author: McBRIDE, Judge.

text:
    ESTOPINAL v. STORCK'S ESTATE et al.
    No. 19049.
    Court of Appeal of Louisiana. Orleans.
    Feb. 27, 1950.

      Thomas Furlow and Emmet Alpha, New Orleans, for plaintiff and appellee.
    Jones, Flanders, Waeghter & Walker and William B. Dreux, New Orleans, for defendant and appellee Estate of Dr. Jacob A. Storck.
    J. J. Jackson, New Orleans, for defendant and appellant, Mrs. Emma E. Foster, widow of Edward Matt.
   McBRIDE, Judge.

Plaintiff, Richard Estopinal, is the owner of certain land in the Parish of St. Bernard in the rear portion of what, with the front portion, once was a single tract owned by Judge Albert Estopinal. Plaintiff acquired the rear portion of the tract from Judge Estopinal on August 27, 1937. On the east side of the original Estopinal tract is the land of Dr. Ambrose H. Storck and Mrs. Elsa Storck Taylor, heirs of Dr. Jacob A. Storck. On the west side of the Es-topinal tract is the land of Walter Cure. All three of the tracts, when the center one was owned by Judge Estopinal, fronted on Bayou Terre aux Boeufs., Along that side of .the bayou is an unimproved public road which leads'to a bridge which crosses the bayou in front of the Storck, property, which bridge affords access to an improved state highway paralleling the bayou' on the other side.

Judge Estopinal disposed of his tract of land by two conveyances. In 1936 he transferred the front part of the tract' (which fronts on the bayou) to the Plome Owners’ Loan Corporation, and eventually Mrs. Edward Matt acquired this front portion. The retained rear portion of the original tract remained in the ownership of Judge Esto-pinal until 1937, when it was transferred to plaintiff, Richard Estopinal. The rear portion, after the sale of the front portion as aforesaid, was completely enclosed.

It is obvious that Richard Estopinal has no outlet or right-of-way by which he can reach the local or unimproved road, and by it reach the bridge,' and by means of the bridge to cross the bayou and get to the improved highway on the other side. The object of plaintiff in this suit is to obtain a right-of-way which will afford him such outlet.

Named and cited as defendants were the Storck heirs and Mrs. Emma E. Foster, widow of Edward Matt. Walter Cure was not made a defendant.

In his petition, Estopinal substantially alleges the facts above related, and also avers that he has been unable to purchase a right-of-way either from the Storck heirs or from Mrs. Matt, and that “equitably the property of Mrs. Matt and the property of the Estate of Dr. Jacob A. Storck should be condemned to grant unto petitioner a right of way, the Court to fix the compensation therefor, said right of way to be twelve feet, six feet on each property, the dividing line between said properties being the center of said right of way, or, in the alternative, that the right of way be granted over which ever of the properties the Court should find to offer the shortest route, fixing the compensation therefor.”

Plaintiff prayed for judgment against the Storck heirs and Mrs. Matt, determining across which property the right-of-way should be granted, and fixing the compensation to be paid to the owner of the tract across which the right-of-way should be established.

The Storck heirs filed an exception of no cause of action, contending that the suit as against them should be dismissed. Mrs. Matt answered denying that any attempt had been made by Estopinal to purchase a right-of-way from her, and denying also that plaintiff is entitled in any event to a right-of-way across her property, contending that since her property is improved and fully utilized it would be very damaging to it should a right-of-way 'be established across it.

The exception filed by the Storck heirs was referred to the merits of the case.

At the outset of the trial below, it was called to the attention of the court that in another proceeding the heirs of Dr. Storck had filed an action in boundary against Mrs. Matt and Richard Estopinal, seeking to establish the proper boundary line between the Storck property and the property of Mrs. Matt and Richard Estopinal.

After a trial, there was judgment maintaining the exception of the Storck heirs and dismissing the suit as to them. The judgment was also in favor of Richard Es-topinal granting him a right-of-way across the property owned by Mrs. Matt, but the judgment did not provide that Mrs. Matt should be compensated.

Referring to the pending boundary suit, the judgment recites:

“And the Court considering, further, the stipulation entered into by counsel representing plaintiff and defendants, and filed in the record,
“It is further ordered, and adjudged and decreed that the right of way and passage granted to the plaintiff as defined in this judgment, shall be exercised and used by the plaintiff until such time as the true boundary line between the properties of the said Mrs. Emma E. Foster, widow of Edward Matt, and the Estate of Dr. Jacob A. Storck, shall have been judicially determined and fixed by judgment in the boundary suit now pending, bearing the number 3146 of the docket of this court; the permanent location and course of the right of way and passage herein granted to the plaintiff to be changed, if necessary, to conform to such judicially established boundaries, so as to establish said right of way and passage over and through the property of the defendant Mrs. Emma E. Foster, widow of Edward Matt, alone.”

Eventually a new trial was granted, and there was a second judgment by which it was decreed:

“Insofar as said judgment of July 7, 1947, does not decide the question of whether or not the right of passage granted to the plaintiff should be gratuitous or for a consideration, which question was not presented to the Court for decision at said time but is now submitted to the Court, and the Court being of the opinion that the request of counsel for the defendant that said original judgment be amended so as to include a decision of that question;
“It Is Now Ordered, Adjudged And Decreed, that a right of way and of passage, as more fully set out in said original judgment, be granted the plaintiff over and through the property of said defendant, and that such right of way and of passage shall be gratuitous.”

Mrs. Matt has appealed. Plaintiff failed to appeal.from that part of the judgment dismissing his suit against the Storck heirs. It follows, therefore, that the only question before this court is the correctness of the judgment rendered in favor of Richard Estopinal against Mrs. Edward Matt. The Storck heirs have passed out of the case.

In this court, Mrs. Matt, appellant, filed an exception of no cause or right of action, and a plea of prescription, reading as follows:

“1. That the said petition and/or the record made up thereunder does not set up or show a cause or right of action; and
“2. That petitioner’s demand for a right of passage over the property of the defendant Matt is and has been prescribed and lost by a non use thereof over a period of more than ten years.”

Plaintiff-appellee also filed in this court a document styled “Flea to the Jurisdiction Ratione Materiae.” In .this document, it is contended that the pendency of the action in boundary makes it impossible for the court to render any other kind of judgment “for the plaintiff except a temporary judgment, for the reason that the permanent fixing of the right of way had to abide the fixing of the property lines of both of the defendants in that case with the Estate of Dr. Storck.”

When the matter was called for trial below, it was stipulated by counsel that

“the only issues to be tried are:
“First: The question of whether Plaintiff is entitled to a right of passage over either the Storck property or the Matt property, or both;
“Second, if the Plaintiff is entitled to a right of passage over either the Storck Property or Matt Property or both, then the issue to be decided is as to whether this right of passage shall be located on the Storck property, or the Matt property, or both, subject, however, to the following:
“Regardless of whether this Court decides that the right of passage should be located on the Storck property or on the Matt property or jointly on both properties, when the true boundary between the Storck and Matt properties has been judiciously fixed, the location of the said right of passage on the ground shall be changed, if necessary, to conform to such judiciously established boundaries.
“It is further established that the judgment rendered in this case will recognize the fact that the boundary between the Storck property and the Matt property as well as between the Storck property and the Estopinal property will depend on the outcome of the boundary suit, being number 3146 of the docket of this Court.”

We will hereafter discuss the plea to the jurisdiction and comment upon the said stipulations.

The exception of no cause or right of action filed by Mrs. Matt is directed at two things. Appellant argues first that the exception should be maintained, for the reason that plaintiff’s petition contains no allegations that the passageway claimed was the only outlet available to the nearest public road, and that it is not averred that plaintiff offered to indemnify Mrs. Matt for damages occasioned by the use of such passageway. Counsel cites in support of this argument the cases of Martini v. Cowart, La.App., 18 So.2d 849, and Mallet v. Thibault, 212 La. 79, 31 So.2d 601.

We readily conclude that the petition contains sufficient allegations that need be made in an action of this kind. In article 8, Estopinal alleges that because of the situation of his property, he does not have the right of egress and ingress to the gravel road and bridge which lead to the public highway, and that this is the only route available to him. It is averred also that he was unable to purchase a right-of-way from defendants, and he prays that the court fix the compensation which may be due them for any right-of-way granted to him by the court.

Appellant further contends that the exception should be maintained because there is testimony in the record demonstrating that Estopinal has in the past utilized, and has available, passage across the Cure property, and that, having that right, he has not the right to a passageway across the Matt property. Our attention is directed to the case of Robinson v. Herring, La.App., 20 So.2d 811, but that case can be deemed in-apposite.

Since appellant’s exception was filed only in this court, we believe that the entire record may be considered in arriving at a correct decision thereon. The testimony relied upon by appellant shows that trappers on Estopinal’s property have passed across' the Cure property to and from the road, and it is contended that such evidence fully demonstrates that Estopinal already has an adequate right-of-way across the Cure property, which debars him from claiming passageway across Mrs. Matt’s property.

We do not think, merely because Cure, the owner of adjoining property, during the trapping season, suffered trappers from time to time to pass by footpath through his land, that . Estopinal’s suit should be dismissed.

Article 702, R.C.C. provides:

“A passage must be furnished to the owner of the land surrounded by other lands, not only for himself „and workmen, but for his animals, carts, instruments of agriculture, and every thing which may be necessary for the use and working of his land.”

There is no disclosure that Estopinal has transported animals, carts, instruments of agriculture, and other things necessary for the working of his land, across Walter Cure’s estate.

The exception of no cause of action is unfounded.

