author: CARTER, Judge.

text:
    Lyndon Dale BERTHELOT, et al. v. Ivan IMES, Sr., et al.
    No. 83 CA 1283.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1984.

      Clinton Hyatt, Jr., Baton Rouge, for plaintiff-appellant.
    Daniel R. Atkinson, Baton Rouge, for defendant-appellee.
    Before COLE, CARTER and LANIER, JJ.
   CARTER, Judge.

This is an appeal from the trial court award of damages sustained as a result of an automobile accident.

PACTS

On September 26, 1981, Mrs. Rebecca Berthelot, accompanied by her two minor children Beth Berthelot and Robbie Key, was involved in an automobile accident at the intersection of Sherwood Forest Boulevard and Harrell’s Ferry Road in Baton Rouge, Louisiana. Mrs. Berthelot was driving a 1979 Oldsmobile in an easterly direction on Harrell’s Ferry Road. When Mrs. Berthelot approached the intersection at Sherwood Forest, she had a favorable light. As she proceeded through the intersection, Mrs. Berthelot’s vehicle was struck on the left rear side by a 1977 Oldsmobile station wagon driven by Mr. Ivan Imes, Sr. Upon impact, the Berthelot vehicle was forced into a third vehicle which was within the intersection headed west on Harrell’s Ferry Road attempting a left turn. After this second impact, the Berthelot vehicle veered to the right and came to rest upon the apron of a service station on the southeast corner of the intersection.

Plaintiffs filed suit on January 22, 1982, alleging that Ivan Imes, Sr., driver of the vehicle, Ivan Imes, Jr., owner of the vehicle, and Maryland Casualty Company, Imes’s insurer, were liable in solido for plaintiffs’ injuries. Defendants answered denying plaintiffs’ allegations and alternatively alleged that Mrs. Berthelot was either contributorily negligent, comparatively negligent, or had assumed the risk.

At trial, all counsel stipulated that: (1) based upon his negligence, Ivan Imes, Sr. was liable for the damages sustained; (2) Ivan Imes, Sr. and Ivan Imes, Jr. were released from any further liability; (3) all payments to plaintiffs for the injuries sustained would be collected from Maryland; and, (4) Maryland would not assert any coverage defenses in this claim.

The trial court determined that Robbie Key’s knee had been injured prior to the automobile accident and awarded Robbie Key $2,000.00 for the aggravation of this pre-existing condition, together with special damages of $316.00. Mrs. Berthelot was awarded $25,000.00 for her lower back injuries, together with special damages of $11,-311.09, including $2500.00 for future medical expenses. The trial court noted that a greater award was not given because an award for other damages would be too speculative. The court did not award damages for neck injuries or for urinary or stool problems because the evidence did not establish that the automobile accident had caused these problems. Beth Berthelot was awarded $2,000.00 for her injuries, together with special damages of $410.00.

From this judgment, Mrs. Berthelot and Robbie Key appeal. Plaintiffs contend that the trial court erred in finding that:

(1) Robbie Key had sustained an injury to his left knee prior to the accident;
(2) Robbie Key failed to establish by a preponderance of the evidence that the automobile accident caused the injury to his left knee;
(3) The injury to Robbie Key's left knee was merely the aggravation of a pre-existing condition;
(4) The opinion of the defendant’s physician was entitled to a weight equal to or greater than the weight accorded the opinion of the plaintiff’s physician;
(5) Any award for Mrs. Berthelot’s recommended surgery is too speculative; and,
(6) Mrs. Berthelot’s cervical injuries are not causally related to the accident.

In their seventh assignment of error, plaintiffs contend that the award of damages to Robbie Key and Mrs. Berthelot is inadequate. Defendant Maryland Casualty Company answered plaintiffs’ appeal contending that the trial court awards were excessive.

ASSIGNMENTS OF ERROR NOS. 1, 2, AND 3

In these assignments of error, plaintiffs contend that the injury to Robbie Key’s left knee was a result of the automobile accident on September 26,1981. Plaintiffs reason that they sustained the burden of establishing a causal connexity between the automobile accident and the injury. In support of this contention plaintiffs rely upon the testimony of the members of Robbie Key’s family which indicates they were unaware of any injury to Robbie’s left knee prior to September 26, 1981. Plaintiffs also rely on the testimony of Dr. John Loupe, treating physician.

The trial judge, in his written reasons for judgment, correctly and articulately evaluated the testimony as follows:

Robbie was ... seen in the emergency room of Our Lady of The Lake Hospital on the afternoon of the accident by the emergency room physician, Dr. Morris. The medical record of Dr. Morris (P-14A) indicates abrasion of the right knee, which obviously is incorrect, and also X-rays were ordered for the left knee which indicated soft tissue swelling but no fracture or dislocation noted. Robbie was next seen by Dr. W. Joseph Laugh-lin, orthopedic surgeon, on the 29th day of September, 1981. His physical examination revealed minimal tenderness to palpation of the left knee just below the knee cap. There was no evidence of torn ligaments and X-rays showed no evidence of fracture. Dr. Laughlin’s initial impression was contusion of the left knee and he recommended activity restriction for a week and Robbie was asked to return on October the 7th for a follow-up visit. On this subsequent visit Robbie related that he had developed some swelling in the knee over the past week. The knee was aspirated and approximately an ounce of fluid was removed. Dr. Laughlin put him on crutches and asked him to return the following week. He was seen again on October 14th, his father had brought him in for that routine follow-up visit. Dr. Laughlin was still of the opinion that the problem would resolve on its own without significant residual. That was Dr. Laughlin’s last contact with Robbie as he was next seen by Dr. John Loupe, also an orthopedic surgeon, on October 16, 1981.
According to Dr. Loupe (P-12) Robbie gave him a history of having injured his left knee at the beginning of football season and that he had had a problem with the knee since that time. He also informed Dr. Loupe of the automobile accident on September 26th, 1981. It was Dr. Loupe’s impression, at the examination on October the 16th, that Robbie had sustained a tear of his medial meniscus of his left knee and suggested surgery. On November 20th, 1981 the Doctor performed an arthoscopic examination followed by an arthoscopic medical minescectomy. The evidence presented on the trial of his case, including the opinions of the two orthopedic surgeons who treated Robbie, presents a serious question as to causal connection between the injury sustained in the automobile accident on September 26th, 1981 and the surgery performed upon Robbie by Dr. Loupe for the repair of the medial meniscus to his left knee.
On direct examination at the trial Robbie was unequivocal that he had had no prior injuries to the left knee before the accident of September 26th, 1981, and further that he had participated in no further sports activities after Dr. Laugh-lin’s initial examination of his knee on September the 29th of 1981. However, on cross-examination it became clear that despite Dr. Laughlin’s instructions to restrict his activity he participated, with a great deal of success, in two football games. One on the same day of his examination, September the 29th and again on October the 6th, 1981, the day before his second visit to Dr. Laughlin. Also by the testimony of Tim Gonda, the high school trainer at Robbie’s school, it was established in the opinion of the Court that Robbie indeed had sustained an injury to his left knee on September the 8th, 1981 (Md-4). This latter mentioned injury undoubtedly is the injury that Dr. Loupe indicated in his deposition that Robbie had given to him in his history in his examination of Robbie on October the 16th, 1981. Robbie denies giving this information to Dr. Loupe, but the evidence in the opinion of this Court preponderates to the fact that he did. Dr. Loupe was not able to give an opinion as to whether the meniscus tear was due to football or the automobile accident, and of course Dr. Laughlin never diagnosed the condition during his examination and treatment of Robbie. It is only Robbie’s testimony that indicates that the injury was sustained as a result of the car accident.
The Court finds that upon a careful consideration of all the evidence that plaintiff has failed in his burden of establishing by a preponderance, what is more probably so than not, that the automobile accident caused the torn meniscus. Certainly, it has been established that Robbie’s knee was injured in the accident, in fact the accident aggravated, to some extent, a pre-existing injury to the knee, and the plaintiff is entitled to some compensation for that injury.

It is well settled in Louisiana that the trial court’s findings of fact are entitled to great weight, Arceneaux v. Domingue, 365 So.2d 1330 (La.1978), and we may not substitute our own evaluations and inferences for the reasonable evaluations and inferences of the trial court unless those conclusions are clearly erroneous. Abadie v. Morales, 391 So.2d 974 (La.App. 4th Cir. 1980); Esta v. Dover Corp., 385 So.2d 439 (La.App. 1st Cir.1980), writ denied, 392 So.2d 690 (La.1980).

A thorough review of the record convinces us that the trial court findings with regard to the cause of damage to Robbie Key’s knee is correct. Accordingly, assignments of error nos. 1, 2, and 3 are without merit.

ASSIGNMENT OF ERROR NO. 4

Plaintiffs next assert the trial court erred in attaching weight to the opinion of the defendant’s physician that was equal to or greater than the weight it attached to the opinion of the plaintiff’s physician. In essence, they contend the treating physician’s opinion is entitled to greater weight than the non-treating physician’s opinion.

It is well settled that the testimony of the treating physician is entitled to greater weight than the testimony of a physician who examines the patient only once or twice. Cason v. Diamond M Drilling Co., 436 So.2d 1245 (La.App. 1st Cir.1983), writ denied, 441 So.2d 1221 (La. 1983); Lockhart v. Pargas, Inc., 271 So.2d 664 (La.App. 1st.Cir.1972), writ denied, 273 So.2d 844 (La.1973). However, the weight afforded such testimony is largely dependent upon the physician’s qualifications and the facts upon which his opinion is based. Walker v. Marcev, 427 So.2d 678 (La.App. 4th Cir.1983), writ denied, 433 So.2d 182 (La.1983). Credibility evaluations and factual resolutions are the province of the trier of fact. Jones v. Thibodeaux, 445 So.2d 44 (La.App. 4th Cir.1984), writ denied, 448 So.2d 112 (La.1984). Our standard of review as stated in Arceneaux v. Domingue, supra, mandates that the findings of the trial court not be disturbed unless they are clearly erroneous.

