author: STEWART, Judge ad hoc. FRUGE, Judge ad hoc.

text:
    FLOWERS v. INDEMNITY INS. CO. OF NORTH AMERICA et al.
    No. 3222.
    Court of Appeal of Louisiana. First Circuit.
    May 15, 1950;

      For original opinion, see 42 So.2d 132.
    White & May, Baton Rouge, for appellant.
    Durrett & Hardin, Baton Rouge, for ap-pellees.
   STEWART, Judge ad hoc.

The plaintiff appellant in her application for rehearing took issue with the following findings of fact in the opinion on the original hearing, viz.:

(a) That the “defendant’s truck- -had traversed half the intersection before plaintiff entered” the intersection.

(b) That the “plaintiff had ample time to observe defendant’s truck and take action to avoid the collision.” ‘ ■ . ' '

(c) That “the corner was not -a blind corner.”

On the first point. First, let us see what the only witnesses,- who saw the collision, had to say, that is, the two drivers? and the helper in defendant’s truck. The plaintiff testified, viz.: “Q. yVhat part of the' truck you were driving was damaged? A. The left corner, the left fender, the front corner, the left, right in front of the truck; the left fender and also the whole front of it.” The plaintiff did not say what part -of the defendant’s truck was damaged, for she testified, “I never even looked.'’ The driver of defendant’s truck, Albert N. Cole, said, “Q. Actually what part of your truck was involved? A. The right front wheel. Q.. What part of her truck was the part that first came in contact with.the right front wheel? A. The left front fender and the light.” Willie Roddy, the helper on defendant’s truck, testified “She hit the wheel. Q. Which wheel? A. The right wheel on the front.” From such undisputed evidence, a finding must be made that the left front corner of plaintiff’s truck collided with the right front corner of defendant’s truck. The plaintiff did not testify the side of the street on which she was driving. The defendant’s driver said, “Q. When you approached and entered the intersection, which side of your street were you on? A. The right-hand sidel Q. At the time of the actual impact, which side of your street were you on? A. The right-hand side.” Willie Roddy, the helper, said “Q. When Mr. Cole approached and entered the intersection, which side of the street was he on?'; A. He was on the right. Q. Just before the collision took place, had he- had time to cut to the left or not? A. He didn’t have time to go nowhere.” As to the location of the vehicles, after the collision, O. R. Riley, the employer of plaintiff, who arrived on the scene, after the collision, testified, which was in accord with all the other witnesses, “Q. When you got to the scene where was the two trucks ? A. My truck was across the road in the ditch, and the other truck was just about three-fourths the- way in the middle of the intersection.” And again, “Q. In what part of the road had the railroad -truck stopped when you got there? A. It was just about three-fourths the way across the road, turning to his left slightly, and about, I would say, four feet from the right hand side of the road Mrs. Flowers was going on.” Therefore, it seems inescapable that, if the right front corner of defendant’s truck collided with the left -front corner of the plaintiff’s truck, and defendant was on his right side of the road, as testified by its driver and his helper, which was corroborated by the location of the defendant’s truck in the center of the road, after having been pushed some in a southerly direction, and the plaintiffs truck, after the collision, passed in front of defendant’s truck which was three-fourths of the way across the intersection, that the defendant’s truck had traversed at least half of the intérsection before plaintiff’s truck entered it.

On the second and third points. Of course, as the defendant traversed half the distance of the intersection before plaintiff entered it, then, of course, plaintiff could have seen by such action that defendant’s driver was not recognizing plaintiff’s right of way. But, in addition, it cannot be said that this was a wholly blind corner. Here is what O. R. Riley said,

“Q. How wide are; those two streets there? A. I imagine around eighteen feet, that is, the black topped part of them.”

“Q. Can you tell us how the house is located in the northeast corner of that intersection? A. Let me get my directions right. Northeast, that would be the house on the left going south, wouldn’t it?

“Q. Yes. A. Yes, sir. It is pretty close to the highway; not over three feet from the fence, and the fence is right against the drainage ditch, and there are three trees sitting in front of this house, with a clearance, I guess, of three or three and a half feet, that is, from the limbs down to the ground. You possibly cannot see around it until you get eight feet of it, I don’t imagine. You might see back fifteen, but I doubt it.”

N. W. Pope, who arrived at the scene after the collision, testified,

“Q. Could you tell us about how wide the surfaced portion of each of those streets was — I mean not counting the shoulders? A. Offhand, that is hard to even estimate what the size of the rest of the streets is. I don’t know the standard size of streets.

“Q. They both appear to you to be the normal width of normal streets? A. Yes.

“Q. Isn’t it true that they both appear to be about the same in width? One was about as wide as the other? A. Yes.”

“Q. Now, the ditch that you mentioned that the Drayton truck jumped — was there a ditch along both Winnebago and Pontiac Streets? A. Yes, sir.” Plaintiff testified,

“Q. About how fast were you going prior to the accident? A. I had drove up in the intersection and was barely moving. I was looking — I was driving very slow.

“Q. Prior to the time you got to the intersection can you tell us about how fast you were travelling? A. Well, I had almost come to a stop, I had shifted into second and I was looking for cars. When I came up to this lot, the vacant lot, there was nothing but weeds. I drove in the intersection a piece and looked to see if I could see any vehicles.”

Herman Watts said,

“Q.' Do you know whether she slowed down-- before she got to the intersection ? A. Yes.

“Q. How do you know? A. I heard her shift the gears.”

Plaintiff said,

“Q. Actually, Mrs. Flowers, you did not see the L, and A. truck at all until the time of the collision, did you? A. That is right.”

“A. I saw it just-as it hit; I just caught a glimpse of the truck as it hit.”

“Q. Could you see along Winnebago to your left? A. Well, really as I pulled out into the intersection I could have, but — .”

“Q. Before you got to the intersection, say when you were thirty or forty feet away from it, could you see into Winnebago? A. Not to my left.

“Q. What obstructed your vision to the left? A. Trees and a house.

“Q. About how close is that house to the road? A. I would say four, five, six feet. I wouldn’t know.

“Q. And the trees you spoke of were they in front of the house? A. Yes.”

From such evidence, it is clear that plaintiff had ample time to observe the actions of defendant’s truck, and take action to avoid the collision. For in addition to the defendant’s truck being visible to plaintiff after it entered the intersection, and before she did, the evidence is convincing that plaintiff could have seen defendant’s truck when she was eight to fifteen feet from the intersection. Such clearly demonstrates that this was not a wholly blind corner.

In view of the jurisprudence of this State, the fact that plaintiff had the right of way at this intersection, was not authority for her to blindly enter it. In Rottman v. Beverly, 183 La. 947, 165 So. 153, 156, the Supreme Court said: “The first duty of those who operate engines or motor vehicles is to keep a sharp lookout ahead to discover the presence of those who might be in danger.” In Jackson v. Cook, 189 La. 860, 181 So. 195, 197, it is said: “ * * * that the duty of those in charge of motor cars and- engines to look ahead and observe never ceases; that what they can see they must see and in legal contemplation they do see; that their failure to see what they could have seen by the exercise of due diligence does not absolve them from liability.”

The case of Van Dyke v. Waguespack, La.App., 198 So. 425, 428, is not in point. There the Court found the facts to be that the two vehicles entered the intersection at the same time, and that the plaintiff’s vehicle “was struck on the left side, at the left door.” Here the transportation truck, though approaching the intersection at “approximately the, same time”, under the statute, as plaintiff’s truck, nevertheless, traversed half of the intersection before plaintiff entered it. And, here, the front part of the left front fender of the plaintiff’s truck collided with the right front wheel of defendant’s truck.

For the reasons assigned the original judgment of this Court is reinstated and the judgment appealed from- accordingly affirmed.

DORE, J., recused.

FRUGE, Judge ad hoc.

I respectfully dissent from the majority opinion for the reason that the law has been erroneously applied to the facts as found -by the majority.

The majority opinion states: “From such undisputed evidence, a finding must be made that the left front corner of plaintiff’s truck collided with the right front corner of defendant’s truck.”

These physical facts relied on by the majority show that both vehicles entered the intersection at, or about the same time. The record will also disclose that both streets are black-topped only 18 feet- in width, with no sidewalks, curbs or gutters by either street. It is undisputed that both drivers failed to see the other until just prior to collision.

The facts in the case of Van Dyke v. Waguespack, La.App., 198 So. 425, are practically identical to the present case. In . that case this court resorted to the Highway Regulatory Act to determine which motorist had the greater rights at the intersection. After holding that the plaintiff had the right of way because she approached from the right, the court said: “The only way that Mrs. Van Dyke could be held guilty of contributory negligence was her failure to see Waguespack in time to avoid the accident. It must be remembered that she was approaching the intersection from the right and it was her duty to look to her right (toward the north) and then toward the south. She says that she first looked to her right and then to her left; that she could not see down Osceola Street to her left because of the obstruction and it was because of this obstruction that she did not see Waguespack until about the time -she was entering the intersection. But as she had a right of way over cars approaching from her left, she had a right to assume that another car approaching from that direction and reaching the intersection after or about the time she did would concede her the right to cross first. In our opinion, the situation is somewhat similar to that in the two cited cases where the drivers of cars approaching an intersection from the right were found to be free of contributory negligence. The trial judge was therefore correct in holding the defendants liable.”

