author: JANVIER, Judge. REGAN, Judge

text:
    NICHOLS v. LOUISIANA COCA-COLA BOTTLING CO., Ltd.
    No. 19380.
    Court of Appeal of. Louisiana. Orleans.
    May 29, 1950.

      Frank T. Doyle and Nicholas Masters, New Orleans, for appellant.
    James G. Schillin, New Orleans, for ap-pellee.
   JANVIER, Judge.

Plaintiff, Mrs. Bertha L. Nichols, claiming that she suffered illness as a result of consuming substantially the entire contents of a bottle of coca-cola which contained a foreign substance, brought this suit against the Louisiana. Coca-Cola Bottling Company, Ltd. for the recovery of damages in the sum of $2,000.00.

Defendant answered substantially denying the allegations of the petition and pleaded as a special defense that the Louisiana Coca-Cola Bottling Company’s plant is equipped with the most modern and scientific machinery for the purpose of bottling its product, therefore, defendant maintains that it is a physical impossibility for any foreign substance to find its way into the coca-cola or ultimately into the bottles and, if the plaintiff was rendered ill as alleged, then defendant avers that said foreign substance was not in the bottle of coca-cola when it left defendant’s plant and when it was delivered to the dealer, and that if any foreign substance was present in the bottle, this occurred only after the bottle had passed into the possession of third parties, and was, therefore, beyond the control of the defendant.

The court, a qua, rendered a judgment in favor of plaintiff in the amount of $250.-00; hence this appeal by defendant.

The record reveals that plaintiff is employed in the lace department of Marks Isaaes Company, a store located in the City of New Orleans. In the morning of April 23, 1948, plaintiff, and Miss Marian Ruiz, an employee of the glove department, visited “the canteen”, which is located on the fourth floor of Marks Isaacs, .seated themselves at a table and each purchased a bottle of coca-cola. Plaintiff had almost consumed the contents of her bottle when her companion, Miss Ruiz, observed a foreign substance in the bottle, which, upon closer examination, had the appearance of a roach. In her testimony concerning this incident, Miss Ruiz stated:

“ ‘Bertha, you have something at the bottom of the coke bottle, it looks like it is corroded.’ She said — all stuck together, in other words — she said, ‘Well,’ she looked at it, and wiped the bottom off, and noticed it was at the bottom, it was in the bottom, and she had some small little pieces on her mouth; so I looked at it; and the proprietor looked at it; and everybody in the canteen; and he said it was a roach and like ants all stuck around the bottle. So— I mean that’s what happened — and I had to go back downstairs; and she went to the ladies dressing room, because she was feeling sick; and I didn’t drink hardly any more coke after that, because I was afraid I might get a roach, too.”

Plaintiff’s response to Miss Ruiz’ observation of this foreign substance contained in the bottle of coca-cola which she was drinking is revealed by the following testimony of plaintiff:

“Well, we usually have a 15 minute rest period in the morning at Marks Isaacs, and there is a canteen on the fourth floor for the employees; we usually go up there and get a coke or sandwich or something; I was sitting down there drinking my coke; in fact, I had drank the whole bottle when Miss Ruiz looked at me and wanted to know what was on the bottom of the bottle; I told her I didn’t know; I passed my hand, and she said, ‘Oh, My God, it’s on the inside.’ - I looked on the inside; you could see where it looked like one of these great big flying roaches had been lying on the bottom of the bottle, and all the matter was around it; and after I had drank it, it kind of made me upset. I couldn’t go home, because I had to stay down in the department by myself, in the lace department.”

After consuming the coca-cola plaintiff experienced symptoms of impending nausea which suggested visiting the lavatory where she regurgitated and suffered the usual ill effects therefrom. Plaintiff further testified that Miss Ruiz did not accompany her to the lavatory because the rest period of fifteen minutes afforded to employees, of Marks Isaacs had expired and it was imperative that Miss Ruiz return to her department. Plaintiff further testified that the illness which resulted from the consumption of the coca-cola persisted for a period of approximately two weeks, during four or five days of which she experienced nausea and regurgitation; that she did not eat or drink anything during this time because of the persistence of the nausea; that she did not miss any time from work due to this illness nor did she, in order to obtain relief, consult a physician, hut used medication of her own selection.

Defendant, in addition to pleading the special defense set forth hereinabove, maintains in its brief that:

“It is evident from plaintiff’s petition that there is no effort made to charge defendant with specific acts of negligence. The right to recover is apparently -based on the contention that the doctrine of res ipsa loquitur is applicable.

******

“An examination of the jurisprudence * * * will show that plaintiff must by clear and convincing testimony, satisfactorily prove three facts in order to invoke the doctrine of res ipsa loquitur. These may be enumerated as follows: 1) It must be shown that the bottle contained a foreign ingredient which caused the injury; 2) there must be an actual injury; and 3) it must be shown that the bottle had not been improperly handled or tampered with after it left the bottler’s possession.

“Needless to say, that plaintiff failing to comply with any one of these requirements does not make out a ‘prima facie’ case of liability against the bottler and the doctrine is not applicable. * * *

“In the instant case, there was some effort made to show that there was a foreign ingredient in the bottle and that she was rendered ill. However, the record will bear out the fact that there was not. a shred of evidence introduced which could -be construed as tending to prove the third essential requirement, that is, that the bottle had not been -improperly handled or tampered with after it left the bottler’s possession.”

In our opinion defendant is correct in its contention and the record confirms the fact that there was not a shred of evidence introduced which could be construed as either proving or tending to prove the essential requirement, that the bottle had not been improperly handled or tampered with after it left the bottler’s possession.

. In order to comply with the requirement of, at least, constructive custody, so as to invoke the doctrine of res ipsa loquitur, the plaintiff has a fixed obligation of proving such custody by a clear showing that, from the time of delivery until the beverage reaches the possession of the customer, that there has been no mishandling or tampering with the bottle o-f coca-cola in question, otherwise one of the essential elements of the doctrine is not present and it, therefore, cannot be invoked.

Our colleagues from the Second Circuit, in the case of Gunter v. Alexandria Coca-Cola Bottling Company, Ltd., La.App., 197 So. 159, 162, said: “Appellants invoke the res ipsa loquitur doctrine. It has been held to have proper application ih a case of this character. The proof adduced by plaintiffs did not make out a prima facie case for them, therefore, no comfort is afforded them because of the relevancy of the doctrine to cases of this kind.”

The Courts of this State have consistently and without deviation held the manufacturer and bottler of beverages to an exceedingly high degree of care; and yet, by the same token, the courts have always borne in mind that the manufacturer and bottler of beverages, by virtue of the 'circumstances under which the alleged illness or 'injury occurs, can have at his disposal no adequate means of disproving by eyewitnesses that the alleged incident actually transpired. Therefore, in a case in which the doctrine of res ipsa loquitur has been invoked, by specifically pleading the said doctrine or by setting forth fact's which, by their very nature, warrant the application of the said doctrine, safeguards have been erected and, in order to establish his case, the plaintiff must allege and prove three separate and distinct factual requisites, to-wit: 1) that the beverage contained a foreign ingredient which caused the injury; 2) there must 'be an actual injury; and 3) that the bottle had not been improperly handled or tampered with after it left the bottler’s possession.

Plaintiff made no effort to show delivery of the coca-cola by defendant to the proprietor of the canteen in Marks Isaacs, nor did she trace the bottle from the time of delivery to the canteen until such time as it was consumed by her.

It is true that in one case, Freeman v. Louisiana Coca-Cola Bottling Company, La.App., 179 So. 621, 622, this Court said: “ * * * that it is incumbent upon the defendant to prove, by a preponderance of evidence, that the foreign substance did not enter its product as a result of its negligence.”

But we said that only after we had reached the conclusion that the doctrine of res ipsa loquitur applied to that case. And we could not have reached that conclusion without first finding that, among other things, the plaintiff had shown that the bottle had not been tampered with between the time it left defendant’s establishment and the time it was opened for him. It is true that after those things have been shown by the plaintiff, then the doctrine of res ipsa loquitur applies, and because of its application the defendant must prove that the foreign substance found in the bottle did not enter as the result of the negligence of the defendant.

In view, therefore, of the fact that the record does not contain one scintilla of evidence which can be construed as tending to prove the essential requirement that the bottle had not been improperly handled or tampered with after it left the bottler’s possession, we are of the opinion that plaintiff has failed to establish a prima facie case of negligence against the defendant therein.

For the reasons assigned the judgment appealed from is annulled, avoided and reversed and it is now ordered that there be judgment herein in favor of the defendant, Louisiana Coca-Cola Bottling Company, dismissing plaintiff’s suit at her cost.

Reversed.

REGAN, Judge

(dissenting).

The majority opinion holds that the doctrine of res ipsa loquitur is applicable to-the instant case and, therefore, to entitle plaintiff to recover he must allege and prove three separate and distinct factual requisites, to-wit: 1) that the beverage-contained a foreign ingredient which caused the injury; 2) there must be an-actual injury; and 3) that the bottle had not been improperly handled or tampered with after it left the bottler’s possession; and that in the instant case the third requirement was not proved by plaintiff,, which is fatal to his cause, and therefore, plaintiff has failed to establish a prima facie case of negligence against the defendant herein.