The trial court found that Dr. Ioppolo, defendant’s physician, was in a position similar to that of Dr. Razza, plaintiff’s physician. Dr. Razza had not seen Mrs. Berthelot and did not become her treating physician until she was hospitalized on October 10, 1982, more than a year after the accident. Dr. Ioppolo had the hospital records, x-rays, and other diagnostic studies performed by Dr. Razza. In addition, Dr. Ioppolo took Mrs. Berthelot’s history and performed a physical examination. Accordingly, the trial judge felt that Dr. Raz-za had no additional facts which would entitle his opinion to greater weight than the opinion of Dr. Ioppolo.

We cannot say that the trial judge was manifestly erroneous in not attaching greater weight to Dr. Razza’s testimony. Therefore, assignment of error no. 4 is without merit.

ASSIGNMENT OF ERROR NO. 5

In this assignment of error, plaintiffs contend that the trial court erred in not awarding Mrs. Berthelot damages for the surgery Dr. Razza recommended.

Under LSA-C.C. art. 1934(3), the quantum of damages for offenses and quasi-offenses are within the discretion of the trial court. Where a legal right to recovery exists, but the damages cannot be exactly estimated, the trial court has reasonable discretion to assess such damages based on the facts and circumstances of the case. Nat. Roofing & Siding v. Gulf Coast Oil Co., 422 So.2d 204 (La.App. 4th Cir.1982).

In addition to the testimony by Dr. Iop-polo that the surgery recommended by Dr. Razza was not necessary, Mrs. Berthelot admitted that to date, she has refused to submit to the surgery. However, in the event she agrees to the surgery, Mrs. Ber-thelot testified that the procedure would cost approximately $20,000.00.

The trial judge determined that an award of damages for the surgery would be speculative. A review of the record convinces us that the trial court did not err in refusing to grant this award. Therefore, assignment of error no. 5 is without merit.

ASSIGNMENT OF ERROR NO. 6

Plaintiffs also contend the trial court erred in finding that Mrs. Berthelot’s cervical injuries were not causally related to the automobile accident of September 26, 1981.

Immediately after the accident, Mrs. Berthelot complained of and was treated for a laceration to her lip and injury to her lower back and coccyx. In October, 1982, while in the hospital under Dr. Razza’s care, Mrs. Berthelot complained for the first time of neck pain spreading to her left shoulder. Dr. Razza ordered x-rays of Mrs. Berthelot’s neck and found evidence of early spondylosis with osteophyte formation at the C5-6 level. Although Mrs. Ber-thelot testified that she had been experiencing these pains in her neck since the accident, this was the first time she had voiced such a complaint to her physicians. This complaint came more than a year after the automobile accident. Moreover, no medical testimony substantiates her assertion that the accident caused this current malady. The trial judge found, and we agree, that the evidence fails to establish that her neck injuries were caused by the accident of September 26, 1981. Therefore, assignment of error no. 6 is without merit.

ASSIGNMENT OF ERROR NO. 7

In their last assignment of error, plaintiffs contend that the trial court erred in the quantum of its award. Specifically, plaintiffs contend that the awards inadequately compensate plaintiffs for their injuries. In answering plaintiffs’ appeal, defendant, Maryland Casualty Company, contends that the trial court erred in awarding excessive damages to Robbie Key and Mrs. Berthelot.

In awarding damages for personal injuries and pain and suffering, the trier of fact is granted great discretion. Reck v. Stevens, 373 So.2d 498 (La.1979); Ward v. La. & Ark. Ry. Co., 451 So.2d 597 (La.App. 2nd Cir.1984). Our review in such cases is limited to determining whether the trier of fact abused this discretion, given the facts and circumstances of this case. Reck, supra; and Ward, supra.

In the- matter sub judice, the trial court noted in its written reasons for judgment that Mrs. Berthelot led an active life prior to the accident. Further, it found that she sustained a cut lip requiring some stitches, a sore coccyx, and various bumps and bruises as a result of the accident. Considering these facts and Dr. Razza’s assessment of partial anatomic disability of twenty percent, the trial court awarded Mrs. Berthelot $25,000.00 for general damages, together with special damages of $11,311.09. The award did not include damages for Mrs. Berthelot’s neck malady and subsequent urinary and stool dysfunctions, since the trial court found these ailments were not caused by the accident. We find the award adequately compensates Mrs. Berthelot for her injuries and is not excessive.

With respect to Robbie Key’s injuries, the trial court awarded special damages of $316.00 together with general damages of $2,000.00. This award was based upon the trial court’s determination that the only injury to Robbie’s knee attributable to the accident was the aggravation of a pre-exist-ing condition.

It is clear that where a defendant’s negligent action aggravates a pre-ex-isting injury, the victim must be compensated for the full extent of his aggravation. Perniciaro v. Brinch, 384 So.2d 392 (La.1980). However, before recovery can be awarded for the aggravation of such preexisting condition, the victim must establish a causative link between the accident and his current status. Jefferson v. Landwehr, 409 So.2d 351 (La.App. 1st Cir.1981), writ denied, 413 So.2d 498 (La.1982). Since there is no causative link between Robbie Key’s knee injury and the accident other than the aggravation of a pre-exist-ing condition, we find, as did the trial court, that the only injuries sustained by Robbie Key as a result of this accident were abrasions to his left knee and swelling. The trial court’s award is well within his discretion and is neither inadequate nor excessive. Based upon these facts, we find plaintiffs’ assignment of error no. 7 is without merit.

CONCLUSION

For the above and foregoing reasons, judgment of the trial court is affirmed. Plaintiffs are to pay all costs of this appeal.

AFFIRMED.

      . Although the trial judge, in his written reasons for judgment, awarded Robbie Key special damages in the sum of $316.00, the formal judgment signed on September 14, 1983, fails to make such an award. This discrepancy is not an issue in this appeal.

      . The trial judge’s written reasons reflect an award to Mrs. Berthelot for general damages in the sum of $25,000.00 plus $11,311.09 for special damages. The formal judgment, however, awards a total of $35,017.99 as the amount of damages, "less amounts previously paid ...” This variance is not an issue in this appeal.

      .No appeal was taken from that portion of the trial court judgment awarding damages to Beth Berthelot. Therefore, that portion of the judgment is final and not before us on appeal.


source: Caselaw Access Project

author: HAWTHORNE, Justice.

license: Public Domain

text:
    217 La. 47
    STATE v. SEARS.
    No. 39435.
    Supreme Court of Louisiana.
    March 20, 1950.
    Rehearing Denied April 24, 1950.
    G. Wray Gill, New Orleans, for defendant and appellant
    Bolivar E. Kemp, Jr., Attorney General, M. E. Culligan, Asst. Attorney General, Herve Racivitch,- District Attorney, Guy Johnson, 1st Asst. District Attorney, New Orleans, for appellee.
   HAWTHORNE, Justice.

The defendant, Thomas Sears, has appealed to this court from his conviction and sentence to death for the murder of Edna Francois.

Defendant resided in the rear apartment at the premises 746 South Lopez Street in the City of New Orleans. The facts relied upon by the State are that, on the day of the homicide, Katherine Sears, the estranged wife of the defendant, went to his apartment; that shortly after her entrance a .shot was heard; that Edna Francois, defendant’s mother-in-law, who was at that time in a front apartment, screamed and rushed toward the defendant’s apartment; that, as she was approaching or entering his' apartment, the accused appeared and shot her several times, causing her death. A short time after the shooting occurred, law enforcement officers arrived at the apartment occupied by the accused, found the bodies of his wife and his mother-in-law,' and took hi-m into custody. The defendant was charged with the murders in two separate indictments, was tried for the murder of his mother-in-law, Edna Francois, and was found guilty as charged.

During the course of the trial numerous bills of exception were reserved, but, since we have concluded that Bills of Exception Nos. 10 and 11, when considered together, have merit and defendant is therefore entitled to a new trial, we shall discuss only these two bills and the bills relating to the indictment, to the bill of particulars furnished by the State, to the motion to consolidate the trial of this case with the trial for the murder of the wife, and to the prayer for oyer, as the circumstances under which the other bills of exception were reserved may not arise at a second trial.

We have carefully examined the following bills of exception and find that they are without merit: Bill of Exception No. 1, which was taken to the ruling of the court that the answer of the State to a motion for a bill of particulars was good and sufficient; Bill of Exception No. 2, which was taken to the overruling of a motion to quash the indictment; Bill of Exception No. 3, which was taken to the refusal of the court to grant defendant’s motion to consolidate the instant case with case No. 127,088 on the docket of the Criminal District Court for the Parish of Orleans, wherein defendant was charged with the murder of his wife; Bill of Exception No. 4, which was taken to the court’s action on defendant’s prayer for oyer of a confession made at the time of arrest.

Over strenuous, objection of counsel for the defendant on the ground of irrelevancy, the State was permitted to offer in evidence an unlit half of a marijuana cigarette, and to introduce evidence that it was found by one of the officers on the dresser in the defendant’s apartment, wrapped in a Spearmint gum wrapper. The ’ finding of the cigarette was proved by the testimony of one of the officers at the scene, and the fact that it was a marijuana cigarette was established by the testimony of a city chemist, called for this purpose.

With reference to this testimony and the finding of the cigarette, the trial judge charged the jury as follows: “The defendant is charged in this bill of indictment with having murdered one Edna Francois. The court permitted evidence to be presented showing * * * the finding of a one-half Marijuana Cigarette where the alleged homicide was committed, only as a part of the Res Gestae and no other. In other words the defendant is on trial only for the killing of Edna Francois and not for any other crime. The reason for the court permitting this evidence is that it is of the opinion that said evidence is part of the Res Gestae and may aid the jury in determining intent or motive.”

Evidence of the finding of the marijuana cigarette in the room of the defendant had a tendency to prove another crime, if, in fact, it did not actually do so — that is, the possession in the defendant of marijuana, which is made a crime under the laws of this state. The State makes no- effort to connect the possession of this cigarette -with the crime charged,- that is, murder, butt relies solely on the proposition that, since it was found at the scene of the crime by police officers a short time after the crime, it was relevant and admissible as part of the res gestae..