I need not go further than the first three syllabuses in the Van Dyke case for a clear statement of the law applicable to the case at bar, namely:

“1. Under state highway regulatory act, where neither of two intersecting streets or highways is given the right of way over the other, a vehicle approaching intersection from the right has the right of way over a vehicle approaching intersection from the left. Act No. 286 of 1938, § 3, rule 11.

“2. The driver of an automobile, who has the right of way at an intersection under provision of state highway regulatory act giving the vehicle approaching intersection from the right the right of way over vehicle approaching from the left, may assume that motorist approaching from his left will respect his right of way. Act No. 286 of 1938, § 3, rule 11.

“3. In action for injuries sustained in an automobile collision at intersection, which both automobiles reached at about the same time, failure of motorist, approaching intersection from plaintiff’s left, to reduce his speed when his view to the right was obstructed by a hedge, his failure to see plaintiff’s automobile approaching from his right in time to avoid striking it on left side, and his failure to have his automobile under control so as to yield right of way to motorist approaching from his right, held to constitute negligence which was the ‘proximate cause’ of collision.”

The conclusion reached by the majority that the defendant’s truck had “traversed half the intersection before plaintiff entered” is not warranted by the physical facts which they themselves have found.

I therefore respectfully submit that the plaintiff should recover.


source: Caselaw Access Project

author: HAWTHORNE, Justice.

license: Public Domain

text:
    217 La. 547
    STATE v. CARTER.
    No. 39726.
    Supreme Court of Louisiana.
    April 24, 1950.
    Rehearing Denied May 29, 1950.
    • M. E. Culligan; Jr:, New Orleans, for appellant.
    Bolivar E. Kemp, Jr., Atty. General, M. E. Culligan, Asst. Atty. General, Herve Racivitch, District Atty., Robert E. Le-Corgne, Jr., Asst. District Atty., New Orleans, for appellee.
   HAWTHORNE, Justice.

Defendant, charged in a bill of indictment with ''the crime of murder, was found guilty of manslaughter and sentenced to serve a term at hard labor in the state penitentiary. From this conviction and sentence he has appealed:

During the" course of the trial the defense called Dr. E. H. Maurer, a graduate of the Tulane University School of Medicine, who had been practicing his profession at the time of the trial for a period in excess of 26 years. During this period of time he was associated with the Departments of Obstetrics and Gynecology of the Tulane School of Medicine for three years; with the Department of Surgery, Louisiana State University School of Medicine for four years, and with the Department of Orthopedics, School of Medicine, for 14 years. His medical studies at Tulane included a course in pathology. This doctor testified that he was a general practitioner and was not a specialist ip any particular field of medicine.

During the course of his examination he was asked the following question by counsel for the defendant:

“Q. Doctor, if an autopsy revealed there was an acute right cardiac dilatation, contusions, discoloration around the fold in neck and base of skull from ear to ear, would that, could that be from a disease, such as heart trouble ? ”

Counsel for the State objected to the question on the ground that the doctor had qualified as a general practitioner and not as a heart specialist. The court sustained the objection, and the witness was not permitted to answer the question. Counsel for defendant thereupon reserved a bill of exception.

The trial judge informs us in one of his per curiams that the cause of death was an issue throughout the case, the State contending that the deceased died as a result of strangulation at the hands of the accused, and the defense contending that death resulted from natural causes. We are further informed of this by the State’s brief, from which we quote: “As the entire record will show, the cause of death was an issue throughout and was actually the mainstay of the defense. That is that the "deceased died of natural causes.”

Under the issues as thus presented, the sole question for our consideration is whether the trial judge incorrectly sustained the objection on the ground that the witness was not qualified to answer the question, to the prejudice of the accused.

Article 464 of the Code of Criminal Procedure provides that in all questions involving knowledge obtained by means of a special training or experience the opinions of persons having such special knowledge are admissible as expert testimony. Under Article 466 the test of the competency of an expert is his knowledge of the subject about which he is called upon to express an opinion, and, before any witness can give evidence as an expert, his competency so to testify must have been established to the satisfaction of the court.

Under the authority of the latter article and the jurisprudence of this court, it is well settled that it is within the province of the trial judge to decide whether witnesses offered as experts are entitled to be heard in that capacity, and his ruling will not be disturbed where nothing appears to show error. Marr, Criminal Jurisprudence of Louisiana (2d ed.), sec. 581, p. 901. See State v. Smith, 106 La. 33, 30 So. 248; State v. Mathis, 106 La. 263, 30 So. 834.

In the instant case, however, we are of the opinion that the trial judge has abused his discretion, and that his refusal to permit the witness to answer the question propounded was highly prejudicial to the rights of the accused and constituted reversible error.

The rule applicable here is stated in 2 Wigmore on Evidence (3d ed.), sec. 569, p. 665, as follows:

“The chief question that here occurs is whether a general practitioner may testify on matters of a particular department of the science wherein specialists may presumably be had. Here the Courts seem not to have taken a sufficiently firm stand against the narrow objections frequently raised. It is not that the rulings themselves are illiberal, but that narrow doctrines are not repudiated with sufficient positiveness. The liberal doctrine should be insisted on that the law does not require the best possible kind of a witness, but only persons of such qualifications as the community daily and reasonably relies upon in seeking medical advice. Specialists are in most communities few and far between; the ordinary medical practitioner should be received on all matters as to which a regular medical training necessarily involves some general knowledge.”

In 2 Wharton’s Criminal Evidence (11th ed.), sec. 960, pp. 1694-1695, the rule is given thus: “In the case of medical witnesses offered as experts, the school of medicine to which they belong is immaterial. The test is whether the witness is familiar with such laws of the medical profession as bear upon the issue. Physicians, when in general practice, are admissible to state the nature and effect of a disease, the conditions of gestation, the effect of particular poisons on the human system or on animals, the effects of a particular treatment, and the likelihood that death could be produced by a particular disease, even though they have not made such topics a specialty. * * * ” (All italics ours.)

Rogers on Expert Testimony says as to this:

“Neither is it necessary that the medical witness should have made a specialty of the particular disease which is the subject of inquiry. A general practitioner is, ordinarily, a competent witness.

“It is a well known fact that at the present day various classes of diseases have been made specialties, and that many prac-tioners devote themselves exclusively to certain diseases of the eye, or ear, or lungs and throat, or heart, or nervous diseases, or diseases of the brain. But the law does not require the medical witness to have made a specialty of any one of these subjects to qualify him to testify in relation to the same. * * * ” (2d ed.), sec. 42, at p. 101.

“ * * * Before testifying as an expert the witness must be shown to be qualified by experience or requisite study, to form an opinion on the subject under inquiry. Nevertheless it is not essential that one giving opinion evidence qualify as a specialist in the particular subject. * * * » (3d ed.), sec. 225, at p. 514.

See also Drucker v. Philadelphia Dairy Products Co., Inc., 5 W.W.Harr. 437, 5 Del. 437, 166 A. 796; Crawford et al. v. American Stores Co., 136 A. 715, 5 N.J. Misc. 413; Pridgen v. Gibson, 194 N.C. 289, 139 S.E. 443, 54 A.L.R. 855; Hill v. Carolina Power & Light Co. et al., 204 S. C. 83, 28 S.E.2d 545.

It will be observed that the only objection to the question made by counsel for the State and sustained by the court was that the witness was not a heart specialist. The fact that the witness was not a heart specialist might affect the weight to be given to his testimony, but it certainly did not affect its admissibility.

In brief filed in this court, counsel for the State now take the position that the question propounded was not a proper hypothetical one and that the proper predicate had not been laid for asking such question, and, further, that, even if the trial judge erred in sustaining the objection, the accused was not prejudiced because a reading of the entire testimony of the witness will disclose that the witness subsequently answered, in substance, the question propounded.

In answer to the first contention, counsel overlook the fact that no such objection was made, and that the testimony was excluded only for the reason that the witness was not a heart specialist. In answer to the second contention, a reading of the testimony of the witness discloses that an answer to the question in its entirety was never given in his testimony.

Although we have concluded that the accused is entitled to a new trial, we find it necessary to discuss one other bill of exception, which was reserved in connection with the admission of a statement or confession given by the accused, since it is likely that the same objections and arguments will be made on this point on a subsequent trial.

In his per curiam the trial judge informs us that the State proved beyond a shadow of doubt that the statement was made by the defendant freely, voluntarily, and without promises, inducements, or offers of any reward. A reading of all the evidence adduced prior to the introduction in evidence of the statement convinces us that the ruling of the trial judge was correct, and that it was affirmatively shown that the statement was free and voluntary and not made under the influence of fear, duress, intimidation, menaces, threats,, inducements, or promises.

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


author: HAWTHORNE, Justice. MOISE, Justice

text:
    217 La. 556
    WESTWEGO CANAL & TERMINAL CO., Inc. v. LAFOURCHE BASIN LEVEE DIST.
    No. 39060.
    Supreme Court of Louisiana.
    March 20, 1950.
    Rehearing Denied May 29, 1950
    Aubert L. Talbot, Napoleonville, Blum & Marchand, Donaldsonville, George R. Blum, Donaldsonville, for defendant-appellant.
    John E. Fleury, Gretna, for plaintiff-appellee.
   HAWTHORNE, Justice.

