text:
    SUN OIL CO. v. STOUT et al.
    No. 7491.
    Court of Appeal of Louisiana. Second Circuit.
    April 28, 1950.
    Rehearing Denied May 31, 1950.
    Jodie Stout, Rayville, W. M. Phillips, Shreveport, Herold, Cousin & Herold, Shreveport, Hussey & Smith, Shreveport, Cotton & Bolton, Rayville, M. T. Monsour, Shreveport, for appellants.
    C. T. Munholland, Monroe, for appel-lee, Mount Ollie Baptist Church -No. 4.
    Warren Hunt, Rayville, for Sun Oil Co.
   KENNON, Judge.

Alleging that it was purchaser of oil produced under a lease from the owners of a designated forty adre tract of land in Richland Parish, Louisiana, and that it was unable to distribute the proceeds of the sale of royalty oil to the satisfaction of all the claimants thereto, plaintiff, acting under the provisions of Act No. 123 of 1922, deposited the %th landowner-royalty proceeds in Court and impleaded some forty claimants, praying to be relieved of further liability for the payment of the royalty or for costs of court.

Among the defendants was the Mount Ollie Baptist Church No. 4, whose answer set forth that it was the owner of a one acre tract approximately seventy yards square in the southeast corner of the tract, in controversy by virtue of a deed dated October 7, 1925 from one John Davidson, who was then the owner of the forty acre tract.

This church’s answer further set forth that it had not executed any oil and gas lease to the plaintiff or to any other parties and was therefore the owner of %oth of the entire amount of oil produced from the forty acre tract. The answer concluded with the prayer that the church be recognized as owner of the one acre tract, including full mineral rights, and as such awarded %oth of the gross production, or, in the alternative, be awarded %th of Jáoth with reservation of its rights to claim %ths of the production from the church acre.

The answer of the other defendants set forth various claims and interests which are no longer at issue because at the trial of the case all defendants, except the Mount Ollie Baptist Church No. 4, agreed on a proportion of ownership and distribution of proceeds for 3%oths of the entire tract, and all united in a denial of the one acre interest claimed by the defendant church. When this stipulation was filed, the District Court rendered judgment awarding 3%oths of the royalties deposited to the defendants other than the Mount Ollie Baptist Church No. 4, and directed the Clerk to disburse same (less a designated reserve for court costs).

Judgment was further rendered recognizing the Mount Ollie Baptist Church No. 4 to be “owner of one acre of ground” in the drilling unit described, and decreeing this defendant to be entitled to J4oth of all funds deposited in the registry of the Court, or thereafter accruing and deposited. The judgment reserved to the defendant church the right to claim the full %ths of production from its described one acre tract.

From this judgment, all defendants except the Mount Ollie Baptist Church No. 4 have appealed to this Court.

The only testimony in the record is that presented by the defendant, Mount Ollie Baptist Church No. 4, which established the amount of money deposited in the registry of the Court by the purchaser of oil produced from the forty acres in controversy as a drilling unit under the terms and provisions of General Order No. 96 of the Department of Conservation, which was identified and offered in evidence. The record further established that only one well was drilled on this tract and that same was placed in the approximate center.

The defendant church offered in evidence a deed dated October 7, 1925 from one John Davidson to the defendant church, covering the one acre tract claimed by it. This deed was on a regular printed form for a cash deed in which it was stated that the vendor had “sold, conveyed and delivered” the property described. Relative to consideration, the deed contains the following paragraph: “The price for which the above sale and donation is made is that the herein above described property is to be used exclusively for the purpose of erecting a house of worship and for other purposes, with the distinct understanding that when and if the said property should ever be used for any other than Church purpose or if it should ever be discontinued as a church, then and in that event the title thereto is to revert to the owner of the forty of which this one acre is a part and be the property of the then owner of the said forty.”

By stipulation of counsel for all parties, it was agreed that a church was built on the one acre tract soon after its acquisition in 1925, and that the vendee had used the tract and the church building thereon continuously since that date and was so using the premises at the date of the trial. No evidence was presented as to who is the present owner of the surface title to the forty acre tract.

Appellants’ contention is that the intent of the parties to the above instrument was to convey only a servitude and that the defendant church acquired' thereby no right beyond that of using the surface for religious purposes. Appellee contends that the instrument conveyed a fee title with a resolutory condition enforceable only in a direct action brought by the owner of the forty acre tract of which the one acre is a part.

The question presented, while a difficult one, is not new to the Louisiana jurisprudence. We find the applicable rule of law, together with citations of authority, contained in the following quotation in appellants’ brief from the fairly recent Louisiana Supreme Court case of Rock Island A. & L. R. Co. v. Gournay, 205 La. 125, 17 So.2d 89: “It is well-settled in this State that in deciding whether a fee simple title to land has been 'Conveyed or a servitude or right-of-way thereupon has been granted by a deed, the intention of the parties thereto must be determined from the stipulations in the entire instrument, with a view of giving effect to all of the provisions therein contained and thereby avoid neutralizing or ignoring any of them or treating any of them as surplusage. Noel Estate v. Kansas City Southern & G. R. Co., 187 La. 717, 175 So. 468; Hunter Co., Inc., v. Ulrich, 200 La. 536, 8 So.2d 531; Parish of Jefferson v. Texas Co., 192 La. 934, 189 So. 580; Glassell v. Richardson Oil Co., 150 La. 999, 91 So. 431.”

The Noel case, supra, quoted extensively in appellants’ brief, was one in which the plaintiff had conveyed certain lands to the defendant railroad company. The language of the deed relevant to the present issue being as follows: “ * * * containing nine & 6SAoo (9.68) acres, more or less, said tract of land herein described is sold and conveyed for railroad purposes only and this grant shall be in perpetuity or so long as it is used by said Company, its successors, or assigns, for railroad purposes, but if abandoned by said Company for such use and purpose, then said land shall revert to the grantor herein or his heirs or assigns.”

The Court reached the conclusion that the instrument granted a servitude only and “not the title to the land in fee simple with a resolutory condition.” The Hunter Company and Parish of Jefferson cases, supra, both involved the conveyance of a right-of-way for canal purposes. In each of these cases, the Court found from an examination of the entire instrument and the surrounding circumstances that it was the intent of the donor to grant a servitude for the purposes expressed and not to convey the fee simple title with a resolutory condition.

The appellee cites cases in which the Courts concluded that various instruments, conveying title for a special purpose with the -provision that title should revert to the grantor in the' event the property should -cease to be used for the purpose stated, were properly to be considered as deeds conveying a fee simple title (with the resolutory condition) rather than granting a surface servitude, as was -true in the right-of-way cases. In one of these cases, Voinche v. Town of Marksville, 124 La. 712, 50 So. 662, the Court considered a donation to the town for the purpose of establishing a market with a proviso that “* * * should it happen that said market be not built, the said act of donation will be null, and the said town lot shall, by that fact, belong to the said Voin-che.” '

Plaintiff’s petition set forth that although a market had been erected, its use for that purpose had been discontinued, and asked that the donation be revoked on account of the nonperformance of the condition imposed on the donee. The Court upheld this' contention.

A second case cited by appellee is that of Segura Realty Co., Inc. v. Segura Sugar Co., Ltd., 145 La. 510, 82 So. 684, 685. In that case, plaintiff’s ancestors in title had donated to the defendant company a certain lot of ground. The act of donation contained the following clause; “The purpose for which this donation is made is in order that the donee shall construct thereon a sugar refinery and such buildings, constructions and works as may be necessary, expedient or desirable in- and for the. accomplishment of said purpose, it being well understood that should the donee herein fail to use the lands herein donated for the purpose herein mentioned, that the said lands revert to the donor.”

After the refinery was constructed and operated for some years, it was destroyed in large part by fire. Such parts of the machinery as had not been damaged beyond repair were dismantled and sold. From this act and other circumstances in the record, the Court found that-the actions of the donee constituted a failure to use the lands donated for the purposes required in the deed, concluding that “the condition of the donation not being fulfilled, the right to revoke it is clear.” Citing the Voinche case, supra.