The plea of prescription of ten years is based on article 783, R.C.C., which, enumerating the methods in which servitudes are extinguished, provides that one of the means of extinguishment is:

“By prescription resulting from nonus-age of the servitude during the time required to produce its extinction.”

Articles 789 and 3546 provide that the right of servitude is lost by the nonuse for ten years.

The gist of counsel’s contention is that Estopinal, who has owned his property for more than ten years, has lost the right to claim a servitude from Mrs. Matt by non-usage for said period.

The plea of prescription must be overruled.

The right of passage is a discontinuous apparent servitude. R.C.C. arts. 727, 728. It is well settled that such a servitude may be established only by title, or by judicial decree. R.C.C. art. 766; Burgas v. Stoutz, 174 La. 586, 141 So. 67; Wemple v. Eastham, 150 La. 247, 90 So. 637; Baldwin Lumber Co. v. Todd, 124 La. 543, 50 So. 526. We take this to mean that although the owner of the enclosed estate has the fight to demand that he be allowed a right-of-way under article 699 et seq., it may be established only by conventional agreement between the owner of the enclosing estate and the owner of the estate enclosed, or by a judgment establishing the right-of-way and fixing the compensation. It is clear from the record that there has never been a title, either by convention or by judgment, establishing a right-of-way in favor of Estopinal, and it is obvious that as a result, since no right-of-way has ever been established by title or judicially, the prescription which might otherwise have commenced to run against the right, certainly is not applicable. Surely, until the servitude of passage comes into existence, the prescription which is here pleaded cannot commence to run. We deem it unnecessary to determine what would be the result in such a case as this, should such a right have been established by convention or by judgment, and then not used for a period of ten years.

In the early case of De La Croix v. Nolan, 1 Rob. 321, the defendant bought a plantation, and in the act of sale it was stipulated that he should give the use of a road along the upper line of his property for the benefit of the plaintiff and the successive owners of the piece of land lying back of his purchase. Defendant contended that the plaintiff had lost his right to this servitude by nonusage, while it was plaintiff’s contention that the road had never been delivered to him, and that whereas the road was never located or fixed in any particular place of the front plantation, there could be no loss of servitude by nonusage. The Court said:

“ * * * This position would perhaps be correct, were it true that no place had been designated for the exercise of the plaintiff’s right. As the proprietor of the estate owing the servitude is bound to fix the place where he wishes it to be exercised, so long as he does not do so, prescription does not begin to run for non-usage. * * * ”

Estopinal pitched his suit on- R.C.C. arts. 699 and 700, which provide:

Art. 699. “The owner whose estate is inclosed, and who has no way tp a public road, a railroad, a tramroad or a water course máy claim the right of passage on the estate of his neighbor or neighbors to the nearest public road, railroad, tramroad or water course and shall have the right to construct a road, railroad or tramway according to circumstances and as the exigencies of the case may acquire (require) over the land of his neighbor or neighbors for the purpose of getting the products of his said inclosed land to such public road, railroad, tramroad or water course, or for the cultivation of his estate, but he shall be bound to indemnify his neighbor or neighbors in proportion to the damage he may occasion.”

Art. 700. “The owner of the estate, which is surrounded by other lands, has no right to exact the right of passage from which of his neighbors he chooses.

“The passage shall be generally taken on the side where the distance is'the shortest from the inclosed estate to the public road.

“Nevertheless, it shall be fixed in the place the least injurious to the person on whose estate the passage is granted.”

That suit was founded on the said articles abundantly appears from the allegations and prayer of the petition. Estopinal alleged that defendants should be compensated for whatever passageway he should be granted, and he prayed that the compensation due be fixed in the judgment.

However, in brief and argument, appel-lee’s counsel contend that he owes no compensation for the servitude, because under the circumstances surrounding Judge Esto-pinal’s sale of the front part of his tract and his retention of the enclosed rear part, Richard Estopinal, the present owner of said rear portion, has the right to gratuitous passage across Mrs. Matt’s property, under the provisions of art. 701, R.C.C., which provides:

“It is not always the owner of the land which affords the shortest passage who is obliged to suffer the right of passage; for if the estate, for which the right of passage is claimed, has become inclosed by means of sale, exchange 'or partition,, the vendor, coparcener or other owner of the land reserved, and upon which the 'right of passage was before exercised, is bound to furnish the purchaser or owner of the land inclosed with a passage gratuitously, and even when it has not been sold or transferred with the rights of servitude.”

Counsel say that there are no authorities in which this article has been interpreted or applied, and our own research has failed to reveal any, ,

We cannot at all agree with the strained construction counsel seek to accord to the article. Its unmistakable import is that when one acquires an enclosed estate by means of sale, exchange, or partition, the vendor or other owner of the land reserved, and upon which the right of passage was before exercised, is bound to furnish the purchaser or owner of the land enclosed, by reason of the transfer, with a gratuitous right of passage, even though it had not been sold or transferred with the right of such servitude. In other words, if the owner of a tract of land sells a portion thereof which is enclosed, the vendor would owe to the purchaser a gratuitous right of passage over the property retained.

But, however, to the inverse of that situation the article is inapplicable. The article does not provide that in a case where the owner sells a part of his land 'and reserves for himself a blocked or' enclaved portion, without stipulating for a servitude across the part sold, he can force his vendee to supply him with a gratuitous servitude over the blocking property.

Our opinion is that if in this case a right-of-way over the Matt land is establishéd for Estopinal’s benefit, such would flow, not from article 701, which does not control the situation confronting us, but from articles 699 and 700 and Mrs. Matt should be awarded whatever damages the right-of-way may occasion to her.

The trial judge established a twelve-foot right-of-way and passage over and- through the Matt property, beginning kt the lower line of Estopinal’s land where it adjoins and forms the corner of the two tracts, running in the most direct and shortest line to Bayou Terre aux Boeufs.

There was introduced and admitted into the evidence a blue print of a survey of the Storck, Estopinal, and Cure tracts. From a study of the blue print, it would appear that a passageway running along the eastern line of Mrs. Matt’s land offers the shortest and most direct'route over her property to the unimproved road, but such route might not be the shortest" which Es-topinal could use. We cannot say, but, possibly a passageway over either one or both of the Matt and Storck lands might furnish the shortest outlet to the road. There is no reason why the owner of a surrounded estate may not claim the right of passage over several estates if the way be the most convenient to him and least burdensome to his neighbors. See Mercer v. Daws, La.App., 186 So. 877.

The trial judge undoubtedly concluded that R.C.C. art. 701 controlled the situation, hence his establishment of the gratuitous servitude entirely over Mrs. Matt’s property, but as has already been said, that article has no application to the case.

R.C.C. art. 700 emphatically states that the owner of the enclosed estate has no right to exact the passage from which of his neighbors he chooses. The passageway shall be generally taken on the side where the distance is the shortest from the enclosed estate to the public road, but, nevertheless, it shall be fixed in the place the least injurious to the person on whose estate the passage is granted.

The right-of-way over a defendant’s land is the forced expropriation of a participation therein. Pousson v. Porche, 6 La.Ann. 118; Perry v. Webb, 21 La.Ann. 247.

While article 700 enjoins that the servitude shall be fix.ed in the place least injurious to the owner of the servient estate, the Supreme Court, in Littlejohn v. Cox, 15 La.Ann. 67, departed from the strict letter of the article and said that due regard will be paid to his interests, and even to his convenience in the premises.

Mrs. Matt complains that the right-of-way granted by’the court is extremely inconvenient and damaging to her. Uncon-tradicted testimony shows that the right-of-way as fixed will necessitate the moving of her barn, garage, and chicken house, and the destruction of fruit, pecan, and other trees. The estimate of the damages is $1915.00.

The Matt property has a frontage of 191 feet along the bayou, but there is nothing to show the location of all of the buildings and improvements on the property. Whether another route across her land would occasion less damage cannot be ascertained from the evidence, but, seemingly, if her property is to be subjected to the servitude, out of the frontage of 191 feet, a more practical way, even if a little more circuitous, could be selected which would not entail the moving of buildings and the destruction of valuable trees.

The rule that the way must be generally taken on the side nearest the road should only be departed from for weighty considerations, but the most direct course may be deviated from with a view to rendering the servitude less onerous to the land over, which the road is to be laid out. Miller v. Thompson, 3 La.Ann. 567.

In Mercer v. Daws, supra, it was said:

“ * * * It can not now be seriously contended that Articles 699 and 700 of the Revised Civil Code are to be so strictly construed as not to allow any deviation from the literal words thereof under any condition. If so, there are many instances where the cost of an outlet would exceed many times the value of the estate. * $ *»

Appellee’s plea to our jurisdiction ratione materiae is predicated on the theory that the pending boundary suit worked a change of character in the instant case, making it impossible for anything more than a temporary judgment to have been rendered, effective only until the correct boundary between the estates can be judicially established in the pending action. Counsel argue that the judgment appealed from is of a temporary nature, and that Estopinal is entitled to an immediate gratuitous right-of-way until a permanent one can be fixed after the question of boundary is settled, and that Mrs. Matt, therefore, had not the right to appeal from the judgment, and this court, consequently, has no jurisdiction to consider the matter.

The court is unaware of any law or precedent investing us with the power and authority to enter a temporary judgment in a case such as is now being considered. R.C.C. arts. 699 and 700, under which the action arose, presupposes that whatever relief is granted to the proprietor of an enclosed estate, is to be permanent, and he is obliged to indemnify his neighbor in proportion to the damage the right-of-way may occasion.