In 1 Wharton’s Criminal Evidence (11th ed.), the rule applicable to the evidence introduced by the State in the instant case is stated as follows:

“If evidence of the commission of another crime constitutes a part of the res gestae, it is admissible.” Sec. 345, at p. 490.

“The well-settled rule that' evidence of collateral crimes cannot be introduced on the trial of a homicide charge is subject to an exception where the collateral crime precedes, or is contemporaneous with, or a part of, the charge on trial and the circumstances surrounding the collateral crime are essential to' prove or to explain the crime charged. * * * ” Sec. 346, p. 491.

“When a collateral offense, or as it is sometimes called, an extraneous crime, forms part of the res gestae, evidence of it is admissible. As ah isolated or disconnected fact, or where it is offered for the mere purpose of creating prejudice against or inviting sympathy for the accused, it is not relevant. When offered as an exception to the general rule of exclusion, it becomes a matter of substance with the charge on trial. * * * When two or more offenses are part of the same transaction, every element of the defendant’s conduct in that transaction may be shown for the purpose of illustrating th.e motive or intent in committing the act which is the basis of the charge. It is essentially res gestae: In one case, the court admitted testimony of a so-called second offense because. it was so closely connected with the offense charged in time and circumstance as to constitute one and the same offence. If a second person is murdered as a part of the same transaction, evidence of the condition of the body of the second person killed is admissible in.a prosecution for the murder of the first -person.” Sec. 347, pp. 496 et seq. (All italics ours.).

In 2 Warren on Homicide (Perm, ed.), -this statement is made with reference to ■such evidence.:

“The general rule is that proof of distinct and independent offenses is not admissible on the trial of a person accused of a crime. This rule is founded in reason, for to allow the introduction of evidence of other and distinct offenses would confuse and mislead the jury as to the real issue to be determined, would prejudice, the prisoner by irrelevant matter, and require 'him to meet charges foreign to the specific offense laid to his charge.

* * *

“There are exceptions to and modifications of this general rule, as where such evidence reasonably tends to show malice, intent, or motive on the part of the defendant with respect to the crime, or where the offense is so closely connected with the crime as to bring it within the rule of res gestae. * * *

“ * * * Evidence of other offenses consisting of an entire series of events, constituting but one transaction, is competent. On a trial for killing a certain person, everything done at the time, and every part of the- affair, including defendant’s killing another person and shooting a third person, is admissible as explaining the nature and motive of the act for which defendant is being tried. Where a killing is only one incident -of an entire transaction, evidence of the whole transaction as an entirety, including what happened 'before and after the 'killing, is admissible.” Sec. 213, pp. 586 et seq.

“* * * To make one criminal act evidence of another a connection between them must have existed in the mind of the actor, linking them together for some purpose he intended to accomplish, or it must be necessary to identify the person of the actor" by a connection which shows - that he who committed the one must have done the other. If the evidence be so dubious that the court does not clearly perceive the •connection, the benefit of the doubt should be given the prisoner, instead of suffering the minds of the jurors to be prejudiced by an independent'fact carrying with it no proper evidence of the particular guilt. * * * And the admission of such evidence is ’re•versible error, where it is in the discretion of the jury whether the death penalty shall be inflicted on conviction for murder, perforce ’ of the fact that its tendency is to destroy any feeling of mercy which might otherwise exist in the minds of the jury, and this is so notwithstanding the fact that proof of the murder is abundant.” Sec. 215, p. 623.

The jurisprudence of this state is well settled that evidence or proof of a different crime from the one charged is admissible when both offenses are closely linked and constitute a part of the res gestae. State v. Mulholland, 16 La.Ann.376; State v. Donelon et al., 45 La.Ann.744, 12 So. 922; State v. Blount, 124 La. 202, 50 So. 12; State v. Schmidt, 163 La. 512, 112 So. 400; State v. Leslie, 167 La. 967, 120 So. 614; State v. Comeaux et al., 171 La. 327, 131 So. 36; State v. Guillory, 201 La. 52, 9 So.2d 450.

In State v. Donelon et al., supra, this court said :

"Res gestae are declarations or circumstances made admissible as original evidence by reason of their connection with the particular fact under investigation. 1 Greenleaf [Ev.] § 108, p. 161.

"The test is whether the circumstance put in evidence ‘is so connected with the main fact under consideration as to elicit its character, to further its object, or to form, in conjunction with it, one continuous transaction.’ Id. * * *

“The facts and circumstances relied upon •as furnishing proof of rqs gestae should be shown to be ‘necessary incidents of the litigated act,’ or, in, other words, ‘they must stand in immediate causal relation to the act,, and become, part of the action immediately producing it, or of the action it immediately produces.’ Id. [Wharton’s Criminal Evidence] § 263.” [45 La.Ann. 744, 12 So. 925]

In- State v. Leslie, supra, we observed the ■ following: “Where the commission of both offenses is closely linked or connected, evidence of the whole transaction is legal, although two distinct felonies have been committed. * * *” [167 La. 967, 120 So. 615],

Again, in State v. Guillory, supra, this ,court said: “Although as a general rule evidence of the commission of another crime other than that .charged is not admissible, as stated by Marr in his work on the criminal jurisprudence of this state, ‘When the scienter or quo animo forms an essential or indispensable part of the inquiry, testimony may be offered of such acts, conduct or declarations of accused as tend to establish such knowledge or intent, notwithstanding they may, in law, constitute a distinct offense. That is to say, to the general rule that no evidence can be given of felonies committed by accused other than that charged in the indictment there are exceptions. Thus, proof of a different crime from the one charged is admissible when both offenses are closely linked and constitute a part of the res gestae, or when it is pertinent and necessary to show motive or intent. * * * [201 La. 52, 9 So.2d 451].

In the instant case the State does not show that the evidence adduced was offered to prove or establish malice, motive, or intent, and, insofar as we can ascertain, it is not connected in any way-with the charge of murder; it does not stand in immediate causal relation to that crime, nor does it form a part of the action immediately producing the crime or of the action which the crime immediately produced. There is nothing in the record which we have before us to establish or prove in any way that the defendant was a marijuana addict, was under the influence of that drug at the time of the crime, nor is this evidence, as previously stated, in any way linked or connected with the crime charged. From our examination of the case, the only purpose this evidence served was to prejudice the defendant.

We do not hold that evidence of this nature is not admissible in every case; but under the circumstances of the instant case, as set out hereinabove, it clearly was not admissible as part of the res gestae and was highly prejudicial to the accused, and he is therefore entitled to a new trial.

For the reasons assigned, the conviction and sentence are set aside, and the case -is ordered remanded for a new trial.


author: HAMITER, Justice.

text:
    217 La. 57
    STATE v. LAYTON.
    No. 39596.
    Supreme Court of Louisiana.
    Feb. 13, 1950.
    Rehearing Denied April 24, 1950.

      Warren Hunt, Rayville, James D. McIntosh, J. Vernon Sims, Oak Grove, Alcide J. Weysham, New Orleans, for defendant-appellant.
    Bolivar E. Kemp, Jr.; Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Harry N. An-ders, Dist. Atty., Winnsboro, W. Sartis Bassett, Oak Grove, for appellee.
   HAMITER, Justice.

In case No. 3082 on the docket of the Fifth Judicial District Court in and for West Carroll Parish the defendant, Robert Layton, stood indicted for the murder, on February-18, 1949, of one Jim Ward. Also therein a Lunacy Commission, appointed on the application of defendant, filed reports pronouncing1 him presently sane and sane at the time of the alleged commission of the crime. But before commencement of the trial all of the proceedings had in that cause, including the indictment and the mentioned reports, were set aside and vacated by the court on appropriate motions tendered by defense counsel.

Later a new Grand Jury returned another indictment charging defendant with the same offense, and thereunder proceedings were conducted in cause No. 3099 (the instant prosecution) on the docket of the above named court. Among these was defendant’s motion for a Lunacy' Commission which was granted, the court appointing thereto the three physicians who had served in cause No. 3082. This commission reexamined the defendant and submitted reports similar to those originally filed. ' r

On the trial of cause No. 3099, in which the defense of insanity was offered, the jury found defendant guilty as charged. Thereafter motions for a new trial and in •arrest of judgment were filed, submitted and overruled, - and defendant was sentenced to death in the electric chair.

This appeal followed. For reversal of the conviction and sentence defendant relies on sixteen formal bills of exceptions, appended to two of which are per curiams of the trial judge.

Bill of exceptions No. 1 was reT served1 to the court’s overruling an objection to the appointment on the Lunacy Commission of the same physicians who had servéd in cause No. 3082. In a per curiam to this bill the trial judge states: “It was not possible to appoint all new doctors, as the law requires the Coroner to be one. The former proceedings were set aside purely on legal technicalities. There was no charge of interest, bias, prejudice or incompetence on the part of any of the doctors. Therefore the same doctors, because of their prior examination and study of the case would be in a much better position to serve than new ones.”

Defense counsel argue here that the three physicians ■ so appointed were not disinterested within thé meaning of Article 267 of the Louisiana Code .of Criminal Procedure for the reasons that (1) the name, of one of them was listed on the back of the indictment as a state witness, and (2) each of them ■ out of professional pride would have a natural and human inclination to maintain his .previous finding of sanity in cause No. 3082. This argument is not impressive. The aboye codal articles specifically states that the members of the Lunacy Commission “shall be summoned to testify at the trial and shall be examined by the court, and may be examined by counsel for the state and the defendant.” The mere listing of their names as witnesses on the back of the. indictment, therefore, would not indicate that they are disqualified to serve. As to the second assigned reason it cannot be assumed that the members of this Commission, all of whom are reputable physicians, would wilfully violate professional ethics by refusing to change their medical findings in the event a later examination warranted a different conclusion.

Disinterested physicians within the contemplation of the law, obviously, are those who are free of prejudice and bias and are not directly interested in the outcome of the prosecution. No showing has been made that the members of the Commission in question were otherwise.

