text:
    GAGLIANO v. BOH BROS. CONST. CO. et al.
    No. 19224.
    Court of Appeal of Louisiana. Orleans.
    Feb. 27, 1950.
    Clay & Coleman and Louis J. Dutrey, New Orleans, for plaintiff and appellee.
    John May and John E. Hurley, New Orleans, for defendants and appellants.
   McBRIDE, Judge.

The plaintiff, Anthony Gagliano, Sr., whose occupation was that of a member of a pile driver crew, which is a hazardous occupation within the purview of the Workmen’s Compensation Act, Act No. 20 of 1914, as amended, brought this suit against his employer, Boh Bros. Construction Company, and its compensation insurer, Travelers Insurance Company, seeking to- recover workman’s compensation at the maximum rate of $20.00 per week, for permanent total disability, ' allegedly resulting from an injury to his back sustained on his job on February 25, 1948.

Defendants answered denying that plaintiff suffered an accident while in the employ of Boh Bros. Construction Company on February 25, 1948. The answer avers that, the Travelers Insurance Company had paid compensation to plaintiff from April 12, 1948, to June 2, 1948, a period of seven weeks and two days, at the rate of $20.00' per week, or an aggregate amount of $148.-00. Defendants deny that plaintiff is disabled or that he is entitled to further compensation.

After a trial on the merits, which consumed several court days, plaintiff recovered judgment against defendants, jointly and in solido, for the sum of $6,000.00, representing compensation for permanent partial disability at the rate of $20.00 per week for a period of 300 weeks under section 8(1) (c) of the act, Act No-. 242 of 1928, p. 357, § 8, subd. 1(c), subject to a credit of $148.00, the compensation paid for seven weeks and two days at the rate of $20.00 per week, tor gether with legal interest from date of judicial demand, and. costs.

Defendants have appealed suspensively, and the matter is now before us for consideration. An answer to the appeal was filed by appellee who prays that the judgment be amended so as to increase the award from $20.00 per week for a period of 300 weeks, to $20.00 per week for a period of 400 weeks.

Diligent counsel have filed comprehensive briefs, and the case was extensively argued. Certain motion pictures, which were offered in evidence below, were exhibited to us, on which we shall comment later in this opinion.

Prior to argument, defendants moved to remand, upon the ground that additional evidence has been discovered which was not available to them on the trial of the case, and which, they allege, will conclusively prove that plaintiff is not now disabled, nor was he when the matter was heard below. Attached to the motion are some blown-up still photographs made from motion pictures taken some months subsequent to the date of the trial by investigators employed by defendants, which pictures, the motion alleges, depict plaintiff in the act of performing manual labor, which fact makes it manifest that his claims of disability are false, fraudulent, and colored with perjury.

We informed counsel, when the motion to remand was urged, that a ruling thereon must await our consideration of the case on the merits, because when an appellate court remands a cause, a reversal of the judgment is necessary, and this the court cannot do without first considering all evidence embraced by the record. See Blackburn v. Chenet, La.App., 42 So.2d 288.

This appeal presents two questions. Did the plaintiff suffer an accident at the time alleged while in the employ of Boh Bros. Construction Company? If so, is the plaintiff disabled and to what extent?

At the outset, we might state that plaintiff is a man about 33 years old, and while the record does not show what, if any, education he has had, we gather from his testimony that he is a person with little or none.

The petition alleges that the accident occurred on February 25, 1948. It is true that, Gagliano was confused and vague as to when the accident happened, but after a careful consideration of all the testimony on that point, our minds are free of doubt that he did meet with an accident on or near the alleged date. He testified that while working in a - skiff near the seawall along Lake Ponchartrain, at the site of a metal breakwater being then constructed by Boh Bros. Construction Company, in-attempting to shove the skiff off by pushing with both hands against the steel pilings, he lost his equilibrium and hyperex-tended and twisted his ba-ck in an attempt to regain his balance, and then fell to the bottom of the skiff. Plaintiff, qualifying his statement with the admission that he might be “a little wrong,” said the accident occurred on February. 25, 1948. Ina' prior written statement 'given to an adjuster for the compensation carrier, he stated that the accident took place during the first week of March, 1948. At another point, Gagliano testified that he saw Dr. Tedesco three days after he was injured; the record shows that he first saw Dr. Tedesco on April 12, 1948. Again, he testified that he visited Dr. Baker about four or five days after the accident; his first visit to this physician was on April 13,. 1948.

Chaney, a fellow workman of Gagliano, testified- that to the best of his knowledge the accident occurred in February, 1948. However, the witness did not see the actual occurrence. Hebeiiing, another fellow-workman, who at the time of the trial below was still in the employ of Boh Bros. Construction Company, saw Gagliano fall in the skiff. The accident, he said, occurred some time during February, although he could not fix the exact date. Heberling, who at the time was “lead” man on the job, as the foreman was sick, stated that when Gagliano reached shore he told liim, in the presence of several members of the gang, that he believed he had injured himself.

Gagliano’s testimony appears to he honest, hut, nevertheless, we find ourselves at a loss to know when the accident happened. However, we do not believe that the failure to fix with precision the date of the accident can go far toward militating .against a workman’s claim to compensation, where it can he established that there actually was an accident, as such detail, in our minds, is relatively unimportant. However, it might be very material in evaluating the credibility of the claimant and of his witnesses, or when the defendant has interposed a plea of prescription. There is no such plea in this case.

It is the settled law, in ordinary cases, that the allegata and the probata should conform, but by specific provisions imbedded in the Workmen’s Compensation Act the usual rules which govern ordinary cases are relaxed, and the parties are not to be bound by technical rules of evidence or procedure. In all jurisdictions, these statutes have been said to be paternal in their nature.

The record is fraught with irreconcilable conflict in the testimony of the five physicians who testified, all of whom, although prominent in their profession, were diametrically opposed in their views and opinions. Two doctors testified for Gagliano, and the defendants produced three. In addition to his experts, plaintiff placed into the evidence a certified copy of his Charity Hospital record, which, under the terms of Act No. 90 of 1938, constitutes prima facie proof of its contents.

Gagliano states that upon falling in the skiff he experienced sudden sharp pains in his bade, but, nevertheless, continued working. A few days later, he claims he met his regular foreman, whom he saw in his neighborhood, and told him he would not be able to do “that roughneck stuff” because his back hurt. On the following Monday, Gagliano was assigned to light work operating a burner, which he continued to do until about April 12, 1948, when he called upon his private physician, Dr. Victor E. Tedesco. Subsequently, he was examined by several other physicians, and was treated by some of them.

Drs. Tedesco and E. H. Maurer appeared as witnesses for plaintiff, and Drs. Dan D. Baker, George D. B. Berkett, and Howard H. Karr appeared as defense witnesses.

Plaintiff’s medical experts, while insisting that he was totally and permanently disabled, could not agree as to the nature of his complaints. Dr. Tedesco was of the opinion that Gagliano had a ruptured intervertebral disc, while Dr. Maurer diagnosed the case as a lumbo-sacral strain.

Dr. Berkett treated plaintiff until June I, 1948, on which date plaintiff was discharged from further treatment. Drs. Baker and Karr merely examined plaintiff. These three physicians were of the opinion that Gagliano was laboring under no disability and was physically competent to return to his occupation as a pile driver worker.

The records of the Charity Hospital do not help to any extent. They merely show that Gagliano was treated in the orthopedic clinic several times, and that the doctors were of the opinion that there was no ruptured intervertebral disc. However, the records do not reveal the diagnosis.

For several days prior to Sunday, October 17, 1948, which date was eleven days before the trial was scheduled below, Gag-liano was followed by 'two investigators employed by the Travelers Insurance Company. One of these, J. C. Isaac, testified that on October 17, 1948, he observed Gagliano at 1440 Galli-er Street from eight to ten o’clock in the morning, sweeping the sidewalk with a broom and shoveling dirt from in front of the house. Fie took four rools of motion picture film, consisting of fifty feet each, of the activities of Gagliano as observed by him. At ten o’clock Isaac was joined by the other investigator, Jas-tram, and from 10:30 to noon they both observed Gagliano digging a hole with a post-hole digger, using a shovel to remove dirt, swinging a pickaxe, and erecting a post in the hole which had been dug. Jastram also made pictures of these activities of Gagliano, consisting of three rolls of fifty-feet each.

The films were viewed by us, and by statement of the operator of the projecting machine, about twenty minutes were consumed in exhibiting them. As said before, the pictures were made between eight o’clock and noon of the day in question, and, of course, they do not show all of Gagliano’s activities during that time.

None of the medical experts saw an exhibition of the films, and the only comment concerning the pictures, aside from that of the two investigators, was given by Gag-liano, who freely admitted that he did the work at 1440 Gallier Street on that day. He explained that the premises are owned by his brother-in-law, to whom he was indebted for loans of money, etc., and that he went there on the Sunday morning in an effort to show his appreciation by gratuitously helping his brother-in-law clear debris from about the house and grade the yard. According to Gagliano, he did not work steadily, was compelled to rest from time to time, and experienced pain to such an extent that on the following day it was necessary to take to his bed.

Objection was made by plaintiff’s counsel, in the court below, to the admission of the pictures as evidence, but we do not deem it necessary to comment or pass upon the objection.. Suffice it to say that whereas the motion pictures were taken at intervals, they lose much of their potency, as we believe a spirit of fair play dictates that when such pictures are made to be used in a case such as this, they should reflect all activities of the subject of the pictures, and not merely snatches or fragments taken over the four hour interval.

However, the pictures, as they are, nonetheless shroud the validity of plaintiff’s claim with doubt. While proclaiming from the witness stand that he could not stoop, bend, or do laborious work, the pictures show him doing those very things which he insisted he could not do. We do not have the benefit of medical testimony regarding Gagliano’s activities as shown by the pictures, and are at a loss to know whether such activities were in anywise incompatible with the nature of the complaints , upon which his claim is based.

It might be mentioned here that none of defendants’ expert witnesses would classify Gagliano as a malingerer, and taking the medical testimony as a whole, to all of which we have given careful study and attention, together with the moving pictures, at this time some doubt exists in our minds, because of the state of the record, as to what disposition should be made of the case. The triad judge evidently entertained doubt, because while Gagliano claimed total permanent disability, the judgment appealed from awarded him compensation for total partial disability.

