width of 500 feet or more at the place where it passes along the east boundary of the town of Madisonville. The public highway bridge Crosses the river at the foot of Mulberry Street, which is a continuation of the state highway from New Orleans to Madisonville. The Den-dinger warehouse, which the judge has ordered the defendant to remove or destroy, is located about 65 feet north from the end of the highway bridge. The warehouse measures 56 feet along the river bank and is 42 feet wide. On the west side of the warehouse is a shelled thoroughfare called Water Street, measuring 51 feet in width from the west side of the warehouse to the sidewalk along the property line of the privately owned property facing the river. From the blueprint of a map which was introduced in evidence, and on which appears a scale of measurements or distances, it appears that there is a space between the privately owned property facing the river and the river itself, which space, is marked Water Street and has a width ranging from approximately 75 feet to approximately 125 feet from the sidewalk on the west side of Water Street to the bank of the river. This space marked Water Street extends a distance of 4 or 5 blocks along the west bank of the river; that is, 2 blocks below and 2 or 3 blocks above the bridge at the foot of Mulberry Street. It appears from the testimony that this space between the river bank and the privately owned property facing the river, although marked Water Street, is not all used as a street. Only the western portion of the space is covered with shells and used as a street. That portion, as we have said measures 51 feet in width' from the west side of the Den-dinger warehouse to the sidewalk on the west side of Water Street, but, above and below the warehouse, the space which is covered with shells and used as a street varies in width, being in some places only 20 feet wide.

We must bear in mind that — according to the allegations of the plaintiff’s petition —and according to the opinion rendered by the district judge — this suit was dealt with, not as a suit to compel the removal of the warehouse from public land, generally speaking, but merely to compel the removal of the building from the bank of a navigable river, as defined in the Civil Code, article 457 — thus:

“The banks of a river or stream are un-derstoood to be that which contains it in its ordinary state of high water; for the nature of the banks does not change, although for some cause they tnay be overflowed for a time.
“Nevertheless on the borders of the Mississippi and other navigable streams, where there are levees, established according to law, the levees shall form the banks.”

There is no levee on the bank of the Tchefuncte River. The bank slopes so gradually, in the town of Madisonville, that it requires a rise of only twelve inches for the water to extend as far as 10 or 12 feet along the ground.

Eight witnesses -for the plaintiff — all pf whom were residents of Madisonville — and three of whom were members of the town council — testified that water stood under the defendant’s warehouse when the river rose to its normal or ordinary high stage. Six witnesses for the defendant, including the defendant himself, testified that there was never any river water under the warehouse when the river was at its ordinary high stage. At the request of the attorneys representing, respectively, the plaintiff and the defendant in this case, the judge made an inspection of the stage of the river at the site of the warehouse, and came to the conclusion that at its normal high stage the river would cover the land for a considerable distance under the defendant’s warehouse. But the judge conceded that the river was below its ordinary high stage at the time when he made his inspection, and that, for that reason, he could only estimate —as all of the witnesses on that subject had estimated — the distance to which the river would extend under the warehouse when the river would rise to its ordinary high stage. The judge concluded that the warehouse was not merely an encroachment upon the river bank “without preventing its use”, but was in fact an obstruction which prevented absolutely the use of the river bank by the public. For that reason the judge declined to give the defendant the benefit of article 862 of the Civil Code, referring to buildings which merely encroach upon the bank of a navigable river “without preventing its use.”

So far as this suit is founded upon the proposition that the location of the warehouse absolutely prevents the use of the bank of the river, as defined in article 457 of the Civil Code, our opinion is that the plaintiff has failed to make out its case, and that the defendant should have the benefit of article 862 of the Civil Code, referring to buildings which merely encroach upon a public place, such as the bank of a navigable river, “without preventing its use”. However, the map, or blueprint to which we.have referred indicates that all of the space extending westward from the river bank to the property line of the privately owned lots along the west, side of Water Street is public property, and that the warehouse is therefore located entirely upon public property, only a part of which perhaps is the bank of the river. If this suit had been brought and dealt with upon that theory, the judgment appealed from perhaps would be correct. We are not sure of that, however, because, if the suit had been brought and dealt with upon that theory the defendant might have been able to make some showing of private ownership of the space extending from the west bank of the river to the west side of Water Street.

According to the defendant’s testimony it would cost approximately $3,000 to move the building.