Bill of exceptions No. 2 was taken when the court refused to vacate the Lunacy Commission’s reports filed in this cause, defense counsel háving contended in their motion that such reports were based on an insufficient examination of defendant of only about 30 'minutes' duration made subsequent to'the second appointment. With the ruling we find no error. In making the instant reports the Commission was guided not only by the examination to which counsel refer but also by the previous and very thorough examination which it conducted some 30 days before under the appointment in cause No. 3082. The conducting of two examinations, unquestionably, was to the advantage,of defendant, not to his disadvantage; and the Commission correctly considered both in rendering its reports.

Bill of exceptions No. 3 was reserved to the court’s overruling of a motion to traverse the findings of the Lunacy Commission respecting the present sanity of defendant. The evidence adduced in connection with such motion indicates that the defendant, at the time of the trial, was afflicted with psycho-neurosis (a nervous disorder attended with fears and anxieties) ; however, it also shows that he was able to differentiate between right and wrong, to understand the proceedings against him, and to assist in his own defense. We cannot conclude, therefore, that in overruling the motion the trial judge abused the discretion with which he is vested.

Bill of exceptions No. 4 was reserved when the court on May 17, 1949, ordered defense counsel to file all pre-trial motions or exceptions by May 19, 1949, the objection urged thereto being that a sufficient time for the filings had not been allowed. The bill is without merit. The order in no manner injured defendant as is clearly shown by the judge’s per curiam, reading: “The accused was first indicted early in March and again on May 2nd. The case had been before the Court on many occasions. On May 19th exceptions were filed as ordered. No further time was requested. Had counsel then have asked for additional time, giving valid reason, the court would have granted a reasonable additional delay.”

Bill of exceptions No. 5 was taken to the overruling of defendant’s motion to quash the indictment, the motion having set forth four grounds of attack. First, defendant- averred that the indictment charges no crime known to the laws -of the State of Louisiana. Stripped of the unessential verbiage it recites that on February 18, 1949, “ * * * he, the said Robert Layton, murdered Jim Ward * * This recital substantially complies with the short form authorized in Article 235 of the Criminal Code of Procedure, as last amended by Act No. 223 of 1944. Next, the motion to quash alleged that the correct name of the decedent was James Ward, not Jim Ward. This ground seems to have been abandoned; it is not urged here. Nevertheless, the name Jim, it is commonly known, is simply a short form for the name James. The third ground of attack on the indictment is that the Jury Commission’s procés verbal, which evidence the manner of selecting the Grand Jury, stated that the actions were in compliance with the provisions of Act No. 135 of 1898, as amended by Act No. 58 of 1914; whereas such amendatory act deals with the holding of elections, not the selection of grand juries. The error in the procés verbal of citing the wrong amenda-tory act clearly was both typographical and harmless. Undoubtedly the statute intended to be cited was Act No. 58 of 1904; and the citation was followed by the comment: “and all other Acts now effective.” The fourth ground, which is equally untenable, is that the correct name of one of the appointed Jury Commissioners is not discernible (whether “Stewart” or “Steward”) from the court’s written order; and that one James M. Steward took and signed an oath of office which had been prepared in the name of James M. Stewart. There is no showing that James M. Steward, who took the oath of office and served on the Commission, was not the person intended to be appointed by the court. The motion to quash, therefore, was correctly overruled.

Bill of exceptions No. 6 was reserved when the court permitted (over defendant’s objection) the district attorney to peremptorily challenge one T. B. Blackwell after he and nine other jurors had been accepted by both the defense and the State. Defense counsel concede that ordinarily it is within the discretion of the court to allow either side to peremptorily challenge jurors up .to the time the jury is impaneled. Article 358, Code of Criminal Procedure; State v. Thornhill, 188 La. 762, 178 So. 343; State v. Boone, 194 La. 977, 195 So. 511; State v. Rankins, 211 La. 791, 30 So.2d 837. But they say that the instant bill presents an extraordinary situation by reason of (1) certain circumstances occurring prior - to the making of the challenge and (2) prejudicial remarks of the district attorney at the time. The mentioned circumstances are that Blackwell, the third juror accepted by both the State and the defense, had been closely associated throughout most of the day with other selected jtirors who later actually tried the case, he having been with them during at least two recesses in the jury room and at lunch. The record does not show, however, that this association was injurious to defendant. Blackwell testified that whenever they left the1 court room the judge instructed them as to the conduct to pursue, and that there had been no discussion of the -case' during the recess and lunch periods. The remarks of the district ■attorney when challenging Blackwell, to which defense counsel further make reference, were that the State had received ■information, not available at the time of the voir dire examination, that Blackwell had a fixed opinion. These remarks, the court minutes disclose, were not objected to by defense counsel; rather, the objection offered was directed to the State’s peremptory challenge of Blackwell, “without reason or cause shown.” To satisfy that objection, as well as for the benefit of the court, the district attorney made his remarks announcing the reason and cause for the challenge at that time. It would seem that the defendant, in' view of the nature of his objection, has no right to complain. Nevertheless, w-e do not find the remarks prejudicial. '

Bills of exceptions Nos. 7 to 14, .both inclusive, relate to questions propounded by the district attorney to the members of the Lunacy Commission, all of which concerned the examination and findings of the Commission under its appointment in the first case (No. 3082). Defense counsel, in their objections, urged that the physicians could be questioned only about their acts and experiences oc-curing after the appointment in the instant case. There is no merit to the objections. As before shown the Commission correctly considered both examinations in rendering its reports; and, this being true, their former acts and findings were relevant, material and admissible. Furthermore, the questions would have been proper even if the physicians had not been testifying as members of the Lunacy Commission. The appointment of a Commission does not preclude the State or the defendant from calling expert witnesses to testify on the question of sanity at the trial. Article 267 of the Louisiana Code of Criminal Procedure.

Bill of exceptions No. IS was reserved to the refusal by the court to grant defendant’s motion for a new trial, the motion containing 18 paragraphs of assigned reasons.

Paragraph one, by alleging only that the verdict is contrary to the law and the evidence, presents nothing for review.

■Paragraphs two to nine, both inclusive, reiterate the various bills of exceptions hereinabove described, discussed and determined.

Paragraphs 10, 11 and 12 relate to alleged prejudicial remarks of the district attorney in his argument to the jury. But the objections to the remarks were waived by defense counsel’s failure to reserve bills of exceptions at the time of their occurrence. Article 510, Code of Criminal Procedure.

Paragraph 13 of the motion for a new trial challenges, for the first time, certain qualifications of five of the petit jurors. The- record does not show, however, that any of those jurors answered falsely on their voir dire examination to any questions touching their qualifications. “The incompetency of a juror, from whatever cause arising, must be urged before the juror is sworn in, and cannot be set up for the first time after verdict unless the juror should have answered falsely on his examination as to the special disqualification subsequently set up by the accused.” Article 355, Code of Criminal Procedure.

In paragraph 14 complaint is made that, in violation of Article 394 of the Code of Criminal Procedure, the jury was taken on several occasions from the court room to places where the possibility of outside communication was always present, particularly to the courthouse square at a point near which were parked automobiles containing numerous persons and also to a crowded restaurant in the Town of Oak Grove. Since the record contains no proof of attempted communication with or influencing of the jury, the complaint is without merit. State v. Ledet, 211 La. 769, 30 So.2d 830, and cases therein cited.

In paragraph 15 defendant alleges that he was deprived of a fair and impartial trial “ * * * because of the fact that throughout his said trial he was closely guarded by the Sheriff of the Parish of West Carroll, State of Louisiana, and five (5) or more deputies, each of whom wore a side arm or a pistol which was exposed to public view; that the said Sheriff and his said deputies were at all times stationed within a short distance of the Jury and in close proximity to the defendant with their side arms or pistols exposed to the view of the Jury and to all of the people in the court room, and at least two (2) of said officers were at all times sitting or standing beside the defendant jjc * sj: »

The evidence taken on the hearing of these allegations shows that at times during the trial (but not always) there were as many as seven'law enforcement officers in the court room, these being the Sheriff, his five deputies, and a State Highway Patrolman, and that in most instances they carried side arms or pistols. But it does not appear that these officers were there only for the purpose of guarding the defendant, as suggested. Rather, according to the evidence, they were needed and used to handle the exceedingly large crowd present throughout the trial, especially at the several entrances to the court room; to carry out the instructions and orders of the judge; and to care for the jury. As to the side arms or pistols, the record shows that they are usually worn by the police officers at trials of this kind and that no undue display of them was made here.

In paragraph 16 defendant asserts that he was not present in open court during all of the stages of his trial and that as a result thereof he was deprived of his legal and constitutional rights. With respect to this assertion (also made in a motion in arrest of judgment) defense counsel argue that the minutes of May 19, 1949, and June 23, 1949, do not affirmatively show his presence at important stages on those days. Our appreciation of those minutes is to the contrary. But if they be insufficient the essentials were later supplied,- during the hearing of the motion for a new trial, when the judgment ordered and stated as follows:

“In the event that any minutes 'of this court fails to show the presence of the accused party at any time during the trial, let such minutes be corrected to show his presence for the reason that at every stage of the proceeding the defendant was actually present in open court, together with his counsel.

* * * * * *

“The court further states that it will give counsel for and the defendant at this time, or at any time requested, an opportunity to show the incorrectness of any minutes which shows that the defendant was (not) present during any of the stages of the proceedings.” (Parenthesis ours.)

Defense counsel did not avail themselves of the opportunity thus provided.

In paragraph 17 of the motion for a new trial defendant alleges that error was -committed and he was greatly prejudiced when the district attorney told the jury in his opening statement that the defendant had made a confession to him and to the Sheriff in the Parish jail at Oak Grove, and when thereafter, during the trial, he made no effort to produce proof of that confession. Assuming that error was thus committed by the State, the objection thereto offered for the first time in the motion for a new trial 'came too late. The error was discoverable by defense counsel at the completion of the State’s case, at which time they should have made known to. the judge their complaint or objection, obtained a ruling thereon, and (if adverse) reserved a bill of exceptions.. Their failure to so act constituted a waiver of the objection. Code of Criminal Procedure, Articles 509(4), 510, 514.