I find myself unable to share this view with my colleagues. In my opinion if the-plaintiff successfully proves, as she did in this case, (1) that the beverage contained a foreign substance; (2) that the plaintiff partopk of the contents of the bottle and (3) that injury resulted, the defendant then bears the burden of rebutting the prima facie case of negligence thus established against it by plaintiff in order to escape liability. Doyle v. Fuerst & Kraemer, Ltd. 129 La. 838, 56 So. 906, 40 L.R.A.,N.S., 480, Ann.Cas.1913B, 1110; Freeman v. Louisiana Coca-Cola Bottling Company, La.App., 179 So. 621; Dye v. American Beverage Company, La.App., 194 So. 438; Mayerhefer v. Louisiana Coca-Cola Bottling Co. et al., La.App., 45 So.2d 442; 4 Louisiana Law Review 70.

In Dye v. American Beverage Company, supra, a case remarkably analagous to the instant case, both by virtue of the facts therein contained and the omission in the pleadings of any special reference to the doctrine of res ipsa loquitur, this court, through Judge McCaleb, observed that:

“It- will be seen from the 'foregoing that the question to be decided is solely one of fact, i. e.: Did the bottle from which plaintiff drank contain foreign matter and, if it did, was plaintiff injured as a result thereof? We have many times said (see Hill v. Louisiana Coca-Cola Bottling Co., La.App., 170 So. 45, Russo v. Louisiana Coca-Cola Bottling Co., La.App., 161 So. 909, and other cases) that, where the plaintiff shows by a preponderance of evidence that the beverage contained a foreign substance, that he consumed it and suffered injuries as a result, the burden of proof shifts to the defendant to excuse itself from liability by proving to the satisfaction of the court that the foreign matter did not enter the beverage during the bottling or manufacturing process. In the case at bar, we believe that plaintiff has made out a prima facie case and that she has proved, by a fair preponderance of evidence, not only that the bottle of Royal Crown Cola from which she drank contained a foreign substance but that she was rendered ill as a direct result of its consumption. As a consequence, it was incumbent upon the defendants to show that the matter found in the bottle did not enter its product during the manufacturing process. The evidence submitted by them, to the effect that the beverage company operates a modern and sanitary plant and that it is quite improbable that the foreign matter could have entered the product during the process of manufacture, is not, of itself, sufficient to offset the positive testimony submitted by the plaintiff and her witnesses which, after careful scrutiny, we find to be wor.thy of belief and to authorize the conclusion that she was rendered ill as a result of the negligence of the beverage company. See Ogden v. Rosedale Inn, La. App., 189 So. 162.” [194 So. 440]

I am further of the opinion that the requisite enumerated as No. 3 in the majority opinion is, by its very nature, an allegation to be plead and proven by defendant in rebuttal of plaintiff’s prima facie case. If, on the other hand, plaintiff alleges and proves this fact (which .proof has been offered by plaintiffs in many Louisiana cases) the evidence is cumulative and, of course, in the final analysis, strengthens plaintiff’s case. In the instant case defendant did specially plead that the foreign substance was not in the bottle of coca-cola when it left defendant’s plant and when it was delivered to the dealer, and that if any foreign substance was present in the bottle, this occurred only after the bottle had passed into the possession of third parties, and was, therefore, beyond the control of the defendant.

The record is totally devoid of any positive evidence offered by defendant to substantiate this special plea. It occurs to me that if defendant was in possession of sufficient facts to substantiate this special plea, it would have, at least, endeavored to introduce them into the record. The record is barren of any effort on the part of defendant to even interrogate the proprietor of the canteen in Marks Isaacs along these lines. In Dye v. American Beverage Company, supra, we said: “The only evidence produced by the defendants, which is worthy of note, is of a negative character. Mr. Bartels, President of the American Beverage Company, testified at length concerning the manufacture of Royal Crown Cola. He stated that the plant is equipped with modern machinery and that the sanitary methods employed in bottling the beverage are such that there is only a slight possibility that foreign matter could enter it during the process of manufacture.”

In Meyerhefer v. Louisiana Coca-Cola Bottling Company, supra, we said: — “The evidence submitted by defendants is to the effect that the defendant Bottling Company operates a most modern scientific and sanitary plant and that it is quite impossible that a foreign substance could have entered the product during the process of manufacture, but, the same evidence also revealed that after the bottles are filled defendants have employees to carefully examine each bottle through reflected light to ascertain if any deleterious substance is present therein. If it is impossible for any foreign substance to enter the bottle or to remain there while the bottle is processed through the washing and filling plant, it occurs to us that it would be a vain and unnecessary gesture to have employees to diligently observe the filled bottles passing through reflected light, patiently waiting for an impossible event to occur. [45 So. 2d 445]

In passing I consider it worthy of note that this case affords an excellent illustration of the difficulty experienced in any attempt to distinguish a case of res ipsa loquitur from other instances of proof by inference.

I am of the opinion that the plaintiff has established a prima facie case of negligence which the defendant has failed to rebut.

I respectfully dissent.


source: Caselaw Access Project

author: REGAN, Judge.

license: Public Domain

text:
    BILBE SHEET METAL WORKS v. ADD A. HEYL, Inc.
    No. 19452.
    Court of Appeal of Louisiana. Orleans.
    May 29, 1950.
    Bernard A. Dempsey, New Orleans, for appellant.
    Hartel & Sporl, John J. Kenny, New Orleans, for appellee.
   REGAN, Judge.

Plaintiff, Bilbe Sheet Metal Works, a partnership composed of Harry F. and. Charles Bilbe, instituted this suit against Add A. Heyl, Inc., to recover the sum of $139.50 for repairs made to certain properties following the hurricane of September 19, 1947, upon the instructions of defendant.

Defendant filed exceptions of no right or cause of action and, in conformity with the rules of the First City Court, simultaneously filed its answer which is, in substance, a general denial.

The exceptions were referred to the merits and, after a trial thereon, there was judgment in favor of plaintiff as prayed for; hence this appeal by defendant.

The record reveals that the plaintiff is engaged principally in the trade of repairing roofs, and defendant is an insurance agency writing “insurance in all of its branches”.

We recall very vividly the hurricane of September 19, 1947 and we have, in the case of Ebert v. Pacific National Fire Insurance Company, La.App., 40 So.2d 40, taken judicial notice thereof.

Several days after this hurricane defendant, through its Mr. Heyl, accompanied by C. J. Oltman, a contractor, called at plaintiff’s business establishment located in 1137 Annunciation Street .and, as the Messrs. Bilbe .testified, entered into an oral agreement with plaintiff, to repair certain roofs to be designated by defendant, which had been damaged by virtue of the windstorm. r It was further agreed that defendant' would telephone to plaintiff the names and addresses of individuals who complained of roof damage and, in turn, plaintiff would make the necessary repairs; provided that -if plaintiff’s examination of the roof disclosed that the damages were “extensive and costly”, an estimate should be made by plaintiff and submitted to defendant before proceeding with the repairs.

The evidence, while vague, also indicates that it was understood that Oltman, who accompanied Heyl to plaintiff’s business establishment, was to repair the interior damage and plaintiff, as we have stated, was to handle damages occasioned to the roof.

Heyl vehemently contends and has so testified that the nature of defendant’s business is to “write insurance in all of its •branches” and that defendant does not adjust insurance claims and that he did not, on behalf of defendant, guarantee to pay plaintiff for any work it did for the assured on any policy which had 'been written through defendant’s office.

The record, while vague and embellished with disputations ad infinitum, reveals that either Heyl or an employee in defendant’s office did instruct plaintiff to visit 2127 N. Rampart Street, 1000-02 Elysian Fields Avenue, 1008-10 Elysian Fields Avenue and 5524 Hawthorne Street, to inspect windstorm damage and make such repairs as plaintiff, in.its discretion, deemed necessary and expedient. Plaintiff completed the repairs which, in its opinion, were not extensive nor costly, and billed defendant in the respective amounts of $28.50, $43.00, $31.50 and $36.50, or a total of $139.50. In our opinion defendant, did not, at any time, inform plaintiff that he was ordering the roof repair work on behalf of or for the account of anyone else, nor did defendant request plaintiff to bill anyone else for the work.

Mr. Oltman, the only other witness present when this agreement was confected could not be located by the plaintiff and defendant obviously made no effort to produce him as a witness in the trial of the case in the court, a qua.

In our opinion, this is a case which involves the application of the well known doctrine that the findings of the trial court will not be disturbed or reversed where only questions of fact are involved unless that finding is obviously erroneous, consequently, and

For the reasons assigned the judgment appealed from is affirmed.

Affirmed.


author: McBRIDE, Judge.

text:
    BOUCHER v. LOUISIANA COCA-COLA BOTTLING CO., Limited.
    No. 19474.
    Court of Appeal of Louisiana. Orleans.
    May 29, 1950.
    Weiss & Weiss and Harold Marx, Jr., New Orleans, for plaintiff and appellee..
    Frank T. Doyle and Nicholas Masters, New Orleans, for defendant and appellant.
   McBRIDE, Judge.

Marcel J. Boucher, Jr., instituted this suit against Louisiana Coca-Cola Bottling Company, Ltd., to recover damages in the sum of $3,295, for injuries allegedly sustained as a result of the exploding of a bottle of Coca-Cola manufactured by the defendant. From a judgment in favor of plaintiff for $2,000, defendant has prosecuted this appeal.