The motion to remand, in part, alleges: “That this case was tried in the lower court on November 18th, November 22nd, November 29th, November 30th and December 1st, 1948; that at the time of the trial plaintiff .testified that he was wholly disabled by reason of back injuries; that he was obliged to wear a surgical belt at all times; that he could not lift anything or stoop without pain; that he was unable to do any bending, stooping, lifting or any hard work; that the only work he had been able to do since April 12, 1948 was that of shoe repairing, and, further, that he had not done any hard labor at all since April 12, 1948; that he suffered from continual pain in his back; all as will appear from the transcript herein. Thát, from the 4th day of April, 1949 through the 9th day of April, 1949, approximately four months after the trial, plaintiff was observed by several witnesses working first at 3826 Burgundy Street and then at Schwegmann Bros. Super Market, in the City of New Orleans, using a pipe cutter, threading pipe, handling pipe and material, swinging a pick ax, using a shovel to dig a trench and generally performing labor which required great physical exertion, especially bending, turning, stooping and lifting; that this work was performed for hours over a period of days; that the performance of said work was entirely inconsistent with plaintiff’s alleged disability and proved conclusively that plaintiff’s claims of disability at the time of the trial were false, fraudulent and perjured; that eighteen rolls of motion pictures wore made of plaintiff’s activities on April 4th, 6th, 7th, 8th and 9th, 1949; that still photographs were made from the motion picture films, which stills .are attached to this motion together with affidavits of Milton M. Jastram, Samuel J. Lyons and J. E. Isaac, witnesses to the plaintiff’s said activities, and of Nestor B.. Knoepfler, the photographer who made the still photographs; that also attached to this motion is affidavit of Joseph D. Vinson relative to the development of the eighteen rolls of motion picture film; that .the said motion picture films are available and should be viewed in whole or in part by this Court so that the character of the evidence and its conclusiveness as to plaintiff’s disability at the time of .the trial may be demonstrated.”

The still pictures attached to the motion purport to depict plaintiff performing such manual tasks as stooping, digging a trench with a shovel, swinging a pickaxe, and working at a pipe vise, and if the new evidence is such as the motion alleges, .then the additional- moving pictures taken subsequent to the trial of the case below might possibly be of material benefit in arriving at a conclusion. This exact situation existed in .the recently decided case of McQung v. Delta Shipbuilding Co., La.App., 33 So. 2d 438, 442, writs refused by the Supreme ■Court, wherein, in remanding the case, we said: “While -it is quite true that the Code of Practice contains no article which specifically endows an appellate court with authority to remand a case for ,the reception of new evidence, courts have continuously exercised such power when a 'litigant has procured evidence which is -material to his interest, and which he could not, with due diligence, have obtained before. Robison v. Howell, 22 La.Ann. 524; Union National Bank v. Evans, 43 La.Ann. 372, 9 So. 44; Succession of Oliver, 1 La.App. 526. Moreover, an appellate court should remand a cause whenever the nature and extent of the proceedings require it, and such action is largely within the court’s discretion, and should be exercised according to the peculiar exigencies of the particular case. This is especially true when such action is consonant with the ends of justice. Buffalo Specialty Co. v. G. Pitard’s Sons, 14 Or.App. 395; Brasher v. Grant, 1 La.App. 457; Schneider v. Etna Life Insurance Co., 30 La.Ann. 1198; Keller v. Keller, 4 Or.App. 309; Mayer v. Barrow, 182 La. 983, 162 So. 748.”

The photographs attached to the motion indicate that this cause is a proper one for remand, in order that the, court might have the benefit of such additional evidence respecting ,the nature and extent of plaintiff’s disability. We believe that on the retrial of the case both parties should be given a full opportunity to present any ■ competent evidence respecting those questions.

It is ordered, adjudged, and decreed that the judgment appealed from be reversed, and it is now ordered that this cause be remanded to the lower court for the reception of any and all competent evidence respecting plaintiff’s disability, " its extent and duration, in order that the trial court might adjudicate the matter on the basis of the evidence heretofore taken and also upon the basis of any new evidence the parties might see fit to introduce. All costs of the lower court, as well as the costs of this appeal, are to await the final determination of the matter

Reversed and remanded.


source: Caselaw Access Project

author: PONDER, Justice. McCALEB, Justice

license: Public Domain

text:
    216 La. 687
    DI GIOVANNI et al. v. CORTINAS.
    No. 38713.
    Supreme Court of Louisiana.
    Jan. 9, 1950.
    Rehearing Denied Feb. 13, 1950.
    Stanley McDermott, New. Orleans, for plaintiffs and appellants. .
    John R. Perez, Sr., John R. Perez, Jr., New'Orleans, for defendant and appellee.
   PONDER, Justice.

The plaintiffs brought suit against the defendant seeking to redeem property sold at three tax sales and, in the alternative, to annul the tax deeds. The plaintiffs asked for the return of rents alleged to have been wrongfully collected from their tenants by the defendant. The defendant’s answer is in the nature of a general denial and a denial of any prior ownership of the property in the plaintiffs’ predecessor in title. On trial of the case, the lower court rejected the plaintiffs’ demands and dismissed their suit. They have appealed.

Philip Ferrara acquired two lots of ground in the City of New Orleans from the Tulane Investment Company, Inc. by deed dated October 13, 1902 described as being situated in- the third district in square 1501, bounded by St. Anthony, Hope, Law and Bourbon Streets. Philip Ferrara died on June 28, 1928 leaving a widow and four children, the plaintiffs herein. His succession was opened in the Civil District Court for the Parish of, Orleans and a judgment was rendered sending the plaintiffs into possession on June 1, 1931, wherein his widow was decreed the owner of an undivided one-half interest in the property as surviving spouse in community and as usufructuary of the other undivided one-half interest.. The children were recognized as the heirs óf the decedent and decreed the owners of a one-half interest in -the property subject to the usufruct. This judgment was recorded in the Conveyance Office on June 2, 1931. The assessment of the property was continued in the name of Philip Ferrara and it was assessed in his name during the years 1938, 1939 and 1940 under the following description, Lots 9 and 10, Square -, Seventh Ward, Third Municipal District, measuring 106 by 128 feet. The property was sold by the City of New Orleans to the Atlantic Municipal Corporation under the name of Philip Ferrara for unpaid taxes for the year 1938 and a deed was executed to the corporation on November 3, 1939 wherein the property was described as lots 9 and 10, bounded by St. Anthony, Hope, Law and Bourbon Streets. This deed was recorded in the conveyance records on November 4, 1939. The property was sold again by the City of New Orleans in 1940 to this same corporation under the name of Philip Ferrara for the unpaid taxes of 1939, deed dated October 22, 1940 and recorded in the conveyance records on October 23, 1940. The property was again sold to this corporation by the city under the name of Philip Ferrara in 1941 for the unpaid taxes of 1940, deed dated October 23, 1941 and recorded in the conveyance records on October 24, 1941. The plaintiffs continued in possession of the property after the death of Philip Ferrara. We find in the record two letters written by a representative of the Atlantic Municipal Corporation during the month of January 1943 wherein the corporation inform-: ed Mrs. Philip Ferrara of the ■ amount required to redeem the property and stated that if she did not make settlement within a short time that this representative of the corporation would call on her tenant and notify him to pay the rent to the corporation. On February 13, 1943 the corporation executed a quit claim deed to the defendant Joseph M. Cortinas conveying this and other property without warranty. The plaintiffs’ tenants have refused to pay them the rent since that date and have been paying it to the defendant. The present suit was filed October 27, 1944.

The plaintiffs’ right to redeem the property has expired under the provisions of Article 10, Section 11 of the Constitution of 1921, as amended, wherein it is provided that property sold for the payment of delinquent taxes “shall be redeemable at any time during three years from date of recordation of the tax sale.” The plaintiffs contend that there is an exception to the literal application of this provision of the constitution that interrupts the running of the redemptive period, viz.: the continued possession of the property by the owner after the tax sale. They cite Pill v. Morgan, 186 La. 329, 172 So. 409 and many other decisions of this Court to support their contentions. All of the authorities cited as well as the recent decision in the case of Westover Realty Company v. State, 208 La. 163, 23 So.2d 33 are to the effect that the peremption established for tax sales by the Constitution requiring actions to set aside such sales to be brought within three years, now five years, from the date of the recordation of the tax deeds does, not accrue when the owner remains in corporeal possession of the property. These decisions relate solely to actions to annul or set aside tax sales and not to the period of time in which property may be redeemed. The defendant contends that the - plaintiffs are without interest to attack the tax deeds because it was held in the cases of Venta v. Ferrara, 177 La. 433, 148 So. 670 and Venta v. Ferrara, 195 La. 334, 196 So. 550 that the plaintiffs did not own the property. He takes the position that a mere possessor cannot bring an action of nullity. It is true that it was held in the Venta cases that the plaintiffs did not own the property but the latter case was remanded in order that the Ventas might elect whether they would keep the improvements placed thereon by the plaintiffs and reimburse the value thereof or reimburse the sum equal to the enhanced value of the soil. The plaintiffs’ calls in warranty were reinstated and the taxes paid by them were to be reimbursed by the Ventas. It does not appear that the Ventas have taken any steps to comply with the judgment or made any effort to obtain possession of the property. The plaintiffs clearly have an interest in the property and have continued to remain in possession of it.

The defendant contends that neither the Ventas or the Ferraras , ever acquired lot ten. We find in the record a quit claim deed from one Queyrouze to the defendant purporting to transfer lot 10 to the defendant, but there was no issue made in the pleadings that the defendant was relying on a title emanating from another source and thtre is no chain of title to support the quit claim. We are in no position to state, after review of this record, who is the actual owner of lot 10. But be that as it may, the defendant is in no position to question the right of the plaintiffs .to attack these tax deeds, made in the name of the plaintiffs’ husband and father, when the defendant is relying on them to establish his ownership to whatever property they might convey. The plaintiffs have a right to annul the tax sales if their right of action is not perempted.