The necessity for an outlet has been fully established by Estopinal, and if he is compelled to suffer delay, it is true injury might result. But it would be a harsh and unconscionable ruling indeed, if Mrs. Matt were condemned to move her buildings and cut down her trees to accommodate plaintiff with a temporary and gratuitous right of passage. To say the least, the plea is without merit.

This case appears to be a fit subject for remand. In the stipulation made by counsel when the case was called for trial in the lower court, the pertinent part of which has been hereinabove quoted, it was agreed by counsel that if the aforesaid boundaries were redefined by judgment in the pending suit, the location of any right-of-way accorded plaintiff should be changed of necessity, so as to conform to the judicially established boundary lines.

This is quite a novel and unheard of agreement, and one that should not be entertained. The equities of the parties and the provisions of R.C.C. arts. 699 and 700, dictate that no attempt should be made by the court to endow plaintiff with a temporary right-of-way. If such were to be done, overlooked would be the matter of the amount of compensation due Mrs. Matt, which is as much our concern as are the rights of Estopinal. Justice could not properly be done through the medium of a temporary decree.

Even had counsel not so stipulated, nonetheless the matter should be remanded. We are not at all satisfied that the judge below selected the shortest and most direct path, or whether the right-of-way should cross Mrs. Matt’s property, the Storck property, or both. Nor does the record show, if Mrs. Matt is to be condemned to grant the servitude, that the location of the passageway is the least damaging, burdensome, and inconvenient to her. The record as constituted makes manifest that Mrs. Matt will sustain considerable, and, perhaps, unnecessary damage if the right of way is to run as fixed in the judgment..

Considering the stipulation of counsel, the exigencies of the case require that further proceedings be held in abeyance until the delineation of the boundary is settled.

Upon the ultimate trial of the case, if it should be developed that Mrs. Matt’s property alone is to furnish the outlet, the lower court is directed to fix the location where the distance is shortest to the public road, but in the place least injurious to Mrs. Matt, taking into consideration her interest, as well as her convenience, and to award her commensurate, compensation in proportion to her damage.

The judgment insofar as it runs in favor of plaintiff and against Mrs. Matt is annulled, avoided, and reversed, but in all other respects it is affirmed.

It is ordered that the matter be remanded to the lower court for proceedings consistent- with the views hereinabove expressed. Plaintiff-appellee is to pay the costs of this court, and all other costs are to await a final determination of the case.

Affirmed in part, reversed and remanded in part.


source: Caselaw Access Project

author: FRUGÉ, Judge ad hoc.

license: Public Domain

text:
    SIMON v. DESORMEAUX.
    No. 3203.
    Court of Appeal of Louisiana. First Circuit.
    Feb. 17, 1950.
    Bruner & Mayeux, Crowley, for appellant.
    Noble M. Chambers, Crowley, for appel-lee.
   FRUGÉ, Judge ad hoc.

The plaintiff sued defendant for alleged damages to his car in the sum of $800.00, and for personal injuries to himself and loss of time in the sum of $4,226.00, which he claims was caused by a collision between his car and that of defendant, and alleging that said collision occurred solely through defendant’s negligence.

Defendant answered denying negligence on his part and charging the collision occurred solely through plaintiff’s negligence and reconvened for $551.00 for damage to his car, injuries to his wife, $44.50 for medical expenses, and $57.00 for help to care for his child.

The District Court rendered judgment for plaintiff in the sums of $800.00 for damages to- car, $40.00 for medical expenses and $1,000.00 for injuries, and rejected defendant’s reconventional demand, from which Judgment defendant appeals.

Plaintiff alleges in substance among other things that at about the hour of 4:00 o’clock in the afternoon on September 4th, 1943, he was leaving Crowley, Louisiana, going West toward his home on U. S. Highway 90 in his automobile driving at a moderate rate of speed and while driving in this direction he came to a point approximately 80 yds. east and north of a railroad crossing about one-half mile out of Crowley when he perceived the defendant, Lovic C. Desormeaux, enter the “S” curve at that point "coming toward him at a high and excessive rate of speed in a diagonal position across the road; that when he saw this he immediately swerved his car to his right, applied his brakes and did everything that a prudent driver could do to avoid a collision with the defendant’s car, but that despite his efforts, the right front fender of the defendant’s car struck plaintiff’s car at or about its left front fender. That the impact caused by the tremendous speed of the defendant’s car caused the rear of the defendant’s car to swing around hitting the rear left end of plaintiff’s car and knocked plaintiff’s car off the highway into the ditch on the west side of the said highway where plaintiff’s car stopped in an upright position, entirely off the highway and that the defendant’s car remained on the highway diagonally across it, and that the proximate cause of the accident was the negligent and wreckless manner in which the said defendant operated his automobile.

The defendant alleges that the accident occurred while he was driving his Ford car going from Mermentau to Crowley accompanied by Mazie Duhon, his wife, sitting on the front seat at his right and that when he got into the “S” curve which begins about fifty or sixty feet west of the point where the Gulf Coast Railroad crosses said highway and then said curve turns to the left and northeast and then to the right and east extending about 1600 feet to a point on Second Street about 65 feet east of the Western Corporate limits of Crowley, there are two railroad crossings within, said curve;, that they are about 450 feet apart and that the space between the rails is floored with wooden planks, slightly lower than the top of the two railroad rails, causing a steady and rather severe vibration of a car crossing passing. That he, the defendant, entered the west end of said curve at a moderate rate of speed driving his car carefully and well to the right of the black center mark in said highway and that he crossed both railroads, but that when he passed the second railroad and the curve begins to straighten out and curve to the right at about a 4 degree angle, his car would not turn to the right to follow said curve but kept going to the left at the same angle it had been traveling; that the steering wheel would not turn to the right, and was apparently locked, and although he used his best efforts to do so, the car would not straighten out and follow the curve to the right; that his car began to cross the black center line to the left; that when he realized that his car would not steer to the right and follow the curve he applied his brakes and brought his car almost to a complete stop with the front wheels about two feet from the western edge of the pavement, squarely across and on the pavement, the pavement being wet and slippery when his car was struck from the side at the right front wheel, and again on the right side by the on-coming car of plaintiff with such-force that defendant’s car was spun about three-quarters of the way around remaining on the pavement at approximately the same spot as when struck but facing approximately northeast in the road; that defendant’s car never left the pavement and that plaintiff’s car was hurtled into the ditch on the west side of the road and that it was raining hard and the road was slippery at the time of the collision and that he did not know of any mechanical defects in his car before entering said curve and that he belieyes that the steering mechanism in his car was put out of commission when he crossed the railroad; that the sudden failure of .his car to steer properly was due to causes suddenly arising of which he had-no prior notice and that he was not negligent in any manner; that plaintiff’s car never did slack, even- though he had ampie time to do so and avoid the accident.

This case was tried by Judge W. W. Bailey and before entering judgment he retired from the bench. His successor, Judge N. S. Hoffpauir, to whom the case was then submitted, wrote the judgment wherein he decided in favor of plaintiff and against the defendant. While it is true that the judge did not hear the witnesses testify in Open Court he evidently made a very careful study of the record as reflected by a well reasoned opinion.

The Trial Court Judge in his analysis of the evidence stated that both plaintiff and defendant are residents of the Parish of Acadia and both living west of Crowley and that both use U. S. Highway 90 frequently and both are familiar with the “S” curve and the hazards existing by virtue of the two railroad crossings within the curve and their condition and that- it was raining and the road was slippery at the time of the accident.

We agree with the Trial Judge that sufficient time elapsed between the time, the defendant discovered something wrong with his steering gear and the accident to have brought his car to a complete stop on the proper side of the road, and thereby having avoided the accident. The time is evident •by the speed he says he was driving and the conversation between him and his wife. While on the other hand if he did not have time to bring his car to a stop after he crossed the railroad up to the time of the accident then it is evident that he was driving at an excessive rate of speed and that his car was thrown out of control when he crossed the railroad track.

In addition to that, there is evidence in the record by a State Trooper to the affect that the plaintiff had run his car off the pavement on the shoulder on the right hand side and then followed the shoulder approximately ten feet where the tire marks showed where he cut his wheel to the left and then to the right again and then left where he climbed back on the pave up until the scene of the accident. A close analysis of the testimony of all the witnesses convinces us that the Trial Judge is correct ' in his analysis of the evidence and that therefore the proximate cause of this accident was caused by the negligence of the defendant. Defendant contends that the plaintiff had the last clear chance to avoid the accident and that he had ample time to apply his brakes and come -to a full stop before running into defendant’s car on the .highway..

We think the case of Miller v. Commercial Standard Ins. Co. et al., La.App., 13 So.2d 733, is particularly pertinent here. In this case a young man by the name of Richard was driving on a wet road toward New Iberia and he pulled out to his left to overtake and pass a car ahead of him and when he did so he saw the plaintiff’s car coming on its proper side of the road. He then pulled on his proper side qf the road and applied his brakes, and his truck went into a skid and he was headed for the ditch on the right side of the road, and to keep from going into the ditch he cut his wheel to the left and perhaps again to the right, then sharply to the left again so that the truck cut very sharply across the road and ran into the Miller car. The Miller car in the meantime had slowed up perceptibly and his car was partially off on the right shoulder of the road when the Richard truck struck him. The right front corner of the Richard truck struck the Oldsmobile just behind the front of the left front fender. Then the Ford truck spun around -counter-clockwise in the road, and the right rear fender of the Ford struck the Oldsmobile again on the left rear fender.

That is almost exactly what happened in this case if we are to believe the testimony of the highway officer, plus the testimony of the defendant, himself, and the physical facts.