Our conclusion therefore is that the plaintiff’s suit should be dismissed as of nonsuit.

The judgment appealed from is annulled and the suit is ordered dismissed as of non-suit at plaintiff’s cost.


author: O’NEILL, Chief Justice.

text:
    214 La. 600
    STATE v. MURPHY.
    No. 39086.
    Supreme Court of Louisiana.
    Dec. 13, 1948.

      J. David McNeill, of New Orleans, for defendant and appellant.
    Bolivar E. Kemp, Jr., Atty. Gen., M. E. Culligan, Asst. Atty. Gen., and Herve Racivitch, Dist. Atty., and Girard J. Fernandez, Asst. Dist: Atty., both of New Orleans, for appellee.
   O’NEILL, Chief Justice.

The appellant was prosecuted for the crime of aggravated arson, was convicted of “simple arson in the sum of $150,” and was sentenced to imprisonment for 7 months. Her principal complaint is that the verdict was not responsive. • The objection was made and a bill of exception was reserved'when the judge charged the jury that a verdict of guilty of simple arson would be responsive and that if they found the defendant guilty of simple arson they should fix the amount of the damage done. The defendant’s objection was repeated in a motion for a new trial, and again in a motion in arrest of judgment.

Act No. 161 of 1948, amending article 386 of the Code of Criminal Procedure, by specifying the “included offenses” of which a verdict of guilty is responsive in a criminal prosecution, does not govern this case, because the prosecution was had before the act of 1948 came into effect. The case is governed by article 386 of the Code of Criminal Procedure, as amended by Act No. 147 of 1942, which provides:

“Whenever the indictment sets out an offense including other offenses of less magnitude or grade, the judge shall charge the jury the law applicable to all offenses of which the accused could be found guilty under the indictment, and in all trials for murder the jury shall be instructed that they may find the accused guilty of manslaughter or negligent homicide.”

The crime of simple arson, as defined in article 52 of the Criminal Code, is not an “included offense” in the definition of aggravated arson, as given in article 51 of the Criminal Code. The definition is given thus:

“Aggravated arson is the intentional damaging by any explosive substance or the setting fire to any structure, watercraft, or movable, wherein it is foreseeable that human life might be endangered.”

The penalty for aggravated arson is stated in article 51 to be imprisonment at hard labor for a term not less than 2 nor more than 20 years.

Simple arson is defined in article 52, thus:

“Simple arson is the intentional damaging by any explosive substance or the setting fire to any property of another, without the consent of the owner and except as provided in Article 51 (aggravated arson).”

The penalty for simple arson, as stated in article 52, is a fine not exceeding $5,000 and imprisonment at hard labor for a term not exceeding 10 years if the damage done amounts to $500 or more, and if the damage done is less than $500 the penalty is a fine not exceeding $1,000 or imprisonment for a term not exceeding a year or both the fine and imprisonment within those limits.

The reason why simple arson is not an “included offense” in the definition of aggravated arson is that the definition of simple arson contains two essential elements which are not included in the definition of aggravated arson, namely, first, that the property damaged must belong to another person, other than the ‘ party accused, and, second, that the damaging or setting fire tó the property must be done without the consent of the owner. On the other hand, the definition of aggravated arson contains the essential element that it must be foreseeable that human life might be endangered by the damaging of the property by the explosive substance, or by the setting fire to the property. In the case of aggravated arson it is a matter of no importance whether the property damaged belongs to the person who damages it or to another person. The gravamen of the offense of aggravated arson is the endangering of human life; whereas the gravamen of the offense of simple arson is the damaging of the property of another without his consent.

The bill of information in the present case recognizes that 'the two elements which we have mentioned, namely, first, that the property set on fire or damaged was not the property of the party accused, and, second, that the damaging of the property or setting fire to it was done without the consent of the owner, are not essential elements of the crime of aggravated arson, of which the defendant was accused. There was no allegation in the bill of information concerning the ownership of the property, or the consent of the owner, or the amount of the damage done to the property. We quote the accusation in the bill of information, literally, thus:

“that one Dorris Murphy * * * committed aggravated arson by intentionally damaging by explosive substance and by setting fire to the structure No. 829 Du-maine Street, in the City of New Orleans, a dwelling wherein human beings were at the time present and it was foreseeable that human life might be endangered, contrary to the form of the Statute,” etc.