Under the provisions of Article 10, Section 11 of the Constitution of 1921, as amended, the plaintiffs have a right to attack these deeds any time within the five year period and it is well established that the peremption of five years does not accrue while the tax debtor is in the corporeal possession of the property. This court has so held in many decisions. We will refer to some of these decisions. See Pill v. Morgan, supra, and the decisions cited therein to the effect that this peremption does not apply when the owner remains in corporeal possession'of the property. In Westo'ver Realty Company v. State, supra, it was pointed out that owners continuing in possession of the property, notwithstanding the tax sale, operates as a continuous protest against the sale.

This property was sold in the name of a dead person. Ferrara died in 1928 and the first tax sale was made in 1939, some eleven years after his death. His widow and heirs were put in possession of the property and the judgment was recorded in the conveyance records in 1931. It was pointed out in the case of Nylka Land Company v. City of New Orleans, 166 La. 786, 117 So. 918, 919 that “it is well settled that a tax sale made under an assessment in the name of one who is not the owner of the property, either in fact or according to the public records, is not a valid sale, unless and until the illegality is cured by the prescription of three years.” The peremptory period now has been extended to five years. In the case of Federico v. Nunez, 173 La. 957, 139 So. 18 where property was sold in the name of a dead person, it was pointed out that the word “delinquent” as used in the constitution requiring notice to be given to the delinquent before sale of property for taxes means the owner at the time of issuing the notice. It was further pointed out therein that a notice addressed to a dead person was no notice at all. From a reading of that case it is apparent that a tax sale of property in the name of a dead person without giving notice to the actual owners is null and that it is the duty of the tax collector to consult the records to ascertain who are the actual owners of the property and serve notice On them. This was not done in the present case.

In the case of Martin v. Serice, 200 La. 556, 8 So.2d 538, this court again stated that the notice of the tax delinquency must be served on the owner of record at the time of the advertisement and sale of the property. The notices in this case were addressed to Philip Ferrara and not addressed to the record owners. The names of the record owners could have b.een easily ascertained by an examination of the conveyance records. The return on the notices show that one was delivered to Mrs. P. Ferrara, another does not show on whom it was served, and the other purports to have been served on Philip Ferrara. The plaintiffs were not given the notice of the tax sale that the law contemplates and they have not abandoned or been legally divested of their possession of the property.

The evidence as to the amount of taxes paid by the defendant and the' amount of rents due the plaintiffs is not sufficient for us to accurately determine what is due to either of them. In the interest of justice the case will be remanded in order that the parties litigant may have an opportu-' nity to introduce additional evidence to establish their claims in this respect.

For the reasons assigned, the judgment of the district court is annulled and set aside. The case is remanded to the district court in order that additional evidence may be introduced by the parties to the suit concerning the amount of taxes due the defendant by the plaintiffs and the rents and revenues that may be due the plaintiffs from the defendant, and, upon determination of such amounts by the district court, that a proper judgment be rendered regarding these cláims. It is further ordered that the three tax deeds of dates November 3, 1939, October 22, 1940 and October 23, 1941, purporting to convey the property to the Atlantic Municipal Corporation, are annulled and the quit claim from the Atlantic Municipal Corporation to Joseph M. Cortinas of date February 13, 1943 is annulled insofar as it purports to transfer the property acquired at these tax sales upon the plaintiffs reimbursing the defendant or depositing in the registry of the court the amount of taxes and costs paid by the defendant with 10% per annum' interest on the amount of the price and taxes paid from date of respective payments in compliance with Article 10, Section 11 of the Constitution of 1921, as amended. All costs to be paid' by the defendant.

McCALEB, J., dissents in part with written reasons.

McCALEB, Justice

(dissenting in part).

I am in accord with the ruling that plaintiffs have lost any right that they might have had to redeem the property as more than three years have elapsed since the recordation of the tax sales. But this ruling should end the case as counsel for plaintiffs stated to this court during oral argument that he was not pressing the alternative claim for nullity of the tax sales.

Flowever, apart from counsel’s abandonment of the alternative contention, it seems plain to me that the claim is wholly without merit as it has not been made within the five year period of peremption provided by Section 11 of Article 10 of the Constitution. The argument that the'per-emption has not accrued because plaintiffs were in corporeal possession of the property is not well founded for the reason that peremption can only be suspended in cases where the owner of the property has remained in actual corporeal possession. See Baldwin Lumber Co. v. Dalferes, 138 La. 507, 70 So. 493; Kivlen v. Horvath, 163 La. 901, 113 So. 140 and Westover Realty Co. v. State, 208 La. 163, 23 So.2d 33.

That plaintiffs are not the owners of the property has already been twice decided by this court in Venta v. Ferrara, 177 La. 433, 148 So. 670 and Id., 195 La. 334, 196 So. 550. In view of these adjudications, I am at a loss to understand the conclusion of the majority forasmuch as, whatever be the nature of plaintiffs’ possession, they are without standing in court to attack the tax sale where they are without title to the property. In Jackson v. Mixon, 110 La. 581, 34 So. 695, the syllabus of the court states: “Persons who are not the owners, of record or otherwise, of property assessed and sold for taxes, and who have thereafter acquired no title to the same, have no interest or standing to prosecute a suit to annul the sale.”

I think that the judgment of the district court should be affirmed.

LE BLANC, J., joins in MaCALEB’S dissent.


author: MÓISE, Justice.

text:
    216 La. 699
    ROY v. LOUISIANA STATE DEPARTMENT OF AGRICULTURE & IMMIGRATION. HARTFORD FIRE INS. CO. v. LOUISIANA STATE DEPARTMENT OF AGRICULTURE & IMMIGRATION. ANGELLE v. LOUISIANA STATE DEPARTMENT OF AGRICULTURE & IMMIGRATION.
    Nos. 39547-39549.
    Supreme Court of Louisiana.
    Jan. 9, 1950.
    Rehearing Denied Feb. 13, 1950.
    Bolivar E. Kemp, Jr., Atty. Gen., Carroll Buck, First Asst. Atty. Gen., Adolph, Menuet, Jr., Sp. Asst. Atty. Gen., for defendant and appellant.
    Voorhies & Labbe, Lafayette, Brea-zeale, Sachse & Wilson, Baton Rouge, Chaffe, McCall, Bruns, Toler & Phillips,. New Orleans, for plaintiffs-appellees.
   MÓISE, Justice.

These actions by Arthus Angelle, Jr.,. Cyprien Roy and the Hartford Fire Insurance Company (as subrogee of Texas, and New Orleans Railroad Company), were instituted against the State of Louisiana for the recovery of value of property destroyed in a fire which resulted', from certain spraying operations conducted by agents of the Department of Agriculture. The suits have been before this. Court previously, having been instituted without Legislative authorization, on the theory that the property was used by the-Department of Agriculture for a public: purpose and that plaintiffs were entitled to damages for its destruction. We held that the cause of action is founded in tort :and by reason of the provisions of Article 1, Section 2 of the Constitution of 1921, the State cannot be sued without its consent. Angelle et al. v. State 1948, 212 La. 1069, 34 So.2d 321, 2 A.L.R.2d 666.

The plaintiffs, having obtained by virtue of Acts Nos. 217, 218 and 219 of 1948 waiver of the State’s immunity from suit, brought the present suits, which were con; solidated in the district court and submitted on the evidence taken in the initial actions. From separate judgments of damages in favour of each plaintiff, defendant prosecutes this appeal.

There is no dispute as to the facts, which ■are set forth in plaintiffs’ brief as follows :—

“After the adoption of Act 314 of 1926, the Sweet Potato Weevil Eradication Act, •the Department of Agriculture promulgated regulations and instituted and conducted a systematic program for the era-diction of the sweet potato weevils in such territories as were declared by Mr. W. E. Anderson, the State Entomologist, to be control area. In July, 1944, the Parish of Lafayette was within the sweet potato weevil quarantine area and buildings and premises used in processing, handling, and shipping sweet potatoes came under the effect of the eradication program. Under' this program^ the Department maintained five or six trucks equipped with portable spraying units. Upon request, the Department would' send one of the trucks to the location to be disinfected, and’ conduct the operations with its own ■employees. The owner of the property was required under the regulations to pay for the disinfectant to be used. It was not compulsory for the owner to employ the facilities provided by the Department. Nevertheless, as testified by Mr. Anderson, the Entomologist, sweet potato’ processors have ' invariably taken advantage of the free service supplied by the Department. In fact, without' the State’s supplying this service, there 'could be no general eradication program.
■ “The railroad station belonged to the Texas & New Orleans Railroad Company; the company leased a portion of this long platform to Arthus Angelle, Jr., which was used by him in processing sweet potatoes for shipment; likewise, Cyprien Roy used a portion of the platform. Each one of these petitioners had processing equipment, supplies and some potatoes located on this platform. In addition thereto, plaintiff Angelle had a sweet potato kiln adjoining the railroad platform which ryas filled with empty sweet potato -crates. The premises designated for disinfection on the day of the fire was the railroad property. Plaintiff Roy ánd Angelle were not parties to this arrangement for spraying.
' “Since it was compulsory that the railroad premises be disinfected before the beginning of the processing and shipping season, the agent of the railroad station arranged with the District Representative of the Department of Agriculture, Mr. Lott, for him to. send his men to spray the premises. The railroad agent secured the spray material and notified the. Department’s District Representative. On July 13, 1944, the Department’s agents came to the státion with their equipment and began spraying the premises with the material that was in the drums which' had been pointed out to them by the.railroad agent, which presumably was kerosene. The emulsion of kerosene, the safe ingredient, was not used.
■ “Nolan Campbell and Galbert Ortego, the Department’s employees, were in sole and complete control of. the operation of the equipment on the day of the fire.
“Neither the railroad agent nor Angelle or Roy or any of their employees, were present ■ during the spraying. ,
“After the two employees had sprayed for a half hour or 'an hourj they noticed that the fluid container on their truck was running empty; the manner in which they noticed this - fact is that the pressure becomes weak, 'the pressure pump miáses, and the motor runs faster. Campbell, who was operating the nozzle at the end of the ho'se, shut it off and then turned around to' walk toward the truck to refill the contáiner as he walked toward the truck he saw a small fire on the rear platform of the truck on or near the gasoline engine. Oretgo saw the fire immediately, saying that he first saw a small fire on the engine on the platform of the Department’s truck. As they ran toward the- truck, the fire spread. The only thing that they did was to remove their clothing from the truck. The Department’s truck was not equipped with a fire extinguisher; and the Department’s agents, after noticing the fire, did not remove the hose from the railroad platform. The hose that leads from the truck to the platform served as a bridge for the fire to spread from the truck to the platform.” (Italics mine.)