The last time this case was before this court, we were unable to determine from the record with any degree of certainty the proper amount for which recovery should be permitted, and, for the purpose of receiving additional evidence with reference to the actual value as of the date the property was taken by the Lafourche Basin Levee District for levee purposes, we remanded the case to the lower court. See Westwego Canal & Terminal Co., Inc., v. Lafourche Basin Levee Dist., 206 La. 270, 19 So.2d 133, 136. On that appeal the defendant levee district was complaining of a judgment condemning it to pay to plaintiff the sum of $15,000.00. In the course of our opinion this court pointed out that Article 16, Section 6, of the Constitution, “simply means that in no case shall the compensation be more than the assessed value; however, if the actual value is less than the assessed value such actual value shall be paid.”

On the remand the lower court, after hearing and receiving additional evidence with reference to the actual value of the property taken, rendered judgment in favor of plaintiff in the sum of $3i,490.00, of which amount $30,230.00 was for the locks and $1,260.00 for the land. In rendering this judgment the trial judge concluded that both the locks' and the land had an actual value at the time of their taking in 1940 by the levee board greatly in excess of their assessed valuation for the preceding year, 1939, and accordingly rendered judgment for their assessed value.

From this judgment the defendant levee district has appealed. It takes the position in this court that plaintiff has failed to prove <any value whatsoever for the locks and the land taken, and that accordingly the judgment should be reversed in its. entirety. '

Construction of these locks was begun in the year 1903, but the record does not disclose when they were, completed. In 1917, however, due to caving conditions of the soil they were reworked. Plaintiff herein, acquired the canal of which the locks form a part in 1925, and began the operation of the canal system on a toll basis. Defendant levee district took actual possession of the property for levee purposes in the latter part of the year 1940.

About the year 1934 the Intracoastal Canal and the Harvey Locks, a toll-free •system constructed by the United States Government, were opened in close proximity to the canal and looks of the plaintiff. As a result of the construction of the toll-free Harvey Locks, the plaintiff’s locks'were closed, and at the timé of the taking by the levee board in 1940, some six years later, they had become obsolete, and no further use was being made of them. Further, these locks were not built for the type of vessels then in use, and were inadequate in size to accommodate the type of barges and towboats then being used. As pointed out in our former opinion, they were in a generally run-down condition, filled almost entirely with river deposit, brush, and trees. The working mechanism, operated by hand, was gone, and there was 'no means of opening or closing the lock gates. The record is barren of any evidence that from.shortly after the opening of the Harvey Locks in 1934. until - 1940’ the .plaintiff derived any revenues by virtue of the operation'of'this toll system of locks, or-that it had any expectation of doing so in the future. .

After the case was reman,ded by our previous decree, plaintiff, obtained the map or plan . under which these locks were constructed, and called as witnesses competent contractors and consulting engineers, who, using this plan, as a ba,sis for computation,, testified as to the cost of replacement of these locks according thereto, and, after deducting depreciation, concluded that at the time taken these locks had a sound construction value far in excess of the assessed valuation for the year 1939.

■As pointed out in our previous opinion, however, the cost of reconstruction of these locks .is incompetent proof -of the actual, value at the time of taking, -in view of ’the fact-that,- as hereinabove stated, the locks had been virtually abandoned, were-not, in use, were obsolete, were incapable of being used as locks or for any other purpose, and no revenue was being derived therefrom by the 'plaintiff.

The evidence is further convincing that these locks, which were constructed principally of concrete, had no salvage value, in that the dismantling of them and the operations incidental thereto would cost more than any price which could be derived from the materials.

As one witness aptly testified, the toll locks owned by plaintiff could not compete with.the modern, up-to-date, and efficient toll-free Harvey Locks, and what destroyed the value of the plaintiff’s locks was the building of the Harvey Locks, and not the defendant herein, the levee board.

From an analysis of all the record, we are convinced that plaintiff has failed to prove that its locks, at the time they were taken by the levee board in 1940, had any value whatsoever, and that the lower court in awarding judgment for their assessed value committed manifest error.

The land actually taken presents a different-situation. The record reveals that the land taken for levee purposes had an area of 100 by 150 feet, and was the property • on ■ which, the lock system* consisting of -the lock ichamber and the- locks them-, selves, was situated. • The trial judge found that the actual value -of this parcel of land at the time it was taken in 1940 was the sum oí $3,150.00. He arrived at this value from the testimony of various real estate agents who gave their opinion as experts as to the value of the tract so taken, and,1 further, from numerous sales made of property in the immediate vicinity of the property taken, at or near the time of the taking. According to the testimony of the assessor of the parish in which the property is situated, property in that parish is assessed at 'between 40 and 50 per cent of its actual value. After arriving at the actual value of the property at the time of the taking, the district judge concluded that the assessed valuation of the tract was $1,260.00, or 40 per cent of the actual valuation, and gave judgment for this amount. We find no manifest error in his conclusion.

Appellant takes the position in this court that the land taken was not assessed separately from the lock system itself, and that this court therefore cannot render any judgment for the assessed valuation of the land. It is true that the whole lock system was assessed for an amount far in excess of the actual valuation of the land taken; but the assessed valuation of the entire lock system is bound to have included the valuation of the land on which it was situated. Having determined the actual valuation of the land, the lower court rendered judgment for the assessed value thereof, which is correct under the Constitution of this state.

For the reasons assigned, the judgment appealed from awarding to plaintiff the sum of $31,490.00 is amended by reducing the amount awarded to $1,260.00, and, as thus amended, is affirmed. All costs are to be paid by the defendant levee board.

LE BLANC, J., recused.

On Application for Rehearing

MOISE, Justice

(dissenting).

For the reason that the quantum awarded is wholly inadequate compensation for the loss sustained, I respectfully dissent from the refusal to grant a rehearing in this case.


author: LE BLANC, Justice. HAMITER, Justice

text:
    217 La. 563
    WAINWRIGHT v. WAINWRIGHT.
    No. 39337.
    Supreme Court of Louisiana.
    April 24, 1950.
    Rehearing Denied May 29, 1950.

      K. Hundley, Alexandria, for defendant-appellant.
    Gist, Thornton & Murchison, Alexandria, for plaintiff-appellee.
   LE BLANC, Justice.

In this case it is shown that on December 18, 1936, plaintiff, Lucille' Thompson Wainwright, obtained a judgment of absolute divorce from her husband, Irving D. Wainwright. There was an agreement regarding alimony and the custody of four minor children, issue of their marriage, and based on that agreement the decree awarded custody of the children to the wife and fixed the alimony at $75.00 per month.

Between the date of the judgment and the month of February, 1944, plaintiff appeared in the district court on two different occasions to complain about her husband’s failure to pay her the alimony decreed in her favor. On the first occasion he evidently complied with the rule but on the second he answered asking for a reduction in the amount because, he alleged, there was only one child who was still a minor and needed assistance, and moreover, his wife was then employed at a salary of $100.00 a month. He alleged further that because of changes that had taken place in economic conditions his business had suffered and he was no longer able to pay $75.00 a month. He asked that alimony be reduced to $25.00 a month. On March 22, 1944, there was judgment reducing it to $50.00 per month.

On April 5, 1948 the wife instituted another proceeding to have the -amount of alimony increased to $75.00 a month for the reason that, as stated, her health had failed and she had been advised by her doctor to take a complete rest. In a separate petition she alleged that no alimony ■had been paid to her since June 15, 1945 and therefore the defendant was indebted unto her in the full amount of $1650.00. At the same time she made the Pineville Branch of the Guaranty Bank & Trust Company of Alexandria, Louisiana, garnishee and upon learning from the garnishee’s answer to the interrogatories served on it that the defendant had very substantial deposits in his personal and business accounts, she filed a supplemental petition in which she asked that alimony be increased to $200.00 a month and that she recover attorney’s fees in the sum of $300.-00 from the defendant.

To this last petition and the supplemental petition defendant filed an exception of no cause and no right of action and with reservation thereof he answered denying that plaintiff is in need of any alimony; that she has at all times since the judgment of divorce been and is now employed; that she has no one dependent on her for support ; that she has had and yet has pleasant employment in hotels where she lives and has all of the comforts and even the luxuries of hotel life.

Further answering the defendant avers that at the time he stopped paying alimony of $50.00 per month as fixed by the judgment of Court, he had been in an airplane accident and suffered such serious injuries that for several months his life was des-paired of; that he expended much of his assets for doctors, nurses, drugs and other miscellaneous services and has had to turn over his business largely to his associates with the result that his income therefrom has been small. He further alleges that in his business of buying and selling automobiles, it is necessary to have considerable funds as it is a cash business, and therefore he is indebted unto banks for a considerable portion of the cash shown on deposit at the time of the garnishment taken out by plaintiff. These obligations, as well as his obligation to support his present wife and child and to contribute to the support of his aged mother, require all of his available income from his business and he is unable to pay plaintiff any alimony even if she needed the same.

Within a few days of the filing of this answer, plaintiff filed a supplemental petition in which she averred that she had made an error in calculating the amount of back due alimony and that instead of defendant being in arrears since June 15, 1945, in reality the arrearages dated back to June 15, 1944 making him owe $600.00 more than she had demanded but as he had paid the sum of $200.00 since she had filed her original petition, the correct balance he owes 'her is the sum of -$1900.00. (Evidently there is a mathematical error here as $1650.00 plus $400.00 is $2050.00 — not $1900 -as prayed for.)