The final paragraph (18) of the motion for a new trial only makes general reference to the preceding 17 paragraphs.

Bill of exceptions No. -16 was taken to the overruling of a motion in arrest of judgment. Like paragraph 16 of the motion for a new trial,' it presents a complaint •that the court minutes do not affirmatively show defendant’s presence in court' at all important stages. We have heretofore discussed and ruled on this complaint.

For the reasons assigned the conviction and sentence are affirmed. •


text:
    217 La. 76
    PITTMAN v. ROBINSON.
    No. 39323.
    Supreme Court of Louisiana.
    March 20, 1950.
    Rehearing Denied April 24, 1950.

      Joseph V.. Bologna, New Orleans, for plaintiff and applicant.
    Pat F. Bass, Lemle, Moreno & Lemle, New Orleans, for defendant and respondent.
   HAMITER, Justice.

Certiorari brings this case before us, the writ having been issued when it was thought that perhaps the decision of the Court of Appeal, Orleans Circuit, was predicated on an erroneous statement of law.

The suit, filed July 5, 1946, has for its purpose the recovery of workmen’s compensation as for total and permanent disability. In his petition plaintiff alleged that on or about July 11,1945, while in the course amd scope of his employment with defendant, he sustained an inguinal hernia when delivering a heavy stove at Broussard’s Restaurant in the City of New Orleans.

The Court of Appeal sustained defendant’s plea of prescription of one year and dismissed the suit, it having concluded from the evidence that the only stove sold and delivered to Broussard’s Restaurant in 1945 was on-.March 7, 1945, and that plaintiff’s accident and Injury, if such resulted, oc'curred on that date (more than one year prior to the institution of this suit), not on July 11, 1945,' as alleged. 37 So.2d 609, 612.

In announcing its conclusion the court thoroughly and accurately analyzed all of the evidence bearing upon the date, of the alleged' accident and injury, some of which was documentary and the balance in the form -of testimony given by the litigants and their several witnesses. Additionally, the court commented: “The trial court drew an unfavorable inference against the defendant because defendant had subpoenaed Mr. Broussard of Broussard’s Restaurant, and 'had not permitted him to testify. We are cognizant of the fact that there are several decisions which hold that a litigant’s failure "to place a witness on the stand raises the presumption that had the witness testified, his testimony would have been adverse to the litigant’s cause. However, admitting the tenableness of this argument, we are unwilling to concede that the effect of this inference or presumption would have balanced or turned the scales in favor of plaintiff. Mr. Broussard was present in court and Ms testimony was available to plaintiff and if his testimony would luave strengthened plaintiff's position, he could have been sworn in his behalf." (Italics ours.)

It was because of the emphasized sentence of the quoted paragraph that the writ of certiorari issued, we at the time having questioned the correctness of the observation there made which implied that Mr. Broussard’s failure to testify provided no inference in aid of plaintiff’s- position. However, after our more mature consideration of the case, following its argument and submission here, we are now of the opinion that the questioned observation, even if it be incorrect as a matter of law, was and is of no importance in the determination of defendant’s plea of prescription. Irrespective of it, and assuming arguendo (as did the Court of Appeal) that an inference favorable to plaintiff arose by reason of defendant’s failure to place Mr. Brous-sard on the stand, the evidence in the record considered in connection with the inference fairly and reasonably sustains the conclusion that the action was not instituted within the time prescribed by law. The inference, in other words, is insufficient to overcome the very strong and the superior showing made by defendant under the plea of prescription.

For the reasons assigned the judgment of the Court of Appeal is affirmed.


text:
    217 La. 79
    INGERSOLL CORPORATION v. ROGERS.
    No. 39319.
    Supreme Court of Louisiana.
    March 20, 1950.
    Rehearing Denied April 24, 1950.
    Stephens & Allen, Shreveport, for defendant-appellant.
    Cook, Clark ’& Egan, Shreveport, for plaintiff-appellee.
   HAMITER, Justice.

The Iiigersoll Corporation, organized under the laws of Louisiana and'domiciled at Shreveport, seeks a judgment in this cause against Grady - L. Rogers in the total amount of $2,472.57, the alleged indebtedness consisting of the following, separate items: (1) The sum of $1,079.78 due as defendant’s share of the net losses, .of a business arrangement that .formerly existed between the litigants; (2) th.e sum, of $780.81 'for certain' advances made to defendant;. (3) the sum of $611.98 for roof ing materials which defendant purchased from plaintiff.

To the petition defendant tendered exceptions of no right and no cause of action. On these being overruled he filed an answer generally denying the alleged indebtedness and claiming in reconvention the sum of $570.17.

The ultimate judgment of the ■ district court on the merits of the case (the original judgment was changed) condemned defendant to pay to plaintiff the sum of $611.98 (the above mentioned third item), and, further, it dismissed as of nonsuit all other demands of the plaintiff and the re-conventional demand of defendant.

From the judgment defendant appealed’ suspensively and devolutively. Plaintiff has answered the appeal, praying that the judgment be amended so as to award it the total amount sought and to reject the demands of defendant.

In this court defense counsel re-urge the exceptions of no right and no cause of action. They are predicated on the contention that this action, according to the allegations of plaintiff’s petition, presents solely a claim for a specific sum of money, arising out of the conducting of a partnership arrangement, by one partner against another; 'and that, under the law, a suit of this nature cannot be instituted until there has been a final accounting and settlement'of the partnership, affairs. The jurisprudence of this state recognizes the suggested legal principle, this court having held in numerous cases that where the demand is between partners on a cause of action growing out of partnership transactions only an action for accounting and settlement of the partnership will lie. Hennegin v. Wilcoxon, 13 La.Ann. 576; Crottes v. Frigerio, 18 La.Ann. 283; Stanton v.. Buckner, 24 La.App. 391; Radovich v. Frigerio, Jr., 27 La.Ann. 68; West v. Ray, 210 La. 25, 26 So.2d 221. But the allegations of fact of the petition herein do’ not clearly disclose thát plaintiff’s entire demand so arose; rather, at least as to a part thereof, they:indicate that the item of $611.98 represents an indebtedness incurred subsequent to a discontinuance,- as well as independently, of the partnership operations. This being true the exceptions cannot be sustained. A suit will not be dismissed on an exception of no cause of action directed at the petition where plaintiff’s allegations of fact set forth a cause of action- as to any part of the demand. Smith v. Kennon et al., 188 La. 101, 175 So. 763; Adkins’ Heirs v. Crawford, Jenkins & Booth, Inc., et al., 200 La. 561, 8 So.2d 539.

Considering now the merits of the case it appears from the record that on or about June 1, 1946, plaintiff and the defendant entered into a verbal contract the purpose of which was to operate a roofing repair business under the name of Roofkoter Company. According to the agreement plaintiff would provide the necessary materials by purchasing them from the Tropical Paint Company, an establishment rep-, resented by the defendant on a commission basis as a sales agent, or from any.other supplier; it would also .furnish equipment, labor, insurance and certain funds directly needed in the conduct of the venture;- and all of the things so provided would be charged by plaintiff to the Roofkoter (Company. Defendant, on the other hand, obligated himself to assume the management of the business, this including the supervising of operations and the performing of promotional and contact work in obtaining repair jobs. -All net profits -from the Roofkoter Company’s undertakings would be shared equally.

The record reveals a dispute between the parties, however, as to whether under the’ original agreement defendant would contribute and credit to the venture his sales -comfnissions on purchases by plaintiff from the Tropical Paint Company; would provide the funds necessary for his traveling éxpenses in obtaining and carrying out roofing- contracts; and would share one-half o'f any resulting losses.

Thé Roofkoter Company operated from the time of its inception (June 1, 1946) until on or about November .13, 1946, 'when the litigants agreed to discontinue and dissolve the business. Certain terms were then stipulated for .a liquidation, but the parties dispute now the nature and extent of most of them. Thereafter, defendant conducted roofing operations independently-

In nonsuiting plaintiff’s claim as to the items of $1,079.89 and $780.81 (alleged, respectively, to be defendant’s share of net losses and certain advances made by plaintiff) the-district court obviously ruled that they grew out of a partnership arrangement and could not be recovered in this action since no previous accounting between the partners was had. The ruling is correct, in view of the legal principle dis-' cussed above in connection with defendant’s exceptions of no right and no cause of action, unless there is merit to one of the following contentions urged by plaintiff, namely: (1) That a corporation, such as is plaintiff, is prohibited as a matter of public policy from being a member of a partnership; (2) that a partnership did not result from the agreement between plaintiff and defendant; (3) that the non-suited items did not arise out of any partnership arrangement; and (4) that the facts 'here are such that no complex accounting involving a variety of partnership transactions is necessary and, hence, the two items come within an exception to the above discussed principle of law.

In support of the first contention plaintiff’s counsel rely principally on 13 American Jurisprudence, verbo Corporations, Section 823, in which it is said that according- to the prevailing view a corporation has no implied power to become a partner with an individual or another corporation, this limitation being based on public policy. The succeeding section (824) of the same authority states, 'however, that although a partnership agreement made by a corporation may be annulled in certain instances by the state or by stockholders the court will not consider the question of the validity of the copart-nership, with respect to its transactions, where the interests of third parties are not involved. Neither do we find that the cited case of L. J. Mestier & Company v. A. Chevalier Pavement Company, Ltd., 108 La. 562, 32 So. 520, 522, lends aid to plaintiff’s position; rather, it appears to militate . against it. Therein, the court observed : “ * * * Plaintiff has claimed from the first that there was a partnership between itself and defendant quoad the venture; and that for that reason it had an interest in the profits. True, this corporation could not be a member of a partnership. It had no such power, yet it could bind itself to the extent of dividing profits •as a consideration for advances made, as w understand was done in this case.” (Italics ours.)

Controlling, we think, is J. P. Barnett Company v. Ludeau, 171 La. 21, 129 So. 655, the holding of which was that the invalidity of a partnership contract, entered into between á corporation and an individual and which has been fully executed, could not be urged by one of the members of the joint venture.