The facts being agreed on, the sole question presented for our determination is whether they warrant a finding of negligence on the part of the State acting through its agents.

The various acts of negligence charged against the State may be summarized as follows:

The Department of Agriculture possessing a knowledge of the inflammability of the spraying preparation superior to plaintiffs’ knowledge (in all spraying operation, an emulsion of kerosene should be used' and not pure kerosene), its agents should have taken proper safety precautions . in conducting such a hazardous operation with a volatile, inflammable substance. Further, notwithstanding the Department’s knowledge of the comparative merits of spraying preparations, it instructed its employees and agents to use kerosene.

The record shows that no great diligence was exercised in the operations, and unnecessary chances were taken in performing this highly hazardous work, for the employees rolled a heavy.drum of kerosene to the edgw of the railroad platform and transferred it directly through an opening at the top of the drum into a container which was on the bed of the track, one of them stating that “this was the only occasion on which this operator poured the kerosene from the metal drum into the container.” . The observation of the learned district judge in his reasons for judgment — “It is probable that kerosene was spilled in the transfer” — is- justifiable as a matter of reason, because the stated facts give rise to an inference of negligence.

The jamming together of the equipment, used on the wooden-floored rear of the-truck (itself saturated with kerosene) in, proximity to a malfunctioning gasoline engine bespeaks negligence, particularly on a. hot summer day when the property of kerosene to vapourize would increase and: particularly since the kerosene barrel hadi an open top, through which in all probability the kerosene splashed as it was agitated. The barrel which contained the spraying fluid had a 10” by 12" hole at the top,, over which was thrown a piece of burlap.. Inside the barrel was a makeshift blade on¡ a shaft going through the ends of the barrel, which was used to agitate the fluid.. The barrel was immediately behind the cab-of the truck; in the back of the barrel, to-one side, was the compressor and to the-other side, a gasoline engine with an exhaust pipe pointing downward in the direction of the open-topped kerosene barrel.

A consummation devoutly to be wished!, for is to so carry on such work as to have-it at all times under control from fire or-other casualty. The truck of the operating-unit was not equipped with -a fire extinguisher to control any fire that might originate on the truck or in the premises as a. result of the operation. It would seem-that for the protection of the property of the citizens and for protection of the employees themselves that they would have a fire extinguisher on the appliance above-described. On the day of the fire none of the State employees were present looking-after the truck and its operation on the-outside, and another significant fact is that, none of the agents or employees of plaintiffs were present at the time of the fire.. The agents and employees of the plaintiffs could not give any testimony as to the cause of the fire, because they were not present. After the fire began on the truck,, the employees of the defendant did not. remove the hose which led from the truck, to the platform, which actually formed at bridge for the spredd of the fire. We are of the opinion that the plaintiffs have met the burden of proof required to substantiate their charges of negligence.

The elucidation of legal principles applied to facts in other decisions of this. 'Court will aid us in applying the law to the facts of the case here.

In Gerald v. Standard Oil Company of Louisiana, 204 La. 690, 699, 16 So.2d 233, 236, our Court said:

“Res ipsa loquitur is often' found to be appropriate in cases involving explosions.It is not a rule of pleading or of substantive. law; rather, it is a rule of evidence, the applicability of which is to be deter- • mined on the conclusion of the trial. As said in Lykiardopoulo v. New Orleans & C. R. Light & Power Company, 127 La. 309, 53 So. 575, 576, Ann.Cas.1912A, 976:
“ ‘ * * ' * In cases where the, plaintiff cannot be expected to have any information as to the causes of the accident, whereas, the defendant, on the contrary, must be assumed to be fully informed on the subject,- and where the accident is of the kind which ordinarily do not occur when due cafe has been exercised, the rule of evidence is that the accident speaks-for it-self — res ipsa loquitur — that is to say, that a presumption of negligence arises from the fact itself of the accident. In such cases, the plaintiff not only need not allege-the particular acts of omission or commission from which the accident has resulted, but need not even prove them. The accident itself makes out a prima facie case,' and the burden is- on defendant to show absence of negligence. * * * ’ (Italics mine.)

In Dotson v. Louisiana Central Lumber Co., 144 La. 78, 83, 80 So. 205, 207, the Court held:

“Although the general rule of law is that a plaintiff who claims damages must allege and |>rove the facts necessary to establish the negligence of defendant, upon which he predicates his demand, it is equally a well-recognized exception to that general rule that, where the cause of the accident by which the damage was inflicted is more properly within the knowledge of defendant, the accident itself makes out a prima facie case, and the burden is upon the latter to show absence of negligence. Res ipsa loquitur. Lykiardopoulo v. New Orleans & C. R. Light & Power Co., 127 La. 309, 53 So. 575, Ann.Cas.1912A, 976; White v. Maison Blanche Co., 142 La. 265, 76 So. 708. According to R. C. L. vol. 11, p. 955, par. 13, there is much apparent conflict of authorities whether there arises a presumption of negligence on the .part of occupant of a building, where it is destroy;, ed by a fire originating inside of it and ip an .unusual, planner.. If no such presumption exist, plaintiff should allege the particular facts from which the defendant’s negligence may be inferred; but if, on the other hand, there arises a presumption of negligence on the part of a defendant who occupies the building and absolutely controls its use, from the mere fact that a fire has originated therein, then the proof of absence of negligence is upon the defendant, and there is no reason why a plaintiff should allege that which he is not called upon to prove. At page 954, par. 12, of the same volume, we find:
“ ‘Since in the absence of statute to the contrary negligence or misconduct is the gist of the action to recover damages for setting or permitting the spread of fire, such negligence or misconduct is an essential element in the pleadings as well as in the proofs. 'In accordance with th.e general rule in actions based on negligence, an allegation of the defendant’s negligence in . general' terms will, it seems, be sufficient without setting out the specific acts relied on as the basis of plaintiff’s action.’ ” (Italics mine.)

We do not need to predicate this decision on res ipsa loquitur, which is merely a rule of evidence that shifts the burden of proof from a plaintiff to a defendant, but rather on common sense an'd natural justice — that he who causes damages to another is bound to pay for them.’ . The district. judge found that there was proof, of negligence with reasonable certainty. That judge who saw and. heard these witnesses felt that plaintiffs had -made out a case. We do not need to go-into the question of the quantum of damages because such amount awarded in these judgments has not been contested. In a case so circumscribed, the judgment of the district court on a question of fact should not be disturbed unless manifestly erroneous. McGee v. Yazoo & M. V. R. Co., 206 La. 121, 19 So.2d 21; Barnes v. Le Blanc, 207 La. 989, 22 So.2d 404; Thornton v. Ellington, 209 La. 613, 25 So.2d 282; Martin v. Martin, 212 La. 1092, 34 So.2d 329.

The judgment appealed from is hereby amended by disallowing the payment of court costs by the State to these plaintiffs, and in all other respects, as amended, the' judgment is affirmed. -

McCALEB, J., being of the opinion that the doctrine of res ipsa loquitur is applicable, -concurs in the decree.


author: HAMITER, Justice. McCALEB, Judge

text:
    216 La. 711
    MELANCON v. MIZELL et al.
    No. 39219.
    Supreme Court of Louisiana.
    Jan. 9, 1950.
    Rehearing Denied Feb. 13, 1950.

      Ott & Richardson, Bogalusa, for plaintiff.
    Ernest A. Carrere, Jr., and Edward F. Stauss, Jr., New Orleans, for defendant and appellee.
   HAMITER, Justice.

A writ of certiorari, issued to the Court •of Appeal of the First Circuit on the application of plaintiff brings this controversy before us for review.

The suit was instituted against Floyd M. Mizell, a termite control operator licensed 'by the Louisiana Pest Control Commission, and also against the Western Casualty .& Surety Company, the surety on the named operator’s bond given pursuant to The provisions of Act 124 of 1942, to recover damages allegedly sustained by the plaintiff as a result of Mizell’s nonperformance of a termite contract.

Service of process on Mizell was never made. The surety, after receiving citation, tendered exceptions of no right and no cause of action. These were sustained by the district court and the suit, as to the exceptor, was dismissed. On an appeal to the Court of Appeal the judgment was affirmed, 37 So.2d 52.

For the purpose of passing upon the exceptions the well pleaded allegations of fact of the original and supplemental petitions, together with the recitals of the annexed documents, must be accepted as correct. These disclose a factual situation as follows: On January 25, 1947, plaintiff, Aynaud Melancon, contracted in writing to purchase, for a cash consideration of $11,000, the home of Lyman Mat-tox and his wife located near Bogalusa. The contract provided, among other things that “Termite, inspection is to be made, and if conditions are not found satisfactory agreement must be made to remedy condition.” In keeping with that provision, Mattox, on the same date, entered into a written agreement respecting the house with defendant Mizell who obligated himself, in consideration of $160 cash paid to him, “to eradicate all subterranean termites therein and all non-subterranean termites in open construction therein, during a period of two years from date hereof * * the work to be commenced on January 27, 1947, and completed without delay. Also contained in Mizell’s agreement were provisions reading: “Termite contract transferrable on change of owner * * * termite proof and inspect regularly * * * no repairs needed.”

Previously Mizell had applied for, and had obtained from the Louisiana Pest Control Commission (created by Act 124 of 1942), a license to engage in the profession of termite control and eradication; and in connection therewith he had furnished the bond to which reference is made in the following extract from the rules and regulations adopted by such commission: “The applicant must furnish to the Chairman of the Commission a surety or fidelity bond in the amount of Two Thousand ($2,000.-00) Dollars (on forms to be furnished by the Commission), as a guarantee to faithfully and honestly engage in the professions of entomology, termite eradication, control and eradication of household insects, fumigation, or rodent control, and to carry out all contracts entered into.”