On the issues as thus made up the matter was tried in the district court where there was judgment in favor of plaintiff increasing the amount of alimony to. be- paid by defendant from $50.00 to $125.00 per month and also in her favor and against the garnishee, Pineville Branch of the Guaranty Bank & Trust Company in the sum of $1650.00 representing the demand for accumulated alimony. - The judgment further awarded her the: sum of $200.00 as attorney’s fees. The defendant has appealed and plaintiff has answered the appeal asking that the amount of back alimony be increased to the amount demanded by her and that the award for future alimony be increased from the sum of $125.00 to the sum of $200.00 per month.

The exception of no cause or right of action was never formally presented to the trial judge. It is noted in the transcript of testimony that a similar exception was urged to the supplemental petition and it was referred to the merits. 'None of them ' was directly passed on in the lower Court and as they are not discussed in this Court we conclude that they have been abandoned. ■ ■

The issues in the case are largely controlled by Article 160 of the Revised Civil Code, the pertinent provisions of which are as follows:

“If the wife who has obtained the. divorce has not sufficient means for her maintenance, the court may allow her in its discretion, out of the property and earnings of her husband, alimony- which shall not ■exceed one-third of his .income; 4. *.

“This alimony shall be revocable in case it should become unnecessary,' and in -case the wife should contract a second marriage.” ' '

The "wife in this case has not remarried so we are left only with the question 'as to the sufficiency of her means for maintenance and of the necessity for the alimony. The amount, as indicated in the article of the Code, is left to the discretion of the Court and in no event can it exceed one-third of the income of the husband. The demand for the amount of accumulated alimony presents another issue in the case which will be treated and ■ considered separately.

At the. time the present proceeding was tried in the district court, plaintiff was employed as housekeeper by the William Len Hotel in Memphis, Tennessee. She received a monthly salary of $110.00. and was given board and a room to live in. She had held similar positions in other hotels before, being employed at one time by the Bentley Hotel in.her home city of Alexandria, Louisiana. She left that employment however because she was then suffering with bronchial asthma and wanted to change climate. She went to Florida where her health did not improve and then went 'to her employment in Memphis where she is under treatment most of the' time. In December, 1947, Dr. John J. So-hm wás called to visit her at the hotel and on examination he found that she had acute bronchitis with bronchial asthma and was running a temperature of around 101 degrees. He treated her and later gave her an x-ray examination of the chest which showed no involvement of lung tissue.She still had asthmatic wheezing however and this condition continued until May, 1948 when he saw her again and then recommended that she take a rest from work and have medical examination from time to time and also medical treatments.

Dr. M. B. Pearce of Alexandria who has known the plaintiff and treated her family for fifteen years examined her on May 13, 1948, the day before the trial of this proceeding in the lower Court, and found that she had severe chronic asthma, with -asthmatic bronchitis and ran a low grade fever. Because of the recurrent attacks which she had and a persistent cough, he was of the opinion that she cannot hold any type of job regularly.

Dr. O. B. Owens of Pineville, Louisiana, testified as an, expert on behalf of defendant He also has known plaintiff and treated her for a number of years and had examined her the day before the trial. On his -findings he diagnosed' a condition - of bronchitis or bronchial asthttia, and whilst he found it difficult to‘formulate a definite opinion regarding her disability to follow any ordinary line of :work women of her age are qualified1 for, he did state that when the attacks- of asthma are present, she is completely disabled.

From that testimony which is not contradicted, the district judge concluded that from the standpoint of her health,, plaintiff is unable to work and earn a living. She has no other means for her maintenance and therefore she is still entitled to alimony. Whether she is entitled to the increase allowed her by the district judge depends on the present means and income of the defendant.

On this point the testimony seems to bq in favor. ;of the increased award. Whilst it is true that, defendant sustained severe injuries in an airplane accident in June, 1944 and .was incapacitated for about a year, his business of automobile sales and service was carried on apparently without any losses and afterwards it appears to have prospered very well, all as is reflected by his auditor’s report for the eighteen months from January 1, 1947 to June 30, 1948 which is filed in the record. For the first twelve of these eighteen months, that is from January 1, 1947, to December 31, 1947, the net profit was $29,574.30 and for the following six months, $4022.84. His share in the distribution of the profits amounted to $11,869.52. The substantial balances found in the Guaranty Bank & Trust Company when the garnishment was taken out affords convincing proof that defendant’s business has been successful and prosperous to the extent that out of his earnings he can, in addition to his other obligations, pay plaintiff alimony in the sum of $125.00 per month as decreed in the judgment of the district court. On this point the judgment is correct and will be affirmed.

We have- now. to consider the demand of the plaintiff. for accumulated alimony. This claim is resisted, on the ground that plaintiff was- not.in necessitous circumstances and therefore the amount ,o£ alimony should not be allowed to accrue, and further that since she had not made demapd. as she needed it, it had -been waived and cannot now. be-awarded- in. a lump sum.

The, question of a wife’s right to assert a claim for past due alimony has been presented to the Court o;n different occasions within recent years and it seems to háve been definitely held that a judgment for. alimony as to the amount that has become past .due is a judgment that is protected the same as any other judgment under the provisions of, Article 548 of the Code of Practice. It becomes the property of the one in whose favor it has been given and cannot be annulled or amended except by the method and for the causes prescribed by law. See Snow v. Snow, 188 La. 660, 177 So. 793; Wiliams v. Williams, 211 La. 939, 31 So.2d 170; Gehrkin v. Gehrkin, 216 La. 950, 45 So.2d 89.

To support the contention that defendant should not be made to pay alimony in a large lump sum, his counsel relies on certain statements contained in the opinion in the case of Scott v. Scott, 197 La. 726, 2 So.2d 193, 194, In that case.however, the judgment of. the lower court decreeing alimony to the wife had never become final because a suspensive appeal had been taken at once and the past due alimony had .accumulated while the appeal was pending in this court. There were delays caused by some "unfortunate circumstances which are related in the opinion which may have prompted a distinction to be made between that case and the decision in Snow v. Snow, supra, although no reference is made to Snow v. Snow in the opinion. However, in view of the statement on which counsel apparently relies with great confidence that “the lawmakers never intended that alimony should be paid in a large lump sum, or otherwise than in installments of such amounts and of such frequency as she (the wife) needs the money” we feel compelled to note the inconsistency in that statement with the ruling in Snow v. Snow, supra, as affirmed in the two more recent cases of Williams v. Williams and Gehrkin v. Gehrkin, supra, and if it was thereby intended to state what the law is on the subject, we now hold it to be in conflict with the prior and subsequent jurisprudence of the Court and do not now choose to follow it.

We think that the recent decision in the case of Gehrkin v. Gehrkin, supra, is controlling in this case. The amount of accrued alimony cannot be changed by claiming that alimony was not due when no suit was brought to be discharged from payment or to have the amount reduced. Article 232 of the Revised Civil Code provides the form of relief for such cases. Article 160 of the Code, which also provides for the revocation of alimony should there be a change in conditions subsequent to the award, undoubtedly contemplates that this can be done only on an order or judgment of court after a hearing has been held.

The district judge therefore was correct in allowing plaintiff past due alimony, but we believe that he erred in not giving the defendant credit in the sum of $200.00 which admittedly had been remitted. We have .considered plaintiff’s answer to the appeal in which she asks for an increase in the amount of accumulated alimony in the sum of $600.00 as set out in one of her supplemental petitions but find that she has not supported that part of her demand with sufficient proof. It is observed that, the district judge made no comment on that demand in his written reasons for judgment nor did he take any action on it.

With regard to the demand and award for attorney’s fees we know of no law and have been referred to none which provides for- such fees in a case of this kind. In-this respect, the judgment will have to be reversed.

- For the reasons. assigned it is therefore ordered that the judgment appealed from be affirmed in so far as it fixes the amount of future alimony at the sum of $125.00 per month; that it be amended by reducing the amount of past due alimony from the sum of $1650.00 to the sum of $1450.00 and that with respect to the amount allowed for attorney’s fees in the sum of $200.00 it be reversed and set aside and that this demand be now rejected.

HAMITER, J., concurs in part and dissents in part assigning written reasons.

HAMITER, Justice

(concurring in part and dissenting in part).

As to the increase órdered in the monthly alimony award I agree that the evidence in the record does not disclose an abuse of the trial judge’s discretion. Also, I concur in the view that the claim for attor-* ney’s fees cannot be allowed.

In my opinion, however, the judgment is erroneous insofar as it condemns defendant to pay the alleged accumulated alimony. Civil Code Article 160 provides for an allowance of alimony to a wife on divorce only in the event that she “has not sufficient means for her maintenance.” The fact that this plaintiff did not protest defendant’s failure to satisfy the monthly payments during the period for which she claims the accumulation creates the presumption (it has not been rebutted) that she was not then in need of financial assistance, and it constitutes a waiver of such benefits.


author: FOURNET, Chief Justice.. HAWTHORNE, Justice McCALEB, Justice

text:
    217 La. 576
    ATLANTIC REFINING CO. v. SHELL OIL CO., Inc., et al.
    No. 39192.
    Supreme Court of Louisiana.
    March 20, 1950.
    Rehearing Denied May 29, 1950.
    Jackson & Mayer, Shreveport, Oliver L, Stone, Geo. C. Schoenberger, Jr., Houston, Tex., for defendants-appellants.
    Cullen R. Liskow, Lake Charles, Cameron C. Minard, Columbia, Tucker, Bronson & Martin, Shreveport, for plaintiff-appel-lee.
   FOURNET, Chief Justice..