Plaintiff’s case, as was brought out by his testimony and that of his witness, Rosario D’Amico, is summarized as follows: on July 30, 1948, Boucher was working as a bartender at 1101 North Claiborne Avenue. Just prior to closing time, between 1:30 and 2:00 o’clock, a. m., he was engaged in loading a bin in the electric beverage box with bottles of Coca-Cola from four full cases. He first removed all of the cold “Coke” from the bin, and then started to place the bottles from the top case into the bottom of the bin; he had placed six bottles in the bin, when, while putting in another bottle, one of the six bottles exploded, cutting the knuckle of the third finger of his right hand. He wrapped the cut with a bar towel and made an effort to continue the work, but at D’Amico’s insistence he went home, leaving D’Amico to finish loading the box and close the barroom.. At home, plaintiff was urged by his relatives to go to the hospital for attention.

Boucher testified that the cases of Coke in question had been delivered to the barroom about three days before the occurrence, and had been placed in the storeroom by an employee of defendant, and that until he brought the bottles from the storeroom to the bar to load them into the beverage box, they had not been touched by any one, and he denied having mishandled the bottles of Coca-Cola.

Plaintiff invokes the doctrine of res ipsa loquitur, the petition containing the specific allegation that he does not know what caused the bottle to explode, and that defendant is in a better position to explain the cause of the explosion than he is. There is no question that the doctrine applies in this case, for when plaintiff proved that the bottle was not mishandled after it left the possession of defendant, plaintiff made out a prima.facie case of negligence against defendant, as it must be assumed that the bottle would not have exploded unless there was some defect in the bottle or its contents, or both. Ortego v. Nehi Bottling Works, 199 La. 599, 6 So.2d 677; Piacun v. La. Coca-Cola Bottling Co., La. App., 33 So.2d 421; Lanza v. DeRidder Coca-Cola Bottling Co., La.App., 3 So.2d 217; Auzenne v. Gulf Public Service Co., La.App., 181 So. 54.

The defendant contends that in all probability the accident was proximately the result of rough handling of the bottles by Boucher. Evidence was produced that defendant’s plant is modern and equipped with the highest standard of appliances and machinery. Defendant’s production superintendent testified that the gas content of the finished product is between 39 to 42 pounds per square inch, and that at a temperature of 100 degrees Farenheit the pressure would not be more than 85 to 90 pounds per square inch. He explained that the machinery is equipped with safety valves which release if the pressure in the gas and water mixing tank exceeds 50 pounds per square inch, and that even when water and gas enters the bottle at 50 pounds pressure, the liquid foams out of the bottle. Added to these safeguards, defendant spot checks bottles from each machine every hour to determine the gas content, and the maximum pressure found is 42 pounds per square inch.

Defendant purchases its bottles from one of the largest and leading bottle manufacturers in the United States, and the quality of glass used in the manufacture of the bottles is the maximum according to the requirements of the United States Bureau of Standards.

Counsel stipulated that “bottle bursting” tests on Coca-Cola bottles selected at random, if performed in the court room: “ * * * would show that internal pressure ranging from six hundred pounds per square inch to one thousand pounds per square inch would be required to break the bottle.”

However, the production superintendent could give no reason or explanation why the bottle exploded. Upon interrogation by the trial judge, he testified:

“Q. But is there any way in which it can explode from internal pressure unless the glass itself is weaker than it is expected to be? A. That is something I can’t answer.

“Q. Have you seen any explode? A. I have seen many explode but I don’t have the answer.

“Q. You have seen them explode without dropping them on pavement or concrete? A. Why they explode, we don’t know. I can’t answer. I don’t attempt to qualify as an expert on physics.”

The situation in the instant case is identical with that which engaged the Supreme Court in Ortego v. Nehi Bottling Works, supra, wherein the Court made the following observations: “It is impossible for the court to say with any degree of certainty exactly what caused the explosion of the bottle in this case. After reviewing all of the evidence before us, the only reasonable conclusion that we can arrive at is that the proximate cause of the explosion which resulted in injury to the re-lators was some fault on the part of the agents or employees of the respondents in the preparation or handling of the bottled product.” [199 La. 599, 6 So.2d 680]

We are not unmindful that the defendant has no means of disproving by eyewitnesses that the occurrence actually took place, and under the circumstances plaintiff’s evidence should be most carefully scrutinized and analyzed, especially when defendant has shown that because of the extreme care employed in the course of manufacture and in the process of bottling, it is improbable for a bottle to explode. See Russo v. La. Coca-Cola Bottling Co., La.App., 161 So. 909.

The apparent sincerity of Boucher and his witness, D’Amico, makes impression upon us, as it undoubtedly impressed the trial court, and after carefully sifting their testimony, which, of course, is unre-futed, we are led to the conclusion that the accident occurred in the manner related by them.

Defendant’s counsel, relying upon Piacun v. La. Coca-Cola Bottling Co., supra, wherein this court .denied recovery to a plaintiff because we did not believe his statements nor those of his witnesses regarding the occurrence, argue that Boucher’s testimony, like that in the cited case, is highly inconsistent and exaggerated.

The contentions of counsel in that regard are tenuous, and no good purpose would be served by burdening this opinion with a discussion of them.

Counsel further argue that the failure of plaintiff to produce as his witnesses three persons who were in the barroom at the time of the accident shrouds his claims with suspicion. We do not think so. Boucher testified that the persons in question were transient customers whom he does not know, and that he had never seen them previously, nor has he seen them since.

Plaintiff, in answer to the appeal, prays that the judgment be increased to $3,295, the amount prayed for in the petition.

The cut on the knuckle of plaintiff’s finger, and the complications which resulted therefrom, required surgery on two separate occasions. The wound was sutured at the French Hospital on the night of the accident, and thereafter plaintiff was treated by Dr. Mancuso, who described the nature of the wound and the course of treatment, which necessitated Boucher’s visiting the doctor’s office on numerous occasions for a period of three months.

Dr. Mancuso testified that because of suspected osteomyelitis, which suspicion resulted from a severe and persistent infection (“tumor synovitis”), he reopened the wound under anesthesia, and that it finally healed completely, leaving a slight permanent disability of the third finger, which prevents plaintiff from raising the finger, because of the scar tissue, and that the residual scar is noticeable and ugly. Plaintiff is permanently disabled from completely bending the finger.

The wage earned by Boucher at the time of the injury was $50 per week, and the time lost from his work was eleven weeks. His physician’s bill, cost of medicines, X-rays, and anesthetic approximated $195. The judgment appealed from awarded him $2,000, and taking into consideration the nature of the injury, the extended term of treatment, the scar, and the permanent disability, together with the financial loss sustained by plaintiff, we believe that the judgment is correct and does substantial justice, and we see no reason for disturbing it in any way.

On behalf of defendant, we were cited to several cases involving physical injuries caused by exploding beverage bottles, in each of which the award was less than the amount which the present plaintiff recovered. In none of the cited cases, however, were the injuries as severe as those suffered by plaintiff in the instant case, nor was it shown that the financial loss was as great.

The judgment of the lower court is affirmed.

Affirmed.


author: PONDER, Justice.

text:
    217 La. 456
    TRAHAN v. GLADNEY et al.
    No. 39151.
    Supreme Court of Louisiana.
    April 24, 1950.
    Rehearing Denied May 29, 1950.
    Cecil N. Bankston, Fred G. Benton, Joseph A. Gladney, Baton Rouge, for appellant.
    Louis S. Prejean, B. B. Croom, Baton Rouge, for plaintiff and appellee.
   PONDER, Justice.

The plaintiff, administrator brought suit against the defendants for an accounting of funds received and disbursed by them belonging to the successions of Pearl Riley Hogan, Edward Riley, and Emmett C. Riley. The defendants filed purported accounts of the funds received and disbursed by them. An accountant appointed by the court, by consent of the parties, prepared and filed an account of the funds received and disbursements made by the defendants. Mrs. Gladney reconvened and asked for judgment in the sum of $4,900.00 and interest alleging that she owned two notes that were due by the successions. On trial of the case, the lower court gave judgment in favor of the plaintiff, administrator, against the ’defendant Frank W. Gladney in the sum of $2,025.46 and judgment against the defendant Mrs. Gladney in the sum of $6,-342.10 with legal interest from the date of the judgment until paid. Mrs. Gladney’s reeonventional demand was dismissed without prejudice. Frank W. Gladney did not appeal from the judgment. Mrs. Gladney has appealed.

The appellant contends that she acquired the notes, recited in her reeonventional demand, from third persons in due course and that she should be allowed to compensate this debt against the judgment rendered against her.

It appears that Gladney opened the succession of Pearl Riley Hogan alleging that the succession was free from debt except in the amount of $7,400.00 represented by notes secured by mortgages on the property of the succession. It was alleged that the total value of the estate as shown by the inventory was $18,950.00. Edward Riley and Emmett C. Riley were sent into possession of the estate by judgment of court as the sole heirs of the deceased. Emmett C. Riley represented by Gladney was sent into possession of the estate of Edward Riley upon his death. Emmett Riley died sometime during the month of May, 1942 and the plaintiff applied and was appointed administrator of his succession. The administrator brought this suit for an accounting alleging that the funds and property belonging to these successions have been mishandled by the defendants. It appears that the defendants have handled the affairs of these successions and continued to handle them after the heirs had been placed in possession of the estates. They have received the funds due the successions and heirs and disbursed them for the successions and heirs.