The bond so furnished bears date of September 19, 1946, was signed by Mizell as principal and the Western Casualty & Surety Company as surety, and was approved for the Commission by its then Chairman, Harry D. Wilson. In part it states:

“Whereas, under the provisions of Section 6 of said Act [Act 124 of 1942], all applicants for licenses to carry on such work aré required to execute a bond in the aforesaid amount conditioned, respectively, upon their honestly conducting said business; and
“Whereas, Section 7 of said Act requires that each pest control operator licensed thereunder shall enter into a written contract with the property holder employing him to control or eradicate termites, in which such contract the pest control operator shall guarantee for a period of two (2) years the performance of the terms of said contract; . .
“Now therefore, the conditions of this obligation are such, That, if the said Floyd Monroe Mizell, Principal herein, shall honestly conduct said business; shall enter into written contracts with all property holders employing him to control or eradicate termites, in which contracts he shall guarantee for a period of two (2) years the performance of the terms‘thereof; and shall perforin such contraéis in all their terms and provisions, including the guarantee clause thereof, then this obligation shall be null and void; otherwise, to .remain in full force and effect.
“The term of this bond shall be from July 1st,'1946, to July 1st, 1948, and same shall cover all liability, according to its terms,' incurred by the said Principal under any contracts entered into by him during the aforesaid period, in his capacity as a pest control operator conducting business under the terms and provisions of said Act 124 of 1942.” (Italics and brackets ours.)

Relying upon the written agreement between Mizell and Mattox (particularly the statement therein that no repairs were needed), and having concluded that the house had been or would be promptly freed of termites, plaintiff on January 29, 1947, consummated his purchase ‘of the Mattox property'by paying the cash consideration of $11,000 and receiving a deed evidencing his title. Shortly thereafter, upon taking possession of the premises, he found that the house was heavily infested with termites. Whereupon he notified Mizell of his finding and demanded that the condition be remedied in accordance with the termite contract. Mizell failed to satisfy the complaint in any. manner, even refusing to return. and inspect the premises.

Because of the presence of the termites extensive repairs to the house were necessary. Also, plaintiff was required to retain the services of another, operator in order to properly treat the building and eradicate .the termites.

In praying for a solidary judgment against Mizell and the defendant surety, awarding damages in the sum of $865.56, plaintiff makes the following additional allegations: “Your petitioner further avers that the said Mizell was guilty of gross negligence in complying with the provisions of the contract entered into by him, as aforesaid, in the following respects: in failing to properly inspect the premises and to ascertain the extent of the infestation of said building with termites even though such infestation could have been easily ascertained had a proper inspection been made; by failing to use the proper materials and methods in exterminating termites-from said building; by failing to disclose to your petitioner the true condition of the building as a result of the infestation with termites; by misleading your petitioner into believing that the house was free of termites and no repairs were needed; by the failure of the said Mizell to remedy the condition of the business after this condition was called to his attention and repeated demands made upon him to. correct same.”

From the pleadings it does not appear that Mizell is charged by plaintiff with fraudulent practices in causing the damages for which judgment is sought. True, he alleges that the assertion that no repairs were needed misled him into believing that the house was free of termites. But this allegation does not disclose an intention on the part of Mizell to mislead or defraud; in fact it is found under and in connection with the general accusation of gross negligence. Plaintiff’s action, as we appreciate it, is predicated on the theory that Mizell breached his contract by failing to faithfully perform the work which he undertook and guaranteed -to do; and that, by reason of such failure of performance, his surety under the bond given pursuant to Act 124 of 1942, is liable for the resulting damages. The Court of Appeal considered that to be the theory of the action, and the following extract from' the brief of.plaintiff’s counsel further indicates that it is: “The petition filed herein shows a contract and a guarantee of the work, and the obligation of the defendant insurance company for the faithful performance of the contract. If plaintiff can prove what he alleges he has a cause of action against the insurance company, and the exception of no cause or right of action should be overruled.”

As shown above, and in accordance with the rules and regulations of the Pest Control Commission, Mizell’s bond is expressly conditioned on the performance of his contracts in all their terms and provisions. However, defense counsel contend, and the Court of Appeal held, that since the bond is purely statutory and Act 124 of 1942 (under which it was given) stipulates for it (in Section 6) only the condition that the principal shall honestly conduct his business, the provision relating to the performance of contracts was improperly, required by the Commission and erroneously contained therein. Hence, the question presented for determination is whether the bond’s controverted provision or condition (assuming the bond to be purely statutory) is authorized by Act 124 of 1942.

In approaching this question we consider first the history and development of that statute. The initial legislation in this state on the subject of pest control and eradication. was Act 57 of 1930, the object of which, as stated in its title, was to regulate the practice of entomological, pathological and tree surgery work, and to prevent fraudulent practices in those professional services. To.that end the 1930 statute, in Section 1, created-a Horticultural Commission, composed of the Commissioner of Agriculture' and Immigration, the State Entomologist and the Director of Extension; and it granted to that Commission power to make rules and regulations to govern the qualifications of those conducting such professional services and to prevent fraudulent practices. An applicant for a license to engage in the work was required (under Section 4) to furnish a $500 bond, payable to the Chairman of the Commission, to insure his honestly conducting the business.

The Court of Appeal of the Second Circuit considered the 1930 statute in Anders v. J. L. Evans & Company, Inc., 1938, 187 So. 109, and held that the bond therein required was not to guarantee the faithful performance of contracts, but that it purposed to insure the conducting of a business free of fraud or fraudulent practices in dealing with others. Unquestionably that holding was correct in view of the expressed object of the statute., it being, according to the title, to “prevent fraudulent practices in the professional work herein defined.”

Act 141 of 1936 furnished the next legislation on the subject. Except .in a few particulars it was identical with the 1930 statute.' Thus, the title stated that it was “ * * * to prevent fraudulent practices in the professional work herein defined;” it included the same professional services; and it likewise empowered the Horticultural Commission (composed of the members'named in the 1930 Act and two additional ones) to make rules and regulations to prevent 'fraudulent practices. However, it added two new services (Horticultural dnd Floricultural), each of which'was to have representation on the Commission; and it made provision for the licensee’s, furnishing a bond not to exceed $10,000, conditioned on his honestly conducting the business, if in the judgment of the' Commission it was necessary (the 1930 statute,, as shown above, recited a $500 mandatory bond). : .

The case of Parkerson et al. v. Home Protection Service, Inc., et al., 1945, 24 So.2d 256, 258, decided by the Court of Appeal of the First Circuit by a two to one vote and in which a writ of certiorari was denied by this court, involved an action on, two bonds given by a termite control operator during the effective period of the 1936 statute. One of the bonds contained only the condition that the principal would honestly conduct the business of termite control and declared that it was given in .accordance with Act 141 of 1936. As to this bond the majority opinion observed: “ * * * If this were the only bond signed by the surety company and declared on in the case, it is obvious that the case of Anders v. Evans Company, supra, would be applicable and decisive of the case as ■the situation would be almost exactly the same as it was in the cited case. •* * *

The other bond in the Parkerson case, however, was conditioned on the principal’s faithful performance of contracts entered into by him which guaranteed his professional services for a period of two years, all as required by the rules and regulations of the Horticultural Commission. With reference to this bond the majority opinion stated: “Regardless of the question of whether or not the Commission had the right to pass the regulation requiring a person engaged in the profession of termite control and guaranteeing his services to give a bond for the faithful performance of such a contract, it remains a fact that both the termite company and the surety company complied with the regulation and made it possible for the termite company to hold out to plaintiff and actually put into its contract with him the statement to the effect that the work to be done under the contract was guaranteed for a period of two years in accordance with the bond on file with the Commission. The termite company paid a premium to the surety company annually to keep this bond in force, and the surety company cannot now be permitted to escape liability on this bond on which it collected the premiums and under which it voluntarily bound itself.”

From this statement, as well as other comments in the majority opinion, it is apparent that the liability of the defendant surety was determined on the basis of the recitals of the contract and bond, not on the provisions of the 1936 statute.

Act 124 of Í942, with the provisions of which we are directly concerned in the instant case, differs materially from the preceding two statutes. The title discloses, among other things, that it is an Act “To create a Pest Control Commission; to define its duties and powers; * * . * to provide for the issuance and revocation of licenses and to make rules and regulations setting forth qualifications and conditions under which- licenses may be issued; and -the supervision and inspection of pest control work; to require bond for the faithful ■cmd honest performance of such work; to require the same to be done under written contract containing a guarantee; .•* * The emphasized portions, it is important to notice, were not contained in the titles of the preceding legislation. Nor is the provision found in those titles: “ * * * to prevent fraudulent practices in the professional work herein defined”, contained in the instant title. (Italics ours.)

In Section 1 of the 1942 statute, after the creation of the Pest Control Commission, it is said that the Commission “is hereby authorized to make and issue licenses for each particular type of pest control work in accordance with rules prescribed by a majority of the said Commission, and the said Commission is hereby authorized to make rules and regulations covering the qualifications of applicants; * * *

Other pertinent provisions of the 1942 statute are those contained in Sections 6 and 7, reading:

“Section 6. Before said Commission shall issue a license to any pest control operator, he must first furnish to said Commission a surety or fidelity bond in the amount of $2,000.00, of tenor and solvency satisfactory to a majority of said Commission ; and the condition of said bond shall be that the principal therein named shall honestly conduct said business; said bond shall be filed and recorded in the office of said Commission. A certified copy of said bond shall be received as evidence in all of the Courts of this State without further proof. Any person having a right or cause of action against said principal, may enter suit against said principal and sureties of said bond. Said bond shall be kept in full force and effect as long as the principal thereon remains engaged in pest control or eradication work, and failure to so keep same in effect shall require forfeiture and revocation of said principal’s license by the said Pest Control Commission.
“Section 7. Every licensed pest control operator shall enter into a written contract with the property holder employing him to control or eradicate termites, in which he shall guarantee for a period of two years the performance of the terms of his contract. Failure to execute such a contract or failure to carry out said guarantee shall subject such operator to forfeiture of his license by the Pest Control Commission and to a fine of. not less than $50.00 nor more than $200.00, or to imprisonment for not less than 30 days nor .more than 90 days, or both in the discretion of the Court.”