The Atlantic Refining Company, as as-signee of a mineral lease executed by L. C. Furlow, dated January 30, 1943, instituted this suit to have a certain lease subsequently executed by Furlow in favor of S. Gordon Reese, dated April 4, 1946, declared null, and to have the validity of its lease recognized. In addition to ■ Furlow 'and Reese as defendants to this proceeding,-the Shell Oil Company, Inc., which had acquired a one-half interest in the mineral rights from Furlow by deed dated May 14, 1943, was also made a party defendant. From a judgment in favor of the plaintiff) as prayed for, all the defendants appealed; Furlow, however, has since voluntarily dismissed his appeal without prejudice to the fights of his co-defendants.-

The facts of the case are not in dispute. On January 30, 1943, Furlow, the owner of certain property situated in Caldwell Parish and described as the Southwest Quarter of the Southeast Quarter of Section 25, the Northeast Quarter of the Northeast Quarter 'of Section 36, Township 15 North, Range 2 East, and the Northwest Quarter of the Northwest Quarter" of Section 31, Township 15 North, Range 3 East, comprising about 120 acres, executed a mineral lease thereon to G. G. Nesbitt, Jr., the consideration being $120 cash and a %th royalty on the oil and gas produced, and the lease providing that if operations for drilling were not commenced within one year from date the lease was to be terminated tmless- on - or before such anniversary date the lessee paid Or téndered to the lessor or to the credit of lessor in the Ouachita National Bank at Monroe, Louisiana, the sum' of $120, which was to cover the privilege of deferring commencement of drilling operations for a period of 12 months, successively; during the primary term of 10 years. The. lease also specified that the rights of either.party might be assigned but that a change in ownership was not.to be binding on lessee or impair the effectiveness of any payments made until the. lessee “shall have been furnished, forty-five days before payment is due, a certified copy of recorded instrument evidencing any. transfer,” sale ,or other change in ownership (Par. 8 of contract). - On February 11, 1943, the lessee assigned the lease to plaintiff and on the following day it was filed for record in the Conveyance .Records of Caldwell Parish.

On the 14th day of May,.1943, Furlow conveyed to defendant Shell Oil Company, Inc., a- one-half interest to the minerals in and under the above-described property. There was agreement. between the parties however that. Shell was not to participate in .the.rentals, and to evidence that intention certain words • and provisions .of the printed form to the contrary were stricken out on the typewriter and the. instrument ■was .initialed. by the vendor in the margin opposite these deletions, so that the printed form-appeared thus: “* * * .Conveys unto Grantee One ¡Half (%) of. all of the royalties, centals and other benefits, .«eraé-*ng money rentals payable fer .drilling epr erations,. accruing under any valid oil,. gas or mineral lease or servitude on. said property which has heretofore been filed for record * * . While this, instrument transferring a half interest in the minerals to the Shell Company was duly recorded in- the Conveyance Records of Caldwell Parish on June 7, 1943, neither the, plaintiff nor its assignor Nesbitt was ever served with a certified copy thereof.

• The delay rentals for the years 1944 and 1945, were deposited to Furlow’s credit with the depositary named in'the contract of lease, the Ouachita National Bank. - It appeárs, however, that on December , 21, 1945, some 40,days before the anniversary date, the plaintiff, instead of depositing the entire amount of the delay rentals for the ensuing year to Furlow’s account, deposited in the. Ouachita National Bank the $120 with, instructions that $60 thereof was to be credited to Furlow’s account and $60 to the account of the Shell Company. . This action was taken,-by-'plaintiff pursuant to a title opinion by its-attorneyS, dated March 12, 1945, and based'-on an examination of an abstract procured by plaintiff and prepared by the Clerk of Court of Caldwell Parish. The ..abstract ■ contains a correct copy of the mineral conveyance to Shell as it is' recorded, without showing the deletions or making reference thereto.

On February 13, 1946, the Cashier of the depositary bank addressed a letter to the plaintiff advising that Furlow had refused to accept the deposit of .$60, claiming that he was- entitled to the whole amount of $120. On February 18 plaintiff answered this letter, suggesting that possibly Furlow had overlooked the transfer made to Shell, and stating that accordingly a copy of the letter addressed to, the Bank’was being forwarded to plaintiff’s .Shreveport office with a yiew that someone from , there. would contact Furlow. Three days later, .on February : 21, after an examination ,of the original document filed in -the Clerk’s office, the plaintiff wrote to Shell and-'ád-vised that upon examination of the original record they discovered the deletion- of the word and phrase, which did-not appear in the abstract upon which its attorney’^ opinion had been based, and observed: "It •would appear, however, that all rental payments should have gone to Mr. L. C. Furlow(Emphasis ours.) This was followed with the paragraph: “If .you agree with the above -.interpretation, we would appreciate your executing the , instrument attached hereto and return, with your check in the amount of $60.00 made payable to Mr. L. C. Furlow, which will straighten the matter out.”. The enclosed. document was an -instrument reciting the. acquisition by. Shell, the prior execution of the lease by Furlow to Nesbitt and its assignment to plaintiff, an acknowledgment that despite the 'terms of the mineral deed it was the intention of Furlow 'and Shell that the entire delay rental should.be paid to Furlow— as well as an acknowledgment that payment of the 1946 rental in amounts one-half to Furlow and one-half to Shell was in accordance with the provisions of the lease, •but stating further that in accordance with the intentions of the parties -relative to the disposition of delay rental payments in the said mineral deed, Furlow acknowledged receipt of $60 from Shell; and plaintiff was instructed therein to make its future delay rental payments accordingly. Shell Oil Company replied, advising receipt of the letter and the instrument, stating that this was the first notice they had had of the rental payment to which they were not entitled, and while they had not actually received' payment they understood that the amount was on deposit to their credit in the Ouachita National Bank; and enclosed their check in amount of $60, payable to plaintiff. Plaintiff answered this letter on March 28, stating that it had been advised that Furlow “takes the position under the instrument in question that it was his intention that he should receive the entire delay rental payment instead -of one-half of it,” to which Shell had agreed; but insisted that the rental payment was nevertheless entirely proper and that plaintiff’s lease was in full force and effect, 'since it was not bound by the' interition of 'the parties not disclosed by the Conveyance records. Plaintiff returned the Shell check for $60 payable to it, but never paid nor tendered the amount to Furlow.

On April 4, 1946 (more than' two months after the time limit set in the contract of lease for the payment of the rentals in order to keep the lease in effect during the ensuing year), Furlow addressed a letter to the Bank advising them not to accept or deposit to his credit any delay rentals from the plaintiff, and on the same date executed a lease affecting the same acreage, in favor of Reese.

Plaintiff contends, in which it is supported by the opinion of the trial judge, that it was entitled to rely on the Conveyance records; that contracts must be construed with reference to the words which they contain, and, in construing the same, words which have been erased are not to be considered, citing Corpus Juris, Vol. 13 Contracts, Sec. 505, p. 539; 17 C.J.S., Contracts, § 317; and consequently that the mineral deed should be construed without consideration of the deleted words, and, so ■ construed, that it conveyed one-half of the delay rentals to the Shell - Oil Com'pany; that 'therefore the payments made by plaintiff maintained its lease 'in' force and the subsequent lease from Furlow to Reese was null.

The fallacy of this conclusion' lies, we think, in the fact that, the plaintiff' had' no occasion to rely on the public records or to construe the contract, as no certified copy of the recorded deed evidencing the transfer of mineral interest from Furlow to Shell was delivered to plaintiff and it was not required to interpret the intention of the parties or to act in reference thereto; and as no' demand for payment had been made on plaintiff by Shell; nor had pressure "been brought to bear by anyone which would have caused plaintiff to turn to the public record in determining a course of action. In fact, there was no occasion for delivery of a certified copy of the recorded deed in view- of the agreement between Furlow and Shell that'the delay rental was to be received in its entirety by Furlow. Plaintiff paid the whole delay rental to Furlow for the years 1944 and 1945, and although it received from its attorney' a “Final .Opinion on Title” on March 12, 1945 (more than ten months before the succeeding delay rental payment became due on January 30, 1946), without further inquiry, either to Furlow "or to Shell,' proceeded to make the rental payment on Dé-cember 21, 1945 (some 40 days before the due date) by depositing the amount in the named depositary, Ouachita National Bank, half to the credit of Furlow and half to the credit of Shell. After the fact of Fur-low’s position was made known to plaintiff by the Bank’s letter of February 13, 1946, and again without inquiry,' instead of trying to straighten the matter out with Fur-low the plaintiff sought to Coerce Shell into transferring the $60 tp Furlow and into 'signing an instrument supposedly designed to clarify the rights between Furlow and Shell; and up to this date plaintiff has not tendered this $60 to Furlow. That plaintiff does not feel secure in the course it has followed is obviously exposed in the course it took when, in its attempt to comply with the payment of delay rentals for the year 1947, plaintiff deposited in the named depositary bank $120 to the credit of Furlow and tendered its check for $60 to Shell. However, both payments were refused.