The trial judge rejected the reconven-tional demand on the ground that it could not be allowed in a suit for an accounting. The trial judge was not convinced by the evidence that Mrs. Gladney had proved she was the bona fide holder of the notes or had advanced the money to take up these notes. He states that the accounting was confusing and difficult to understand for the reason that the entries had not been supported by receipts. He states that in his long experience as a judge that he has never known or heard of such a situation as exists in this case. We have examined the record and find it to be confusing and indefinite. It is impossible for us to state, after a careful review of the record, with any degree of certainty that the appellant is the bona fide holder and owner of these notes. Since the ownership of the notes has not been established it is not necessary for us to inquire into whether they could be urged in a reconventional demand or allowed in compensation of the debt.

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


author: MOISE, Justice.

text:
    217 La. 459
    HUNTER CO., Inc. v. VAUGHN et al.
    No. 39107.
    Supreme Court of Louisiana.
    April 24, 1950.
    Rehearing Denied May 29, 1950.
    Wilkinson, Lewis & Wilkinson, Shreveport, for plaintiff-appellant.
    Smitherman, Smitherman & Purcell and Blanchard, Goldstein, Walker & O’Quin, Shreveport, for defendants-appellees.
   MOISE, Justice.

This is a suit instituted by plaintiff to cancel an oil, gas and mineral lease covering an 80 acre tract of land in the Benton Gas Field of Bossier Parish, La., predicated on the alleged failure of the defendants to drill a well on the leased premises within the primary term of the lease. The case was tried on an agreed statement of facts and from a judgment rejecting its demands, the plaintiff has appealed.

On July 9, 1947, plaintiff filed the present suit, alleging in paragraph 3 thereof that “* * * the said lease was granted for a term of 3 years from December IS, 1943 * * * and as long thereafter as oil, gas o'r other minerals is produced from said land with which said land is pooled thereunder. Petitioner shows that no well was drilled on this property during the primary term of said lease nor was there any oil, gas or other mineral produced from land covering (ed) by said lease or land with which said land was pooled during the primary term thereof. Accordingly, petitioner shows that said lease has lapsed and is no longer in force or effect.” Plaintiff prays for the cancellation of the lease, for attorneys’ fees and for reservation of its right to sue for damages which it may have sustained on account of defendants’ refusal to release the aforesaid lease.

The defendants answered setting forth that they were prevented from drilling on or producing from the property covered by the lease in question because of force ma-jeure; that the land covered by the lease sought to be cancelled had been pooled with other land on April 23, 1946, which was during the primary term thereof, by Order 114 issued by the Commissioner of Conservation ; that because of said order, there was no violation of the agreement to drill a well on the leased premises during the primary term of the lease because said order prohibited them from drilling a well on the unit into which the leased premises had been incorporated; and, therefore, that the lease was not subject to cancellation but continued in force and effect by virtue of the continuous production from this unit from wells located on property other than that covered by the lease in question; and that tender had been made to plaintiff of certain payments in compliance with the provisions of the lease, and upon plaintiff’s refusal to accept these amounts they were deposited to its credit.

The order was admitted by all parties to be proper.

An examination of the provisions of the lease reveals that the "force majeiure” clause plainly covers an order issued by the Commissioner of Conservation and provides under paragraph 12(b) that if lessee is prevented from drilling or producing any well by reason of force majeure, lessee would be relieved of all obligations to drill on the leased premises and the lease would not be subject to cancellation in such event. Paragraph 12(c) also provides that if after the expiration of the primary term ánd while the lease is in force, lessee could not maintain the same in effect because prevented by force majeure, then the lease would nevertheless continue but lessee should pay to the owners, or to the credit of the owners in the depository bank, as royalty an amount equal to $1.00 per year for each acre retained thereunder during the period the lease was so continued in effect after the primary term.

In support of their position, the defendants cite the recent case of Crichton v. Lee, 209 La. 561, 25 So.2d 229, as being identical and decisive of the issues in the instant case. In the cited case the tract covered by the lease had been placed in a drilling and production unit by the Conservation • Commissioner’s order after execution of the lease but prior to the expiration of the primary term thereof and a producing well had been completed on other land in the unit and any additional well in the unit was prohibited. It was held there that the lease could not be cancelled on account of lessee’s failure to drill a well on the leased tract during the primary term thereof.

The plaintiff argues that the Crichton case, supra, is not apposite because there the cycling plant was completed and in actual operation prior to the expiration of the primary term of the lease, while in the instant case the plant was not actually completed until after the date of the expiration of the primary term of the lease.

The evidence shows that immediately after the issuance of Order No. 114 on April 23, 1946, the operators of the Benton Field commenced operations for the construction of the cycling plant and pressure maintenance system; that the plant was completed and placed in operation on February 2, 1948, processing 4000 barrels of liquid hydrocarbons per day; that gas and liquid hydrocarbons were produced by the operator of the Benton Unit between April 23, 1946, the date of Order No. 114, and the date the plant was placed in operation, and used for the drilling of additional wells and other unit operations.

In both the cited case and the instant one, the orders of the Commissioner were rendered during the time the leases were in effect, and in both cases construction was begun on the cycling plants immediately after the issuance of the orders — in the cited case the plant was completed before the expiration of the primary term of the lease, in the instant one, the plant was completed thereafter. Therefore, finding a strong similarity in the two cases and the defendant here not being at fault but having exercised due diligence, the legal factual result constitutes a distinction without a difference.

It is our conclusion that plaintiff’s contention is untenable because the defendants in reality have not failed to perform any obligation of the contract. In other words, the defendants’ right to drill a well on the tract covered by .the lease was in effect taken away from them by the Order of the Conservation Commissioner, with reservation, however, to them, as well as to the plaintiff, to share in the production from the unit in proportion to their ownership.

The trial judge in his written opinion states:

“During the construction of the cycling plant a small amount of gas and distillate was produced but no royalty was paid. However, the lessee owes plaintiff its part of this royalty but this issue is not sued for in this action.”

We recognize plaintiff’s right to claim the above royalty payments but it is not necessary that we pass on an unpresented issue.

For these reasons, the judgment appealed from is affirmed; plaintiff-appellant to pay all costs of court.


text:
    217 La. 465
    Interdiction of TOCA.
    No. 39849.
    Supreme Court of Louisiana.
    April 24, 1950.
    Rehearing Denied May 29, 1950.
    Burton & Burton, R. H. Burton, New Orleans, for plaintiff and appellant.
    LI Walter Cockfield, New, Orleans, for defendant and appellee.
   PONDER, Justice.

The plaintiff has appealed from a judgment dismissing his petition for the interdiction of his brother, Ernest G. Toca.

Ernest G. Toca attended school in Washington, D. C. for some three years, during which time he returned home on vacations. He was committed to a mental institution on June 27, 1930 by an order of the Supreme Court of the District of Columbia because he was found to be of unsound mind. Since that time he has been an inmate of the institution and a charge of that state. His father has died and his brother is now seeking to have him interdicted for the purpose of settling the succession and has asked for the appointment of a curator and under curator. An attorney at law was appointed to represent him and upon whom service was made. The lower court dismissed the petition on the ground that it had no jurisdiction over the person of Ernest G. Toca.

The proceedings were brought under the provisions of Act No. 321 of 1948, amending Article 391 of the Revised Civil Code. The pertinent provision of this amendmsnt is as follows: “If the person sought to be interdicted, although domiciled in this state, shall, be confined, because of fiis disease, in a public or private institution without the state, then the court on proper application may appoint an attorney at law to represent him, and on whom all service may be made; with respect to a person interdicted while so confined without the state, the provisions of article 423, 424 and 425 shall be inoperative during the period of such confinement.”

In the case of the Interdiction of Dumas, 32 La.Ann. 679, it was held that a suit for interdiction must be brought at the actual domicile, the domicilium habita-tionis, of the defendant and not at his merely legal or constructive domicile. It was pointed out that the provision of law requiring that every interdiction shall be pronounced by the competent judge of the domicile or residence of the person sought to be interdicted contemplates the place of abode of such person or where the body can be found and reached.

In the case of Hansell et al. v. Hansell, 44 La.Ann. 548, 10 So. 941, where a person had been confined in an asylum in Pennsylvania for three years, this, court stated that his domicile was, in the City of Philadelphia because he had been confined in the insane asylum in that city during that period of time. It is' stated therein that the courts of this state had no jurisdiction over his pers'on and could render no decree affecting his personal status and interdict him.

In the case of the Interdiction of Lepine, 160 La. 953, 107 So. 708, it was held that the district court of a particular parish had jurisdiction of a suit to interdict a woman residing in that parish whose husband was domiciled elsewhere.

In the case of the Interdiction of Dumas, supra, the court made this pertinent observation : “The reason of this is obvious, and it is this, that a personal view and inspection of the person whose insanity is alleged is not only proper, but eminently necessary, when practicable, in order that upon the testimony of the witnesses, the report of the medical experts or other suitable evidence, the interrogation of the party, the judge may, at the very moment of the rendition of the judgment, have it in his power to see and decide for himself whether his decree will or not bear upon a person compos vel non. R.C.C. 417, 423-425.”