It is difficult to draw a well defined and clear cut distinction between instruments granting a servitude in the form of a perpetual right-of-way to a railroad or canal company, as was true in the Noel, Jefferson Parish and Hunter Co., cases, supra, and those granting a fee title with a condition that same reverts should the grantee cease to use the land for the declared purpose of town market, sugar refinery, or church, as was true respectively in the Voinche, Segura cases, supra, and in the case now before us. So indistinct is the 'line at times that the Supreme Court, in declining to consider a conveyance of fifteen acres of land (other than right-of-way), either as the granting of a servitude or as a sale with a resolutory condition, saw fit to place, obiter dicta, the Voinche and Se-gura “resolutory condition” cases in the same class as those involving railroad rights-of-way. We quote from the Supreme Court opinion in the case of Bush v. Bolton, 156 La. 491, 100 So. 692, 693:

“It will be observed that the grant herein made to plaintiff was not a grant for some particular use. This at once distinguishes this case from Voinche v. Town of Marksville, 124 La. 712, 50 So. 662; and Segura Realty Co. v. Segura Sugar Co., 145 La. 510, 82 So. 684. In both those cases the land was granted for some particular use with the express stipulation that should the land cease to be used for that purpose it should revert to the grantor.

“It is apparent that to call such a grant a grant of the land itself is to miscall it, for it is nothing more than the grant of a perpetual servitude upon the land, just as the grant of a perpetual right of way to a railroad is simply the grant of a servitude. Hence it was correctly decided in those cases that the grant (servitude) was extinguished by the happening of the dissolving condition attached thereto. R.C.C. 783, No. 6.”

However, in a later case, Askew v. Vicksburg, S. & P. Ry. Co., 171 La. 947, 132 So. 510, the Supreme Court recognized the difference between the rights of parties in cases where a fee simple title to the land has been conveyed subject to a resolutory condition, and those in' which a: servitude or right-of-way only has been granted. In this later case, the instrument before the Court was one granting both a railroad right-of-way and a two acre tract adjacent thereto to be used as a depot site. There, as in the case before us, contention was made that the grant of two acres of land constituted only a servitude to use same for a depot site and that, since the grantee did not build a depot, the servitude was lost by the prescription of ten years for non-use. The defendant contended that the grant conveyed the fee title with a resolutory condition and that, since the action was one to enforce a re-solutory condition, same was barred by the prescription of ten years. The Court made a distinction between the property granted for a railroad right-of-way and that granted “for purposes of a railroad depot.” In this opinion, Chief Justice O’Niel'l held that, insofar as the stipulation “for purposes of a depot” may have been intended as a resolutory condition, action on same was barred by ,the prescription of ten years' — • under authorities there cited.

An examination of all of the above cited cases and of other cases involving the point at issue discloses that generally in right-of-way cases — whether the same be for rail or canal purposes — the Courts have construed the intent of the parties to be to grant a- servitude only and have held that the fee title remained in the owner of the land over which the right-of-way was granted. This is in line with the modern practice of companies constructing cross-country pipelines, etc. to acquire only right-of-way rights through the lands over ■which the lines run. In cases in which the instrument granted a parcel of ground for a particular purpose such as a city market, sugar refinery, or house of worship, the Court has usually found that it was the intent of the parties to grant a fee title subject to the resolutory condition. This is consistent with the usual practice of religious and community service organizations to acquire a regular fee title to the land on which its buildings may rest.

An examination of all the stipulations in the deed before us, and of the record, and. of the authorities cited in briefs of appellants and appellee, leads us to the conclusion that the deed to the defendant church was such as not- to limit the conveyance to that of a mere servitude, as was found to be true generally in the railroad and canal right-of-way cases, but on the contrary, the described acre became the property of the church, subject to a resolutory condition, as was held by the Courts in other cases where the donation was for* some special purpose other than right-of-way.

We next consider appellants’ contention that the claiming of the royalty money and the reservation of its right to assert its ownership of the full mineral interest under the one acre, constituted a violation by the defendant church of the resolutory condition in the deed, which limited the use of the one acre to the erection of a house of worship and other religious purposes. In general it might be said that where the vendee has acquired a fee simple title, the existence of the condition that title will revert in the event ven-dee ceases to use the premises for church purposes, does not preclude the vendee from making incidental use for other purposes, particularly if such secondary use does not diminish the effective use of the property and premises for the main purpose: For illustration, in the case of a rural church, it would certainly be permissible to use a portion of the donated property as a burial ground, nor could it be doubted that the owner of such property would be authorized to market and sell such timber as might grow on the portion of the acre upon which no building had been constructed. The record discloses that no oil exploration operations of any sort have been conducted by the defendant church or any one else on the acre in controversy. Under these circumstances, the decision of the Louisiana Supreme Court in the recent case of Board of Trustees of Columbia Road Methodist Episcopal Church of Bogalusa v. Richardson, 216 La. 633, 44 So.2d 321, 323 is applicable, and we find it adverse to appellants’ contention. In that case, the Supreme Court found that the church’s title to the property in question was subject to the condition -that same be used for religious purposes. In spite of this condition, the church board of trustees had actually advertised the property for sale and had set forth in the advertisement that the property was “suitable -with slight alterations -for ■ practically any business'. use.” Nevertheless, the Supreme Court held that the fact that the church property was still actually in use for church purposes was sufficient to 'save the church’s title . from being revoked even though ■ the board of trustees had announced its willingness — and eagerness — to terminate such use.

Since no well has been drilled or authorized on the one acre tract, we are not called upon, in this case, to pass upon the question of whether or not the church has the right to drill or authorize the drilling for oil on the acre of land without violating the. conditions of its deed of acquisition. Nor do we find it necessary to decide, at this time, whether the defendant church would violate the resolutory condition if the money received from the royalty should be used for purposes other than the erection, rebuilding, repairing or renovating of a house of worship, minister’s home, or other church purposes. It is sufficient for the decision in this case that we find that there has been no violation — as of the date of trial. — by the defendant church of the resolutory condition contained in the 1925 deed.

In the case before us, the property is still in use for the religious purposes contemplated in the deed, and the fact that the church takes advantage of the supplemental value of the property, such as demanding and receiving it share of the benefits incidental to the acre being placed in a drilling unit, would not be sufficient grounds for the Court to give effect to the reversionary clause. The fact that the defendant church, at some time in the future, might grant a lease or attempt to drill an oil well on the acre in controversy, is not grounds for a present decree revoking the donation when the record is conclusive that the acre is still being used for religious purposes.

Appellants make the contention that the defendant church is not entitled to a %oth share of the royalty deposited in the registry of the Court as coming from the forty acre tract, for the reason that it did not sign the lease or sign any unitization or other participating agreement, asserting that the productive portion of the forty acre tract may not include the one acre owned by appellee. However, the record shows that the oil well from which the roy-álty is produced, was authorized to be drilled in the center of the forty acre tract, and that, under the general rule for the Delhi Field production is based on forty acre tracts with one well in the center of each such tract. Paragraph III of the petition of the Sun -.Oil Company stated that the money deposited in Court represented the value of oil that “had been produced from said property” (referring to the full forty acre tract), and that same was due to the royalty owners (of this tract). The answer of the defendant church admitted the production of oil from the entire forty acre tract. The several answers of appellants owning a great majority of the other thirty-nine mineral acres likewise “admitted” Paragraph III of the Sun Oil Company petition. The record establishes the title of the defendant church to the )4oth portion of the surface, mineral and royalty rights. Under these circumstances, the judgment of the District Court which ordered that the defendant church receive %oth of the royalties deposited in the registry of the Court and pay %oth of the costs is correct.

The judgment appealed from is affirmed. Costs of appeal to be borne by appellants.


source: Caselaw Access Project

author: HARDY, Judge.

license: Public Domain

text:
    SHERROUSE REALTY CO., Inc. et al. v. MARINE et al.
    No. 7507.
    Court of Appeal of Louisiana. Second Circuit.
    April 28, 1950.
    Rehearing Denied May 31, 1950.

      Redmond & Harkey, Monroe, for appellants.
    Thompson, Thompson & Sparks, Monroe, for appellees.
   HARDY, Judge.

This is a suit in which plaintiffs pray for the issuance of permanent injunctions, both mandatory and prohibitory, against the defendants for the purpose of enforcing the demolishing of certain buildings, structures and works and restraining the operation of a particularly described business by the defendants on property owned by them. After trial there was judgment in favor -of plaintiffs granting the relief sought and reserving their right to sue defendants for damages in a separate action, from which judgment defendants have appealed.

Plaintiffs are Sherrouse Realty Company, Inc., the developer and subdivider of certain property located in the City of Monroe, Ouachita Parish, Louisiana, known as Unit No. 2 of Sherrouse Park Addition, and four individual owners of property in the subdivision, who had constructed residences thereon. The defendants are Plenty G. Marine and his son, Albert Bentley Marine, alleged to 'be the owners of the lots and the operators of the business conducted thereon, of which complaint is made by plaintiffs.