It was further stated in the Miller case that a motorist traveling on his side of the road had a right to assume that truck approaching from opposite direction would obey the law and stay on its side of the road. We find the same ruling in the case of Cutrer v. Jones, La.App., 9 So.2d 859, Syl. 4 at page 860, wherein it is stated that a motorist traveling on his side of the road had right to assume that truck approaching from opposite direction would obey the law and stay on its side of the road. There are numerous authorities which so hold.

Defendant did not specially plead contributory negligence on the part of plaintiff. He has denied Article 7 of plaintiff’s petition in which plaintiff alleges that he was guilty of no negligence and did not contribute to the cause of the accident, but to the contrary, he did all in his power to avoid the accident and that the sole and proximate cause of the accident being the negligent and reckless manner in which the defendant operated his automobile. The defendant in further answering in Article 21 alleges that the steering was out of control and he could not bring his car back to the right side of the center line and that plaintiff’s car kept on coming on its side of the road and plaintiff’s car never swerved or tried to swerve to right or left, nor to stop before it struck the car of defendant when defendant’s car was squarely across the road and almost completely stopped and that plaintiff had ample time to stop his car and he had ample space on the pavement and shoulders of the road to go •around the back of defendant’s car, and thereby avoid the accident and that the accident occurred solely through the negligence and carelessness of' the plaintiff.-

In our opinion these pleadings do not reflect the special plea of contributory negligence which is required. See the case of Martin v. Toye Bros. Yellow Cab Co., La.App., 162 So. 257, also see McMahon’s La. Practice, Vol. 1, p. 582-588.

The amount of damages allowed by the Trial Court appears not excessive.

Judgment affirmed.


author: DORE, Judge.

text:
    GOINS et al. v. BEAUREGARD ELECTRIC COOPERATIVES, Inc.
    No. 3199.
    Court of Appeal of Louisiana. First. Circuit.
    Feb. 17, 1950.
    Lecompte & Hall, DeRidder, for appellants.
    Kay & Kay, DeRidder, for appellee.
   DORE, Judge.

The plaintiffs herein are the heirs of Albert Goins, and as such, they are the owners- of the Southwest Quarter (SW^4) of the Southeast Quarter (SE%) of Section 11, Township One (1) South, Range Ten (10) West, situated in Vernon Parish, Louisiana, being part of the property obtained by patent from the United States by said Albert Goins of date June 18, 1901.

The defendant is a public utility corporation domiciled in the Parish of Beauregard and holding a franchise in the Parish of Vernon to erect its electric lines over all public highways. In connection with the erection of its electric lines, the said defendant, Beauregard Electric Cooperatives, Inc.,: obtained a right-of-way easement from one W.- P. Davis, which describes the property on which the easement is granted, as follows: “That Part of SEJ4 of SWJi, Sec. 11-1-S, 10 W, not owned by J. W. Stevison, also The SEJi of the NW% Sec. 14, TP 1S-R 10 W.”

It is shown that the said W. P. Davis purchased property from Martha Jane Midkiff and Florence O. Midkiff on October 25, 1909, described as: “East half of Southeast Quarter (SEJ4) of Southwest Quarter (SW%), Section 11, Township One (1), South Range 10 W., and the easement granted was supposed to apply to this property.

ít is shown by the evidence that the Southwest Quarter (SWJ4) of Southeast Quarter (SE%) belonging tó ' the plaintiffs and the property of W. P. Davis, are contiguous and that in accordance with a survey made, the Goins property extends beyond a public road on the East side of the Davis property, and yet a fence along this road had been built,since before the acquisition by Davis on the West side of the public road, and the correct line was not discovered until’ after the defendant, Electric Cooperatives, had constructed its electric line along the West side of the public highway and clearly on the Southwest Quarter (SWJ4) of Southeast Quarter (SEJ4) belonging to the plaintiffs.

The plaintiffs contend that the construction of this electric power line on this property was done without any authority whatsoever from them, and that as a result thereof, their property has been injured to the amount of $795.24, consisting of the following it'ems:

“1156 feet pine valued at $115.00 per thousand . $132.94
773 feet hardwood valued at $100.00 per thousand. 77.30
379 small hardwood trees valued $1.00 each.’.... 379.00
206 small pine trees valued at $1.00 per tree. 206.00
Total . $795.24"

They sue the Electric Company for this amount of damage and further demand that the Electric Company be ordered to remove and take off the poles and power lines placed on their property by said defendant.

The defense is in effect that the line was caused as a result of the easement obtained from W. P. Davis; that at that time, no survey showing the correct line between the Davis property and the Goins property was in existence, but that the accepted line had always been the fence along the West side of the public highway, which had been there for some forty years. The contention of the defendant is that Davis had occupied and operated that property since his acquisition in 1909, and that consequently, the property to the fence line belonged to -Davis by reason of actual physical and corporeal possession as the owner thereof for a period of thirty'years, citing Civil Code Articles 3499 and 3501.

After trial of the case, the trial judge for written reasons assigned, rendered judgment in favor of plaintiffs in the sum of $250, and decreeing further that the defendant remove three poles erected on plaintiff’s property described as Southwest Quarter (SWJ4) of Southeast Quarter (SEJ4), Section 11, Township One (1) South, Range 10 West, in Vernon Parish, Louisiana.

. The defendant has apppealed and again makes -the contention that, the property in question was owned by W. P. Davis by reason of adverse possession of more than thirty years, and that the easement from Davis to it gave it the privilege of constructing the power line as was done. In the alternative, the defendant contends that should this Court decide that the lower Court was correct in overruling the plea of prescription, then and in that event, this Court should reconsider the quantum of damages for the reason that the trial judge did not state in his reasons for judgment, how he arrived at the sum of $250. The trial judge’s statement in that regard is as follows: “The next item is the quantum of damages to be allowed. The evidence was very conflicting. The Court thinks that taking everything in consideration, the sum of Two Hundred Fifty and no/100 ($250.00) Dollars, should adequately compensate plaintiffs, and this amount is hereby allowed as damages.”

The defendant brings out the fact that the only expert timber estimator who testified was one Don Stracener, who stated that in his investigation of the right-of-way on which the line was constructed, the only commercial timber destroyed that he found was four pine trees scaling a total of 218 feet, and one oak tree scaling 49 feet, and that trees not merchantable amounted to 26 white bay and gum bush. On the other hand, Goins, a welder by occupation, and Burrow, a plumber by occupation, testified that they made a thorough study of the damage done and that the commercial pine and hardwood cut amounted to 1,156 feet of pine, valued at $115 per thousand, and 773 feet of hardwood, valued at $100 per thousand, and that in addition thereto, 379 small hardwood trees valued at $1 each and 206 small pine trees valued at $1' per tree, were cut, which makes up’ the total claim of $795.24. On the valúe, the defendant contends correctly that since it was not acting in bad faith in cutting the timber from the right-of-way, then it is answerable to plaintiff’s stumpage value only and not the manufactured value set. forth in the petition. On the question of stumpage value, the best evidence we have in the record is the testimony of H. M. Bennett, who has been engaged in lumber manufacture and retail lumber store for about five years, who stated that at the time the right-of-way was opened, the cost of stumpage for select pine trees was from $12 to $25, but that usually they got stump-age for around $12 or $15. He sets the hardwood at $12 per thousand for stump-age. Using the average of the value of stumpage as set forth by Mr. Bennett on the pine, we would have the figure of $18.50 per thousand, and using the actual amount claimed by plaintiff, 1,156 feet of pine (See Exhibit P-6), which would give you the sum of $21.39 for the pine, and using the $12 figure on the hardwood given by the defense witness, Bennett, and the 1,037 feet claimed by plaintiff, you would have an additional amount of $9.28 for the hardwood, or a total of $30.67 for the actual scale lumber based on plaintiff’s own claim. It would be much less than this if you use the figures of Don Stracener to wit, 218 feet of pine and 49 feet of hardwood. In so far as the small trees of no commercial value are concerned, there is much evidence to the effect that of these, 175 had previously been destroyed by fire, and moreover, in addition to this great variance in the number involved as testified by neutral witness Don Stracener and plaintiffs Goins and- Burrow, there is no showing that these little trees or bushes had any value. We are therefore of the opinion that the most that plaintiff is entitled to as damages to the standing timber is, the sum of $30.67.

We have discussed the quantum of damages first for the' reason that we are of the opinion that the plea of prescription was properly overruled. The only evidence in support of the plea of prescription was the facft that for years prior to the acquisition by W. P. Davis, a fence' had been built along the West side of the highway and that Davis lived on the property even prior to his purchase in 1909, and continued to live thereon after he became owner, until about 1921,- and continued to farm part of the property subsequent thereto, and up to 1947. As for the particular strip involved, there is no showing that it was farmed, and apparently it had been overgrown with trees' and bushes for some ten years prior to the erection of the power line. It is also shown that the fence in question had not been kept up and there is no showing when and by whom it was erected. It seems clear that neither Davis nor the Goins knew where their property-line was until after a survey was made by Mr. Oxford, contained in the record in connection with this power line. At that time, two of the plaintiffs attempted to secure a quitclaim from Mr. Davis to the strip involved so as to definitely establish the line between their property and the Davis property, and while Davis refused to sign such a quitclaim, it is not shown that he in any way claimed to be owner of the property. His attitude is that all he wants is the land which he purchased and that he wants the Goins to have whatever land belongs to them. We agree with the trial judge in his statement, as follows;

“The evidence on the plea of prescription was rather indefinite. The surveyor -employed by defendant denied that the southwest corner of the property in controversy was as shown on the map, although he never did ascertain just where said corner line was. The evidence used by the defendants was rather hazy, particularly as to the question of a fence allegedly erected and maintained by W. P. Davis, grantor of defendant.
“In the case of Texas Co. v. Theriot et al., 172 La. 662, 135 So. 17, our Supreme Court held that in order for defendants to establish a prescriptive title, they must show actual, continuous, uninterrupted, public, equivocable, possession for the -full prescriptive period of particular and definite property, to which they assert and claim ownership of property, citing Articles 3500 and 3503 of the revised Civil Code.
“In the case of Kilbourne v. Hosea, La.App., 19 So.2d 279, the First Circuit Court held that where some acts of ownership were exercised over property, but evidence was indefinite as to how long acts of ownership were exercised over the property, evidence was insufficient to prove necessary possession to have acquired property by prescription of thirty (30) years.
“Keeping the above cases in mind and an examination of the evidence as to prescription the Court is satisfied that the defendant has not established said prescriptive title in its grantor with that certainty required by law. The plea of prescription is accordingly overruled.”