The provision of law relied on by the appellant cannot be extended to the extent that it would give a court of this state jurisdiction over a person who has been an inmate of an institution in another state under an order of court of that state over a period of nineteen years, and who has been during all that time a charge of that state. A reasonable and practical application must be given this statute and it should not be applied in a case involving these circumstances. It is true that the decisions referred to above were handed down prior; to the enactment of the statute. However, we cannot believe that it was ever the intention of the law makers that this statute should apply to anyone except those temporarily absent from the state who are confined in such institutions.

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

HAMITER, J., dissented from the refusal to grant a rehearing.


text:
    217 La. 470
    STATE v. WILSON.
    No. 39761.
    Supreme Court of Louisiana.
    April 24, 1950.
    Rehearing Denied May 29, 1950.

      See also 214 La. 317, 37 So.2d 804.

      Lubin F. Laurent, New Orleans, for defendant and appellant.
    Bolivar E. Kemp, Jr., Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Frank H. Lang-ridge, Dist. Atty., L. Julian Samuel, Asst. Dist. Atty., Gretna, Willis 1C. McDonald, Asst. Dist. Atty., New Orleans, D. Elmore Becnel, Asst. Dist. Atty., Reserve, for ap-pellee.
   PONDER, Justice.

The defendant was convicted of murder and sentenced to be electrocuted. He has appealed from the conviction and sentence.

We are presented on this appeal with fifteen bills of exceptions taken to the ruling of the trial judge by counsel for the defense.

Bill- of exception No. 1 was taken to the refusal of the trial judge to grant the defendant additional time to subpoena ten additional witnesses to be heard on the trial of a motion for a change of venue. Counsel for the defendant subpoenaed fifty witnesses to appear at the trial of the motion. Forty of the witnesses were present when their names were called by the sheriff and ten were absent. The returns of the sheriff showed that the ten absent witnesses were either out of the parish or could not be found. The trial court would not grant additional time to summon witnesses but ordered instanter subpoenas to issue for the absent witnesses.

Counsel contends that the defendant was entitled to these additional witnesses as a matter or right. He cites authorities to the effect that a defendant is entitled to additional witnesses when they are essential to his defense.

We find no fault with the authorities cited but the trial of a case cannot be delayed when the defendant is afforded the testimony of forty witnesses at the hearing of a motion of this nature and there is no showing that the defendant could have procured witnesses who would have established his contention that he could not obtain a fair trial. In the absence of any showing that the defendant has been injured by this ruling of the court the exception is without merit.

Bill of exception No. 2 was taken to the overruling of a motion for a change of venue. Counsel for the defendant states that the witnesses heard before a recess of court stated that the accused could not get a fair trial in the Parish of St. Charles and that those testifying after the recess of court stated that the accused could get a fair trial in that parish. He contends that there was prejudice, collusion and coercion of the witnesses who testified after the recess of court.

There is nothing in the record to support the contention. The three witnesses who testified prior to the recess of the court did not testify that the accused could not get a fair trial in the parish. Two of them testified that he could get a fair trial -and the other witness did not know whether the accused could get a fair trial or not.

Bill of exception No. 3 was taken to the overruling of an objection to the reading of the purported confession by the district attorney to the jury in his opening statement.

The trial judge in his per curiam states that he instructed the jury that the opening statement of the district attorney could not be considered as evidence and that he is. merely detailing what he expects to prove. Under the provisions of Article 333 of the Code of Criminal Procedure it is the duty of the district attorney in his opening statement to explain the nature of the charge and the evidence by which' he expects to establish it. A conviction and sentence will not be set aside where the district attorney reads a confession to the jury in his opening statement if the confession is subsequently admitted in evidence. State v. Cannon, 184 La. 514, 518, 166 So. 485.

Bill of exception No. 4 was taken to the refusal of the trial judge to sustain an exception to a question propounded by the district attorney to the coroner. Counsel objected to the question on the ground that it calls for an assumption of certain facts which the coroner could not possibly know because he was not present at the time of the homicide and that his answer presumes that a blow was struck while the deceased was in bed. The question propounded was, “Will you explain the ■ lack of blood between the pillow and. the foot of the bed where the body of Mrs. Pe-trolia was lying ?” In answer to the question, the coroner stated, “Well, I think, gentlemen of the jury, that it is very easily explained.” “It is a medical fact.” “This individual, Mrs. Petrolia, was struck a blow while lying in bed * * * ” Counsel for the defendant interrupted the witness and objected to the testimony on the grounds heretofore stated. We see no merit in this bill because the coroner was testifying as an. expert witness based on the1 facts which he had discovered by his inspection of the premises and. the deceased.

Bill of exception No.'5 was taken to the admission of twelve objects found at the scene of the homicide. Counsel contends that these exhibits should have been introduced separately and not as a group. The various objects had been separately identified by the witnesses who had testified in the case. There is no merit in this bill.

Bill of exception No'. ¡5 was taken to the introduction of certain exhibits in evidence. These exhibits were a stick with' blood on it found on adjoining premises;hair from the head of the deceased and her husband, who had been killed at the same time, used in making a microscopic examination in comparison with the hair found on the stick, etc.; a specimen of hair found on the stick and a' specimen of hair found from the deceased’s bed sheet. Counsel contends' that these exhibits were not ad--missible in evidence because the chemist from the F. B. I. could not identify the hair as belonging to any particular person and could not identify the blood stains as blood coming from any particular person. The testimony of this laboratory expert was to the effect that the hair found on the stick Was similar to the hair of the deceased and that the hair found on the bed' sheet came from the body of a member of the Negro-race. The objection goes to the weight and not to the admissibility of the evidence.

Bill of exception No. 7 was taken to the introduction of a wrist watch belonging to the deceased which the accused had pawned shortly before his arrest. The objection seems to be principally leveled at the fact that the witnesses identifying the watch as being the property of the déceas-ed were unable to state the sérial number of it and call particular attention to all of its characteristics. From the per curiam of the trial judge, it appears that the watch was identified as being the property of the deceased before it was introduced into evidence and that the objection was mainly leveled at the fact that-the witnesses could not give the serial number of the watch. The objection goes to the weight and not the admissibility of the evidence.

Bills of exceptions Nos. 8, 9 and 10-were taken to the rulings of the trial court re-. garding a confession made by the defendant on July 18, 1946. It appears from the evidence that the State placed a witness on the stand to prove that the confession was free and voluntary. While the witness was testifying a controversy arose as to the admissibility of the confession. The trial judge had the jury withdrawn and the admissibility of the confession was inquired into out of the presence of the jury. The State placed several witnesses on the stand who testified to facts showing that the confession was free and voluntary. These witnesses were cross-examined by counsel for the defendant and he was afforded an opportunity to controvert the testimony offered by the. State. The only witness placed on the stand by counsel for the defendant was one who testified to a contradictory statement made by a deputy sheriff. After the matter was 'submitted, the court ruled that the State had laid a proper foundation for the admission of the confession. Counsel reserved a bill of exception to the ruling. The jury was recalled and the State placed two witnesses on the stand who were present at the time the confession was made. These witnesses testified to facts showing the confession was free and voluntary. The State offered the confession in evidence and counsel for the defendant objected to its admission on the ground that he had a right to controvert its admissibility.

Article 1, Section 11, of the Constitution of Louisiana provides:

“No person under arrest shall be subjected to any treatment designed by effect on body or mind to compel confession of crime; nor shall any confession be used against any person accused of crime, unless freely and voluntarily made.”

It is provided in Article 45l of the Code of Criminal Procedure, as follows: “Before what purposes to be a confession can be introduced in evidence, it must be affirmatively shown that it was free and voluntary, and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises.”

It is well settled that a confession cannot be admitted in evidence until after it is shown, not only affirmatively but by proof beyond a reasonable doubt, that it was free and voluntary and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. State v. Henry, 196 La. 217, 198 So. 910; State v. Graffam, 202 La. 869, 13 So.2d 249; State v. Ellis, 207 La. 812; State v. Ross, 212 La. 405, 31 So.2d 842; State v. Wilson, 214 La. 317, 37 So.2d 804.

The defendant' was convicted of this offense on a prior occasion. On appeal a new trial was granted because this court was not satisfied from the record, as made up, that the first confession was free and voluntary. The testimony touching the admission of the confession was. not taken down and incorporated in the record. We suggested that on the new trial that the testimony touching the admission of the confessions be reduced to writing and made part of the record in event of another appeal. We did not adjudge that the confessions were not free and voluntary but our holding was to the effect that the record, as made up, left a reasonable doubt in our minds that the first confession was free and voluntary. State v. Wilson, supra.