By deed dated October 10,1930, the plaintiff, Sherrouse Realty Company, sold, conveyed and delivered to the defendant, Plenty G. Marine, Lot 3 of Block 19 of Sher-rouse Park Addition, Unit No. 2, which deed contained the following restrictive covenants, inter alia:

“It is understood that this tract of land has been subdivided for the purpose of making a residential community of lots of ground and that this sale is made subject to the following conditions which shall remain in force and be binding on the ven-dee and-assigns, and all subsequent purchasers and owners of the property herein conveyed, for a term of 25 years from and after date hereof, to-wit:

& * Hi ^ * jfc

“4. No store building, filling station, dairy or other mercantile establishment shall be built on any of this property.”

Similarly by instrument dated May 22, 1944, Sherrouse Realty Company sold, conveyed and delivered to Plenty G. Marine Lots Two, Four, Fourteen.and Fifteen (2, 4, 14 & 15), Block Nineteen (19), Unit No. Two (2) of Sherrouse Park Addition to Ouachita Parish, Louisiana. The act of conveyance although omitting the preamble above noted in connection with the instrument dated October 10, 1930, contained certain restrictive covenants binding’ on the “vendee and assigns and all subsequent purchasers and owners of the property therein conveyed”,- among which was the following: “3. No store building,, filling station, dairy or other mercantile . establishment shall be built upon this property.”

The identical property acquired- by the defendant, Plenty G. Marine, under deed dated May 22, 1944, was by him sold and conveyed to his son, Albert' Bentley Marine, by instrument of date September 6, 1949.

Some time during the year 1948 defendants caused to be built upon Lot 4 of Block 19 of Unit No. 2 of Sherrouse Park Addition a building in which they began to operate and conduct, in or about the month of September, 1948, a concrete products plant where they manufactured, stored and sold concrete building blocks, culverts, pipe and similar products. The erection of this building and the operation of the business referred to was protested by W. J. Sher-rouse, President of the Realty Company, and complaints were made by the individual plaintiffs despite which defendants continued the operation of their plant, allegedly to the serious discomfort and inconvenience of the individual plaintiffs, nearby home owners in the subdivision, and this litigation ensued, plaintiffs’ petition being filed on September 13, 1949, approximately one year after the completion and beginning of operation of the plant.

Plaintiffs specifically prayed for judgment decreeing the violation by defendants of the restrictive covenants in the deeds referred to; for the issuance of a permanent mandatory injunction commanding and requiring the defendants to demolish and remove the buildings and other structures on the property described not used for residential purposes, and for a permanent prohibitory injunction permanently enjoining, restraining and prohibiting the defendants from using the premises described for any purpose other than residential; from carrying on the business in which they were then engaged; from conducting any commercial business and enterprise upon said property; and from in any other way or manner violating any of the building restrictions as specifically set forth in the original deeds conveying the property involved.

The judgment as rendered, substantially responsive to the prayer of plaintiffs’ petition, ordered the defendants and each of them to 'demolish the building and other structures housing the concrete products plant and business on Lot 4 of Block 19 of Sherrouse Park Addition; further enjoined and restrained defendants and each of them from constructing a store building, filling station, dairy or other mercantile establishment on said lot, and finally reserved plaintiffs’ rights to bring action for damages resulting from defendants’ violation of the restrictive covenants.

Defendants asserted three defenses to plaintiffs’ action, to wit:

1. That the cause -of action had prescribed under the provisions of Act 326 of 1938.

2. That the building restrictions contained in the deeds did not prohibit the construction of a manufacturing plant.

3. In the alternative, that if the restrictive covenants should be interpreted to prohibit the construction of a manufacturing plant, then in such event plaintiffs had waived their rights to enforce said covenants by reason of their failure to protest general and continuous violations of building restriction clauses with respect to other lots in the same subdivision.

We will proceed to a discussion of these defenses, seriatim. The act upon which defendants rely in support of their plea of prescription provides that an action to enjoin or to obtain damages for a violation of restrictions contained in the title to land must be brought within two years from the commission of said violation.

It is clear that this action has been brought well within the prescriptive period fixed by Act 326 of 1938 insofar as the construction and operation on Lot 4 of Block 19 of Unit No. 2 is concerned. But defendants urge that they have been engaged in the construction of concrete products since early in the year 1942. The evidence adduced in support of this contention discloses the fact that the defendant, Plenty G. Marine, had built a residence and garage unit on Lot No. 3 of Block 19, and that, in the garage over a period of some six or seven years, defendants operated a hand unit concrete mixer.

Without regard to the merits of the argument advanced, we think this particular contention is moot in view of the judgment which, as above noted, is applicable under its terms only to Lot 4 of Block 19 of the unit and subdivision in question. For this reason we refrain from expressing any opinion as to this ground of defense.

The argument in support of defendant’s second point - is predicated upon a somewhat narrow and technical definition of words, and it is urged as a consequence that the restrictive covenants against the erection of a “store building” or “mercantile establishment” are not applicable to the business operated by defendants of manufacturing finished products from raw materials. We are not impressed with this contention. In the first place, we are convinced that the intent evidenced by the restriction is so plain and unambiguous as to preclude -any question of doubt as to the purpose sought to be effected. The record is clear on the point that the subdivision was intended for residential purposes and that both the realty company and the individual plaintiffs have consistently acted in accord with such an issue. To hold that a covenant prohibiting store buildings and mercantile establishments was not designed to operate against the conduct of heavy manufacturing enterprises, which would be far more objectionable and obnoxious, would be a re-ductio ad absurdum.

Nor do we find, even by the most hairsplitting definition, that defendants’ contentions could be deemed worthy of serious consideration. Reference to 40 Words and Phrases, Perm.Ed., p. 219 et seq., is convincing on the point that the word “store” comprehends and includes not only a shop in the sense of an establishment for retail or wholesale trade in goods in the nature of buying and selling, but also a place for the storage of goods. Undisputed testimony in the record before us clearly establishes the fact that the defendants manufactured and stored their products in the building of which complaint is made, and, further, that they actually sold such products at and on the designated premises. It is unimportant whether these sales were of small or great degree with respect to volume, and, under any interpretation, the facts make obvious the conclusion that there has been a definite violation of the restrictive covenants.

Similarly, a mercantile establishment is one pertaining to trade and to the buying and selling of commodities. Under this definition it has been held that a corporation organized to make baker’s goods and restaurant supplies and to sell them was organized for mercantile purposes. 27 Words and Phrases, Perm.Ed., p. 59, verbo “Mercantile”.

Proceeding to the alternative defense based upon the alleged waiver by plaintiffs of their rights by reason of their failure to protest other violations of building restriction clauses in the same plot or subdivision, we do not find that this defense is applicable under the facts. Aside from the clear violation by these defendants, to which timely protest has been' made and action taken in support thereof, there is-only one business establishment of any nature in the particular unit subdivision. This establishment consists of a small restaurant and barber shop and is located on a lot which was originally conveyed without any restrictive covenants. Counsel for defendants has cited Edwards v. Wiseman, 198 La. 382, 3 So.2d 661, in support of this contention. The facts involved in the case before us and in the cited case are so dissimilar as to preclude the necessity for any discussion, since the principles applied in the Edwards case under the particular facts have no application under the facts in this case.

We do not find that the plaintiffs, or any of them, have acquiesced (in any violation of the restrictive covenants here at issue, and, accordingly, there is no ground which would justify the conclusion that they have lost their rights by waiver or relinquishment.

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


author: HARDY, Judge. PER CURIAM.

text:
    PRICE v. BLYTHE BROS., et al.
    No. 7505.
    Court of Appeal of Louisiana. Second Circuit.
    April 28, 1950.
    Rehearing Denied May 31,1950.

      Dhu & Dea S. Thompson, Monroe, for appellant.
    Hudson, Potts, Bernstein & Davenport, Monroe, for appellees.
   HARDY, Judge.

This is a compensation suit in which plaintiff claims permanent and total disability. After trial there was judgment in favor of defendants rejecting the demands of plaintiff, from which judgment he brings this appeal.

There is no dispute as to the employment, rate of pay and the occurrence of the accident. Plaintiff, an illiterate Negro, 43 years of age, with a wife and two children, was a common laborer employed by the defendant Blythe Bros., contractors, at wages in excess of $50.00 per week. On or about October 22, 1948, while engaged in pushing a wheelbarrow, plaintiff was knocked from an elevated runway as the result of a collision with a Georgia Buggy, which was being moved in an opposite direction by a fellow employee. The runway was some 12 feet from the ground level, and, in falling, plaintiff’s back struck a 2x4 brace supporting the runway, after which contact plaintiff fell the remainder of the distance to the ground, again striking his back and, apparently, his head. Plaintiff was removed to the hospital where he remained for several days, after which he was confined to his bed at his home for a period of approximately a month, more or less, following which time he was able to get about with the aid first of crutches and then of a cane or stick. He was treated by the company physicians and was discharged as recovered on December 16, 1948, at which time payments of compensation, which had been made since the date of the accident by the employer’s insurer, were discontinued.