With reference to plaintiffs’ demand, which demand was allowed by the District Judge, that is, that defendant be ordered to take off and remove from plaintiffs’ property all the poles, power lines and other property placed thereon by it, we are of the opinion that such demand should not be granted and the judgment so granting should be reversed for the following reasons :

Defendant is a corporation organized and existing under the laws of this State for the purpose of transmitting electricity for power, lighting, heating and other such purposes and under Act No. 110 of 1924, as amended by Act No. 156 of 1926, has the right to expropriate rights-of-ways for their transmission lines, which said right of expropriation shall be exercised in the same manner and by the same proceedings and under the same limitations now imposed by law on railroads and other quasi-public corporations.

Defendant on July 8, 1940, was granted a franchise by the Police Jury of Vernon Parish to erect, maintain and operate a line, or lines of poles, wires and structures, for the transmission of electric energy along and across all public highways in the Parish of Vernon lying South of Township One (1) South in the said parish, which franchise has been in effect from the date it was granted.

On May 8, 1947, W. P. Davis, being of the opinion that the public road then existing was the dividing line between his property and that of plaintiffs, and being further of the opinion that he was the owner of the property lying West of said public road, in absolute good faith, granted to defendant herein an easement to construct and operate an electric transmission line, and to cut and trim trees upon what he then thought to be his property. Defendant, in utter good faith, pursuant to said grant, then constructed its line of transmission for electric energy. It may be mentioned at this time that it was only after the completion of the said line of transmission and a survey of plaintiffs’ property that it was ascertained that plaintiffs’ property extended beyond the public road and that defendants’ line of transmission was upon plaintiffs’ property.

In the case of Gumbel v. New Orleans Terminal Co., 190 La. 904, 183 So. 212, the Supreme Court of this State held that a public utility corporation which has the power of eminent domain may', by continual adverse possession and use of a portion of private property for right-of-way purposes, acquire the right to retain such right-of-way without resort to expropriation proceedings and the landowner will be relegated solely to a right of action for damages. See also Gumbel v. N. O. Terminal Co., 186 La. 882, 173 So. 518.

In the case of Roussel v. N. O. Ry. & Light Co., 152 La. 517, 93 So. 758, 759, it was held: “Where part of the property sued for in a petitory action is in the possession of an electric railway company having the power of eminent domain and expropriation, plaintiffs will be relegated to a right of action for damages so far as the portion of the property in the railway company’s actual possession and use is concerned.” See also St. Julien v. M. L. & T. R. Co., 35 La.Ann. 924; Lindner v. Y. & M. V. R. Co., 116 La. 262, 40 So. 967.

In the case of Barre v. Police Jury of the Parish of Avoyelles, 14 La.App. 155, 128 So. 694, a case wherein the Police Jury of the Parish of Avoyelles built a public road on plaintiff’s land without his knowledge and consent, the Court of Appeal, Second Circuit, held that plaintiff’s action was one for damages in the nature of a personal action for the value of lands the fee to which has been passed to the Police Jury by a quasi alienation.

In this case, regardless of the fact that plaintiffs have not acquiesced in the action of defendant, it cannot be contended that the property was not in the actual possession of defendant, or that it was not actually being used for the transmission of electric energy or that defendant does not possess the right of expropriation.

However, in the case, we have no evidence showing the actual extent of the property in possession of the defendant and its value in order to fix the amount of damages to which plaintiffs are entitled and the case shall be remanded to the lower Court for the introduction of evidence with regard thereto.

Exercising the discretion granted to us under Article 906 of the Code of Practice, it is ordered that the judgment appealed from is hereby annulled, reversed and set aside and accordingly, it is now ordered that the said cause is hereby remanded to the Fourteenth Judicial District Court for the Parish of Beauregard for further proceedings consistent with the views herein expressed. Plaintiffs are to bear the costs of this appeal, all other costs to await the final disposition of the case.

J. CLEVELAND FRUGE, J., sitting ad loc.


author: FRUGE, Judge ad hoc.

text:
    JENKINS v. CITIES SERVICE REFINING CORPORATION et al.
    No. 3206.
    Court of Appeal of Louisiana. First Circuit.
    Feb. 17, 1950.

      Thos. Arthur Edwards, Lake Charles, for appellant.
    Jones, Kimball & Everett, Lake Charles, for appellees.
   FRUGE, Judge ad hoc.

This is a -suit filed by Alberta Jenkins against Cities Service Refining Corporation and Jesse W. Coltrin seeking judgment against Cities Service Refining Corporation under the Louisiana Workmen’s Compensation Act, Act No. 20 of 1914, as amended, for $20.00 per week -for 300 weeks as being due her on account of the death of her husband, Wilson Jenkins, an employee of Cities Service Refining Corporation. In the alternative the plaintiff seeks a solidary judgment against Cities Service Refining Corporation and Jesse W. Coltrin for $20,000 for the death of her husband as aforesaid.

Hartford Accident and Indemnity Company is named in the original petition as the insurer of Cities Service Refining Corporation, but the insurance company was not made a party to the suit.

Exceptions of no cause or right of action were filed in behalf of both defendants and were overruled by the Court. Plaintiff then amended her original petition to "allege that the deceased, Wilson Jenkins, was killed while engaged in the course of his employment. Answers were filed by the two defendants and issue thus being joined, the case was tried on its merits.

After trial on the merits plaintiff’s suit was dismissed as to both the main and alternative demands. The Trial Judge found that there were three principal questions of fact that were presented on the trial of this case—

We will consider only the third point, being sufficient to dispose of this case, thus:

Was the deceased the aggressor in the altercation which occurred at the time he received his injury and where he was fatally injured at a time when he willfully intended to injure himself or another?

On this question of fact the Trial Judge came to the conclusion that the deceased,. Will Jenkins, had been assigned to work in the K-6 Structure at the plant of the Cities Service Refining Corporation, one of the-defendants herein, but that he had left this. K-6 Structure and had proceeded to approach the K-3 Structure for the purpose of provoking the difficulty which resulted. He further found that immediately prior to, and at the time of the fatal injury to the decedent, Will Jenkins, he, the said Will Jenkins, intended to willfully injure the defendant Jesse W. Coltrin. Having reached these conclusions as to the facts he dismissed the main suit for compensation.

The Trial Judge further held from his. appreciation of the facts that there was no. negligence on the part of the employer,. Cities Service Refining Corporation, nor on the part of the fellow employee, the other defendant, Jesse W. Coltrin, that it was necessary for Coltrin to strike the blow which-resulted in the death of plaintiff’s husband in defense of his person.

A careful study of this record, with particular attention to the testimony of the-witnesses, lead us to the conclusion that the-Trial Judge is correct.

The deceased was an employee of the-Cities Service Refining plant in Calcasieu: Parish, a man about 48 years of age and weighing about 180 pounds, who was employed as a janitor in Structure K-6 of the C-4 Gas Recovery Unit which is a shed like structure supported by large concrete columns with no side walls and in which are located various machinery and operating units of the C-4 Gas Recovery System; defendant Jesse W. Coltrin, also an employee of the same refinery as electrician first class. He was directed to replace some conduit iron pipe between Structures K-6 and K-3 of the C-4 Gas Recovery System which are about 30 to 40 feet apart. Coltrin, in moving his ladder about his work, set it down within a coil of the hose without having any knowledge at that time that he had done so, and climbed upon the ladder to go about his work on Structure K-6. It appears that this greatly infuriated Jenkins because of the fact that Coltrin had hampered the movements of his hose with the ladder, and he, Jenkins began to mumble, threaten and curse Coltrin. There had been no previous words, or difficulty between them. Jenkins, in effect, demanded that Coltrin come down from the ladder and remove it, whereupon Coltrin stated that he would, in just a minute, evidently to finish doing a particular job, and he then came down from his ladder and removed it. At this juncture Coltrin moved over to Structure K-3 and continued the work assigned to him. We are convinced from the testimony of the witnesses that Coltrin desired to remove himself from the vicinity of Structure K-6 where Jenkins was engaged in janitor work. Coltrin, in his work, had occasion to cut conduit pipe about 2 or 3 feet long and about % to 1 inch in diameter. It is a piece of this conduit pipe that Jenkins picked up to make an assault on Coltrin. Coltrin used an instrument which is known as a "hickey”, being a pipe bending tool about 3 feet long with a big knuckle on the end.