As to these provisions it may be pointed out that the stipulated condition (in ■ Section 6) for the bond, i. e., that the principal shall honestly conduct said- business, is practically the same as the condition for the bonds referred to in the prior legislation. Neither of the former statutes, however, required (as does the quoted Section 7) that the operator shall guarantee in writing, for a period of two years, the performance of the terms of his contracts.

Having discussed the history and development of Act 124 of 1942, we return to the specific question presented by this litigation. To repeat, it is whether the obligation of the defendant surety respecting the performance of Mizell’s contracts, which it expressly undertook on executing the bond, is authorized by the provisions of the 1942 statute.

When considered alone the condition for the bond announced in Section 6 of the 1942 statute perhaps might' imply only an assurance that the business will not be carried on in a fraudulent manner, because the word “honest” ordinarily is used as meaning free of fraud or deception; Further, it may be said that such an implication could not be successfully disputed if the title and other provisions of the statute disclosed a purpose, as did the previous legislation, of merely • preventing fraudulent practices in the - professional services affected. The use of the word “honest”, however, is not always so restricted. Sometimes it is employed as meaning just, equitable, trustworthy, 'truthful, upright, sincere, all of which are listed in the definition given for “honest” in Webster’s New International Dictionary, Second Edition. And it is possible that the Legislature in said Section 6 used the words “honestly conduct 'said business” in a broad sense, intending thereby (as it might well have done in view of the mentioned definition) not only to prevent fraudulent practices but also to insure a just and sincere carrying out of the work undertaken by the business. Especially is this so when'it-is recalled that the expressed purpose of the former legislation of preventing fraudulent practices was not reiterated in the title of'the instant statute.

In interpreting a statutory provision it should be construed along with the remainder of the statute and in connection with all laws on the same subject matter. Moreover, the object that the Legislature had in view should be ascertained, and the interpretation adopted which best harmonizes with that object and the statute’s context. Thibaut v. Board of Commissioners of Lafourche Basin Levee District, 153 La. 501, 96 So. 47; State ex rel. Lyons v. Democratic State Central Committee, 165 La. 531, 115 So. 740; Pepsodent Company v. Krauss Company, 200 La. 959, 9 So.2d 303. To determine that object, where doubt exists, the title of a statute may be considered, although it cannot be used in enlarging the text. Succession of Baker, 129 La. 74, 55 So. 714, Ann.Cas. 1912D, 1181; Schimpf v. Thomas, Sheriff, 204 La. 541, 15 So.2d 880.

In applying these principles we notice first that Section 1 of the 1942 statute vests the Pest Control Commission with almost unlimited rule making power respecting the work under its supervision; at least the granted authority is not restricted, as it was in the former legislation, to the making of rules and regulations “to> prevent fraudulent practices.” Further, we observe that Section 7, contrary to the previous legislátion, requires every licensed! operator to guarantee for a' period of two-years, under a written contract, the performance of the terms of his contracts. These two provisions and the mentioned’ circumstances (the granting of almost unrestricted rule-making power to the Commission and the requirement of a written-guarantee of performance, neither of which the former statutes contained) are-indicative of an intention of the Legislature that the' bond prescribed by Section 6, as well as the entire statute, has for its-purpose both the preventing , of fraudulent-practices by an operator and.the insuring of performance of his contracts. And this, intention is conclusively disclosed by the title of the Act when, in announcing the object and purpose of the present legislation, it specifically states: “ * ■ * * to require bond for the faithful and honest performance of such work.”

Incidentally, the defendant surety so interpreted the statute, for the bond given on behalf of Mizell is thus conditioned. Of course, the rules and regulations of the Commission required those conditions in the bond; nevertheless, such defendant could have refused to sign it.

The fact that Section 7 of the 1942 statute subjects the operator to a criminal penalty and to a forfeiture of his license on his failure to execute a written contract or to-fulfill his guarantee does- not, in our opinion, militate- against the found legislative, intent. Thereby the Legislature was merely providing additional means for the enforcement of the provisions of.the Act.

Since Act 124 of 1942 aúthorizes the controverted condition contained in Mizell’s bond that he shall perform his contract and, further,’ since plaintiff has sufficiently alleged failure of performance, we hold that the assailed pleadings state both a right and a cause of action against the defendant surety. The question respecting the kind and amount of damages plaintiff is entitled to recover is one whicli addresses itself to the merits of the case.

For the reasons assigned the judgments •of the district court and the Court of Appeal are reversed and set aside, the exceptions of no right and no cause of, action are now overruled, and the case is remanded to the district court to be proceeded with according to law and consistent with the views herein expressed. Appel-lee shall pay the costs of this appeal, while ■all other costs shall await the final determination of the litigation.

PONDER, J., dissents.

Le BLANC, J., takes no part

McCALEB, Judge

(concurring).

The bond in suit is unquestionably a statutory bond. Therefore, as correctly held by the Court of Appeal (see 37 So.2d 52), the statute must be read into the bond; superadded stipulations must be disregarded and necessary conditions must be supplied. Davis v. West Louisiana Bank, 155 La. 245, 99 So. 207 and Murphy Iron Works v. United States Fidelity & Guaranty Co., 169 La. 163, 124 So. 768.

Section 6 of Act 124 of 1942 declares “ * * * the condition of said bond shall be that the principal therein named shall honestly conduct said business; * * '* ”. This languáge is perfectly 'explicit. Hence, there is no room for interpretation. Article 13 of the Civil Code. Notwithstanding this, the majority, under the guise of construction, resolve that the legislature intended “ *■ *.' * that the bond prescribed by Section 6, as well as the entire statute, has for its purpose both the preventing of fraudulent practices by an operator and the insuring of performance of his contracts.” In concluding thus, the court has rewritten.Section 6 and converted the fidelity bond therein provided -for into a guaranty bond.

On the other hand, it is my view that the Court of Appeal erred in upholding the exception of no cause of action for it is alleged in the petition that Mizell, the operator, misled plaintiff into believing that the house was free of termites and that no repairs were needed. This allegation iñdicates, to my mind, a deceitful act on the -part of Mizell which is sufficient to state a cause of action against his surety.

The bond required by the statute is a fidelity bond. Under the jurisprudence such a bond, indemnifying against loss by any act of “fraud” or “dishonesty”, is ordinarily held to extend beyond acts which are criminal; albeit, the words are given a broad significance and are construed most strongly against the insurer. See 50 Am.Jur. Verbo “Suretyship” Section 335. Any act disclosing an absence of integrity or fair dealing may be within the meaning of such a bond. Idem; see also annotation 98 A.L.R. 1264 and cases there cited.

For these reasons, I respectfully concur in the decree.

      . Webster’s New International Dictionary (19S1 Ed.) defines the word “mislead”— “To lead into'a wrong way or path; to lead astray; to guide into error; to cause to err or mistake; to deceive.”


author: REGAN, Judge.

text:
    MOREAU v. McGEHEE.
    No. 19417.
    Court of Appeal of Louisiana. Orleans.
    Feb. 27, 1950.
    Louis B. Porterie, New Orleans, for appellant.
    Willis C. McDonald, New Orleans, and Buchler & Broussard, Gretna, for appellee.
   REGAN, Judge.

Plaintiff, Louis J. Moreau, sued defendant, John G. McGehee, on a promissory note dated May 31, 1947, in the amount $2,000, which note was identified with an act of sale of certain laundry machinery and a chattel mortgage, praying for a judgment on sai.d note, less a credit of $300, paid on the principal thereof and for a sale of the laundry machinery in accordance with the terms of the act of sale -and cbat-. tel mortgage.

Defendant answered admitting the debt but opposed the said sale, contending that plaintiff had breached the warranty stipulated in the sale and that he was required to expend the sum of $852.83 in order to repair the said, machinery purchased from plaintiff.

The Court, a qua, granted a preliminary injunction enjoining- the sale of the machinery .in question pending a trial on the merits. At the termination of the trial on the merits, there was judgment in favor of defendant,, allowing the counterclaim for repairs in the amount of $852.83 and permanently enjoining plaintiff from seizing and selling the laundry machinery for the unpaid balance due on the note. Hence this appeal by plaintiff.

The record .reflects that plaintiff, who had formerly operated a laundry in the basement of. his home in Pineville, Louisiana, became ill yvith a heart ailment and, upon the admonitions of his physician, retired on or about November 25, 1945. Plaintiff thereafter advertised the laundry equipment for sale through the medium of the Times-Picayune Publishing -Company. The record, while vague as to what response plaintiff received from this advertisement, does show definitely that one J. E. Carter, affiliated as a salesman with the American Laundry Machinery Company, called on plaintiff, inspected the machinery, and said he had a close friend who was interested in this type of equipment, and he would advise this friend to buy it. In April or the early part of May, 1947, defendant, through the solicitations of Carter, visited plaintiff’s establishment and learned also that plaintiff had retired and had not operated the machinery since November of 194S. Defendant carefully examined the equipment over a period of several hours and tentatively agreed to purchase it.

Shortly thereafter, on May 31, 1947, plaintiff and defendant formally entered into an agreement evidenced by an act of sale and chattel mortgage, whereby plaintiff sold to defendant the following described laundry machinery:

“One (1) fifty horse-power, water tube boiler, steam master manufacture Serial No. 13029, together with return system, pump, hot-water tank, fully automatic, with all piping, gauges and fixtures.
“One (1) thirty inch Adams extractor, belt-driven, serial No. 6-24.
“One (1) ■ western wet washer, forty inches by fifty-four inches, serial No. 4479.
“One (1) Butler Distillation system, serial No. 380 349, together with paints, pipings, meters, gauges and all other fixtures.
“One (1) five horse-power motor, General Electric, serial No. 65722 with shafting, pulleys, etc.
“One (1) three inch gas line to accompany boiler.”