That a partnership arrangement existed between plaintiff and defendant, under the original verbal agreement of June 1, 1946, we entertain no doubt. “Partnership is a synallagmatic and commutative contract made between two or more persons for the mutual participation in the profits which may accrue from property, credit, skill or industry, furnished in determined proportions by the parties.” -Civil Code, Article 2801. “Property, -credit, skill and industry being the sources from which the profits of a partnership may be drawn, each of the partners may furnish either or all of these, in such proportions as they may mutually agree.” Civil Code, Article 2809. And for determining whether a certain business arrangement constitutes a partnership, this court in Chaffraix & Agar v. Lafitte & Company, 30 La.Ann. 631, announced: “* * * The true, final, satisfactory, conclusive test is in the answer to the question: What was the real meaning and intention of the parties, as expressed in their contract, whether verbal or written? If they intended to create a partnership, they will be treated as partners inter sese and with respect to third persons: If they did not intend to create that relation, but merely to divide the profits, or to share profits and losses, ■ in a speculation or adventure, they will not be partners inter sese, nor will they be liable as such. * * * ”

The importance of an intention to create a partnership is also pointed out in Collom v. Bruning, 49 La.Ann. 1257, 22 So. 744; Shushan Bros. & Company v. Drennan & Hillcoat et al., 158 La. 480, 104 So. 214, Reel v. Brewer et al., La.App., 6 So.2d 99, and Sheridan v. LeQuire, La.App., 15 So. 2d 118.

The instant arrangement, according to the record, contained the several essentials of a partnership mentioned in the above quoted codal articles. Furthermore, the evidence as a whole discloses with legal certainty an intention of the parties to op erate as a partnership. Especially is this indicated by the .transaction of business under a separate firm name, by the bookkeeping method employed, and by' the failure of plaintiff’s president to challenge, when testifying, defendant’s previously made assertion that a partnership existed.

The case of Glover v. Mayer, 209 La. 599, 25 So.2d 242, cited by plaintiff’s counsel, is inappropriate. For consideration there was only a plea to the jurisdiction of the court ratione personae, determinable on the issue of whether the pleadings of plaintiff disclosed the existence of a partnership. The court merely held that an intention to establish a partnership was in no manner reflected by the petition’s allegations of fact.

Whether the disputed first and second items ($1079.78 and $780.81) are directly related to the partnership arrangement is a question that must be answered in the affirmative. The evidence, as well as the allegations of plaintiff’s petition, conclusively show that they represent an asserted indebtedness arising wholly by reason of the joint enterprise.

Plaintiff’s contention that its demand requires no complex accounting involving a variety of partnership transactions, and hence comes within an exception to the above discussed legal doctrine, is not tenable. The evidence before us discloses a dispute respecting- almost every phase of the business venture: the terms of the original partnership agreement, the numerous bookkeeping entries, and even certain of the terms stipulated for the dissolution.

No error is found with reference to the district court’s rendering judgment in favor of plaintiff on the third item. This .alleged indebtedness of $611.98 is for roofing materials which defendant admittedly purchased from plaintiff subsequent to the dissolution of the Roofkoter Company. True, defendant testified, and in the reconventional demand he alleged, that a portion of these materials (of the value of $168.36) was used in completing jobs formerly undertaken by the partnership; however, if that be correct, he is entitled to and may receive credit therefor in an accounting and settlement of the partnership affairs.

The reconventional demand of defendant for $570.17 was, in our opinion, properly nonsuited. The several items thereof, including the mentioned claim of $168.36, relate to partnership operations and are to be considered only in the accounting proceedings.

For the reasons assigned the judgment of the district court is affirmed. Each of the litigants shall pay one-half of the costs of this appeal.


author: MdCALEB, Justice.

text:
    217 La. 90
    STATE v. BROUSSARD.
    No. 39506.
    Supreme Court of Louisiana.
    March 20, 1950.
    Rehearing Denied April 24, 1950.

      Bertrand DeBlanc, Lafayette, for appellant.
    Bolivar E. Kemp, Jr., Atty. Gen., M. E. Culligan, Asst. Atty. Gen., R. J. Putnam, Dist. Atty., Abbeville, Allen J, Lacobie, Asst. Dist. Atty., Lafayette, for appellee.
   MdCALEB, Justice.

Appellant was charged with an attempt to commit aggravated rape and found guilty of an attempt to commit simple rape. Following his sentence to a term of fifteen months at hard labor in. the State Penitentiary, he prosecuted this appeal, relying upon seven of the eight bills of exception reserved by 'him during the trial for a reversal of his conviction.

While the prosecuting witness was testifying on cross-examination, she was asked:

“Q. But wasn’t he merely trying to induce you to have sexual intercourse with him and not to rape you. A. Yes.”

Whereupon counsel for appellant requested the court to direct a verdict or to order the district attorney to nolle prosequi the case. The judge refused the requests and a bill of exception was reserved .to his ruling.

We find no-merit in the bill. Directed verdicts are unauthorized under our law; the jury is the judge of the law and the facts, it being within its province alone to determine the weight and credibility of the evidence. Articles 383 and 384, Code of Criminal Procedure. And, while the judge has the right to instruct the jury on the law of the case, he may not comment upon the facts. Article 384. Consequently, to permit him to direct a verdict would constitute an infringement on the function of the jury. State v. Pascal, 147 La. 634, 85 So. 621; State v. Murphy, 154 La. 190, 97 So. 397 and State v. Bobo, 169 La. 289, 125 So. 126.

Nor is the trial judge authorized to order the district attorney to nolle pros-equi a case. This is a matter solely within the sound discretion and control of the district attorney. Article 329, Code of Criminal Procedure; State v. Kavanaugh, 203 La. 1, 13 So.2d 366.

Counsel, in his argument on this bill, declares that the judge should have ordered a mistrial. But no such request was made by counsel. Furthermore, the ordering of a mistrial would have been highly improper. The per curiam of the judge discloses that the prosecutrix had testified in detail concerning the attack upon her by appellant and the force used by him in attempting to have her submit. The answer to the question upon which the bill is predicated was obviously an isolated statement which may have been valuable in arguing the credibility of the prosecutrix, to the jury but forms no basis whatever for counsel’s claim.

The second bill of exception was reserved when the judge refused to permit defense counsel to cross-examine the prose-cutrix respecting specific acts of sexual intercourse with another man. In sustaining the objection of the State, the judge declared that, while appellant would be allowed to show the general reputation of the prosecutrix for chastity and also inquire into any previous act of intercourse which appellant had with her, he could not probe into any alleged intimacies she might have had with third parties.

The ruling was correct. There is complete- unanimity in the jurisprudence that want of chastity in rape cases may be shown by evidence of the general reputation of the prosecutrix. 52 C.J. Verbo “Rape” page 1080; Underhill’s Criminal Evidence, 4th Ed., Section 676, page 1274. It has also been generally held that a defendant should be allowed to prove prior acts of sexual intercourse between the prosecutrix and himself. See Annotation 140 A.L.R. 364, 390 and cases there cited, including State v. Hodgeson, 130 La. 382, 58 So. 14. However, a conflict of authority exists as to whether specific acts of' intercourse of the prosecutrix with men other than the defendant may be proved. 44 Am.Jur.Verbo “Rape”, Section 92, page 961, et seq.; Annotation 140 A.L.R. 364, 382. The majority view appears to be that such evidence is inadmissible. Un-derhill’s Criminal Evidence, Sec. 676, page 1278; Annotation 140 A.L.R. 382.

But, whatever may he the majority rule, it has been definitely settled in this state that, in trials for rape, evidence is not admissible to prove specific acts' of intercourse by the prosecutrix with other men. State v. Hodgeson, supra. This view was recently adverted to in State v. Borde, 209 La. 905, 25 So.2d 736, where it was said that the chastity or want thereof on the part of the female in rape cases is immaterial except where consent is .pleaded as a defense.

Appellant’s .counsel, in contesting the trial court’s ruling, relies on the case of State v. Perrine, 156 La. 85.5, 101 So. 243. In that matter, the defendant was tried and convicted of assault wit-h intent to rape. He complained that the court erred in excluding evidence that the reputation of the prosecutrix for chastity was not good and that she was pregnant for a period of about four months before the alleged assault. The court held that the evidence, should have been admitted -because the defense in the case was that the defendant intended to persuade the prosecutrix to have sexual intercourse with him and -that she did, in fact, consent to and perform the act.

The .decision falls squarely, within the ruling of State v. Borde, supra, that, where consent is a defense, the general reputation of the prosecutrix for unchastity may be shown. But it cannot be viewed as authority for the contention that particular acts of indiscretion by the prosecutrix with ■third parties, are admissible in evidence— for, as above pointed out, the jurisprudence of this State is otherwise. State v. Hodge-son, supra.

Bills Nos. 3 and 4 involve the same point and may be combined for discussion. While the prosecutrix was under cross-examination, defense-counsel requested the court to order.the district attorney or the sheriff, to produce a pertain signed statement made by her on February-27, 1949. The request was refused and counsel excepted. Later, however, the judge interrupted the proceedings and- informed counsel that he would order -the district attorney to produce the statement and that the prosecutrix would be recalled so that counsel might further cross-examine her on the statement for the purpose of impeachment. To this, counsel replied that “the usefulness of the statement for the purpose for which it was intended to be used had passed” and that he therefore refused the offer, reserving bill of exceptioij No. 4.

, These bills are devoid of merit for a number -of reasons the principal one being' that appellant was not prejudiced in any manner by the rulings of the judge. Indeed, the-judge remarks in his per curiam that, when , defense counsel refused the statement of the prosecutrix, which was tendered him by the district attorney, he lauughingly told the latter that he had a copy of the statement in his file.

The sixth bill of exception was reserved 'by appellant when the trial judge, over objection, - permitted one Mr. Waldo H. Dugas to be associated as counsel for the state in the prosecution of the case. Deferise counsel 'asserted that Mr. Dugas made certain derogatory remarks about appellant’ prior' to the trial and that, therefore, his participation in the case was prejudicial to the defense.