About 45 minutes after Coltrin left the K-6 Structure and was engaged in his work at the K-3 Structure, something like 30 feet apart, he was attracted by the approach of the decedent, Will Jenkins, who had this conduit pipe in his hand in a threatening manner, advancing on him. At this point he, Coltrin, picked up the “hickey” and tried to ward off the blows which the decedent evidently intended to inflict upon him. He did succeed in shoving back Jenkins by swinging the hickey in a warding off manner but Jenkins came back from the other side of one of the columns and would have hit Coltrin if Coltrin had not struck him in self-defense with the hickey. There was only one blow inflicted on Jenkins’' head. After Jenkins fell to the floor he still held the length of pipe in his hand and two of the employees removed it. Coltrin immediately ran into the control room and requested an ambulance stating that he had hit the man and then furnished his coat to place under the head of the victim awaiting the ambulance. Substantially the above is our appreciation of the true facts as testified to by the witnesses. Subsequently Jenkins was taken to the sanitarium, an emergency operation was performed on his skull to remove pressure from his brain but he died there few days thereafter.

The defendants urged, as a special defense, provisions of Section 28 of Act No. 20 of 1914, as amended, known as our Louisiana Workmen’s Compensation Act which provides as follows: “1. No compensation shall be allowed for an injury caused (1) by the injured employee’s wilful intention-to injure himself or to injure another * *

One of the leading recent cases on this point is the case of Gross v. Great Atlantic & Pacific Tea Co., La.App., 25 So.2d 837, 844, wherein considerable Louisiana jurisprudence was reviewed and which is, in our opinion, authority that no recovery can be had herein by the plaintiff from either of the defendants. We quote from the concluding paragraphs of that opinion:

“We conclude that it is well established that in considering whether an accident arises out of and occurs in the course of employment, the statute should be liberally interpreted in favor of the claimant and that recovery should be allowed unless some special defense such as those set forth in Section 28 is clearly established. By such a defense the case is removed from the general rule. In the case at bar the accident can be said to have arisen out of the employment but there can be no recovery because of the effect of Par. 1 of Section 28.
“From the cases which we. have discussed, we form the conclusion that mere verbal arguments or verbal provocations, unless they are extremely serious, should not be considered as the commencement of such affrays as this. We think that we should look to the first physical act or the first threat of violence accompanied by an apparent attempt to carry out the threat. Here the first act of violence was the slap in the face which Gross administered to Johnson. Since that first act'was committed fey Gross, himself, he cannot recover.

We think the case of Burkhardt v. City of Monroe, La.App., 37 So.2d 601 is pertinent here. This decision was rendered by the Court of Appeal for the Second Circuit and applied the provisions of the Workmen’s Compensation Act above quoted where two employees of the City of Monroe at the city pump on Bayou DeSiard became involved in an altercation over some illegal fish traps which they had placed in the bayou adjacent to the pump station. As a result of this altercation one of the employees was killed) by the other. It was shown in that case that the deceased employee had made an overt act, and in fact was attacking his fellow employee with a wrench, when in self-defense the fellow employee shot and killed him. The court held that the deceased was the agressor and that no recovery could be had.

In the case of Turner v. Baton Rouge Coca Cola Bottling Co., 15 So.2d 153, the Court of Appeal for this circuit held that a blow delivered by a fellow employee who was, being attacked by the injured employee precluded any recovery under the Workmen’s Compensation Act. In this case the injured employee was held to he the aggressor and Section 28 of the Workmen’s Compensation Act was applied.

In the case at bar the evidence discloses that the deceased' employee was the aggressor, and that the defendant, Coltrin, struck the victim in self-defense. Hence, Section 28 of the Workmen’s Compensation Act is applicable to bar recovery.

In view of the factual situation in this case it is our opinion that plaintiff cannot recover under her alternative plea under the general tort statute of Louisiana for the reason that when a person inflicts an injury in self-defense no recovery can be had by the injured person or by his heirs or widow. See Hingle v. Meyers, 135 La. 385; 65 So. 549; Manuel v. Ardoin, La.App., 16 So.2d 72; McCurdy v. City Cab Co., La.App., 32 So.2d 720.

Judgment of District Court is affirmed, plaintiff and appellant to pay all costs.


text:
    SEGARI v. UCHELLO.
    No. 19401.
    Court of Appeal of Louisiana. Orleans.
    Feb. 27, 1950.
    See also 42 So.2d 100.

      George E. Konrad and Howell Carter, Jr., New Orleans, for plaintiff and ap-pellee.
    James G. Schillin, New Orleans, for defendant and appellant.
   McBRIDE, Judge.

Joseph O. Segari, plaintiff, who, on April 28, 1947, purchased by authentic act from Anthony Uchello, defendant, the property 6123 Canal Boulevard, New Orleans, brings this suit for the recovery of $887.50 as damages, alleging that Uchello, in violation of plaintiff’s rights, failed and refused to deliver physical possession of said property to plaintiff until about forty-five days after the sale.

The answer denies liability. Uchello averred that he was not obliged to surrender possession until sixty days after the act,- and that within that period physical-possession was delivered to Segari.

The crucial point in the case is whether a prior executory agreement entered into in writing between the parties is to be received in evidence.

On March 14, 1947, Segari offered to buy, and Uchello agreed to sell, the property for $22,500.00 cash, the parties stipulating that the formal act of sale was to be passed on or prior to April 15, 1947, “Possession within 60 days after act of sale.” The act makes no mention of the agreement respecting delayed possession of the property. In the act it is recited that the vendor delivered the property to the vendee, who accepted .its delivery.

On .the trial below, seasonable objection was made to the admissibility of the offer and acceptance, on the ground that the authentic act, being full proof against the contracting parties of the agreement contained in it, cannot be altered or changed by any prior agreement not incorporated in the act.

The document was admitted subject to the objection, and, after hearing the case, the trial judge concluded, as appears from his assigned written reasons, that the objection should be sustained and the .document excluded. Judgment was thereupon rendered in plaintiff’s favor for $387.50, from which defendant has taken this appeal. By way of answer to the appeal, plaintiff prays that the judgment be increased to the amount claimed in the petition.

Appellant contends here, as he did below, that the condition contained in the prior offer and acceptance, that possession would be delivered within sixty days after the sale, had been passed, constituted a -collateral agreement between the parties, not in conflict with the act, but separate and distinct therefrom, and that, as such, it was admissible as competent evidence. Counsel cited several cases involving admissible independent collateral agreements. The judge was of the opinion that the cited cases were inapposite. His ruling was founded on the general rule of law that all prior agreements, written or oral, are merged into the act of sale, and the act is conclusively presumed to embrace the whole agreement of the parties on the subject matter covered thereby, and that no evidence is admissible against what is contained in the act to prove what may have been said or transpired between the parties prior, or at the time of, or subsequent thereto.

We think the -judge erred. The proposition of law upon which the ruling was based, however apparently emphatic, is not without well recognized exceptions, one of which is that the rule does not preclude the admission of a valid prior or contemporaneous agreement of a collateral nature, although it is related in a general sense to the written instrument in question, where it is" independent of and not at variance with or contradictory to the express or implied provisions thereof, but instead has for its subject a matter which the parties might naturally deal with separately.

This principle is Clearly stated in 32 C.J.S., Evidence, § 997, p. 970, thusly:

“The rule excluding parol evidence to vary "or cpntradict a writing does not extend so far as to preclude the admission of extrinsic evidence to show a valid prior or contemporaneous collateral parol agreement between the parties, which is separate and distinct from, and independent of, the written instrument, has not been merged in, or superseded by, such instrument, and does not contradict, conflict with, or vary the express or implied provisions thereof or deal with a definite and particular subject matter which the-written instrument expressly or impliedly undertakes to cover. * * * evidence of a parol collateral agreement may be received, regardless of whether or not the written agreement contains any reference to such collateral agreement, or whether or not the oral contract refers to the written contract, * *

Our jurisprudence contains several cases in which collateral agreements were received into the evidence. See Dwight v. Linton, 3 Rob. 57; Davies v. Bierce, 114 La. 663, 38 So. 488; Brandin Slate Co. v. Fornea, La.App., 183 So. 572; Wainwright v. Gilham, La.App., 188 So. 434.

In Davies v. Bierce, supra [114 La. 663, 38 So. 493], the Supreme Court said:

“The test of admissibility in such cases is whether the evidence offered tends to alter, vary, or contradict the written contract, or only to prove an independent, collateral fact about which the written contract was silent. In the ■ former case the testimony is inadmissible; in the latter it is competent and proper.”

There is no doubt in our minds that the prior stipulation found in the agreement of sale partakes of the character of a valid independent and collateral undertaking. It in nowise conflicts with the sale. The act recites that Uchello delivered the property to Segari, and the latter acknowledged delivery thereof for himself, his heirs and assigns.

R. C. C. art. 2475 imposes two principal duties upon the seller; he is bound to deliver, and to warrant the thing sold. Art. 2479 recites that the tradition of delivery of immovables is considered as always accompanying the public act which transfers the property. In Jones v. Dietrich et al., La.App., 186 So. 881, it was said that possession, Actively at least, follows the execution of the notarial act of sale.

The law of this state recognizes two species of possession, (a) natural possession, by which one detains a thing corporeally, as by occupying a house, and (b) -civil possession, which one may enjoy without actual occupancy. R. C. C. art. 3427.

Our opinion is that the stipulation in the offer of purchase made by Segari, which was acceped by Uchello, that the buyer would not be able to have physical and corporeal possession until some time within sixty days after thé date of the act, meant, and could only mean, that upon the passage of the act Segari was to have fictive or civil possession, and that the right to corporeal possession would only be forthcoming at some future date within the above period. It cannot be said that such agreement or understanding is unreasonable, or conflicts with the act of sale. The codal article dealing with the tradition of delivery does not interfere with nor forbid any reasonable written agreement of the sort. Arrangements as to when corporeal delivery of the thing sold is to be made may well be regulated by contracts separate and distinct from the act of sale, and such are admissible as evidence, notwithstanding that the formal act of sale makes no reference thereto.