The points at issue concerned the frequently recurring questions involving back injuries of which there appear to be few, if any, objective symptoms, continued complaints of pain and incapacity on the part of the injured employee, and the usual difference of opinion between medical experts.

In a very brief expression of his reasons for judgment, the learned District Judge concluded that the plaintiff in this case had failed to discharge the required burden of proof.

Concededly, the general rule that the plaintiff in a compensation case is required to prove his claim by a preponderance of evidence is now so firmly imbedded in our jurisprudence as to admit of no question. In instances where the nature and extent of the injuries produce objective symptoms upon which a firm and definite conclusion may be predicated by expert witnesses, the difficulty of reaching a satisfactory conclusion is considerably lessened. But, as has been many times observed by our courts, the existence of pain is a matter which cannot be resolved with any certainty, either one way or the other, by medical experts. Accordingly, our courts have wisely established the rule that surrounding circumstances and the testimony of lay witnesses must be carefully scrutinized in the effort to reach the truth.

In the instant case plaintiff’s claim of disability was supported by the testimony of two competent and qualified physicians on the basis of their examinations. Exactly the opposite conclusion was reached by four competent and qualified medical experts who testified on behalf of defendants. In addition, defendants tendered the testimony of an X-ray expert to the effect that the X-ray films disclosed no fractures or other physical injuries.

The District Judge apparently predicated his opinion on the preponderance of the medical testimony in favor of defendants.

Nevertheless, we are impressed with the fact that the testimony of plaintiff himself is consistent and reasonable. His insistence of inability to work and of attendant pain and suffering as the result of his injuries was corroborated by his wife, by a roomer in his home, by two neighbors, and by the driver of a cab in which he had been transported many times to doctors for examination and treatment. There is nothing in the examination of these witnesses which would adversely reflect upon the credibility of their testimony, and,’ in our opinion, such testimony is entitled to considerable weight.

As a practical proposition the nature of the accident itself is persuasive. It would be exceedingly unreasonable to conclude that back injuries sustained in a twelve foot fall would be of minor consequence entailing disability of only a few weeks.

We believe plaintiff’s good faith is further reflected in the fact that only a short time prior to the trial of this suit he made the effort to engage in manual labor, and, as a matter of fact, actually worked for some ten days for a lumber company. The work as described by plaintiff was very light manual labor, but plaintiff testified that he was unable to continue even this effort because of the pain which he suffered. No attempt was made on the part of defendants to controvert these facts as related by plaintiff. This circumstance we think further militates strongly against any finding of malingering on the part of plaintiff. Surely it would be inconsistent with the design of a malingerer to make any effort to work, particularly at such a short time before the trial of his case. And it must be borne in mind that it is well established by our courts that a compensation claimant is not stigmatized as a malingerer in the absence of clear, convincing and conclusive proof. In our opinion the facts in this case do not accord with such an idea.

In McCray v. Yarbrough et al., La.App., 20 So.2d 447, 449, we made an observation which we think is appropriate to the instant matter: “It is quite true that symptoms of pain of necessity are subjective in nature, and the existence, vel non, of pain is a fact known with absolute certainty only by the individual who claims to experience pain. However, as a practical proposition, complete faith cannot be accorded to claims of an injured party as to the existence of the pain simply upon the basis of his own testimony, and, for that reason, it is required that such evidence be strengthened . by corroborative circumstances and testimony which would lead to an acceptance of such claims.”1

In the cited case we found that the necessary support had not been produced on behalf of plaintiff. We are of quite the opposite opinion in the instant cause.

On the basis of the record before us, we do not find that we would be justified in fixing any definite period of duration of plaintiff’s disability. However, as we observed in Wynn v. Vaughn et al., La.App., 33 So.2d 711, the defendants are fully protected by the rights accorded them under the statute in the event of plaintiff’s recovery to an extent which would permit him to return to work and therefore cannot be prejudiced by the allowance of compensation on the basis of permanent, total disability.

Although plaintiff has prayed for the allowance of the sum of $500.00 for medical treatment and expenses, we do not find that there is any evidence in the record in support of this item.

For the reasons assigned the judgment appealed from is reversed and there is now judgment in favor of plaintiff, Terry Price, and against the defendants, Blythe Brothers and Standard Accident Insurance Company, in solido, awarding compensation at the rate of $30.00 per week for the period of disability not exceeding 400 weeks from dáte of October 22, 1948, with 5% per annum interest upon such weekly installments from the respective due dates thereof until paid, together with all costs.

It is further ordered that the contract and agreement' between plaintiff and his attorney of record providing for a fee based upon the maximum amount allowed by law be, and it is hereby, recognized and approved.' ■

On Rehearing.

PER CURIAM.

In application for rehearing counsel for defendants have called the Court’s attention to the fact that our judgment awarding compensation failed to make allowance for payments admittedly made between the dates of October 22, 1948, and December 15, 1948, inclusive. Accordingly, it is ordered that the judgment heretofore entered in this case be, and it is, amended to the extent of allowing credit for compensation payments heretofore made on behalf of defendants.

The application for rehearing is denied.


author: TALIAFERRO, Judge.

text:
    MOORE v. EASOM.
    No. 7463.
    Court of Appeal of Louisiana. Second Circuit.
    April 28, 1950.
    Fred A. Coon, Jr., Monroe, Albín P. Las-siter, Monroe, for appellant.
    J. B. Dawkins, Monroe, for appellee.
   TALIAFERRO, Judge.

Plaintiff sued the defendant to recover judgment for the cost of repairing the damage to his Packard automobile, resulting from being rammed by defendant’s truck, at the time driven by his son, Grady Easom. The accident occurred in the night time, June 30, 1948, in the intersection of North Fourth Street and Louisville Avenue, in the City of Monroe, Louisiana.

Defendant is sought to be held responsible for the damages sued for 'on the ground that at the time of the accident his son was an unemancipated minor, residing with his father, and, in addition, was “acting as the agent of and for the said J. A. Easom”, the father. Responsibility for the accident is charged to the son’s negligence in that he failed to observe the traffic light suspended above the intersection, at the time red.

Defendant articulately denied each paragraph of the petition. There was judgment for the amount sued for and defendant appealed.

It developed during trial that Grady Easom, at the time of the accident, was over the age of 18 years, and married.

It is not seriously contended that the charge of negligence to defendant’s son is not well founded. The testimony adduced to support the charge is unusually clear for a case of this character. The son, not at a rapid speed, did drive his truck into the intersection after the traffic light facing him had changed from green to red, and after it had been perempted by the Packard car.

The sole testimony pertinent to the business relation between defendant and his son at the time of and prior to the accident, is that of the latter, who was introduced by plaintiff as his witness. The father did not testify. The son testified that the truck belonged to his father, that they lived in Oak Grove, Louisiana, and were engaged as partners in the buying and selling of farm products, especially watermelons; that he drove the truck from Oak Grove to Galhoun, fifteen miles west of Monroe, where he purchased some melons and was hurrying back to Oak Grove to deliver them the following morning to a merchant there to whom they had already been .contracted.

Of course, the suit as against the defendant predicated upon the theory that when the accident occurred his son was a minor, not emancipated by marriage or otherwise, in view of the testimony, must fall. And the alternative position of agency must suffer like fate because the son’s own testimony, to no extent refuted, makes it clear that he was not acting as his father’s agent in purchasing and transporting the melons, but was on a mission for the partnership between the two of them. As the partnership was engaged in the buying and selling of personal property, it falls within the definition of a commercial one. Civil Code Article No. 2825.

It is well settled that a member of a commercial partnership may not be held liable for partnership obligations except in a suit against the partnership and against him as a member thereof. Snyder et al. v. Davison et al., 172 La. 274, 134 So. 89. It was expressly held in this case that: “Judgment cannot be obtained against partners for partnership debts while partnership exists, except by obtaining also judgment against partnership. Civ. Code, art. 2872.”

Appellee contends that testimony, without objection, was admitted that had the effect of enlarging the pleadings in such way and manner as to warrant judgment against the defendant individually. This position is not well founded. The testimony referred to concerns the business relationship between defendant and his son. It was clearly admissible under the original pleadings. The answer denies that the son was an unemancipated minor when the accident occurred, and that he was then acting as defendant’s agent. This denial tendered issue on the primary and alternative phases of plaintiff’s demand, and,- of course, defendant had the right to introduce testimony or rely upon that which plaintiff introduced, to sustain the issue tendered by the denial.