This machinery was sold for the price of $3000, of which $1000 was paid in cash and a promissory note for the balance was executed by defendant, dated May 31, 1947, in the sum of $2,000, payable in twenty monthly installments of $100 each, the first payment due one month after date and monthly thereafter. The said note was drawn to the order of plaintiff bearing interest of 6% per annum oh the unpaid balance, and paraphed “ne varietur” to identify it with an act of sale and chattel mortgage passed before Sol. B. Pressburg, Notary Public for the Parish of Rapides, Louisiana! The act of sale and chattel mortgage contained the following contentious stipulation “guaranteeing it to be in first class order, complete and ready for operation”, and, of course, the instrument contained all of the usual clauses for acceleration and for confession of judgment, etc., and, in case of suit, defendant agreed to pay 10% attorneys’ fees.

The act of sale and chattel mortgage were prepared by defendant’s attorney, who accompanied defendant to Pineville, Louisiana, to facilitate the consummation of the act of sale.

On a Sunday following the sale, defendant, with the aid of an employee, dismantled the machinery on plaintiff’s premises and had it removed to 'defendant’s place of business in 123 Focis Street, Me-tairie, Louisiana, where it presumably is now.

The record reflects that defendant made the following payments of interest and principal on the note in the amount of $2000 which he executed in favor of plaintiff.

June 26, 1947 $10.00 on interest

July 28, 1947 $10.00 on interest — ■

$100.00 on principal

Sept. 2, 1947 $ 9.50' on interest—

$100.00 on principal

October 2, 1947 $ 9.00 on interest—

$100.00 on principal

Jan. 2, 1947 $25.50 on interest.

No other payments were made by defendant, and plaintiff, on March 22, 1949, instituted this suit and contended that there was a balance of $1,700 due on the note, together with interest at the rate of 6% per annum from December 30, 1947, and 10% of the anlount due as attorneys’ fees.

Defendant, on the other hand, admits that he purchased the property described in the act of sale, but insists that since the sale contains the clause “guaranteeing it to be in first class order, complete and ready for operation”, “there has been’’ on the part of plaintiff “a breach in the warranty thus granted in that the equipment was not in first class order, complete and • ready for operation at the time that it was set up in his plant, and that he was required to expend the sum of $852.83, in order to place the said equipment in proper working order”, and during the trial below defendant, in support of this contention, offered in evidence, en masse, and without detailed explanation, innumerable invoices which he allegedly paid amounting to the sum of $852.83.

Plaintiff contends that the clause in dispute is ambiguous and a fortiori “the intention of the parties may be ascertained outside of the terms of the written- sale”. In passing we do not share this view. Obviously the clause is not positioned rhetorically to elegantly reflect a refined association of ideas, however, it does not meet the true test of ambiguity in the sense that it lends itself to two or several interpretations.

While the record is embellished with vagueness, confusion and disputations ad infinitum, it is clear on one point and that is that defendant made no complaint to plaintiff relative to the defectiveness of the machinery until sometime in the latter part of December of 1947, and we are dubious if a complaint was made even then, which was approximately seven months after the consummation of the transaction; and the payments set forth herein-above made on account of the note, in our opinion, bear out the logic of this conclusion. Defendant laboriously endeavors'to reluctantly explain that he only paid the interest due on the note on January 7th, 1948, because plaintiff informed him that the bank in Alexandria, Louisiana, which held the note for collection, would return it to plaintiff if no payments were forthcoming. Plaintiff, in contradiction, contends that he called at defendant’s place of business “after Christmas” of 1947, and requested a payment on the note, and that defendant pointed out to him that the tin sheathing covering the exterior of his building had to be removed and concrete blocks substituted in order to render the building more fireproof and he needed the money for that purpose. The credibility of this -contention is fortified by the implication of the last payment on account of interest made on the note. The payment was made on January 7, 1948, and paid the interest due from September 30, 1947, on the full unpaid balance of the note — $1,700—through December 30, 1947. It does not appear either probable or credible to this court, that the machinery could be defective and, despite that fact, defendant magnanimously continued to make payments of principal and interest on account of the note and refrained from complaining thereof to plaintiff until approximately seven months after the machinery had been in active operation.

The untenableness of defendant’s resistance to plaintiff’s claim is further amplified by the undisputed fact that defendant himself dismantled the machinery, and was in a most advantageous position to observe the existence of any defects then, and subsequently, defendant assembled the machinery in his own plant and again possessed the opportunity to observe the existence of any defects while the machinery was in actual operation. .

We are, • therefore, of the opinion that defendant is not entitled to any set off for the repairs of the alleged defective machinery.

In Owens v. Felder, 35 So.2d 671, 672, we said: — “We are reluctant to reverse the finding of a trial court based primarily on questions of fact, but in a case, such as we are presently analyzing, it is a self evident principle that it is occasionally easier to perceive fallacies and inconsistencies contained in the record by a comparison of the various portions of the transcribed record with other pertinent portions than it is to accurately observe and catalogue them while listening to the oral evidence of the various witnesses who testified during the course of the trial.”

For the reasons assigned the judgment appealed from is annulled, avoided and reversed and the permanent injunction is recalled and dissolved. It is further ordered that there be judgment herein in favor of the plaintiff, Louis J. Moreau, and against the defendant, John G. McGehee, in the full sum of $1,700 with interest at the rate of 6% per annum, from December 30, 1947, until paid, together with 10% of the amount due and exigible as attorneys’ fees. Defendant to pay all costs.

Reversed.


author: McBRIDE, Judge.

text:
    BRESCHER v. SERVICE MOTOR CO. et al.
    No. 19374.
    Court of Appeal of Louisiana. Orleans.
    Feb. 27, 1950.
    George C. Gibson, Ponchatoula, for plaintiff and appellant.
    Robert J. Pitard, New Orleans, for defendants- -and appellees.
   McBRIDE, Judge.

The circumstances out of which this case arose are as follows: On June 2, 1946, plaintiff, Frank A. Brescher, -purchased from Norwood C. McDonald a Dodge 1941 model four-door sedan automobile, having Motor No. _ P 450897 and Serial .No. 30511505, for the price and sum of $1,200. The sale was made, plaintiff, alleges, with full warranty and with subrogation to any and all rights or actions of warranty which McDonald had against his vendor.

McDonald had purchased the automobile from Service Motor Company for $1,199.-88 on January 2, 1946.

According to the allegations of the petition, on or about January 30, 1947, Oscar E. Haring, doing business as Automotive Finance Company, filed in the Twenty-first Judicial District Court for the Parish of Tangipahoa a petition for executory process in the matter entitled, “Oscar E. Haring, etc., vs. Charles G. Mosbey,” in which proceeding the Sheriff of said parish, on February 6, 1947, issued a notice of seizure of the following described automobile: One used Dodge four-door sedan, Motor No. D19-171024, Serial No. 30511506.

•It is alleged that the Sheriff wrongfully seized from plaintiff the automobile which he had purchased from McDonald, and that in' due' course it was sold by the Sheriff in said proceeding to Oscar E. Haring.

Plaintiff sued Service Motor Company and its component partners, and Oscar E. Haring and Norwood C. McDonald, in solido, claiming the sum of $1,800 for the said seizure and sale of his automobile, but later moved that he be allowed to discontinue, as of nonsuit, the claim against Oscar E. Haring, and an order to that effect was duly issued by the lower court.

A preliminary default was entered against Norwood C. McDonald, who failed to make answer to the petition.

Service Motor Company and the partners therein filed what amounts to a general denial of the allegations of the petition, and the matter was heard on its merits in the court below. Judgment was rendered in favor of Service Motor Com-, pany, dismissing plaintiff’s claims as against said defendant, from which judgment the plaintiff has perfected this appeal.

The theory of plaintiff’s case is that whereas he suffered an eviction of the automobile purchased from McDonald, Service Motor Company is liable unto plaintiff on its warranty made to McDonald, to which plaintiff was subrogated.

At the outset, we observe that the automobile which plaintiff testified he bought from McDonald bears motor and serial numbers different from those stated in the notice of seizure, and it is unexplained why the Sheriff of Tangipahoa Parish levied upon plaintiff’s automobile.

Counsel for plaintiff offered six exhibits in evidence, but we are not informed as to their nature. They were not filed in evidence, nor are they to be found in the transcript.

Another, odd circumstance -is why the foreclosure instituted by Harmg was directed against Charles G. Mosbey, who was named as defendant therein. There is not a shred of evidence showing Mosbey’s connection with plaintiff’s automobile. Nor does the record show what or whose chattel mortgage was executed upon, nor does the date or any details thereof appear.

R.C.C. art. 2475 provides that the seller is bound to two principal obligations, that pf delivering and that of warranting the thing he sells. R.C.O. art. 2476 provides: “The warranty respecting the seller has two objects; the first is the buyer’s peaceable possession of the thing sold, ■ and the second is the hidden defects of the thing sold or its redhibitory vices.”

R.C.C. art. 2501 reads: “Although at the time of-the sale no stipulations have been made respecting the warranty, the seller is obliged, of course, to warrant the buyer against the eviction suffered by him from the totality or part of the thing sold, and against the charges claimed on such thing, which were not declared at the time of the sale.”

Eviction is defined by R.C.C. art. 2500 as: “ * * * the loss suffered by the buyer of the totality of the thing sold, or of a part thereof, occasioned by the right or claims of a third person.”.

It has been held that the foreclosure of a prior undeclared mortgage constitutes an eviction of the purchaser of the property. Tomlinson v. Thurmon et al., 189 La. 959, 181 So. 458.

Because of the paucity of evidence, we are not able to determine whether plaintiff was evicted by reason of any chattel mortgage existing on his automobile at the time of its purchase by McDonald from the Service Motor Company. If plaintiff had been evicted by virtue of a pre-existing chattel mortgage bearing against his automobile, perhaps he would have had the right to pursue Service Motor Company in warranty, but in the absence of such showing, clearly he is not entitled to such remedy.

R.C.C. art. 2502 reads in part as follows : “That the warranty should have existence, it is necessary that the right of the person evicting shall have existed before the sale. *. * *”

The judgment was an outright dismissal of plaintiff’s claim against Service Motor Company, but because of plaintiff’s utter failure to produce sufficient evidence in proof of his demand, we believe, that the judgment should have been one of nonsuit, and, therefore,

It is ordered that the judgment appealed from be amended so as to show that. the appellant’s suit as against Service Motor Company and its partners be dismissed as in the oase of nonsuit, and as thus amended and in all other respects it is affirmed. Plaintiff-appellant to pay cost of this appeal.