The Court was concerned with a verbal escrow agreement in the case of Viso v. Gullo, 179 La. 8, 153 So. 3, 4, and what was said there appears to be pertinent here:

“The fact that the law considers the delivery of immovables as always accompanying the public act, which transfers the property, as provided by article 2479 of the Civil Code, does not operate so as to make agreements of escrow, whether written or oral, ineffective. Arrangements ■concerning the delivery of the property and the consequent withholding of the instrument from registry may be orally agreed to, to await the happening of a •condition, without violating the article, as, for instance, to await the payment of a •check, given as consideration for the property, or to afford an opportunity to examine into the title. The article was not intended to interfere with- reasonable arrangements for the transfer of real property.”

In Jones v. Dietrich et al., supra, property was sold by a mother to her child with -the understanding that the mother should live therein. The Court said [186 So. 883]:

“ * * * It was understood that the mother should live on it and use it as she wished to for the balance of her life. Such .contracts between parents and ‘ children are-quite common in this state and are not invalid because of their peculiar character.”

Frequently vendees accept title to property knowing and understanding well that physical possession thereof is not to pass with the act. For instance, in many transactions title is transferred while a- tenant occupies the property. This very situation was present in King v. Preston and Hall, 11 La.Ann. 95. The parties to the sale, by prior agreement, stipulated that the lease was to be assigned to the purchaser, but-no mention of such assignment was made in the act. The court construed the two instruments harmoniously together. We quote from that case:

“On the 27th day of October, 1851, the plaintiff entered into a written agreement with the defendants to purchase for them ‘a tr.act of land known as the Isthmus Plantation,’ for .which he was to give them certain endorsed notes upon the execution of a good and valid title by the vendors, who were .also to assign to the purchaser, as it is expressed in the Act, ‘the article of lease to R. W. McRae, which expired on the 1st of January, 1852.’
“On the 11th November a formal act of sale was passed before a notary, in pursuance of the foregoing agreement, by which the defendants conveyed the tract in question to the plaintiff; no mention was made in the act of the assignment of the lease, .but, taking the two documents together, (and this view is fully borne out by the evidence) we consider that it was understood to be a sale of a plantation subject to a lease, the termination of which was well known to both parties.”

Adverting again to 32 C.J.S., Evidence, § 1003m, at.page 1004 appears:

“This rule has been applied to permit the admission of evidence of agreements relating to * * * the right of possession for a certain time; * *

In the author’s footnote, several cases are referred to: Lindley v. Dakin, 13 Ind. 388; Merrill et al. v. Blodget, 34 Vt. 480; Quimby v. Stebbins, 55 N.H. 420; Hamilton v. Clark et al., Tex.Civ.App., 26 S.W. 515; and Willis v. Hulbert, 117 Mass. 151, in the last of which it was said by the Court:

“ * * * It was competent for the plaintiff- to show a parol agreement by which the time of occupancy contemplated in this -provision of the deed was limited. The parol testimony admitted proved a collateral agreement incidentally connected with the stipulations of the deed, but did not contradict them.”

Appellee advances the alternative contention that if Uchello legally had the right to occupy the property within the sixty-day period, it was not contemplated that he could detain the property without' making payment for the value of the use and occupancy.

We can see no merit whatsoever in this argument. Uchello reserved the right to remain in the property for the period fixed, without obligation to pay anything for his occupancy, and Segari understood this to be the situation.

The judgment appealed from is reversed, and plaintiff’s suit is dismissed at his cost.

Reversed.


text:
    J. R. WATKINS CO. v. CALHOUN et al.
    No. 3196.
    Court of Appeal of Louisiana. First Circuit.
    Feb. 17, 1950.

      Julian C. Hunter, DeRidder, for appellant.
    Wood & Wood, Leesville, for appellees.
   DORE, Judge.

This is a suit in which plaintiff seeks a judgment in the sum of $827.88 against defendants Joseph M. Calhoun, M. S. Stephens,. H.’ M. Calhoun and W.' M. Dowden, in solido.

Plaintiff, in its petition, sets out that on the 24th. day of December, 1941, it entered into a written agreement with the defendants, in which Joseph M. Calhoun acknowledged that he was indebted to it in the sum of $909.62, which said indebtedness Calhoun promised to pay during the term of the agreement, which payment was extended to on or before April 1, 1945; and in consideration of which extension and other valuable considerations, said M. S. Stephens, H. M. Calhoun and W. M. Dowden, in said agreement, promised, agreed and guaranteed, jointly and severally, to pay plaintiff “the said sum of money with! in the time aforesaid,- at the time and in the manner provided in said agreement.” Plaintiff annexed and made a part of the petition the alleged written agreement.

In Paragraph 4 of its petition, plaintiff alleges that pursuant to the agreement, it sold and delivered to said Joseph M. Calhoun, on and between December 24, 1941 and -May 29, 1944, its products, goods and merchandise amounting in the full sum of $4,214.44,- as shown by an itemized statement annexed'and made a part of its petition and marked “Exhibit B.”

In Paragraph 5 of its petition, plaintiff alleges that the said Joseph M. Calhoun, from- time to time paid by cash and merchandise (said merchandise presumably returned by him as per the said agreement) to it, plaintiff, the sum of $4,296.18 (which said payments, etc., are shown on “Exhibit B”), thus making an overpayment of said products, goods and merchandise of $81.74, which said amount was credited to the original indebtedness of $909.62, thus leaving a balance due of the original indebtedness in the sum of $827.88, which said balance due; after averring amicable demand without avail, is the amount claimed in this suit.

To this suit, defendants Joseph M. Calhoun, W. M. Dowden and M. S. Stephens (defendant H. M. Calhoun having died prior to service of citation being made), interposed the plea of prescription of three years under the provision of Article 3538 of the Civil Code as á bar to plaintiff’s claim.

Upon this plea of prescription, evidence was adduced. The plea was sustained and plaintiff’s suit was dismissed. Plaintiff has appealed.

The record discloses that on December 24, 1941, plaintiff and defendant, Joseph M. Calhoun, entered into a written contract or agreement whereby the plaintiff agreed to sell and deliver to Calhoun such goods and other articles manufactured or sold by it, as Calhoun might reasonably require for resale, from the date of the agreement until April 1, 1945,. and Calhoun agreed to purchase from the plaintiff the goods reasonably required by him as aforesaid. It appears that Calhoun was to make weekly written reports of his sales and to remit to plaintiff at least 60% of the amounts received by him from his cash sales and from his collections on sales previously made. The other provisions of the agreement are not essential in determining the issues herein in contest, save the last two paragraphs to he extended later.

It appears that at the time of the execution of this agreement, plaintiff had sold and delivered to Calhoun a certain lot of its goods previously and on which there was a balance due to the plaintiff of $909.-62, as evidenced by Paragraphs 9 and 10 of said agreement as follows:

“9. The purchaser promises to pay the company, at Winona, Minnesota, from time to time, after thirty days from the date of acceptance of this agreement, in amounts satisfactory to the company, the indebtedness he now owes the company, and agrees, at the expiration or termination of this agreement, to pay any balance thereon then remaining unpaid, payment of which indebtedness is hereby so extended.
“10. The Purchaser and the company, for the purpose of settling and determining the amount of the indebtedness now owing from the Purchaser to the company, hereby mutually agree that the said indebtedness is the sum of Nine Hundred Nine and 62/100 Dollars, which sum the Purchaser agrees to pay, and the company agrees to receive, and payment of which is extended as above provided.”

To insure payment of the acknowledged indebtedness, and of the price of all goods, wares and merchandise sold on open account to and purchased by Calhoun under said agreement or contract, the other defendants, M. S. Stephens, H. M. Calhoun (now deceased), and W. M. Dowden, signed a guaranty, printed at the foot of the contract or agreement, in which they “jointly, severally and unconditionally promise, agree and guarantee to pay said indebtedness, the amount of which is now written in said agreement,, * * * ; and we jointly, severally and unconditionally promise to pay for said goods and other articles, * * *, at time and place, and in the manner in said agreement provided.”

“Exhibit B” annexed to the petition and made a part thereof shows under date of “Dec. 24, 1941, Balance Agreed Upon and Extended in Contract . . . $909.62”; thereafter, under “Charges,” beginning on “Jan. 16, 1942, mdse., $6.40”, extending to “May 29, 1944, mdse. $35.65, and May 5,, 1944, Ins. $1.80. Total charges since Date of Contract, $4,214.44.” Under “Credits” beginning on Dec. 27, 1941, “Cash $20.00” and extending to “July 10, 1944, Csh. $100.-00”, we find, “Total Credits since Date of Cont. $4296.18.” The exhibit then shows “Excess Credits $81.74”; then of date “February 23, 1948 — Balance Due, $827.-88.”

The suit was filed on April 8, 1948.

It is the contention of the plaintiff appellant that the suit is based on an acknowledged account, and therefore, the prescriptive period is ten "years under Civil Code Article 3544 while defendants contend that the suit is based on an open account and the prescriptive period is three years under Civil Code Article 3538. Plaintiff makes another contention, that is, that a bond was furnished and in which case the prescriptive period is likewise ten years.

There is not any doubt in our mind that the amount stated in the agreement, that is, $909.62, is an acknowledged account and that the prescriptive period governing such amount is ten years under Civil Code Article 3544, unless we find that it has been extinguished either by becoming a part of the open account or paid; and that the open account created after December 24, 1941, the date of the agreement, is an open áccount which has never been acknowledged by any of the defendants and is therefore subject to the prescriptive period of three years under Civil Code Article 3538, unless we find that plaintiff’s contention of a bond being furnished took the account out of that prescriptive period.