It is to be observed that in the title opinion upon which plaintiff bases its good 'faith in making the 1946 payment as it did, plaintiff was advised that inasmuch as it had not been served with a certified copy of the conveyance from Furlow to the Shell Company at least 45 days before payment was due, as required under section 8 of the contract of lease, the first and second rental payments could properly have been made in their entirety to Furlow and “subsequent rental payments may be made in their entirety, at the election of the Atlantic [plaintiff], to L. C. Furlow until a certified copy of this mineral conveyance is served upon the Atlantic, or the Atlantic may divide the rental payment, even if it has not received a certified copy of this deed, and pay % to Furlow and % to the Shell Oil Company, Incorporated.” (Emphasis ours.) Thus it may be seen that the plaintiff was not acting on the record— for, after relying on the title opinion and after this controversy arose, an examination of the original document disclosed the fact of the deletions and was sufficient to warrant the conclusion on the part of plaintiff that “it would appear that all rental payments should have gone to Mr. L. C. Furlow” — but acted at its own peril in choosing an insecure method without further inquiry, when it was protected by its own contract; and furthermore, made no effort to straighten out its difficulties with Furlow, the real party in interest.

Clearly, according to the facts of this case, the authorities relied on by the plaintiff, Jones v. Southern Natural Gas Company, 213 La., 1051, 36 So.2d 34; Gloyd v. Midwest Refining Co., 10 Cir., 62 F.2d 483; and Humble Oil & Refining Co. et al. v. Harrison, 146 Tex. 216, 205 S.W.2d 355, are neither pertinent nor controlling.

The holding in Jones v. Southern Natural Gas Co., supra, cannot avail plaintiff under the . facts of this case since by its actions plaintiff has removed itself from the equitable doctrine there announced. In that case the mineral lease, which covered 518 acres more or less at an annual delay rental charge of $518, provided that in the event of assignment, in whole or in part of the rights of either party, the rental payments were to be apportioned as between the several leasehold owners ratably according to surface area of each. The defendant became assignee of a portion of this lease and on the due date for rental payment in 1944 deposited $300 to the credit of plaintiff in the named depositary, which amount was arrived at by defendant’s calculation that the portion of surface area covered by its assignment comprised 300 acres (on the assumption that a section contained the regulation 640 acres). No complaint of shortage in payment was made by plaintiff. Again on the due date in 1945 the amount of $300 was deposited with the bank for plaintiff’s credit, but shortly thereafter plaintiff sought to declare the lease at an end for failure to comply with its terms, and to obtain a release from defendant. The latter immediately sought to have plaintiff’s claim clarified, much correspondence passed between them, and- a check was mailed to plaintiff to cover the additional rent for two years on the basis of plaintiff’s claim that the defendant’s assignment actually covered 322 acres. The facts presented a mutual mistake, since the plaintiff herself did not know that the amount paid by the defendant was insufficient, but only knew she had not received a total of $518. Having accepted the first payment as being sufficient she was estopped to demand a forfeiture. We said: “In such cases equity requires that when the lessor learns of the mistake he should promptly inform the lessee of the mistake and give the latter an opportunity to correct it immediately, before he, the lessor, can demand a forfeiture for nonpayment of the rental within the time stipulated.” [213 La. 1051, 36 So. 2d 38.]

The case of Gloyd v. Midwest Refining Co., supra, has no application here as it involved a, rental check lost in the mail, and although a duplicate was promptly sent upon advice by the lessor of non-receipt of payment, the same was refused; whereupon the court granted lessee relief from the forfeiture of ■ the unless” oil lease because lessee’s failure to pay in time was due to an accident.

In Humble Oil & Refining Co. v. Harrison, supra, the third case relied on by plaintiff, the court had for consideration an ambiguous mineral deed. A certified copy of this mineral deed, transferring a fractional portion of the mineral interest in the land, was sent to Humble Oil Company, and it was necessary for Humble to construe the deed in order to determine the correct delay rental to be paid to persons holding fractional mineral interests. Hum-' ble improperly construed the contract as to the interest payable to Harrison and made delay payments accordingly which were too small, but these were received for a period without protest; then Harrison refused to accept further payments, contending that' the lease was null as to his interest. The Court (Supreme Court of Texas)’ said: “In the present case, Humble’s failure to pay to Harrison his full share of the rentals originally payable to the Ottos is due primarily to a misconstruction of an ambiguous mineral deed to which Humble was not a party, and, secondarily, to a failure on the part of Harrison, after he knew that Humble had misconstrued the deed, to notify Humble of the proper construction” [146 Tex. 216, 205 S.W.2d 361], and held that Harrison was estopped to assert that Humble’s lease had been terminated because of failure to make sufficient payments of delay rentals. The distinction between that case and the one at bar lies in the fact that Humble was required to construe the contract between the parties in order to determine the ¿mount due each; and, besides, the lessor had accepted the payments tendered for a period without protest. The Court’s holding as to estoppel is not here pertinent since Furlow did notify the plaintiff," with-' out undue delay, of the insufficiency of the deposit before refusing to accept the deposit of $60, and thereafter plaintiff never sought to rectify the error.

We therefore conclude that under the very terms of the contract between the plaintiff and Furlow, no drilling operations having taken place within the first twelve months or within the extended periods' for the years 1944 and 1945, and plaintiff having failed to pay the required amount for the year 1946, the lease was terminated by its own terms. 2 Summers Oil & Gas, Perm.Ed., § 452, p. 497. See, also, Le Rosen v. North Central Texas Oil Co., 169 La. 973, 126 So. 442.

For the reasons assigned the judgment of the lower court is annulled and set aside, and it is now ordered, adjudged and decreed that there be judgment in favor of the defendants dismissing plaintiff’s suit at its cost.

HAMITER, J., dissents.

HAWTHORNE and McCALEB, JJ„ dissent and assign written reasons.

HAWTHORNE, Justice

(dissenting).

The sole question presented by this appeal is whether the delay rental payment in the amount of $120, due on or before January 30, 1946, under the terms of an oil and gas lease executed by defendant landowner, Furlow, in favor of the lessee, Nesbitt, Jr., who subsequently assigned it to plaintiff, was.properly paid. Plaintiff, The Atlantic Refining Company, timely deposited in the depositary bank named in the lease $60 to the credit of the landowner and lessor, Furlow, and $60 to the credit of Shell Oil "Company, Inc., the purchaser of one-half of the minerals under all of the property described in the lease.

After the execution of the lease providing for the delay rental in controversy, the landowner conveyed to the Shell Oil Company, Inc., one-half of the minerals under the entire tract described in the lease, the conveyance clause in this instrument reading as" follows: “L. C. Furlow * * do [does] hereby Grant, Bargain, Sell and Convey unto the said Grantee [Shell Oil Company, Inc.] One half (%) of the oil, gas, sulphur and other minerals, * * * in, on and under the following described land * * (All italics mine.)

In a subsequent paragraph certain words were deleted by drawing a line through them, and this paragraph, with the deleted words- omitted, reads as follows: “For the same consideration, and as part of the interest hereinabove conveyed, Grantor hereby Grants, Bargains, Sells, and Conveys unto Grantee .... One half (%) ........ of all,of the royalties, and other benefits, accruing under any valid oil, gas or mineral lease or servitude on said property which has heretofore .been filed for record, or which may be filed for record prior to the filing for record of this grant, insofar as any such lease or servitude covers the' land hereinabove described and referred to, of any part thereof.”

Plaintiff-appellee in my opinion correctly states the law to be that the right to receive delay rental under an oil and gas lease is an incident and appurtenant right to a mineral title, and that, when a landowner conveys a fractional interest in the oil, gas, and other minerals under his property which he has previously encumbered with an oil and gas lease, and does not specifically reserve to himself the delay rentals falling due under such lease, the mineral conveyance carries with it, and entitles the grantee of the mineral deed to, his proportionate part of the delay rental payable under . the lease. The following authorities which plaintiff cites support it in its view of the law: Elk Horn Coal Corporation v. Casebolt, 6 Cir., 38 F.2d 37; Bennett v. Robinson, La.App., 25 So.2d 641; Union Sulphur Co., Inc., v. Lognion et al., La.App., 26 So.2d 845; Wright et al. v. Carter Oil Co. et al., 97 Okl. 46, 223 P. 835; Harris v. Currie et al., 142 Tex. 93, 176 S.W.2d 302; Humble Oil & Refining Co. et al. v. Harrison, 146 Tex. 216, 205 S.W.2d 355.

The real problem in this case is whether the paragraph containing the deleted words is sufficient expressly to reserve to the landowner,, Furlow, the right to- receive .all .the delay rental under the lea.se previously granted by him to Nesbitt, assignor of Atlantic. ....

In my opinion plaintiff herein- is a third party insofar as the mineral deed is concerned, and in construing the deed, as such third party, was under no duty to consider or give effect to the words deleted by the parties thereto. Since the instrument in its entirety is free from ambiguity, when read without the deleted .words, the lessee, Atlantic Refining Company, was not required to read the deleted words in connection with the instrument as written in order to determine the intent of the parties. Furthermore, in my opinion, this court has no cause to consider the deleted words in determining the intent of the parties and the meaning of the instrument. Our Civil Code in Title IV, Of Conventional Obligations, Section 5, of the Interpretation of Agreements, Article 1945, pár. 3, charges us “That the intent is to be determined by the words of the contract, when these are clear -and. explicit and lead to no absurd consequences”. The words of this agreement are clear and unambiguous and lead to no absurd consequences, and by them Furlow conveyed unto Shgll one-half of all the royalties and other benefits accruing under any valid oil, gas, and mineral lease-on the property which had theretofore -been filed for record. Certainly the delay rental is a benefit accruing under a valid oil and gas. lease. By this clause .conveyance was made of one-half of the amount of the delay rental, and I cannot read therein the specific reservation of the delay rental which is necessary to circumvent the general conveyance clause under the jurisprudence. If this instrument does not embody the intention of the parties thereto, the remedy is to have the instrument reformed to express that intention, and not to read into the instrument a provision that is wholly absent by implying a positive intent from words which were deleted from the instrument entirely.