On the morning of June 16, 1946 Mz-. and Mrs. Joseph Petrolia of New Sar-py, St. Charles Parish, were found in their home dead 'with their skulls crushed in. It appeared that they had been clubbed to death while they were asleep and the woman had been ravished. During the night of June 15th, the same night of the murder, the defendant entered the home of two colored women in the neighborhood where the Petrolias lived, and struck the women with a stick as they lay in bed. One was injured on the head and the other’s arm was broken. The defendant was charged with aggravated battery for striking these two women. When the officers sought to apprehend the defendant, they found he had disappeared. Thirty days thereafter, on July 15th, three deputy sheriffs from St. Charles Parish, having acquired information that the defendant was in the vicinity of Plammond, went to' Hammond to arrest the defendant. At their request, the chief of police and the marshal accompanied them and assisted in the arrest of the defendant. The defendant was brought to the police station at Hammond and one of the deputies phoned the sheriff of St. Charles Parish informing him that they had arrested the defendant. The sheriff requested them to bring the defendant to the highway police headquarters at the Huey Long Bridge and that he would meet them at that place. The defendant was interrogated for some four or five hours and confessed 'that he had committed the offense. The defendant was then placed in the parish prison in New Orleans. On July 18th, two days thereafter, he was again interrogated and made a further confession to the offense. He was indicted by the grand jury of St. Charles Parish for the murder of Joseph Petrolia, the murder of Mrs. Petrolia and for aggravated rape on the person of Mrs. Petrolia. In the present case he was tried and convicted for the murder of Mrs. Petrolia.

We have examined the testimony, taken before the judge out of the presence of the jury, touching the admissibility of the confessions, and find that the State produced the witnesses who were present at the arrest of the defendant, the witnesses who brought him to the Huey Long Bridge, the witnesses who were present at the highway police headquarters when the defendant was interrogated and confessed to the offense, and the witnesses who were present at the time he confessed to the offense at the parish prison. All of these witnesses testified that the defendant was not subjected to any treatment designed to compel a confession of the crime. The witnesses present at the time the confessions were made testified that the confessions were free and voluntary and that no force or promise was used to secure the confessions.

The only witness placed on the stand to controvert the testimony of the State’s witnesses was a witness who testified that one of the deputy sheriffs told her, “I did not strike him but the boys at the bridge worked on him.” This statement was denied by the deputy sheriff. This testimony of the defendant’s witness could only be given effect as discrediting the testimony of the deputy sheriff. Even though the testimonj' of the deputy sheriff- be discredited, the other witnesses have testified to facts that show the confessions were free and voluntary.

Counsel for the defendant lays stress on the fact that some one slapped the defendant while he was detained at the police station at Hammond and the fact that the second confession was made in the execution room at the parish prison.

The only one who testified that the defendant was slapped was one of the deputy sheriffs. He stated that while he was phoning the sheriff of St. Charles Parish from Hammond that some one came in and slapped the defendant and that he reprimanded the person for so doing. He testified that the person left immediately. The other officers testified that they did not see this occurrence. The defendant had not been interrogated at -that time about the murder but was being held for aggravated battery, an offense not connected with the murder.

The testimony of the officials of the parish prison concerning the execution room is to the effect that the entire floor is painted green and unless one knows in advance that there is a trap door in the floor it would not be noticed. The testimony of the other witnesses who were present is to the effect that they did not see or notice the trap door- in the, floor. The room was selected because it was convenient and on the same floor of the cell in which the defendant was- kept. There was a large table in the room and a number of chairs around it. The defendant and the witnesses were seated around this table during the interrogation and at the time the defendant confessed to. the offense.

No testimony was produced by the defense to show that the confession resulted from any fear or duress resulting from the incident at Hammond or from the fact that the second confession was made in the execution room of the parish prison.

The admissibility of a confession is determined by the trial judge and not the jury. The effect of the confession is to be determined by the jury after it has been held by the trial judge to be admissible. State v. Thomas, 208 La. 548, 23 So.2d 212 and the authorities cited therein; State v. Robinson, 215 La. 974, 41 So. 2d 848.

Counsel for the defendant contends that he had a right to again test the admissibility of the confession before the jury. It appears from the record that he attempted to interrupt the State before the State had completed its evidence in chief in order to contest the admissibility of the confession. The court refused to permit the interruption but afforded counsel full opportunity to cross-examine the witnesses and place whatever evidence he desired to discredit the confession. The ruling is correct because the admissibility of the confession is to be determined by the court and the effect to be given it is to be determined by the jury.

Bills of exceptions Nos. 11, 12 and 13 were taken to the refusal of the trial court to admit in evidence a threatening letter, purported to have been received by a relative of the deceased, written one year before the offense was committed. The purport of the letter was that this relative’s life had been threatened.

From the per curiam of the trial court, it appears that the letter was addressed to parties other than any of the principals involved in the case and was in no wise connected with the case. Counsel for the defendant contends that the letter was offered to prove that the defendant did not commit the offense and that the crime was committed by another person. The evidence is not relevant.

-Bill of exception No. 14 was taken to the overruling of a motion for a new trial. The motion is based on the thirteen bills of exceptions and an allegation to the effect that the defendant was denied a trial by due process of law. We have already 'considered the issues raised in the bills of exceptions. Defendant alleges that the trial of the case was continuous from day to day with sessions of court lasting as late as 1:30 a. m. and that the trial ended on Friday at 4:00 o’clock in the morning. Counsel takes the position that he was greatly handicapped because of the long sessions of court. He states that he was the only counsel representing the defendant and that the State was represented by the district attorney and two assistants who worked in relays which gave the State an advantage in presenting the case.

We have examined the minutes of the court and it appears that the sessions of court began at 10:30 a. m. and the only minute entry designating the time that the sessions ended was the minute entry of the jury reporting its verdict at 3:55 a. m.

Counsel has cited us no authorities to support his contention. This question cannot be raised for the first time in a motion for a new trial. If counsel had a complaint he should have taken a bill at the time of the occurrence.

Bill of exception No. 15 was taken to a motion in arrest of judgment. The motion is predicated on the grounds set forth in six of the bills of exceptions. It presents no new issue and we have already discussed the issues raised in the bills of exceptions.

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


author: SPAHT, Justice Ad Hoc. HAWTHORNE, Justice FOUR.NET, Chief Justice

text:
    217 La. 487
    DOMINGUEZ v. AMERICAN CASUALTY CO. et al.
    Nos. 39224, 39240.
    Supreme Court of Louisiana.
    April 24, 1950.

      Carroll Buck, Amite, and Taylor, Porter,. Brooks, Fuller & Phillip's, Baton Rouge,, for American Casualty Co. et al.
    Joseph M. Blache, Jr., Hammond, and Ponder & Ponder, Amite, for John C-Dominguez.
   SPAHT, Justice Ad Hoc.

This suit was instituted by plaintiff Dominguez against George Thomas, his employee Saul Williams, and his insurer, the American Casualty Company, in solido, to recover the sum of $38,600 damages allegedly incurred as a result of an automobile accident which occurred on, the Ma-di-sonville-Ponchatoula paved highway as it enters the town of Ponchatoula, between 10:30 and 11:00 p. m. on Saturday, January 12, 1946, when the Plymouth coupe owned and operated by the plaintiff ran into a Dodge truck with a log trailer operated by the defendant Williams, the employee of defendant Thomas. Plaintiff contends that the accident was caused solely by the negligence of the truck driver, Williams, who was at the time operating the truck in the course of his employment and with the permission of his employer.

The defendant Williams was not served or cited; defendants Thomas and the American Casualty Company excepted to the petition on the ground of vagueness, which was overruled, and thereafter filed a joint answer denying any negligence on the part of Williams, and also denying that at the time of the accident the truck was being used and operated with the knowledge, permission or consent of the employer, or that Williams was engaged in any business or mission for his employer; in the alternative, they averred that the contributory negligence- of plaintiff was the proximate -cause of the accident.

The trial court gave judgment in favor of plaintiff ■ for $5,861, and the defendants Thomas and the American Casuálty Company appealed. The Court of Appeal, after concluding from the facts of the case that the truck was not being used by Williams in the course of his employér’s business or with the permission of his employer, held that granting the negligence of Williams, any injury sustained by the plaintiff as a result of the accident, was not chargeable to the employer and his insurer under the doctrine of respondeat superior, nor was the driver Williams covered by the omnibus clause of the policy, and consequently, found it unnecessary to pass on the proximate cause of the accident since no judgment had been rendered against Williams. See, 37 So.2d 40; 37 So.2d 412.

Both the plaintiff and the defendants sought to have this court review the judgment of the Court of Appeal for the First Circuit reversing the judgment of the district court and dismissing the suit of the plaintiff and the matter is now before us on writs of' certiorari granted them.

The facts pertinent to the issues involved are that Williams had been employed as the driver of a truck for a period of about four or five months previous to the accident by Mr. Thomas, who operated a sawmill and sold wood. Williams’ duties were to drive the employees to the mill in the morning, deliver loads of wood during the day, and take the employees back into town in the evening, after which 'he drove the truck to his home and parked .it until the following morning. On the night of the accident Williams had gone some three miles west of the scene of the accident to the assistance of a fellow' employee, whose ■car had 'run into a ditch, with the intention of pulling the car 'back onto the highway. Williams, who testified in the case, says that he was proceeding west at about 20 miles per hour, on' the east-west paved highway, returning to his home in Poncha-toula, and was struck from the rear, on the left, by plaintiff. Plaintiff contends that Williams must have backed onto the highway from a side road with the intention of proceeding east, since the truck, without lights, suddenly appeared at a 45 degree angle blocking the: highway, and facing in a south-easterly direction, and that his right front wheel struck the left rear wheel of the truck. Plaintiff also says that immediately before the accident he was blinded by the lights of a passing car, and that he was traveling at about 25 miles per hour. Although a street light was within a block, the night was rainy and foggy and visibility was poor; however, plaintiff claims that if the truck had been on the highway previous to the approach of the other car, he would have seen it. The body of the truck was torn in half, the cab and chassis being thrown to the north of the highway and the rear wheels coming to rest south of the highway in the ditch. Plaintiff’s car stopped about 175 feet west of the point of impact, in an upright position, partly on the highway and partly on the shoulder. Both plaintiff and his passenger were seriously injured. , «YvV.'AVtti

The .Court of Appeal found it unnecessary to discuss and pass upon the negligence of Williams and the contributory negligence of the plaintiff in view of its finding that there was- no liability on the part of the defendants, Thomas and his insurer; and therefore the question for our determination is whether the Court of Appeal was correct in its conclusion that Williams was operating the truck without the permission of the insured within the contemplation of the policy.