In determining this case, it is necessary that we consider the imputation of payments made by Calhoun. The agreement provides that Calhoun promised to pay, from time to time, after thirty days from the date of the agreements, to the company on the indebtedness he owed. The record discloses that the first of these payments was on December 27, 1941, to the amount of $20.00 (at a time he had not yet purchased on his open account), and continued to make payments up to July 10, 1944, when he paid the sum of $100.00. The total payments to the plaintiff on that day amounted to $4,296.18, a sum by far more than sufficient to cancel the acknowledged account. It is our opinion that plaintiff, if it cared to separate these accounts, should have first credited the stated account with the payments rather than the open account. The law and jurisprudence of this State are well settled that imputation ■of payments, unless ordered to the contrary, must be made by the creditor to the oldest ■account. See Civil Code Article 2166 and the cases thereunder. Under Civil Code Article 2166, and the jurisprudence, the ■imputation of these payments must be made to the debt which Calhoun had at the time ■most interest in discharging, which in this ■case was the acknowledged account, since it was acknowledged, and moreover, was the oldest obligation due. Calhoun made no special request that these payments be ■otherwise imputed. It is then our view that the acknowledged account thus was ■discharged and no longer existed at the time of the filing of the suit, and that the remaining of such payments then should be •applied to the open account which started on January 16, 1942. The account shows that the last purchase was made on May 29, 1944, and the last payment thereon was ■on July 10, 1944’of $100.00. The suit was not filed until April' 8, 1948, three’ years had ■elapsed and the account made after January 16, 1942, is therefore prescribed.

Plaintiff contends that the prescriptive period of three years does not apply and relies on the last paragraph of Civil Code Article 3538, which provides that “This prescription only ceases from the time there has been an account acknowledged in writing, a note or bond given, or an action commenced”, contending that a bond had been given.

The full agreement annexed to the petition clearly shows it to be a contract of suretyship rather than a bond. The guarantors are referred to throughout the ■said agreement as sureties. Calhoun, the main defendant, is availing himself of the legal bar against ’the enforcement of this agreement of open account. It is well settled that the sureties, the other defendants, can avail themselves of the legal bar to the debt. Suretyship is an accessory obligation by which one person binds himself for another already bound and agrees to satisfy the obligation, if the debtor does not do so. Civil Code Article 3035. It presupposes the existence of a principal obligation legally enforceable against the debtor. If the creditor withholds action on the obligation until prescription accrues, thus releasing the debtor, the surety is likewise released. If the creditor would preserve intact his rights against the surety, he must, of necessity, preserve his rights against the debt- or so that when the surety is called to respond for the latter, he may be subrogated to all the principal’s right against the debtor.

In the present case, plaintiff’s own delay and inaction have made it possible for prescription to run against the account. All it has to assign to the sureties is a dead or unenforceable account. This being so, the sureties cannot be held.

This suit being primarily on an open account, the sureties were subject to be sued with Calhoun because they signed a contract to answer for him in the event of his default. Their responsibility is only secondary; his, primary. Without a balance due on the account, the conditions of the surety may not be availed of, and without an enforceable liability against Calhoun, measured by the account, the sureties cannot be held for any amount under the contract executed by them. J. R. Watkins Co. v. George, La.App., 169 So. 267, 268.

Plaintiff, in its brief, cites and relies upon the case of Michelin Tire Co. v. Delcourt, La.App., 149 So. 313, Id., 150 So. 303, a case from this court, wherein we held that a guarantor giving bond to secure merchant’s account was bond in solido, her obligation being direct and original, so that ten-year, rather than three-year, prescription was applicable to suit thereon and that debtor’s acknowledgment of debt interrupts prescription without renewal of promise to pay. By referring to the guarantee in that case, it is readily seen that it is one of continuing guarantee, which is expressly recognized. The one in contest is merely a contract of surety. Furthermore, in that case, the debtor had acknowledged the indebtedness sued upon while in this case, Calhoun never did acknowledge the balance on the open account. That case is not apposite to the case at bar.

For these reasons, the judgment appealed from is affirmed.

J. CLEVELAND FRUGE, J., sitting ad hoc.


author: REGAN, Judge.

text:
    OCEAN ACCIDENT & GUARANTEE CORPORATION, Limited, v. ROBERT JEFFERSON & SON.
    No. 19440.
    Court of Appeal of Louisiana. Orleans.
    Feb. 27, 1950.
    Weiss & Weiss, Harold Marx, Jr., New.Orleans, for appellant.
    Defendant-appellee not represented.
   REGAN, Judge.

Plaintiff, the Ocean Accident and Guarantee Corporation, Ltd., brought this suit: against the defendant, Robert Jefferson &- Son, to recover premiums which had been earned, in the amount of $303.36, by virtue of the sale of policies of workmen’s compensation and liability insurance, purchased’ from plaintiff by defendant. Plaintiff remitted the sum of $3.36 and sued for $300,. together with 5% per annum interest from' September 13, 1948, until paid, in order-not to exceed the jurisdictional monetary-limits of the First City Court.

Defendant appeared and filed an exception of misjoinder of parties defendant together with an answer, as is requisite im the First City Court, denying that the sum. sued for was due plaintiff.

The exception of misjoinder was referred, by the court a qua, to the merits, and. after a trial thereon, there was judgment in. favor of defendant dismissing plaintiff’s, suit. Plaintiff applied for and was denied, a rehearing. Hence this appeal.

The judgment does not reflect any basic: ■reason why the judge of the court a qua decided this matter in favor of defendant,, however, we were informed by counsel for plaintiff, both in oral argument and; in brief, that the judge of the court a qua did maintain the exception of misjoinder of parties defendant. On appeal we have-not had the benefit of defendant’s .presence either in propria person or Iby the representation of counsel.

The evidence reveals that the policies of workmen’s compensation and liability insurance were purchased 'on March 13, 1948, in the name of “Robert Jefferson &' Son”, from the plaintiff herein. Robert Jefferson & Son, on that date, paid a deposit premium in the amount of $119, hut did not pay the ■balance of $303.36 due on these policies, and ■they were cancelled as of August 13, 1948, by the said insurer and suit was filed to .recover the premiums earned thereon.

Plaintiff alleged in its petition that '“Robert Jefferson & Son” was a commercial ■partnership, composed of Robert Jefferson, Jr., and Robert Jefferson, Sr., both of legal age and domiciled in New Orleans, and that they were, individually and in solido in-■dabted unto petitioner; and in conclusion prayed for citation on said defendants, and for judgment against Robert Jefferson & Son, Robert Jefferson, Jr., and Robert Jefferson, Sr., individually and in solido, for the sum of $300 plus 5% interest from ■September 13, 1948, until paid.

In instituting this suit plaintiff had proceeded under the erroneous assumption that ■the trade name of Robert Jefferson & Son -designated a partnership, whereas in the -course of the trial, on the merits, it was revealed, without successful refutation by •plaintiff, that Robert Jefferson & Son represented the trade name under which he, Robert Jefferson, Jr., and he alone, carried •on the business in question. However, plaintiff did establish the fact that the insurance was purchased by Robert Jeffer-son, Jr., to cover “Robert Jefferson & Son”.

The record further reflects that service of -citation was adequately effected upon Robert Jefferson, Jr.

We are of the opinion that plaintiff has ■adequately proven by competent evidence that “Robert Jefferson & Son” are legally indebted to it for the sum of $300 and, therefore, the sole question posed 'by virtue •of the pleadings herein is whether the judge ■of the court a qua, was correct in maintaining the exception of misjoinder of -parties defendant filed by Robert Jefferson, Jr., and, as a consequence thereof, in dismissing plaintiff’s suit.

The jurisprudence concerning the exception of misjoinder was, some years ;ago, quite confused, the earlier cases holding that where an exception of mis-joinder is maintained, the suit must be dismissed as to all parties. Davidson v. Frost-Johnson Lumber Company, 126 La. 542, 52 So. 759; McGee v. Collins, 156 La. 291, 100 So. 430, 34 A.L.R. 336; Babineaux v. Miller, 5 La.App. 605. Apparently this jurisprudence was followed by the trial court in maintaining defendant’s exception of misjoinder of parties defendant and dismissing plaintiff’s suit herein. However, in the leading case of Dubuisson v. Long et al., 175 La. 564, 143 So. 494, decided in 1932, the Supreme Court in overruling an exception of misjoinder held that the only party who may raise this question is the one who has been improperly joined and that the suit should proceed against the proper parties.

The Supreme Court distinguished the Long case from the Davidson and McGee cases, supra, in that in those cases the parties improperly joined had raised the objection, whereas in the Long case the party improperly joined had not raised the objection.

In Aetna Casualty & Surety Co. v. Flair, 177 So. 94, 98, we said: “Hence, since the Dubuisson Case, we take it to be the settled law of this state that a cause may not be dismissed on exception of misjoinder as to defendants who are properly joined and that such exception may be asserted only by a party improperly joined.”

In Jacobs v. Bendler, et ux., 26 So.2d 389, we said: “The only party who may raise question of misjoinder of parties is one improperly joined, and not those properly made parties against whom the suit should proceed.”

For the reasons assigned the judgment appealed from is annulled, avoided and reversed, the exception of misjoinder is overruled, and it.is now ordered that there be judgment herein in favor of the plaintiff, The Ocean Accident & Guarantee Corporation, Ltd., and against the defendant, Robert Jefferson & Son, in the full sum of $300 together with 5% interest per annum from September 13, 1948, until paid and for all costs.

Reversed.