Amended and affirmed.


author: MOISE, Justice.

text:
    216 La. 731
    Succession of GESSELLY.
    No. 38633.
    Supreme Court of Louisiana.
    Jan. 9, 1950.
    Rehearing Denied Feb. 13, 1950.
    Joseph A. Loret, Baton Rouge, for appellant, applicant.
    Watson, Blanche, Fridge, Wilson, & Posner, Baton Rouge, for appellee.
   MOISE, Justice.

This is a suit to recover from the Succession of Mrs. Rose Gesselly the sum, of $2500.00, being the amount alleged to have been fixed by her as -compensation for services to her during her lifetime by her nephew, Nicholas J. Swart, the opponent. From a judgment allowing the sum of $2000.00, in addition to the legacy of $500.00, the executrix prosecutes this devolutive appeal. Answering the appeal, the appellee seeks to have the judgment of the district court increased to the sum of $2500.00, without deducting the legacy of $500.00. '

The plaintiff alleges that from 1924 to the date of decedent’s death, April 15, 1943, he performed innumerable services in administering de-cedent’s business affairs and looking after, her personal welfare; that he assisted her in all of her banking transactions and in making various investments in real estate mortgages and loans, and thereafter attending to the details in connection with the collection of the páy-ments due thereon; that he transported her in his automobile to 'the market' and stores and on other outings several times during a week, and that he took her on brief vacations to the Gulf Coast of Mississippi, to Florida and to Shreveport, La. Plaintiff alleges an agreement between himself and the decedent that he was to be paid for all the personal services which he rendered to her upon her death by a legacy of $2500.00, and for this amount he seeks judgment, plus the legacy of $500.00 bequeathed to him in the last will and testament of decedent.

To plaintiff’s petition defendant filed exceptions of “Inconsistency, Immateriality” and vagueness. Exceptions of “inconsistency and immateriality” are unknown to our law, and only on trial of the merits can objections to any evidence be urged on grounds of inconsistency, immateriality and irrelevancy. It is impossible for a trial judge to pass upon the immateriality, inconsistency, or irrelevancy of any portion of the evidence without having before him all of the grounds of complaint and the defenses urged in answer.

The record shows that the decedent, who at the time of her death in East Baton Rouge Parish, Louisiana, was 75 years of age, had been for many years prior thereto in ill health, suffering from a heart ailment and was crippled in one foot. Her physical condition greatly handicapped her freedom of movement and it appears that she depended almost entirely upon Nicholas J. Swart, plaintiff (one of her two relatives living in the Parish) to assist her in all of her financial and business affairs; that she looked to him to transport her in his automobile on all of her errands, including trips to the bank, to her lawyers, and to oversee and collect rental on various properties she owned over a period of years. He also drove her to see her doctors, to the markets and stores on shopping expeditions and on numerous vacation trips. For all of this assistance and attention the decedent promised to reward him at her death by providing a legacy in the sum of $2500.00 for him in her will. After the decedent’s death negotiations were had looking toward a compromise of plaintiff’s claim of $2500.00, and as requested, he submitted a bill for $1200.00 in settlement of the promised legacy. Upon refusal of this payment by the executrix of decedent’s estate, plaintiff instituted the present suit against her, individually and as executrix.

Recovery is sought here on a claim against a deceased person, which unlike ordinary cases requiring the plaintiff to prove his claim if more than $500:00 “at léa'st by one credible witness, and other corroborative circumstances” (Art. 2277 of the Revised Civil Code) “ * * * can only be established- by the testimony of at least one credible witness of good moral character, besides the plaintiff,” that is, if such action has been brought within -12 months after the death of .the deceased, otherwise parol evidence is not admissible to prove the claim. Act 207 of 1906, as amended by Act 11 of 1926; Succession of Dugas, 215 La. 13, 39 So.2d 750, 753; White v. Succession of Candebat, 210 La. 995, 29 So.2d 39.

In the Succession of Joublanc, 199 La. 250, 5 So.2d 762, 763, the plaintiff sued the decedent’s succession for wages for services rendered by her as deceased’s housekeeper, cook, nurse, etc., during the last 10 years of his life. It appeared that he had persuaded her to move into half of his home, a double cottage, with her 3 children, and perform such services, with the agreement that he would bequeath the home to her, which was a very modest one, in a poor neighborhood of New .Orleans. The plaintiff was a colored woman and the decedent was a white man. He did make a will in which he bequeathed the home to her, but subsequently executed another will in which he bequeathed all of his property to his two children, revoking the previous will, in which he had declared that that legacy was given “in consideration of faithful services rendered by-her for many years as my housekeeper.” The cottage which was to have been bequeathed was appraised in the decedent’s succession proceedings at the amount of $1,100.00, and the court in giving judgment for the plaintiff in that sum against the decedent’s succession and his heirs, said:

“On the facts which we have found the plaintiff is entitled to collect from the succession of Joublanc, or his heirs, the value of the services which she rendered. One who renders valuable services to another on his- promise that in his will he will compensate to the extent of the value of the services the party rendering them is entitled to collect their value from the succession of the party for whom the services were rendered if he dies without having fulfilled his promise. * * * In such cases it is not necessary that the value of the services.shall have been agreed upon by the employer and employee. * • * *

“The plaintiff testified that the services which she rendered and the board which she furnished to Joublanc were worth- $2 per day. In her petition she claimed $125 per month. Our judgment is that $2 per day is án otitside estimate; besides which an allowance should be made for the house rent which was furnished to the plaintiff and her. children, and for rent of the building in- which she conducted her grocery. There, is no estimate of these allowances. in the record. Our conclusion is that the plaintiff ought to have the value of the legacy which she would have received under the will dated July 14, 1939, if it had not been. revoked. We do not mean that the general rule in cases like this is that the value of the legacy fixes the amount which the succession will owe if the testator revokes the bequest. * * We are dealing only with the facts of this case, and are resting our judgment upon the proof that the value of the services rendered by the plaintiff was not less than the value of the legacy which she was to receive, and upon the fact that the plaintiff admitted and repeated in her testimony that the legacy which she had expected to receive would be ample compensation for her claim. The only proof that we have of the value of the legacy is that it was appraised in the inventory at $1,100.” (Italics mine.) '

In the Succession of Oliver, 184 La. 26, 165 So. 318, 322, there was a preponderance of evidence to show that over a period of ten years up to the date of his death the decedent had been rendered services by the claimant. The trial judge rendered judgment in the claimant’s favor, evaluating these services at 50^ per day, with the result that the net amount allowed the claimant was some $6400.00 less than he had claimed. The Supreme Court, held that since there was no testimony in the record to show just what the services were worth, and since no agreement had ever been reached between the decedent and the claimant as to the value of the services, that the trial judge’s finding- would not be disturbed. In that case the court stated:

“* * * plaintiff’s testimony is corroborated, not by one, but by numerous witnesses whose credibility and moral character were not questioned either by the executor or the legatees. * * *
“Two -witnesses testified that Oliver told them that he expected to reward Lee by remembering -him in his will, one of them saying that Oliver said this- to him in Lee’s presence. A dozen or more witnesses testified that Lee rendered the services. * *
“ * * * in the present case the claimant’s testimony is so well corroborated that we have no doubt of the verity of the claim.”

In the -instant case, in support- of his claim, the plaintiff testified .substantially in accordance with the allegations of his petition setting forth his claim and,, in corroboration thereof, he relied on the testi-monjr of two disinterested witnesses, Mrs. Nolan, a friend of the decedent, and Mrs. Webb, á nurse, who was in the employ of the deceased three years just preceding her death. Both of these witnesses testified, and their testimony is uncontradicted, that on many occasions the deceased told them that she wanted to -compensate her nephew for his services to her and that she was going to do so upon her death, by bequeathing him a legacy of $2500.00. These witnesses also corroborated plaintiff’s testimony as to the services rendered to the deceased, as well as to her complete reliance and dependency upon him for ad vice and assistance in all of her personal and business affairs.

In addition to the testimony of these two credible witnesses, plaintiff introduced documentary evidence — a letter written to him and his wife by the decedent’s sister shortly before her death, wherein she recognized the deceased as dependent upon her nephew. This letter reads as follows:

“Jan. 24.43
“Dear Grace and Nick:
“I rec your two letters also air mail from Rose I am quite upset about her condition Wish you would let me know just how she is I am not very well myself I sent Rose airmail letter Wed I guess she has it by this time I know N will do all he can and you to help her get well as she depends on Nick so much has no one else to help her I hope Nick will kee me informed of her condition.
(S.) Aunt Clara...

None of the above testimony or evidence was refuted by the executrix on the trial of the case, in fact, not a single witness was introduced in her behalf.

It is submitted that in the instant case there was an agreement for a lump sum — $2500.00—and since the defendant had, according to the testimony of disinterested witnesses, placed this evaluation on the services rendered by her nephew, the question of quantum meruit does not enter. That would enter only if the value of the services had not been fixed. In neither of the cases of White v. Succession of Candebat nor the Succession of Dugas cited supra (the two most recent decisions of this Court involving claims brought under Article 2277 of the R.C.C.) did the deceased indicate, by parole or otherwise, the value placed by her on the services for which remuneration was subsequently claimed. Hence, the court was compelled to value their worth. However, in the present case, the amount is definitely fixed by agreement. There is no need for fixing the quantum of compensation for services by the court. If this suit were brought on the quantum meruit basis for compensation for 19 years of services, as shown by this record, it is possible that the court would set a larger amount than that promised by the decedent.

After a careful consideration of the facts, the evidence and the testimony herein, we are satisfied that the plaintiff has established with reasonable certainty the proof of his claim for $2500. However, ;we do not agree that this^ amount should not . be partially offset by the $500.00 legacy. As the evidence is clear that plaintiff was actually promised $2500.00 as compensation for his services rendered to the deceased, common sense tells us that the district court’s award of $2,000.00 plus the legacy of $500.00 has made him “whole” in relation to the original agreement made with him by the deceased.

For these reasons, the judgment appealed from is affirmed; all costs of court to be borne by the succession.