This policy contains the usual and customary clauses with reference to use and permission and they read as follows:

“Item 5 — Use: The purposes for which the automobile is to be used are commercial, pleasure and business.

“(a) The term ‘pleasure and business’ is defined as personal, pleasure, family and business use.

“(b) The term ‘commercial’ is defined as used principally in the business occupation of the named insured as stated in Item I, including occasional use for personal, pleasure, family and other business purposes.

“(c) Use of the automobile for the purposes stated includes the loading and unloading thereof.”

“Ill — Definition of Insured: The word ‘insured’ wherever used in coverages A and D and the other parts of this policy, when applicable to such coverages, includes the named insured, and, except where it is specifically stated to the contrary, also includes any person while using the automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is with the permission of the named insured * *

The meaning of the latter clause commonly called the Omnibus Clause under circumstances somewhat similar to those in the present case has been before this court as well as the Courts of Appeal of this state on several occasions: Waddell v. Langlois, La.App., 158 So. 665; Stephenson v. List Laundry & Dry Cleaners, 186 La. 11, 171 So. 556; Parks v. Hall, 189 La. 849, 181 So. 191; Perrodin v. Thibodeaux, La.App., 191 So. 148; Farnet v. De Cuers, La.App., 195 So. 797; Wilson v. Farnsworth, La.App., 4 So.2d 247; Clemons v. Metropolitan Casualty Insurance Co., La.App., 18 So.2d 228; Stanley v. Cryer Drilling Co., 213 La. 980, 36 So.2d 9; Waits v. Indemnity Insurance Co. of North America, 215 La. 349, 40 So.2d 746; Cusimano v. A. J. Spiess Sales Co., 153 La. 551, 96 So. 118; Goldman v. Yellow Cab Company, 17 La.App. 450, 134 So. 351; Mathehy v. United States Fidelity and Guaranty Co., La.App., 181 So. 647; Mancuso v. Hurwitz-Mintz Furniture Co., La.App., 181 So. 814; James v. J. S. Williams & Son, 177 La. 1033, 150 So. 9; Oliphant v. Town of Lake Providence, 193 La. 675, 192 So. 95; G’Sell v. Cassagne, La.App., 12 So.2d 51.

The Waits case, supra, was decided by this court after the present case was decided by our brothers on the Court of Appeal of the First Circuit, and it is conceded by counsel for respondents herein that unless that decision is overruled the decision of the Court of Appeal in the present case must be set aside. We believe it must even be conceded that the facts concerning the lack of permission in that case were stronger than exists here. There, the truck was not parked at the home of the employee as in the present case, and, furthermore, the use by the employee at the time of the accident was further removed from the contemplated use than in the present case.

Another decision by this court where the facts and the policy provisions are somewhat similar to those here is the case of Stanley v. Cryer Drilling Co., supra. There the employee, as here, had continuous possession of the truck and parked it at night in the road in front of his house. There is this difference, however, for there the employer had not specifically instructed the employee not to use the truck for his own personal use.

A study of the jurisprudence of the various states of this nation on this subject of “Omnibus Clause cases” quickly shows that the decisions are both numerous and far from uniform as to rules followed, the opinions using a varied assortment -of legal theories to support their finding in each individual case. There is one recent comprehensive compilation of the Omnibus Clause cases dealing with an employee of the assured in 5 A.L.R.2d 600 under the heading “Automobile Liability Insurance: Permission or Consent of the Employee’s Use of Car Within Meaning of the Omnibus Coverage Clause.”

Reference to this study indicates that there are generally three different lines of authority dealing with the question of “Permission” to an employee in an Omnibus Clause. One group of jurisdictions, including Louisiana, holds that initial permission by the employer is all that is required, and another, and smaller group of states, follows the -so-called strict or conversion rule to the effect that the exact use of the vehicle at the time and place of the accident must have been with the permission of the employer. The third group of jurisdictions follows a less definite rule between the extremes of the other two rules and holds that it is necessary to consider the extent and effect of the particular deviation involved, minor deviation being considered with permission, major deviation being considered without permission, and therefore without Omnibus Coverage. The leading case in the “Initial Permission” states is the case of Dickinson v. Maryland Casualty Co., 101 Conn. 369, 125 A. 866, 41 A.L.R. 500, followed by Stovall v. New York Indemnity Co., 157 Tenn. 301, 8 S.W.2d 473, 72 A.L.R. 1368.

In the Dickinson case- the court went so far as to say that the purpose of the Omnibus Clause was not only to protect a person legally operating the car with the permission of the insured, but also to protect any person injured by the operation of the car 'by giving him a cause of action against the insurer for injuries deemed by the law to have been caused by the operation of the car. This purpose likewise was adopted by the court in the case of Fried v. London Guarantee and Accident Co., 136 Misc. 740, 242 N.Y.S. 60.

Louisiana as far back as 1938 in the Parks v. Hall case, supra, aligned itself with those states liberally construing the word “Permission” and our courts have consistently followed that course to the present time. It is firmly imbedded in our jurisprudence and no good reason has been pointed out for changing this established jurisprudence.

The first question, therefore, is whether the facts in the present case are suth as to distinguish them from those in the Parks v. Hall case, and subsequent jurisprudence, except the Waits case. Able counsel for respondents contend that there is a distinct difference in that here the employee had completed his day’s work, and parked the truck for the night in his yard, where he had been so instructed by his employer to park it; and thus, ended the initial permission for its use for that day, while in the Parks v. Hall case, and others following it, there was merely a deviation from the course that the employee was instructed to follow, and the initial permission had thus not been terminated.

It is true that, as counsel for respondents point, out, generally speaking where an employee is given custody of an automobile to accomplish a certain purpose and he puts the car away after completion of such purpose and thus returns it to the custody or control of his employer, or employer’s agent, a subsequent retaking and additional use of the automobile by such employee is a new use for which a new consent must be given, and in the absence of á new permission the employee is not covered as an additional insured under the Omnibus Clause of the indemnity policy.

Where, however, the employee has, as in the present case, complete dominion and control of the vehicle day and night, saying he lost the initial permission merely because he parked it for a short time would be a highly technical distinction which we believe is unwarranted. For instance, here suppose that as Williams drove up to his home in the evening, after completing his day’s work, and before he parked the truck, this same fellow employee had been there waiting and asked him to go down the road a few miles and pull out his car where he had gotten into the ditch, could there be any question that under the jurisprudence as established by the Parks v. Hall case, that the initial permission had been terminated? We think not.

It has been argued that under the jurisprudence of this state as established by the Waits case that the employee could take the vehicle hundreds of miles away, and even be guilty of theft, and yet the Omnibus Clause would still be effective. The answer to that is that our doctrine is based upon implied permission, that is, where an employee has been given custody and control of the motor vehicle some discretion on his part in its use must be assumed. It is not, therefore, without limitation and certainly where the vehicle has been returned to the custody of the employer or his agent, and he retakes it, or where the action of the employee is such after getting control of the vehicle as to constitute theft, permission could not be reasonably implied. Furthermore, in. the present case, as has already been pointed out, the employee was merely a few miles from where he was accustomed to park the vehicle and on a mission to assist a fellow employee.

We are, therefore, of the opinion that Williams was operating the truck with the permission of the assured, Thomas, within the contemplation of the policy, and that the Court of Appeal erred in reaching' a contrary conclusion.

For the above and foregoing reasons, the judgment of the Court of Appeal of the First Circuit is overruled and set aside and the case is remanded for further proceedings in accordance with this opinion and for a decision on the factual issues as to the alleged negligence of the driver, Saul Williams, and defendant’s contention that the accident resulted from plaintiff’s own negligence, or alternatively,- that plaintiff was guilty of contributory negligence.

FOURNET, C. J., concurs.

PONDER and LE BLANC, JJ.; recused.

HAMITER and HAWTHORNE, JJ., dissent.

SPAHT and REGAN, JJ., participating by order of the Court.

HAWTHORNE, Justice

(dissenting).

I must concede that, if the holding of this court in Waits v. Indemnity Ins. Co. of North America, 215 La. 349, 40 So.2d 746, was correct, then the majority opinion in the instant case is likewise correct, as the two cases cannot be distinguished. At the time the Waits case was decided by this court, I was of the opinion that the majority had reached an erroneous conclusion. I am still of that opinion. This court, in extending the so-called “initial permission” rule, as first announced in Parks v. Hall, 189 La. 849, 181 So. 191, to apply to the facts in the Waits case and to the facts in the instant case, in my opinion has gone entirely too far.