The suit was improvidently instituted against defendant solely in his individual capacity.

For the reasons herein given, the judgment from which appealed is annulled, avoided and reversed; and there is now judgment in favor of the defendant and against the plaintiff, rejecting the demand and dismissing the suit as in case of non-suit. Plaintiff is cast for all costs.


author: HAWTHORNE, Justice.

text:
    217 La. 218
    ELLIOTT v. HEARD.
    No. 39789.
    Supreme Court of Louisiana.
    April 24, 1950.
    R. A. Dowling, New Orleans, Anna Andollina, New Orleans, of counsel, for appellant.
    Chaffe, McCall, Toler & Phillips and Leon Sarpy, New Orleans, for appellee.
   HAWTHORNE, Justice.

The judgment from which this appeal was taken was signed on July 8, 1949. On July 11, on motion of appellant the lower court granted orders of suspensive and de-volutive appeal, fixing the bond for each appeal in the sum of $100. On July 21, more than 10 days after the date of the judgment, appellant filed a bond in the sum of $100 for the suspensive appeal and a separate bond in the same amount for the devolutive appeal. The return day was extended by this court to February 8, 1950, and the transcript was filed in this court on that day. On March 9 thereafter, appellee filed in this court a motion to dismiss the appeal on the ground that the suspensive appeal was not taken within 10 days as required 'by Article 575 of the Code of Practice and for this reason should 'be dismissed, and, further, that appellant is entitled to only one appeal and, having failed to perfect the suspensive appeal, is not entitled to a devolutive appeal and that for this reason both the suspensive and the devolutive appeals should be dismissed.

Defendant-appellant resists the motion to dismiss the appeal on the ground that this motion was filed more than three days after the return day and the filing of the transcript in this court, the motion to dismiss having been filed approximately 30 days after the return day.

In the case of Esparros v. Vicknair et al., 191 La. 193, 184 So. 745, a petitory action, the trial court granted suspensive and devolutive appeals, setting the bond at $100 for the devolutive appeal and “according to law” for the suspensive appeal. Within 10 days from rendition of judgment an appeal bond was furnished in the amount set for the devolutive appeal. About a month later a rule was taken in the trial court against the appellants to show cause why the suspensive appeal should not be dismissed. That court refused to recall the suspensive appeal, but modified its original order of appeal by fixing the appeal bond for the suspen-sive appeal at $100. On the day following modification of the order the appellants furnished another bond in the amount of $100. In this court the appellee moved to dismiss the appeal on the ground that no bond had been fixed for a suspensive appeal. The appellants opposed the motion on the ground that it was filed too late. This court denied the motion to dismiss the appeal, saying:

“It is the accepted rule and jurisprudence of this court that a motion to dismiss an appeal on account of any defect, error, or irregularity in the order of appeal, or in the appeal bond, which, is not jurisdictional and which does not strike at the foundation of the right of appeal, must be filed within three days after the return day. O’Reilly v. McLeod, 2 La.Ann. 138; Hall v. Nevill, 3 La.Ann. 326; Mitchell v. Lay, 4 La.Ann. 514; Boykin v. O’Hara, 6 La.Ann. 115; Naghten v. Wife, 48 La. Ann. 799, 19 So. 762; Creevy v. Breedlove, 12 La.Ann. 745; Dumonchel’s Widow v. Lemerick, 21 La.Ann. 30; Murrison v. C. Seiler & Co., 22 La.Ann. 327; Kohn v. Davidson, 23 La.Ann. 467; Long v. Kee, 44 La.Ann. 309, 10 So. 854; Saxon v. Southwestern Brick & Tile Manufacturing Co., 113 La. 637, 37 So. 540; Bradshaw v. Knoll, 132 La. 829, 61 So. 839. * * * "

See also Sammons v. New Orleans Ry. & Light Co., 143 La. 731, 79 So. 320; Haddad v. Commercial Motor Truck Co., 150 La. 327, 90 So. 666; D’Angelo v. Nicolosi et al., 188 La. 326, 177 So. 64; Walker v. Mansfield Hardwood Lumber Co., La.App., 35 So.2d 610.

In Cigali v. Kaplan, La.App., 34 So.2d 924, the Court of Appeal for the Parish of Orleans had before it the identical question of law that we have in the instant case. In that case the motion and order for the suspensive appeal were timely, but that court was urged to dismiss the appeal because the bond was filed after the time allowed by law for the perfection of the suspensive appeal. In the course of the opinion that court said:

“The motion to dismiss cannot avail, as it was not filed within three judicial days after the transcript was lodged with us. Code Prac. art. 886. It is well settled that where the appeal bond is not timely filed, * * * such informality or irregularity, to afford a ground for dismissal of the appeal, must be taken advantage of by the appellee within three judicial days from the filing of the transcript. * * * ”

It will be noted that in the language quoted from the Kaplan case, supra, the Court of Appeal used the expression “within three judicial days from the filing of the transcript”. This expression is inaccurate in two respects. First, it is now well settled that a motion to dismiss on account of any defect, error, or irregularity in the order of appeal or in the appeal bond must be filed within three days after the return day — that is, within three days after the time allowed for the appellant to file the transcript — , and that the delay is not affected by the filing of the transcript before the return day. See Code of Practice, Article 589; State ex rel. Continental Supply Co. v. Fontenot, 152 La. 912, 94 So. 441; Folse v. Dale et al., 194 La. 180, 193 So. 581; Tyler v. Phillips et al., 18 La.App. 654, 139 So. 35. Second, the three days allowed are not judicial days, but are legal days, days exclusive of Sundays and legal holidays. See Esparros v. Vicknair et al., supra.

In the instant case the motion to dismiss does not strike -at the foundation of the right of appeal or the jurisdiction of this court. The reasons advanced for ■the dismissal are irregularities, which, in order to serve for the dismissal of the appeal, should have been urged in a motion filed within three days after the return day. Since appellee failed to file the motion within this period, it 'came too late.

For the reasons assigned, the motion to dismiss is denied; costs of this proceeding to be paid by appellee.


text:
    217 La. 224
    WARNOCK v. ROY.
    No. 39286.
    Supreme Court of Louisiana,
    April 24, 1950.
    J3ooth, Lockard & Jack, Shreveport, for defendant-appellant.
    Eugene J. Coen, Shreveport, for plaintiff-appellee.
   HAWTHORNE, Justice.

Defendant, R. O. Roy, has appealed to this 'court from a judgment of the First Judicial District Court for the Parish of Caddo ordering him to file a complete and detailed accounting showing the total cost of drilling an oil and gas well designated as Dunn-Olsen Well No. 1 and showing all amounts received by defendant and by De-Soto Oil & Gas Company, Inc., from the sale and production of the well, and, further, recognizing that defendant owed to plaintiff, James Warnock, Jr., a sum equal to the proportion of all sums received by the defendant and the DeSoto Oil & Gas Company, Inc., from the sale of the well and from the production therefrom that $5000.00 bears to the total cost of drilling the well.

The material facts are as follows: On July 23, 1934, defendant, R. O. Roy, obtained an oil and gas lease from Dunn and Olsen. He thereafter on December 3, 1935, assigned this lease, with others, to the De-Soto Oil & Gas Company, Inc., of which he was president and principal stockholder, for a stated consideration of $3911.49 in cash and three-fourths of whatever might be derived from the drilling and operation of the properties so transferred. Subsequently, Charles Fearon, an oil financier of Philadelphia, entered into an agreement with Roy to assist financially in the development of this lease, each to contribute $15,-000.00. Fearon suggested that James War-nock, Jr., be permitted to enter the venture by assuming $5000.00 of Fearon’s contribution, and Roy wrote Fearon on July 11, 1936, that "It will be perfectly agreeable to have Mr. Warnock join in drilling the Bis-tineau well to the extent of $5000.00”. Fearon forwarded $10,000.00 for this venture on July '9, 1936, and Warnock sent his check for $5000.00 to Roy on July 16, 1936. In the letter enclosing this check Warnock informed Roy that the amount thereof was to pay for a "$5000.00 interest in the well which you are drilling in which Mr. Charles Fearon has a $10,000.00 interest’'. Roy by letter acknowledged receipt of this sum of money, to be used for the purposes outlined in Warnock’s letter of July 16, and subsequently deposited it to his own account. (All italics ours.)

Roy, as president of the DeSoto Oil & Gas Company, Inc., secured that company’s participation in the cost of drilling the well, and it was to pay the costs in excess of the $30,000.00 contributed by Roy himself, Fearon, and Warnock. On July 20, 1936, a permit was issued to the DeSoto Oil & Gas Company, Inc., to drill the well on the Dunn-Olsen tract, and drilling was commenced by Roy or his drilling company on the same day on which the permit was issued.