According to the provisions of Act No. 161 of 1948, in a prosecution for aggravated arson, a verdict of guilty of simple arson is not responsive if the amount of the damage done to the property is $500 or more, unless the indictment states the amount of the damage done and thus shows that the damage amounted to $500 or more. Whether it is necessary also, in a prosecution for aggravated arson, under the provisions of Act No. 161 of 1948, in order to make a verdict of guilty of simple arson responsive, that the indictment shall state also that the property damaged by the explosive substance, or set on fire, was the property of another person, other than the party accused, and that the damaging or setting fire to the property was done without the consent of the owner, is a matter which we need not decide in this case. ,

Several bills of exception were reserved to rulings made during the trial of the case, overruling objections to the admissibility of testimony, but, inasmuch as we have concluded that the defendant’s motion in arrest of judgment should have been sustained, the bills of exception reserved to the judge’s rulings on the admissibility of evidence during the progress of the trial are of no importance.

The conviction and sentence appealed from are annulled, the motion in arrest of judgment is sustained, and the prosecution is ordered dismissed.

HAMITER, HAWTHORNE, and Mc-CALEB, JJ., concur in decree.


author: McBRIDE, Judge.

text:
    STATE ex rel. REED v. PITRE et al.
    No. 18510.
    Court of Appeal of Louisiana. Orleans.
    Jan. 10, 1949.

      Dobin Friedman, of New Orleans, for plaintiff-appellant.
    Parnell J. Hyland, of New Orleans, for Mr. and Mrs. Thomas J. Nolan, defendants-app ellees.
    L. Julian Samuel, of Gretna, for Vic-torin A. Pitre, Clerk of Court, defendant-appellee.
   McBRIDE, Judge.

Appellant and appellees have moved jointly for the transfer of this appeal to the Supreme Court, suggesting that the amount involved exceeds the upper limit of our jurisdiction.

The judgment, which is suspensively appealed from by relator, William T. Reed, recalled the alternative writ of mandamus and dismissed relator’s suit.

Relator sought by way of mandamus to have Victorin A. Pitre, Clerk of Court and ex officio Register of Conveyances for the Parish of Jefferson, cancel and erase from the records of his office the inscription of a lease entered into between relator’s vendor and Thomas J. Nolan covering certain real estate located in Jefferson Parish, which lease contained an option running in favor of the lessee granting to him the specific privilege of purchasing the property during the period of the lease for $4,950. Relator also seeks to have cancel-led from the conveyance records the inscription of an affidavit by Mr. and Mrs. Thomas J. Nolan dated January 25, 1946, reciting that they desired to exercise the option and purchase the property.

Relator alleges that the lease and option have no force or effect and are null and void, and that the recordations operate as a cloud upon his title. Mr. and Mrs. Nolan, who were made parties defendant, on the other hand contend in their answer that the option is valid and that they timely indicated their desire to buy the property, and that relator is legally bound to sell to them.

The phrase “the amount in dispute” as used in the constitution to determine the court’s jurisdiction includes within its meaning the value of the thing in contest,' where a thing instead of an amount is in dispute. Baldwin & Co. v. McCain, 159 La. 966, 106 So. 459, Frierson et al. v. Cooper, 196 La. 450, 199 So. 388. The validity of the recorded option and the efficacy of the alleged acceptance of it by Mr. and Mrs. Nolan are at issue, and it necessarily follows that the value of the thing involved is the $4,950 which the Nolans would have to pay for the property in exercise of the option. It is, therefore, clear that the thing in dispute1 far exceeds our maximum jurisdictional amount. Const. 1921, art. 7, secs. 10 and 29. Even if the joint motion had not been filed by the parties, it would have been our duty to notice ex officio our lack of jurisdiction ratione materiae. We have, therefore, concluded to grant the motion and to transfer this appeal to the Supreme Court in accordance with the authority vested in us by Act No. 56 'of 1904, as amended by Act No. 19 of 1912.

It is ordered, adjudged, and decreed that this appeal be transferred to the Supreme Court of Louisiana, provided that appellant shall file the transcript of the case, together with a copy of this decree, in the Supreme Court within sixty days from this date; otherwise the appeal is to stand as dismissed. Costs of this court are to be paid by appellant.

Appeal transferred to Supreme Court.