The bill is frivolous as no evidence was offered to show that Mr. Dugas made the remark attributed to him by defense counsel.

After verdict, but before the court had passed on a motion in arrest of judgment and for a new trial, defense counsel moved the court-to order the recusation of Mr. Du-gas, as assistant prosecutor, and that the recusation be made retroactive' as "of the outset of the trial of the case. The motion was founded on the claim that Mr. Dugas had a personal interest adverse to the prosecution because he was representing appellant’s wife in a civil action for separation from bed and board which was based on substantially the same facts as those involved-in the prosecution. Before the court ruled on this motion, Mr. Du'gas voluntarily withdrew as counsel assisting the state ■and thereupon the judge declared that it was impossible for him to make the recusation retroactive. Reservation of the seventh bill of exception followed the ruling.

The complaint is without any substance whatever. Assuming, for purposes of discussion, that the motion to recuse Mr. Dugas was well founded, it came too late after the jury had rendered its verdict. State v. Bordelon, 141. La. 611, 75 So. 429; State v. Clark, 142 La. 305, 76 So. 722, 2 A.L.R. 1709. Appellant knew that Mr. Dugas was representing his-wife in the separation proceedings, as he had been served with a copy of the petition on which Mr. Dugas appeared as attorney.

Bill of exception No. 8 was taken to the overruling of the motion for a new trial. This motion is merely a reiteration of the contentions already considered and disposed of.

Finally, in a motion in arrest of judgment, appellant contends that the verdict of attempted simple rape is illegal because that crime is of greater- magnitude than that charged and further that it is not responsive to the charge in the indictment.

The point that an attempt to commit simple rape is, a greater offense than an attempt to commit aggravated rape is based upon the notion that the penalty for the former requires a minimum sentence of imprisonment of not less than one year at hard labor. This is not correct.' The substantive offense of simple rape provides such a minimum sentence, articlé -43, Criminal Code, but the attempt statute, Article 27, Criminal Code, declares that the fine and imprisonment “shall not exceed one-half of the largest fine, or one-half of the longest term of imprisonment prescribed for the offense só attempted, or both”. Thus, in cases of attempted simple rape, no minimum sentence is exacted. the maximum sentence is ten years; or one-half of the maximum prescribed for the substantive offense. In the greater offense, attempted aggravated" rape, the maximum sentence is twenty years, since the - substantive crime is punishable by death. Articles 27 and 42, Criminal Code.

The other contention of counsel is that the verdict is- illegal, or rather unconstitutional, because attempted simple rape is not responsive to the charge of attempted aggravated rape.

The short answer to this proposition is that the verdict is responsive for the reason that it is specifically declared to be by Article 386 of the Code of Criminal Procedure, as amended and reenacted by Act No. 161 of 1948, under which -the judge was required, on a charge of attempted aggravated rape, to instruct the jury that it had the right to find appellant guilty of an attempt to commit simple rape. State v. Stanford, 204 La. 439, 15 So.2d 817. But counsel says that the act, as thus construed, is unconstitutional because appellant was not informed -of the naturé and cause of the accusation against him, as required by Article 1, Section 2 of the Constitution, and the verdict would be also violative of the due process clause of the Fourteenth Amendment to the Federal Constitution.

There are a number of answers to this postulate but, since the matter has not been properly raised by reservation of a bill of exceptions to'the judge’s charge, we are unable - to give it consideration. As above stated, Article 386 o-f the Code

of Criminal Procedure made it mandatory that the judge instruct the jury that a verdict of attempt to commit simple rape would be responsive to the indictment. Accordingly, appellant was charged with knowledge, at the time he was tried for attempt to commit aggravated rape, that he could be found guilty of the lesser offense of attempted simple rape.. State v. Stanford, supra. Hence, if he had any objection to such a verdict, or if he thought the statute was unconstitutional, it was his duty to object .to the judge’s charge and raise the alleged unconstitutionality of the statute at that time. Article 391, Code of Criminal Procedure. See also State v. Bradford, 167 La. 827, 120 So. 382; State v. Abeny, 168 La. 1135, 123 So. 807; State v. Johnson, 171 La. 95, 129 So. 684; State v. White, 172 La. 1045, 136 So. 47; State v. Pace, 174 La. 295, 140 So. 482; State v. Verret, 174 La. 1059, 142 So. 688 and State v. Guillot, 200 La. 935, 9 So.2d 235.

The conviction and sentence are affirmed.

      . Bill No. 5 has been abandoned.

      . Except as limited by Articles 330 and 331 of the Code of Criminal Procedure.

      . Article 502 of the Code of' Criminal Procedure provides that—“No error, not patent on the face of the record, can be availed of after verdict, unless objection shall have been made at the time of the happening of such error and unless at the time of the ruling on the objection a bill of exceptions shall have been reserved 'to such adverse ruling.” It is clear, of course, in this case that the alleged error is not in reality an error and, therefore, not patent on the face of the recorS inasmuch as the verdict is responsive to the charge in con-' formity with Article 386, Code of Criminal Procedure, as amended.


author: McCALEB, Justice.

text:
    217 La. 103
    DILEO et al. v. DILEO et al.
    No. 39137.
    Supreme Court of Louisiana.
    March 20, 1950.

      Spedale & Cooley, Baton .Rouge,- for plaintiffs-appellants, ,, ,
    Reid & Reid, Hammond, for defendants-appellees.' . ■
   McCALEB, Justice.

Plaintiffs Anthony Dileo, Mrs. Josephine Dileo Wilberg and Santo L. Dileo, are claiming an undivided one-half interest in a certain square of ground located in the town of Independence, .Tangipahoa Parish. The facts upon which their demand is founded are not contested and we find them to be as follows:

The real estate was originally acquired in 1899 by Santo Dileo-, the common ancestor, and formed part of the community existing between him and his wife, Josephine Laprize Dileo.

On March 27, 1914, Santo Dileo died, being survived by his widow and four children, namely, Carlo, Anthony (one of the plaintiffs), Joseph and Peter (one of the defendants). Plis succession was never opened. Carlo Dileo, one of the sons, died in the following year, 1915, and was survived by two children, Josephine Dileo Wilberg and Santo L. Dileo, the other plaintiffs herein.

On May 10, 1930, a paving lien was assessed against the property in favor of the town of Independence for the amount of $3,693.50 and, on the same day, Josephine Laprize Dileo and Peter, Joseph and Anthony Dileo executed two promissory notes, each for the sum of $1,846.75, payable one year after date to the town of Independence in accordance with the provisions of Act 290 of 1928.

Thereafter, on February 9, 1937, Peter and Joseph Dileo, alleging that they were the legal owners of the paving lien notes, which they had acquired by purchase, instituted executory proceedings against their mother and brother, Anthony Dileo, and obtained an order of seizure and sale of the property in the Twenty First Judicial District Court for the Parish of Tangipa-hoa. After advertisment, the property was adjudicated to Joseph and Peter Dileo who bid it in at the sheriff’s sale for $500 and, on August 18, 1938, they received a deed from'the sheriff. ' '

Joseph and Peter Dileo did not take possession of the land after their acquisition and .their mother, Mrs. Josephine Laprize Dileo, remained thereon until her death in 1944, at the age of 92 years. Her succession has never been opened.

On January 16, 1945, Joseph Dileo sold to Peter Dileo all of his right, title and interest in the property which they acquired by sheriff’s deed. Following this purchase, Peter Dileo caused the square of ground to be subdivided into lots. On March 12, 1946, he conveyed two lots to Christopher .and Joe Matise and, on April 8, 1946, he sold another to Paul P. Lamarca.

With affairs in this state, plaintiffs 'brought the instant suit against Peter Dileo and his transferees, Christopher and Joe Matise and Paul P. Lamarca, in which they allege that the foreclosure proceedings instituted by Joseph and Peter Dileo and the sheriff’s sale based thereon are absolute nullities and that they, as the lawful heirs of Santo and Josephine Laprize Dileo, are the owners of a one-half undivided interest in the real estate. Specifically, it is averred that Anthony Dileo, as son ■of Santo and Josephine Dileo, inherited an undivided one-fourth interest and Mrs. Josephine Diléo Wilberg and Santo L. Dileo, as surviving children of Carlo Dileo, the deceased son of Santo and Josephine Laprize Dileo, are claimants to an undivided one-eighth each.

■ The defendants admit the salient facts as hereinabove set forth but deny the invalidity of the proceedings through which Peter and Joseph Dileo acquired the property. And they pleaded that, if the court should find any illegality or irregularity in the •sheriff’s sale, then plaintiffs’ action was barred by the prescription of two years provided by Article 3543 of the Civil Code, as amended by Act 231 of 1932.

In addition, they pleaded the prescription of thirty years set forth in Article 1030 of the Civil Code asserting that plaintiffs had neither accepted nor renounced the successions of Santo Dileo and his wife.

Further answering, defendants declared that, in any event, plaintiffs had failed to take any steps to protect their rights over a long period of time and that, therefore, they were estopped from contending that Peter Dileo did not become vested with full ownership to the land.

Separate alternative reconventional demands were also filed by defendants. Peter Dileo pleaded that, should the court hold that plaintiffs- were entitled to an undivided one-half interest in the property, then he should have judgment against them for their virile share of the paving lien (together with 7% interest from May 10, 1930 and 10% attorney’s fees) which he and his brother, Joseph Dileo, had liquidated and that the whole amount due by plaintiffs was recoverable by him because he had acquired all of his brother’s interest in and to the paving lien by virtue of the act of sale executed in his favor on January 16, 1945.

Christopher and Joe Matise, to whom Peter Dileo had sold two lots, declar'd alternatively that, should the court hold that plaintiffs áre the owners - of an undivided one-half interest in the property, they were entitled to have judgment against plaintiffs ■for the value of certain nmprovements which they had erected on the property possessed by them in good faith. They further called Peter Dileo in warranty.

Defendant Paul P. Lamarca alternatively called Peter Dileo in warranty.