On October 6, 1936, the defendant Roy wrote to the plaintiff Warnock, giving him the location of the Dunn-Olsen Well No. 1, and among other things stated that the well “in which you have an interest, obtained a depth of 2800' on October 4th * * *”. Again, on December 15, 1936, defendant wrote plaintiff, informing him that the well had been drilled to a depth of 5235 feet to the Pettit sand in the Sligo field, and stating that “On Thursday December 10th we began to set 7" casing in the Dunn & Olsen well in which you have an interest and finished early Friday morning”. The well was completed in January, 1937, and on January 15, 1937, defendant Roy informed the plaintiff that “Jhe Dunn & Olsen well of which you are a part owner was drilled to a total depth of 5236' and has been completed as a medium size gas well with some dark colored distillate in the gas. This distillate can be separated when we begin to market the gas. Temporarily there is an over supply of gas in this territory but in the course of event there would be a demand for it and we will expedite that much as possible. The well was completed in what is called the Pettit sand in the Sligo field”. After completion as a producer, this well was immediately closed in for want of a pipeline outlet.

On February 25, 1937, defendant again wrote to plaintiff, informing him that another well would be drilled in the neighborhood of the Dunn-Olsen Well. No. 1, "of Which you are part owner”, and inviting plaintiff to join in the drilling of the new well in such amount as he might choose. Later, on November 26, 1937, defendant again wrote the plaintiff that, due to an overwhelming amount of gas produced in the vicinity, there was no immediate prospect of making any money out of the Dunn-Olsen investment, but that "In the course of time we will get some money out of this gas but it cannot be done immediately and am writing you this to keep you posted”.

On December 22, 1937, almost a year after the completion of the well, the DeSoto Oil & Gas Company, Inc., through its pres'ident, defendant herein, transferred the Dunn-Olsen well and the lease under which it was drilled, together with a large number of other leases, to the Union Producing Company for the express consideration of $100,000.00 cash. By an operating contract of the same date the assignee further agreed to pay an additional sum of $150,000.00, payable in three installments of $50,000.00 each, due in one, two, and three years after date. This contract provided an additional consideration of the payment of one-half cent per thousand cubic feet of gas and 25 per cent of the net proceeds derived from the sale of gasoline extracted from the gas.

On March 16, 1938, Roy executed an affidavit stating that, out of the cash received by the DeSoto Oil & Gas Company, Inc., from the Union Producing Company, he had received certain cash payments equal-ling three-fourths of the cash received by the DeSoto Oil & Gas Company, Inc., and that this affidavit was executed to acknowledge receipt of those moneys and give complete acquittance for them. Thus, as found by the trial judge, “ * * * although the Dunn-Olsen well has been conveyed to Union Producing Company, the record shows that Roy has received three-fourths of the cash payments called for in the conveyance and operating agreement, as well as the current monthly payments from production of the well since January, 1940.” These payments were received by Roy from the DeSoto Oil & Gas Company, Inc., of which, as stated previously, he was president and principal stockholder.

In January of 1940, a pipeline connection for the Dunn-Olsen well was, made, and it has been producing since that time and was still producing at the time of the trial.

Aftér the completion of the well and vp to a short time prior to the institution of this suit, numerous letters were written by the parties to each other. In one dated January 16, 1937, defendant informed plaintiff that the task was to get a market for the gas from this particular well, but that he had no doubt this would be accomplished .in time. On September 30, 1940, Warnock wrote the defendant, desiring to know whether the gas line had been completed to the well, and whether any of the gas therefrom was being sold. In reply to this letter Roy informed the plaintiff that the pipeline had been completed, and that the proposition was going to make some money in the course of events, but that “all gas properties are desperately hard and slow to get money out of”.

There is also a letter to Roy from plaintiff under date of November 19, 1945, in which plaintiff inquired whether there was any chance of his getting any part of the income from the Dunn-Olsen well. If there was ever any reply to this letter, we fail to find it in the record. On February 19, 1947, an attorney representing plaintiff wrote to defendant, requesting, among other things, to be advised what was the aggregate income from the Dunn-Olsen property from July, 1936, where the funds were at present, and whether there was any pending legal proceeding which would prevent the immediate distribution thereof. Since plaintiff did not receive a reply to this letter, the defendant was informed by another letter on March 7, 1947, that, unless the information requested was furnished', suit would be instituted, and the present suit was filed on September 8, 1947.

Plaintiff in his original and supplemental petitions, among other things, prayed for an accounting by the defendant of the proceeds from the well allegedly received by the defendant and for a judgment against defendant for plaintiffs proportionate part as disclosed by such accounting. He prayed also for an undivided one-sixth interest in the well and in all oil, gas, and other minerals recovered from the property and for the defendant to be ordered to execute an assignment thereof; but, at the beginning of the trial on its merits, all claims except for an accounting and for judgment against the defendant for the amount disclosed to be due by such accounting were abandoned.

It is defendant’s contention that he and Fearon both owned, or were interested in, large tracts of land or mineral rights in the Lake Bistipeau area, in which the property covered by the -Dunn-Olsen lease was situated, and that for the purpose of developing these properties they entered into an agreement designated by the oil. fraternity as a “dry hole” agreement to drill a test well under the Dunn-Olsen lease in the hope of enhancing the value of their respective properties; that for the purpose of drilling this well Fearon and the defendant were each to put up $15,000.00 and the De-Sote Oil & Gas Company, Inc., the balance of the drilling costs; that under this agreement the well was to be drilled to the Jeter sand, which is found in this area at a depth of about 4200 feet; that accordingly Fear-on put up $10,000.00, defendant $15,000.00, plaintiff $5000.00, and DeSoto Oil & Gas Company, Inc., the balance; that the well was drilled down to the Jeter sand, and no oil or gas was found; that thereafter the drilling was continued,- and the well was completed as a producer in the Pettit sand, found at a depth of about 5235 feet.

Defendant argues that under this agreement he obligated himself to cause the well to be drilled only to a depth sufficient to test the Jeter sand, and that he as well as all other contributors would be reimbursed the amount of their contributions only in the event production was obtained at or above the Jeter sand, and that, since production was obtained only below that depth, plaintiff is not entitled even to a return of his investment.

Under the facts of this case, there is no merit in this contention, which appears to us to be merely an afterthought of defendant, for he himself, after the well was completed as a producer in the Pettit sand, in his correspondence with plaintiff repeatedly referred to the well as one in which plaintiff had an interest and of which he was part owner, and stated and reiterated that in the course of time plaintiff would get some money out of the production therefrom, and that the property would make money in the course of events.

In his reasons for judgment the trial judge applied the rule of interpretation of contracts as laid down 'by Article 1945 of our Civil Code, and stated that he was of the opinion “ * * * that, when Warnock transmitted his $5000 to Roy and stated in his accompanying letter that same was ‘to pay for a $5000 interest in the well which ■you are drilling’ and, when Roy acknowledged receipt of the letter and of the check ‘to be used for the purposes outlined in your letter’, the true mtent and interest of the parties was, not that Warnock should thereby acquire interest in the sense of title, in the well itself, but rather an interest in the financial returns and profits from the well. Under his reserved rights, Roy ■could deliver the latter, but not the former, because the contemplated well was to be drilled by DeSoto Oil & Gas Co., Inc., on a leasehold then owned by it and would therefore belong to that corporation. * * * ”

An analysis of the entire record shows that, when Warnock contributed his $5000.00, he entrusted Roy with the full management and control of this entire project. The well was to be drilled by Roy himself or through one of his companies, and he brought about the assignment to, as well as the operating agreement with, the Union Producing Company. Furthermore, in his testimony Roy admits that as a result of these transactions he has received a portion of the total consideration therefor, as well as the current monthly payments for production from the well since January, 1940, from the corporation of which he is president and principal stockholder, DeSoto Oil & Gas Company, Inc., which owned the lease on the property at the time the well was drilled. The repeated admissions of Roy in his correspondence with the plaintiff conclusively prove that Warnock had an interest in the project, and Roy must now account to Warnock for kll funds received by him as a result of the drilling of the Dunn-Olsen Well No. 1, and Warnock is entitled to his proportionate share thereof.

To determine plaintiff’s proportionate share of the revenues received by defendant, we must again examine and consider the agreement 'between Fearon and the defendant. According to Roy himself, the DeSoto Oil & Gas Company, Inc., was a party to this drilling agreement and was to pay all costs of drilling the well in excess of $30,000.00, the total cost of the well being, according to Roy, the sum of $51,955.22.