As appellee says in its brief, “ * * * defendants are each claiming that a.reservation was made in the mineral deed not by virtue of the words contained in the deed but- by virtue of words not contained in the deed”.

To say the most,, the reservation, if there is one, is by implication only. From my understanding of the law on this matter there must be. some, positive evidence of the reservation, and certainly something more than the negative inference relied on here. .

In my opinion the majority opinion, in effect, reforms the instrument to show the true intention of the parties to it, and gives such reformation a retroactive effect to the prejudice of the third party herein.

-The majority opinion emphasizes and considers significant a statement in a letter from the plaintiff to Shell on February 21 to the effect that “It would appear, however, that all rental payments should have gone to Mr. L. C. Furlow.” The instru-. ment enclosed with this letter shows that the plaintiff did not consider that it had interpreted the instrument erroneously. The majority opinion says of this document : “ * * * The enclosed document was an instrument reciting the acquisition by Shell, the prior execution of the lease by Furlow to Nesbitt and its assignment to plaintiff, an acknowledgment that despite the terms of the mineral deed it was the intention of Furlow and Shell that the entire delay rental should' be paid to FurloW * $ »

The only significance that can be given to this letter and the enclosed document, in my opinion, is that it showed Atlantic’s desire to pay the rental to the satisfaction of the parties to the instrument regardless of its meaning.

Atlantic paid the rental correctly to continue the lease in effect, and for this reason I respectfully dissent. -

McCALEB, Justice

(dissenting).

The majority opinion, as I understand it, is predicated on the theory that, since- the lease provided that no assignment would be binding on the plaintiff until such time as it was furnished a certified copy of a recorded instrument evidencing a change in ownership, it ha'd no reason to take notice of the public records-which-showed the transfer by Furlow of a one-half interest in the minerals to Shell; that, in doing so; it acted at its peril and thát it must suffer the loss of its lease because the payments of one-half of the delay rentals to Furlow and the other one-half 'to Shell was not in conformity with the real understanding between Furlow and Shell.-

I readily concede that, plaintiff acted at its peril in voluntarily taking notice of the transfer from Furlow to Shell and, if the delay rentals -tendered' by it were 1 not in accordance with the provisions of that conveyance,' it must suffer the consequences of .its mistake. But I demur to the ruling that plaintiff’s payment was erroneous. On the contrary, Furlow conveyed to . Shell one-half of “all the royalties, and other-benefits, accruing under - any valid oil, -gas dr mineral lease * * * This grant of all royalties and othe'r benefits must be considered as including rentals as they are not otherwise mentioned in the conveyance., Obviously, then, payment of one-half of the delay rentals to Furlow and the other one-half to Shell was in conformity therewith.; , .

The only way it can be - deduced that the transfer to Shell'did not include rentals is to ’ notice that rentals, including delay rentals, have been deleted f rout the printed form used for the transfer and to interpret that, by this deletion, the parties intended that Furlow was to retain the right to receive all' rentals. Taking cognizance of this deletion would be appropriate in an action between the parties to the. instrument (see Di Cristina v. Weiser, 215 La. 1115, 42 So.2d 868) but a third person (like.plaintiff), relying on the public record, was not required ■ -to. investigate • deletions which formed no part of .the contract and which were, not written, so. far as he was concerned. Dawson v. Ohio Oil Co., 153 La. 657, 96 So. 508. To hold otherwise- is ,to say that the peril, to which plaintiff, subjected- itself extended beyond the public records and that it had the onus of determining .correctly an unexpressed intention of the parties to the instrument. To this, I cannot subscribe and accordingly ■ I respectfully dissent. : '


text:
    217 La. 596
    SCOTT v. HILLYER, DEUTSCH, EDWARDS, Inc.
    No. 39388.
    Supreme Court of Louisiana.
    April 24, 1950.
    Rehearing Denied May 29, 1950.
    Julius T. Long, Shreveport, for plaintiff and relator.
    Thompson, Lawes, Cavanaugh, & Hickman, Lake Charles, for defendant-appellee and respondent.
   HAWTHORNE, Justice.

This case is before us for review of a judgment of the Court of Appeal affirming a decree of the district court which awarded to relator compensation at the rate of $20 a week for a period of 30 weeks, less the amount of compensation previously paid, under the provisions of Act 20 of 1914, Section 8, subsection 1, paragraphs (d) 3 and (d) 11, as amended by Act No. 242 of 1928, pp. 357, 358, for the loss of the little finger and two phalanges of the ring finger on the left hand.

.Relator in his application for writs to this court urged, among other things, that the Court of Appeal erred in denying to him permanent total disability under the provisions of Section 8, Subsection 1, paragraph (b), of the act, and that the holding of that court was contrary to the holding of this court in Hughes v. Enloe, 214 La. 538, 38 So.2d 225, and Washington v. Independent Ice & Cold Storage Co., 211 La. 690, 30 So.2d 758. On the showing made by relator, a writ was granted, and pursuant thereto the entire record was lodged in this court. However, after reading all the testimony and considering the evidence adduced, we have come to the opinion that the judgment of the Court of Appeal is correct. See 38 So.2d 534.

The nature and cause of the accident are fully set out in the opinion of the Court of Appeal, and it is not necessary to reiterate them here, especially since there is no dispute as to these facts.

If the employee in the instant case due to the injury sustained is unable to perform work of the same , or similiar character as that which he was accustomed to perform, he is entitled to payments for permanent total disability under the provisions of Section 8, Subsection 1, paragraph (b), of our compensation law, under the well established jurisprudence of this court. See Washington v. Independent Ice & Cold Storage Co., and Hughes v. Enloe, both cited supra, and authorities therein cited.

In the Washington case this court pointed out that the Legislature by the adoption of the Workmen’s Compensation Act intended to provide that an employee should be' paid compensation for an injury (whether temporary total, permanent total, or partial disability) suffered in the course of his employment during the period of disability under the provisions of Section 8, Subsection 1, paragraphs (a), (b), and (c); that under the provisions of paragraph (d) of the same section, which deals with the loss of a hand, arm, etc., compensation is to be paid irrespective of the duration of the disability; that it was the intention of’ the Legislature not to have paragraph (d)’ supersede and take precedence over the' disability sections, but rather to supplement them; that the main object of the Legislature was to provide an employee whose wages are discontinued as a result of an injury sustained while serving his master with funds to subsist on until he can return to work; that, although this was thé main object or purpose of the act, there was another object — that is, that there might arise specific injuries, such as severance or amputation of members or disfigurement, etc., without disability, and the employee, who has been deprived by the statute of the right to recover in tort, should have the right to compensation in such cases, and hence the provision of the act under paragraph (d), where disability is not mentioned. In the course of the opinion in that case this court quoted with approval from the case of Wilson v. Union Indemnity Co., La.App., 150 So. 309, 312, wherein it was said: “It has been held many times that subsections (a), (b), and (c) cover all cases of injuries affecting earnings, while subsection (d) has been applied regardless of earnings. * * * In short, subsection (d) is not, strictly compensatory, but is in the nature of a tort remedy for a personal injury not affecting earning capacity or ability to work.”

We shall now review the salient facts of the case at bar and apply to them these well settled principles of law. ;

.At the time relator was injured, he was employed by the defendant corporation as a general utility man and swamper in its logging operations. In the course of; his work he used an ax, worked on the loader, drove mules, and, as he himself expressed it, “did.first one job and another”. On the day he was injured, he was hooking tongs in a log being moved by a caterpillar tractor. Upon recovering from his injury, he returned to his job qnd worked there for a period of three days, and shortly thereafter he was discharged. During these three days he did the same kind of work as he had performed before the injury, except that he did not use tongs for the purpose of moving logs, and was ■ not required to do so. His rate of pay at the time of his • injury as well as at the time of his discharge wasi 55^ per hour for 10 hours, six days per week: He- was paid time and one-half' .for all hours-worked'©ver 40 hours each'week; Some time after his discharge he was Employed by Mr. Melton Wright, -who was also engaged in the logging business, and remained in his employ up to the time the case was tried in the lower court, a period of about seven and one-half months, except-for a short interval in which .'his employer was not- engaged in logging operations. In -the course' of this employment he-also -drove teams, was- required to use an ax, assisted in the loading of logs by means of grabs, and did swamper’s work, all as he had done prior to his injury. For this work he-was paid $5.50 per day for eight o-r nine hours’ -work, four or five days per week, with the usual overtime-pay. ;

The relator’s rate of pay, that is, $5.50 per day, was the same after the injury as it had been befóte. However, he was required to work 10 hours per day before the injury and only eight or nine hours since that time. Although he worked only four of five days per week for Mr. Wright instead-of six days as he had for defendant, that was -because of the requirements of his new employer or weather conditions, etc., and not because of his injury. ■ :

Mr. Wright, relator’s present employer, testified that-he had ‘seen and observed relator at work, 'and'there is nothing in his testimony to -indicate that- relator’s work was unsatisfactory, nor is' there any evidence in the record that relator was refused employment as a common laborer because of his injury.

From all these facts we conclude that the Court of, Appeal was correct in-finding thatrelator’s work was -. that of a common, laborer,, and we also agree that the work which, he has performed since the injury is .work of the same or similar. character as that which he was accustomed to perform or which he did -perform prior to the injury. Under this corn elusion he is not entitled to compensation for permanent total disability.