■ After a trial below, the judge sustained the pleas of prescription of two and thirty years and dismissed plaintiffs’ suit. Plaintiffs have appealed from the adverse decision.

It is manifest that the executory proceedings instituted by Peter and Joseph Dileo are absolutely void as they were merely the holders of the two paving lien notes. Executory -process can only be resorted to where the creditor’s right arises from an act importing a confession of judgment in matters of privilege or mortgage (Article 732,. C.P.) that is, when the act is passed before a notary public (or other officer fulfilling the same functions) in the presence of two witnesses “and the obligor declares and acknowledges therein the obligation (whether 'then existing or thereafter to arise) to which the privilege or mortgage relates”. Article 733, Code of Practice.

Therefore, it follows that the judge erred in sustaining defendants’ plea of the two year prescription provided by Article 3543 of the Civil Codei This prescription, which has the effect of curing “Any and all informalities of legal procedure connected with or growing out of any sale at public auction of real or personal property made by any sheriff ‡ * * ”, is not appropriate in matters involving radical nul-lities. Hickman v. Dawson, 33 La.Ann438; Thibodeaux v, Thibodeaux, 112 La. 906, 36 So. 800; Pons v. Yazoo & M. V. R. Co., 122 La. 156, 47. So. 449; Brewer v. Yazoo & M. V. R. Co., 128 La. 544, 54 So. 987 and Dickey v. Pollock, La.App., 183 So. 48.

We are also of the opinion that the judge erred in sustaining the plea of prescription of thirty years. Article 1030 of the Civil Code declares: “The faculty of accepting or renouncing a succession becomes barred by the lapse of time required for the longest prescription of the rights to immov-ables”.

Defendants contend that plaintiffs did not accept the succession of Santo Dileo within thirty years from his death in 1914 and therefore they must be considered to have renounced it. In support of the proposition; the case of Schultze v. Frost-Johnson Lumber Co., 131 La. 956, 60 So. 629 is cited.

The point is not tenable. It is the firmly established jurisprudence that forced heirs do not lose by prescription their right of inheritance in failing to accept the succession within thirty years because, if they have not renounced it, they are presumed to have accepted it. Le mort saisit le vif. Articles 940, 941, Civil Code; Generes v. Bowie Lumber Co., 143 La. 811, 79 So. 413; Bendernagel v. Foret, 145 La. 115, 81 So. 869; Dew v. Hammett, 150 La. 1094, 91 So. 523 and Tillery v. Fuller, 190 La. 586, 182 So. 683. The obiter dictum to the contrary in Schultze v. Frost-Johnson Lumber Co., supra, upon which defendants depend, was based on the ruling in Succession of Waters, 12 La.Ann. 97, which was specifically overruled in Generes v. Bowie Lumber Co., supra.

Defendants have-filed in this court another plea of prescription — that of five years, which is provided by Act 6 of 1928, Dart’s Louisiana Code of Practice, Article 123.114. This statute declares, among other things, that all sheriff’s deeds shall be valid, by prescription, five years from their date where the original owner knew that the sheriff was proceeding to sell his property and where said purchaser, or those claiming under him, went into possession under such deed to the knowledge of the. owner of the property.

There is no proof whatever in the record that Joseph and Peter Dileo, the purchasers, went into possession under the, sheriff’s deed. On the contrary, defendants admitted that Mrs. Josephine Laprize-Dileo continued to live on the property until the time of her death. For this reason alone, this plea of prescription is not well founded and it is therefore overruled..

Defendants finally contend that plaintiffs are estopped from claiming an undivided one-half ownership in the land by their failure, over a long period of time,, to take any legal steps to protect their-rights and that, by their silence, they should' be held to have acquiesced in the sheriff’s, sale.

Counsel do not cite any authority to sustain this contention. As a matter of fact, the law is well settled otherwise. Mere silence and delay cannot cause loss, of title to property except by the effect of' the laws of prescription. Long v. Chailan, 187 La. 507, 175 So. 42; Tyson v. Spearman, 190 La. 871, 183 So. 201 and Dugas v. Powell, 207 La. 316, 21 So.2d 366.

We therefore conclude that plaintiffs are-entitled to be recognized as owners of am undivided one-half interest in the land. Being of this opinion, we pass on to a consideration of the reconventional demands, of defendants.

Defendant Peter Dileo asserts that he-should have judgment against plaintiffs for-their virile share of the paving lien notes, which he and Joseph Dileo paid in full. In defense of this claim, plaintiffs plead (1) the prescription of ten years and (2) that, at all events, Peter Dileo’s claim is.. limited to recovery of contribution for one-half of the amount paid by Peter and Joseph Dileo, since the fact that Joseph sold his interest in the real estate to Peter did not operate as a conventional subro-gation to -Peter of Joseph’s right to enforce contribution.

The first defense of prescription is not well founded. Although the plea would be good if this was a direct action by Peter Dileo, it is a fundamental rule of the civil law that a defendant may, by exception or answer, set up his cause of action as a defense even though it is prescribed. Article 20 of the Code of Practice provides: “He who has a right of action to claim what is due to him, has a right yet more evident to use the same cause of action as an exception, in order to preserve his rights.”

Thus, in the case at bar, while plaintiffs are entitled to have their undivided ownership in the property recognized, Peter Dileo should have contribution from them for their virile share of such sums as paid out by him in liquidation of the paving lien which was an obligation of all persons interested in the real estate. Otis v. Texas Co., 153 La. 384, 96 So. 1, and authorities there cited and J. B. Beaird Company, Inc. v. Burris Brothers, Limited, La.Sup., 44 So.2d 693.

On the other hand, the alternative defense of plaintiffs is well taken because a conventional subrogation was not created by virtue of Joseph Dileo’s conveyance of his interest in the property to Peter. When Joseph and Peter paid the two paving lien notes they became subrogated, by operation of law, to claim from all persons interested in the property their virile share of the debt. Article 2161 of the Civil Code. Since Peter paid one-half of the debt, he is entitled to reimbursement from plaintiffs for one-half of their virile share. But, as above stated, he has obtained no right to, claim reimbursement for. the amount paid by his brother, Joseph, merely because he acquired the latter’s interest in the property. Nor may he recover 7% interest from May 30, 1930 and 10% attorney’s fees, as provided in the paving' lien notes. His suit is not on the notes but for reimbursement. Plence, he is not entitled to any attorney’s fees and only to legal interest from judicial demand.

We next consider the reconventional demand of defendants, Christopher and Joseph Matise. They assert -that their purchase of the two lots from Peter Dileo was made in good faith and that they have erected improvements thereon valued at $9,000 for which they should have judgment.

Plaintiffs maintain that the Matises are not entitled to this relief because they are not good faith possessors. However, no evidence has been submitted to sustain this contention. In fact, it is apparent to us that the Matises purchased the property in good faith and placed a gasoline station thereon which, it is testified, is valued at $9,0001

Under Article 508 of the Civil Code and the jurisprudence, see Venta v. Ferrara, 195 La. 334, 196 So. 550, a possessor in good faith is entitled to reimbursement, at the election of the owner, for the value of the improvements which he has placed upon the property or- for the enhanced value of the soil. In the instant case, plaintiffs have not indicated their choice but the parties have stipulated that, in the event plaintiffs are condemned, they may, by abandoning their title to the two lots of ground in favor of the Matises, fully satisfy any monied -judgment rendered against them. And they request us to phrase our judgment to this effect.

We do not find it possible to render such a conditional judgment as suggested by the stipulation of the parties and, in view of the fact that there is no evidence in the record as to the enhanced value of the lots by reason of the improvements placed thereon, we find it appropriate to remand the case so that such evidence may be introduced, and also in order that plaintiffs may elect whether they will keep the improvements and reimburse the Matises for the value thereof or for a sum .equal to the' enhanced value of the soil. Venta v. Ferrara, supra. Moreover, the parties will be able to decide whether they desire to compromise the matter in accordance with their stipulation filed in this court.

The Matises and defendant, Paul P. La-marca, are also entitled, on the remand, to have a judgment in warranty against Peter Dileo for such damages and costs which they have sustained by reason of this suit.

For the foregoing reasons, the judgment appealed from is reversed and it is now ordered that there be judgment in favor of plaintiffs, Anthony Dileo, Mrs. Josephine Dileo Wilberg, wife of James J. Wilberg and Santo L. Dileo, and against defendants, Peter Dileo, Christopher Matise, Joe Ma-tise and Paul P. Lamarca, decreeing the sheriff's sale recorded in Book 154, page 329, of the Conveyance Records of Tangi-pahoa Parish to be an absolute nullity and ordering its cancellation and erasure; that plaintiffs are hereby recognized to be the owners of an undivided one-half (1/2) interest, in the proportion of an undivided one-fourth (J4) interest to Anthony Dileo and an undivided one-eighth (%) interest each to Mrs. Josephine Dileo Wilberg and Santo L. Dileo, in and to the following described property, to-wit: A certain Square of ground with all the rights, privileges' and appurtenances thereunto belonging, or in anywise belonging or appertaining, situated in the Town of Independence, Parish of Tangipahoa, State of Louisiana, and des-, ignated by the Number ’ Twenty-two (22) on the plan of said Town, said Square containing ten (10) acres, more or less, and is bounded by Railroad Avenue, Pine, Second and Third Streets.

It is further ordered that there be judgment in'favor of Peter Dileo and against Anthony Dilep for the sum of $461.69, with interest thereon from'judicial demand until paid; and judgment in his fav.or against Mrs. Josephine Dileo' Wilberg for the sum of $230.85, with interest thereon' from judicial demand until paid and against Santo L. Dileo for a like sum with the same interest.

It is further ordered that this case be remanded to the district court for the purpose of hearing additional evidence' on the recónventional demand of Christopher and Joe Matise; also on the calls in warranty of Christopher Matise, Joe Matise and Paul P. Lamarca and for such other proceedings as authorized by this opinion and consistent with the views herein expressed.

The costs of the proceedings in the district court and of this appeal are to be paid by defendant, Peter Dileo, all other costs to await final disposition of the cause.