As heretofore stated, Fearon wrote to the defendant, asking whether it would be agreeable to Roy for Warnock to contribute $5000.00 in the drilling of the well. In reply Roy wrote Fearon that it would be perfectly agreeable to him to have Warnock join in drilling the well to the extent of $5000.00. In other words, Fearon contributed $10,000.00, Warnock $5000.00, defendant Roy $15,000.00, and the DeSoto Oil & Gas Company, Inc., the balance. The trial judge said in his written reasons for judgment that, under these circumstances, “We think the true intent of the parties was that each should share in whatever might be derived from the well in the way of financial returns and profits in the proportion that his contribution bears to the total cost of drilling the well”, and he rendered judgment accordingly. We fully agree with this conclusion.

Defendant contends that this finding is erroneous because the trial judge was actually reforming the contract between the parties, and no reformation was prayed for. Defendant is in error. The court was not reforming the contract, but was interpreting it to find the true intent of the parties.

Defendant also urges in this court an exception of no cause of action, based on the assumption that plaintiff in his petition has alleged the existence of a joint venture or particular partnership, as defined by Article 2835 of the Revised Civil Code, and that the parties to this joint venture owned a real right, an oil well; that proof of the existence of such partnership or joint-ventufe must be m writing, and parole evidence is not admissible to establish it.

The answer to this contention is that plaintiff’s suit was also for an accounting and for a personal judgment against the defendant for any amount that may be shown to be due him as a result of such accounting, and that all claims to be recognized as the owner of a real right were abandoned.

This court in a recent case held that a suit will not be dismissed on an exception of no cause of action directed at a petition where plaintiff’s allegations of fact set forth a cause of action as to any part of the demand. See Ingersoll Corporation v. Rogers, 217 La. 79, 46 So.2d 45, and authorities therein cited.

The defendant also urges an exception of no right of action, on the ground that the plaintiff had conveyed his interest in the Dunn-Olsen well to Fearon prior to the institution of this suit, and that he therefore had no right to bring the action. Defendant admits that he has failed to sustain the burden of proving that Warnock had disposed of his interest, but he argues that the burden should be on the plaintiff to show that he had not disposed of his interest, since he is more cognizant of the facts necessary to decide this issue, and that, since plaintiff has failed to discharge this burden, the exception should be sustained.

We do not consider that these facts were exclusively in the control of the plaintiff, and ho attempt was made by the defendant to show that the facts could not have been produced by him. We do not consider this a proper case to place the 'burden of proof on plaintiff in an exception of no right of action filed by the defendant, and on the showing made the exception is without merit.

We have before us also a plea of prescription of 10 years, under Article 3544 of the Revised Civil Code. The basis of this plea is that plaintiff’s cause of action for an accounting is a personal action which prescribes in 10 years; that the contribution of $5000.00 was made by plaintiff on July 16, 1936, and that, since more than 10 years intervened before his suit was filed on September 8, 1947, the plea should be sustained and plaintiff’s suit dismissed.

Defendant has not made it dear on what theory he contends that the period of prescription began to run on July 16, 1936. Many times after this date defendant admitted that plaintiff had an interest and that he would in course of time get some money out of the production from the well. In fact, the whole tenor of defendant’s letters was calculated to lull plaintiff into a false sense of security so that he would not ask for an accounting, since defendant reiterated that no profits had as yet been realized and that none could be expected until he had, at some future date, found a market for the gas. The first demand for an accounting was made on defendant on February 19, 1947. Certainly the obligation of defendant had not matured prior to this time, nor had he in any way repudiated it. Prescription therefore did not begin to run at the time alleged.

The defendant urges also that the plaintiff is guilty of laches because he delayed in bringing the suit until after Fearon and Fearon’s attorney had died, both of whom, defendant points out, would have been key witnesses in the case. Both of these men died several years before the action was brought, and the defendant did not refuse to recognize plaintiff’s interest until shortly before the suit was instituted. The plea of laches therefore is not well founded.

For the reasons assigned, the judgment is affirmed at appellant’s costs.


author: McCALEB, Justice.

text:
    217 La. 239
    STATE ex rel. ROMERO v. VIATOR, Mayor.
    No. 39310.
    Supreme Court of Louisiana.
    April 24, 1950.

      Mestayer & Mestayer, New Iberia, for respondents-appellants.
    A. Wilmot Dalferes, Lafayette, for relator-appellee.
   McCALEB, Justice.

Relator is the owner of a parcel of ground located in an unzoned commercial area of the City of New Iberia. On October 8, 1948, he made written application to the Mayor and Board of Trustees, in conformity with City Ordinance No. 671, for a permit to construct a one-story building on his property for use as a motion picture theatre. The application was denied, relator being advised by the city attorney on October 11, 1948, that the city council had directed the Mayor not to issue a permit; hence this suit, in which relator seeks a writ of mandamus commanding the Mayor and the Board of Trustees of the city to issue the desired permit.

In the lower court, the respondents contested the action on various grounds, the main one being that the Mayor was vested with discretionary powers with respect to the issuance of building permits. After elimination of the members of the Board of Trustees as parties defendant by agreement of counsel, the case proceeded to trial and resulted in the issuance of a writ of mandamus as prayed for by relator. The Mayor has appealed.

The principal contention of the Mayor in this Court is that the building permit ordinance of the City of New Iberia grants him discretion.to issue or withhold permits as he deems proper.

We find no merit in the point. The ordinance provides in substance that no -person shall construct, repair, etc., any building within the corporate limits of New; Iberia without first having applied for and received a building permit; that each applicant shall be required to furnish certain information in connection with his application and pay charges based upon a graduated scale according to the cost of the construction dr repair work, and that any violation of the ordinance shall be deemed a misdemeanor, punishable by fine and by imprisonment in default of payment of the fine. This' ordinance was' enacted pursuant to the authority granted by Act Ño. 234 of 1908, as amended by Act No. 237 of 1920, which empowers all municipalities exceeding 500 population to establish fire limits and to regulate the construction of buildings, etc., within said limits. Section 4 of the statute declares: “All such municipalities shall be authorized to require building permits and permits for repairs, which permits shall be granted according to uniform rules, and shall never be refused when the application setting forth the character of the building to be constructed, or the natures of the repairs, conforms to the requirements of the ordinances of the municipality passed in pursuance of this Act, * *

In view of the foregoing limitation of authority, it is clear that, aside from the fact that there is nothing in the ordinance indicating that the Mayor is given discretionary powers, the city council could not have validly provided for the exercise of discretion. Hence, upon relator’s compliance with the provisions of the ordinance, it became the ministerial duty of the Mayor to issue the permit. State ex rel. Calvary Baptist Church v. City of Alexandria, 164 La. 628, 114 So. 492, and State ex rel. Fitzmaurice v. Clay, 208 La. 443, 23 So.2d 177.

Counsel for the Mayor insist that the building permit ordinance was not enacted under authority of Act No. 237 of 1920. They conclude that this must be so because the charter of New Iberia charges the Mayor with the duty of issuing all building permits and imposes on him many obligations inconsistent “with a deprivation of discretion” in such matters.

The short answer to this contention is that the duty of the Mayor to issue permits is restricted to those permits required by city ordinances and such ordinances cannot clothe him with greater power than that authorized by the statute which enabled their enactment.

Counsel further maintain that the Mayor rightfully refused the permit because there was a petition signed by a majority of property owners in that vicinity requesting that the area be zoned. But, admittedly, there was no zoning ordinance affecting the area in question either at the date of formal application for a permit or at the time of the judgment below. Hence, the fact that zoning of the area was being contemplated is without pertinence to the case. State ex rel. Fitz-maurice v. Clay, supra.

Counsel also assert that the Mayor had authority to withhold a building permit under Act No. 117 of 1912. That act provides that various municipalities of the State shall have the right to refuse building permits to persons seeking to construct Negro houses in a white community and vice versa, unless written consent is obtained from a majority of those belonging to the opposite race inhabitating the portion of the city to be affected. It is difficult to discern the applicability of the statute to the case at bar. Obviously, the act applies to residential districts. The record shows that the area in which relator’s lot is located is a colored commercial section of the city. Apart from everything else, the contention is purely an afterthought as the Mayor attributed his refusal of the permit to the petition of the property owners, purporting to come from this area, requesting that it be zoned.

Finally, counsel say that relator’s application for the permit was improper in that the contractor named therein had not paid the annual license exacted by the city for persons engaged in that occupation. The point is not impressive; the ordinance merely requires that the building contractor be named in the application for the permit. Moreover, the permit was not denied on the ground that relator’s contractor had not obtained an occupational license in New Iberia.

The judgment is affirmed.