In the case now under consideration the Court of Appeal pointed out that under testimony which was unrebutted Thomas, the employer and the insured, had instructed Williams, the employee, who clearly understood the instructions, that, although the truck was to be kept at Williams’ house at night, it was to be used only'for the purposes of driving other employees back and forth from work and delivering wood, and not for Williams’ personal use. The court then distinguished this- case — correctly, in my opinion — from Parks v. Hall, supra, and Haeuser v. Aetna Casualty & Surety Co., La.App., 187 So. 684, as follows (37 So.2d 40, 43) : “There is a fundamental difference between the facts of the two cases, in each of which the insurer was held liable under the omnibus clause, and the facts of the present case, and it is this: In both of the cited cases, at the time of the occurrence of the accident, the employee had actually taken the automobile for some purposes contemplated by the employer or owner and had only stepped aside or deviated from the accomplishment of such purpose, whereas in the present case the truck had been stored in its usual storage place, after working hours, and some six or seven hours thereafter was taken therefrom, without the knowledge or consent-and agcdnst the specific instructions of the employer, by the employee for the emp-loyee’s personal mission. This difference in facts is pivotal.” (All italics mine.)

In the majority opinion of this court it is stated:

“ * ‡ .* There is one recent comprehensive compilation of the Omnibus Clause cases dealing with an employee of the assured in 5 A.L.R.2d [600] under the heading ‘Automobile Liability Insurance: Permission or Consent of the Employee’s Use of Car Within Meaning of the Omnibus Coverage Clause.’

“Reference to this study indicates that there are generally three different lines of authority dealing with the question of ‘Permission’ to an employee in an Omnibus Clause. One ’group of jurisdictions, including Louisiana, holds that initial permission by the employer is all that is required, and another, and smaller group of states, follows the so-called strict or conversion rule to the effect that the exact use of the vehicle at the time and place of the accident must have been with the permission of the employer. The third group of jurisdictions follows a less definite rule between the extremes of the other two rules and holds that it is necessary to consider the extent and effect of the particular deviation involved, minor deviation being considered with permission, major deviation being considered without permission, and therefore without Omnibus Coverage. $ * *»

The three rules set forth in the majority opinion are found at pp. 624 and 625 of the cited annotation, in paragraphs designated as A., B., and C., Section 11, styled “Summary of rules and of their application”. It is interesting to observe that in this same section two other rules are given immediately following the ones set out in the majority opinion, these being found in paragraphs designated as D. and E., p. 626, which were not mentioned in the majority opinion. These two rules are as follows:

“D. When it comes to deviations in violation of an express prohibition of the employer, practically all the courts are in agreement that the use of the automobile by the employée for personal purposes or by a third person with the employee’s consent is not a permissible use within the meaning of the omnibus clause. * * *

“E. Deviation from, permitted use must be distinguished from use after termination of the permission. The latter use has been held in all the cases dealing with the situation to be without the employer’s permission.” See also Section 19, pp. 650, 651.

The same annotation, after discussing the cases dealing with the situation where an employee obtains initial permission from his employer for the use of the insured’s automobile and while using it under the permission given deviates in some way from the permitted use, continues in Section 23, pp. 660, 661:

“ * * * Closely connected with, though clearly distinguishable from, this situation is the case where the employee obtains permission from the employer for a specific use of the automobile and returns it after such use but thereafter regains possession of it and uses it without having obtained a new or further permission from his employer. The question there is whether the initial permission extends to such use or whether the permission ends with the return of the automobile.

“The answer to this question is that where an employee is given custody of the automobile to accomplish a certain purpose, and he puts the car away after completion of such purpose, a subsequent retaking and additional use of the automobile by such employee is generally deemed a new use for which a new consent must be given, and in the absence of a new permission, the employee is not covered as an additional insured under the omnibus clause of the indemnity policy. In other words, the mere fact that the employee had rightful custody of the automobile for specific purposes does not give him the, right to use the car for purposes not contemplated by the employer after the original bailment has been ended.”

There is not any doubt that in the instant case the truck was being used by the employee for personal purposes, in violation of an express prohibition of the employer. Although he was given custody of the truck for designated purposes, after these purposes were accomplished he stored or placed it at his residence pursuant to specific instructions, and thereafter, against the orders of his employer, he regained or again took possession of the truck and used it as above set forth.

Under these circumstances, I am unable to understand how such use of the truck by the employee can be deemed to be with the permission of the employer, within the meaning of the omnibus clause of the policy.

The development of the initial permission rule in this state is unique and to my mind entirely unjustified. This rule was first announced in the case of Parks v. Hall, supra. In Stanley v. Cryer Drilling Co., 213 La. 980, 36 So.2d 9, in which I also dissented, the rule was extended to cover an employee who took possession of the vehicle for his personal use after the end of the day’s work. That case was followed by the Waits case, supra, and the instant case, both of which further extended the rule, not only to cover an employee who took possession of a vehicle for his personal use after it had been stored or placed in a designated parking place, but also to cover an employee who regains possession of the vehicle for his personal use in express violation of the employer’s instructions. So far as I can ascertain, no other state in the Union has extended the initial permission rule so far.

I respectfully dissent.

FOUR.NET, Chief Justice

(concurring).

In view of the observation in the minority opinion that the development of the (“so-called”) “initial permission rule” in this state (as announced in the case of Parks v. Hall, 189 La. 849, 181 So. 191, 193) “is unique and * * * entirely unjustified,” I, as the author of the opinion in that case deem it necessary to point out in concurring in the views ahly and well expressed in the majority opinion that the holding of the court in the case of Parks v. Hall was not based on any of the so-called rules that have developed in the jurisprudence of other jurisdictions and that is peculiar to their particular section, but, instead, that it was based on sound logic and reasoning and in accordance with the rules of construction as set out under the civil law of this state (which is in accordance with the universally accepted rule on the subject matter), that is, that an insurance policy for automobile collisions, being a written contract, must be construed according to the evident intention of the parties to be derived from all the matters usually incident thereto; that the language in the policy is to be construed so as to effectuate the insurance and not for the purpose of defeating it; and that where the language used in the policy is- ambiguous, admitting of two constructions, it must be construed in favor of the insured and against the insurer so that the interest of the insured, who has paid a consideration for the indemnity, may be protected.

Applying these accepted rules to the policy provisions and the facts of that case, it was shown in the opinion that “If Hall, at the time of the accident, had been operating the car while attending to his regular duties, washing the car, or as instructed by his employer, -then the injury would have been caused while acting within the scope of his employment and Gans would be liable under the rule of respondeat superior and the omnibus coverage clause in the policy would have no application. Under such, circumstances, the insurer would be primarily liable under Act No. 55 of 1930.

“Under the facts of this case, Hall was operating the car with the permission of the assured and the policy, by its express terms, i. e., the omnibus clause, was made to cover, as , an assured, any one who was driving the car with the permission of the owner of the insured car. The provisions of the policy do not limit the liability thereunder to causes arising when the permitted driver was using the car either for the owner’s business or under any, restricted circumstances. The language is not restricted, but used in its broadest possible sense and under the rules of construction generally applicable in cases of this kind, we must give the language used the same broad construction. The words used in the clause would be practically meaningless and the object there made nugatory if it were necessary to' determine in every case whether, at the time and under the circumstances of the accident, the driver was proceeding within the limitations of the permission of the assured to use the car. In order to give the clause ‘provided: (a) it-is being used with the permission of the named Assured,’ the construction placed by, the Court of Appeal and contended for by the defendants, we would have to give it a restricted and limited meaning, con-, trary to the rules of construction of such contracts. We would have to resolve the doubt or uncertainty or ambiguity in favor of the writer of the insurance contract.”

This construction clearly gives effect to the evident intent of the parties, for the omnibus clause was included in their contract for the very purpose of covering the liability of the operator of the car as the unnamed assured, and so that any injured person would be given a cause of action against the -insurer for injuries deemed by law to have been caused by the operation of the car.

In all policies issued since this decision, the insurance, companies have taken into consideration this risk and charged their policyholders a premium in accordance therewith. Consequently, in all policies issued since that time the insured- has not only paid for this risk but such a risk was clearly within the contemplation of the parties.


author: FOURNET, Chief Justice.

text:
    217 La. 508
    STATE v. WESLEY.
    No. 39798.
    Supreme Court of Louisiana.
    April 24, 1950.
    Lloyd Love, Ferriday, for defendant-appellant.
    Bolivar E. Kemp, Jr., Atty. Gen., M. E. Culligan, Asst. Atty. Gen., and D. W. Gibson, Dist. Atty., Harrisonburg, for plaintiff-appellee.
   FOURNET, Chief Justice.

The conviction and sentence of Jim Wesley, Jr., oil a charge of murder must be affirmed, since an examination of the transcript of his appeal here fails to disclose any bills of exception reserved during the course of his trial, or any errors patent on the face of the record. Of necessity, the motion to -dismiss the appeal, filed by the State on such grounds, cannot be sustained as the appellant has the right to have the record examined by the court to ascertain whether there appears any error patent on its face.

For these reasons, the conviction and sentence are affirmed.