In our opinion, however, relator is entitled to compensation for the loss of his little finger and two phalanges of his ring finger, as provided in paragraphs (d) 3 and (d) 11, and the judgment of the Court of Appeal affirming the judgment awarding him compensation under these provisions is correct. See Washington v. Independent Ice & Cold Storage Co., supra.

Relator contends" that he is entitled to compensation for permanent total disability due to his inability to use tongs in hooking logs because of the loss o-f -grip resulting from his injury and because of the prior loss of the first phalanx of the index finger of his right hand, arid he make's the same contention with reference to his use of an ax. It is ■ true that he testified- that he was unable to Use tongs due to "their weight, but the fact remains that since his injury he is performing work of the same kind and character as he did prior thereto, and, so far as the record is concerned on which this court must decide the issues; he has never since his injury áttempted,1'had an opportunity, or -been required to use-'tongs id'"his work, and, further, the record'discloses' in the testimony of both his former and his present employers that he was able to use an ax in a satisfactory manner. :

Counsel for relator stresses the fact that relator worked for the defendant corporation only three days after returning to the ' job and was then discharged, contending that this is, at least, an indication that the employer considered the employee no longer able to- perform the duties of his job satisfactorily. The testimony in the record does not support counsel in this contention. The evidence adduced satisfies us that relator was discharged only, because he failed'to report on the job for a, period, of a week, and not because of any handicap resulting from the injuries which he had sustained.

. In this court counsel cites cases where compensation has -been awarded for injuries producing partial disability to do work of any ..reasonable character, .under paragraph (c), Subsection 1, Section 8 of the compensation act, under which compensation is fixed at 65 per cent of the difference between the wages at the time of the injury and the wages which the injured employee is able to earn thereafter during the period of disability, not, however, beyond 300 weeks. These cases do not support .counsel in his position that relator is entitled to partial disability 'benefits.

To our minds, this case is very similar to the case of Falgoust v. Maryland Casualty Co., decided by the Court of Appeal for the Parish of Orleans, La.App., 22 So. 2d 312, 315. In that case plaintiff, a carpenter, brought suit for compensation as a result of an injury to his left arm. After his injury he secured other employment as a carpenter and earned the same wages as he had received prior to the injury. He had no difficulty in using the tools of his trade, but there was some doubt that he could safely- climb .ladders and scaffolds or do any; work which required the constant use of, and strain upon, his injured left arm — all being duties required of a journeyman carpenter. The Court of Appeal in' denying him compensation for permanent disability stated:,, “* * * Can it be- said that plaintiff is not doing work of the same or similar character merely because he and his foreman expressed doubt that he. can perform all of the duties required of a journeyman carpenter when he is actually doing the work required of him as a carpenter -in his present employment to the satisfaction of his employer? . We think not.”, , - .

■In the cited case the court found that plaintiff had suffered a permanent partial loss of the function of his left arm to the extent of 37% per cent, and accordingly' awarded him compensation 'for 37% per cent of 65..per cent of his weekly wages for a period of 200 weeks, or 37% per cent of what he would have been entitled to under paragraph (d)6 for the loss of an arm.

In the instant case the Court of Appeal was o'f the opinion' that there was no .evidence on which, a judgment of partial disability could be based. With this ,wq fully agree. .......

In the course of its opinion the Court of Appeal used the' following expression.: “ * * * after all it is simply whether plaintiff can do the same, kind of work-in his.present condition,, or work which is reasonably, of the: same, kind and -character, as he did before.” [38 ‘ So.2d 535.] Counsel for relator contends - that this language has the effdct of changing the established jurisprudence of this state by adding the word “reasonably” before the word'“similar”'. We are not impressed with this contention,, for the Court of Appeal in usingthe quoted language, -'was .paraphrasing, the language of the statute, -“for injury producing permanent, total disability to do work of any reasonable character”. This provision has been interpreted to .mean “work of the same' or • similar description [to] that [which] he is accustomed to perform”. Knispel v. Gulf States Utilities Co., Inc., 174 La. 401, 410, 141 So. 9, 12; Stieffel v. Valentine Sugars, Inc., 188 La. 1091, 1115, 179 So. 6.

For the reasons assigned, the júdgment of the Court of Appeal is affirmed; all costs to be paid by respondent.

LE BLANC, J., recused.


author: KENNON, Judge.

text:
    MELTON v. GROSS & JANES CO.
    No. 7494.
    Court of Appeal of Louisiana. Second Circuit.
    May 31, 1950.
    Fuller & Harrison, Winnfield, for appellant.
    R. D. Cantwell, Winnfield, for appellee-
   KENNON, Judge.

On.Motion to Dismiss Appeal

Plaintiff, appellee, has filed in this Court a motion to dismiss defendant’s appeal oni the ground that the appeál bond was not filed until February 7, 1950, “one day after-return date of the appeal.”

The minutes of court show that the appeal was made returnable “on or before-February 6, 1950.” The transcript was filed in this Court on February 8, 1950.'. Defendant in brief admits that the appeal bond was not filed until February 7, 1950, one-day after the return date, but asked that the motion to dismiss the appeal be denied in view of the three days of grace allowed appellant by law.

The following extract from the-case of McManemin v. Malone & Raynor,. 1 La.App. 458, shows that this Court has. passed adversely to appellee’s contention under facts similar to the case before us:.

“The appeal was made returnable March» 5, 1924; the bond was filed in the lower-court March 7, 1924; and the transcript was filed in this court March 8, 1924.

“Being within the three days of grace allowed by law after the return day, this •was in time.

“Bouligny v. White, 5 La.Ann. 31. Lo■pez v. Sahuque, 114 La. 1004,' 38 So. 810.”

The motion to dismiss the appeal is defied.

On the Merits

Plaintiff, alleging that the defendant’s agents had been guilty of wilfully trespassing on land owned by plaintiff, and had •cut down and removed twenty-one trees of .a value of $15.00 each, filed suit for $315.-■’00 with interest and costs.

Defendant admitted that the twenty-one trees were cut and removed from the land “belonging to plaintiff, but set forth that the trespass was due to the mistake of certain persons employed by defendant to cut and remove ties on other lands in the vicinity, ■the owners of which had sold their timber to defendant. Averring that the trees were Follow, rotten or otherwise defective, and that only fifty-four cross-ties were made from the twenty-one trees cut from plaintiff’s land of the market value of twenty •cents each, defendant placed the damages ■sustained by plaintiff at $10.80. The answer further set forth that as soon as defendant’s agent discovered that its tie •cutters had violated defendant’s instructions by cutting and removing the twenty-one trees from plaintiff’s land, prompt notice was given to the plaintiff and payment of $115.00 was offered plaintiff in settlement. In the answer the defendant re•asserted its willingness to pay $115.00 to plaintiff “not because defendant admits liability for the cutting of said trees, but merely because defendant desires to avoid litigation and attendant expense.”

The District Court gave judgment in favor of plaintiff for $150.00. Defendant .appealed.

From an examination of the pleadings and the evidence, we find that certain ■workmen employed as tie cutters by the defendant went upon the land of plaintiff without plaintiff’s permission, cut down twenty-one hardwood trees, and converted them into ties which were in turn disposed of by defendant. While the defendant had no specific intent to wilfully trespass on the tract of land owned by plaintiff, we conclude, from an examination of all the circumstances, that the defendant did not use due care in directing and supervising its employees who were cutting timber in the vicinity, and that the unauthorized cutting of the timber was due to the continued negligence of the defendant in the direction and supervision of those employed in the conduct of its tie cutting and marketing operations.

The Supreme Court of Louisiana has adopted a rule that the measure of damages for timber cut in bad faith is the manufactured price of the finished product less the cost of manufacture. This rule was adopted in the case of Ward v. Hayes-Ewell Company, 155 La. 15, 98 So. 740, wherein the Court recited as authority Article 525 of the Civil Code, which authorizes a person whose raw materials have been used by another person in the manufacture of a finished product to claim ownership of such manufactured article “on reimbursing the price of the workmanship.”

Plaintiff introduced testimony that the twenty-one trees cut would have, if manufactured into lumber, amounted to 3500 to 4000 board feet, of a value of $100.00 per thousand board feet, and thus contends that the Court should fix the “manufactured value” in excess of the $315.00 sued for.

Defendant introduced testimony that the twenty-one trees produced fifty-four ties; that the value of the most expensive cross-tie produced at the time plaintiff’s trees were cut was $1.75 per tie, and contends that the total value of the fifty-four ties constituting the “finished product” was therefore $94.50.

The testimony introduced 'by plaintiff that the manufactured value of flooring that could have been made from the trees wrongfully cut has no force in setting the amount of his claim, inasmuch as plaintiff’s right to the value above that of stumpage (which is also below the $115.-00 tendered) is under that portion of the Article .which gives him the right “to claim the thing which was made out of” his materials. Since the maximum value of “the thing which was made” out of plaintiff's-trees, without even considering what it would cost for plaintiff to’ reimburse “the price of workmanship,” - is- less than the $115.00. tendered, it is evident that the plaintiff should not have been awarded judgment in an amount greater than the $115.00 tendered plaintiff by defendant and conceded to be due.

The judgment appealed from is amended by reducing its amount from $150.00 to $115.00, and by striking out the award of interest, and, as amended, same is affirmed. Costs of both Courts, to be divided equally betw.een plaintiff and defendant..