      . This statute has been declared partially invalid. See Harmon v. Tyler, 273 U.S. 668, 47 S.Ct. 471, 71 L.Ed. 831, reversing: 160 La. 943, 107 So. 704, on the authority of Buchanan v. Warley, 245 U.S. 60, 38 S.Ct. 16, 62 L.Ed. 149, L.R.A.1918C, 210, Ann.Cas.1918A, 1201.


text:
    217 La. 246
    CONEY v. CONEY and two other cases.
    No. 39805.
    Supreme Court of Louisiana.
    April 24, 1950.

      Mary Purser, Carroll Buck, Amite, Fred G. Benton, George Mathews, Baton Rouge, for relator.
    Ponder & Ponder, Amite, for respondent.
   McCALEB, Justice.

On January 27, 1950, a judgment was rendered and signed in the above entitled consolidated suits, awarding respondent, Walton B. Coney, an absolute divorce from relatrix, dissolving the community that existed between them and recognizing certain indebtedness due by the community to the separate estate of respondent. On the same day, relatrix moved and obtained an order for a suspensive appeal to this Court upon her furnishing bond in the sum of $7,500. On February 23d, relatrix applied here for writs of certiorari, prohibition and mandamus, alleging that the judge had erroneously effected a partition and settlement of the community by circumventing the requirements of various articles of the Civil Code; that he had unlawfully fixed the appeal bond in the sum of $7,500 when a bond for costs would have sufficed; that she was unable to furnish such a bond and that the effect of the fixing of the excessive bond would deprive her of her right of appeal.

Upon the showing made by relatrix and believing that, if summary relief were denied, she would suffer irreparable injury, we issued a writ of certiorari, ordering the judge to transmit the record of the proceeding below and that he and the respondent husband show cause on March 20, 1950, why the relief prayed for in the petition of relatrix should not be granted.

In conformity with this order the record was sent here and on the appointed day the respondent judge filed a return to the rule, asserting, among other things, that he was surprised that relatrix was complaining that the $7,500 appeal bond was excessive inasmuch as it was at the suggestion of one of her counsel (which was concurred in by counsel for the respondent husband) that he fixed the bond at that amount.

The statement of the judge is, strangely enough, not controverted by counsel for relatrix in their brief which was filed subsequent to the submission of the case.

Had we been aware that the amount of the bond was set in accordance with the suggestion of counsel for relatrix or that counsel had not complained to the judge that the bond was excessive, we would not have granted a remedial writ as this Court will not generally exercise its supervisory jurisdiction when there is an adequate remedy by appeal. And even in exceptional cases, invocation of these supervisory powers cannot be countenanced when the action of the inferior court is not shown to be arbitrary and capricious. In view of the facts now before us, it is apparent that the writ must be recalled.

However, we do not feel that the right of relatrix to perfect a suspensive appeal (upon furnishing the bond suggested by her counsel and fixed by the judge) should be prejudiced as a consequence of the issuance of the writ herein which effectively stayed all proceedings until final judgment of this Court. .

Since the order of appeal was obtained on January 27, 1950, relatrix had thirty days, or until February 28, 1950, within which to perfect her appeal by filing bond. See Schneider v. Manion, 217 La. 118, 46 So.2d 58. She applied to this Court for writs on February 23d, or six days before the dead-line date for filing the bond.

In fairness, we believe that relatrix should be placed in the same position as she would have been but for her application to this Court. Accordingly, she will be allowed six more days from the finality of this decree for the perfection of her sus-pensive appeal by filing the required bo.nd. And, since the return day expired during the interval when we were considering this writ, it is necessary that we extend the time for the lodging of the transcript in this Court.

The rule to show cause is discharged and the writ heretofore issued is recalled at the cost of relatrix. The right is reserved to relatrix to perfect a suspensive appeal from the judgment complained of by filing a bond in the amount fixed by the district judge within six days from the finality of this decree. The return day of the appeal is extended for a period of thirty days from the finality of this judgment.

PONDER, J., recused.


text:
    217 La. 251
    ANTOINE v. CONSOLIDATED-VULTEE AIRCRAFT CORPORATION. In re ANTOINE.
    No. 38939.
    Supreme Court of Louisiana.
    April 24, 1950.

      M. E. Culligan, Jr.,-New Orleans, for relator.
    St. Clair Adams & Son, New Orleans, for intervenor.
   HAWTHORNE, Justice.

This cause is before us under our supervisory jurisdiction, and the sole question of law presented is whether the provisions of Article 7, Section 24, of the Constitution are applicable to the Court of Appeal for the Parish of Orleans.

Article 7, Section 24, of the Constitution of 1921 provides:

“The sessions of said Courts of Appeal shall continue in each circuit for a period of nine months, beginning not later than the first Monday of October in each year, and ending not sooner than the thirtieth day of June in the following year; and said courts shall convene at the several places named as the public business may require, and shall remain in session at such places until the cases before them are heard, or continued; reserving to each ,of said courts the right to finally dispose of any or all causes at its domicile. Appeals shall be returnable to the respective domiciles of said courts, or to such other places as each may by rule provide, in the manner and within the time fixed by law. Notice of all judgments shall be given to the counsel of record; and the court shall provide by rule for the giving of such notices. No delays shall run until such notice shall have been given.”

On January 21, 1948, the Court of Appeal for the Parish of Orleans rendered a judgment adverse to relator herein. On February 5, 1948, the fifteenth calendar day after the judgment of the Court of Appeal was rendered, relator attempted to file with the clerk of that court an application for a rehearing which the clerk refused to accept and file for the reason that it was not timely filed under the provisions of Act 16 of 1910. That act, insofar as it may be pertinent, provides:

“Judgments rendered in the Courts of Appeal of the State shall become final and executory on the fifteenth calendar day after the rendition, * * * unless the last day shall fall on a legal holiday, when the.delay shall be extended to the first day thereafter not a legal holiday. * * * ”

Relator contends that no notice of judgment was given, and that for this reason his application was timely filed under the provisions of Article 7, Section 24, that notice of all judgments shall be given to counsel of record, and that no delay shall run until such notice shall have been given; or, in other words, he argues that, the judgment rendered adversely to him had not become final.

Sections 19 through 30 of Article 7 of the Constitution are under the general heading “Courts of Appeal”. Some of these sections by their language are applicable to all the Courts of Appeal of this state, while others apply only to the Court of Appeal of the First Circuit of the Court of Appeál of the Second Circuit or both. For an interpretation of Section 24, quoted hereinabove, upon which relator relies, we must read the two sections immediately preceding it. Section 22 provides that the domicile of the Court of Appeal, First Circuit, shall be in the City of Baton Rouge, and, further, that the court shall sit at least twice a year at New Iberia, Opelousas, Lake Charles, etc. Section 23 fixes the domicile of the Court of Appeal, Second Circuit, in the City of Shreveport, and provides' that this court shall sit at least twice a year at Alexandria, Monroe, etc. Thus Section 22 is concerned with the Court of Appeal, First Circuit, and Section 23 with the Court of Appeal, Second Circuit.

The first sentence in Section 24 provides that the session of “said Cowrts of Appeal” shall continue in each- circuit for a' period of nine months, etc. The words “said Courts of Appeal” found therein could refer only to the Courts of Appeal for the First and Second Circuits named specifically in the two preceding sections. This interpretation is further borne out by the fact that this section also provides that “said courts shall convene at the several places named as the public business may require”. The words “the several places named” have reference to the cities mentioned in Sections 22 and 23, and thus Section 24 can apply only to the Courts of Appeal for the First and Second Circuits, as the Court of Appeal for the Parish of Orleans is not named in either of the sections, and, further,' as that court sits and holds its sessions only in the City of New Orleans, as provided in Section 76 of Article 7.

For these reasons we conclude that Section 24 has no application to the Court of Appeal for the Parish of Orleans, and deals exclusively with the procedure and operation of the Courts of Appeal for the First and Second Circuits; and the Court of Appeal for the Parish of Orleans correctly so held in 1934 in the case of Bell v. Employers’ Liability Assur. Corporation, Ltd., 153 So. 334.

Section 24 is not applicable to the Court of Appeal for the Parish of Orleans, and we know of no other law which requires that court to give notice of its judgments to the attorneys of record, nor does relator call our attention to any. Therefore the •judgment which was rendered in the instant case adversely to relator became final on the fifteenth calendar day under the provisions of Act 16 of 1910, and the refusal of the Court of Appeal to give consideration to relator’s application for a rehearing and to- order the clerk to receive and file it was correct. See per curiam of that court in the instant case, filed March 4, 1948, reported 34 So.2d 361, 362.

For the reasons assigned, the per curiam decision of the Court of Appeal is affirmed at relator’s costs.

MOISE. J., absent.