author: , TALIAFERRO, Judge.

text:
    BRITT et al. v. MERRITT et al.
    No. 7409.
    Court of Appeal of Louisiana. Second Circuit.
    April 5, 1950.
    Rehearing Denied April 28, 1950.

      John P. Godfrey, Many, for plaintiffs-appellants.' \ .
    Fraser & Fraser, J. Reuel Boone, Olin ,D. Moore, Many, for defendants-appellants.
   , TALIAFERRO, Judge.

This case was before ¡us heretofore on appeal from a judgment that sustained ex-, ceptions of no cause and no right of action. The judgment was reversed and the case remanded for further proceedings. 35 So. 2d 281.

To lay the foundation for intelligent discussion of the exceptions the salient articles -of the petition were quoted in our' former opinion. We shall not repeat them here, 'but, for the" purposes'of 'thi's opinion, ', shall give a general summary of them.' 1 :

Defendant, C. C. Merritt, the' afternoon of March 30, 193-7, on a highway in Sabine Parish, Louisiana, shot and killed' Warren M. Britt; the husband and father-'-of the-plaintiffs. At the time of the killing Merritt held-a commission (in writing) from T. M. - Phillips, Sheriff of Sabine Parish,-as deputy sheriff, wherein it is said: “That C.' C. Merritt is fully clothed with legal authority to perform as Deputy Sheriff of said Parish.” ■ ■ 1

This suit is -against Metritt, ■ the sheriff and 'the -surety on his official borid/'The Maryland Casualty Company. It is predicated upon the theory that in taking the life of Britt,' Merritt was’ acting' in his official capacity as deputy sheriff, but' vio‘j lated his duty by an “unfaithful or improper performance of ■ an official act”. In other words, that he was attempting to perform an official duty within the purview of his office, but violated that duty by employing means and methods to accomplish the arrest of the deceased that were not only wholly unwarranted in láw but-violently repugnant thereto. ,

The facts alleged to support the action mainly appear in articles five and six of the petition, which we analize as follows, viz: That the deceased drove his jeep to 'the home of Ivy Morris in the Pendleton Com-' munity of Sabine Parish where Merritt was serving as deputy sheriff; that Merritt became aware of Britt’s presence, armed himself with a ten-guage shotgun,walked some two hundred yards down the ’ road he knew- deceased Would have to travel when en route to his home, got be-hind a tree on the roadside and as the jeep approached he stepped from behind said tree and ordered Britt to halt; that' his purpose in so doing was to search the vehicle for intoxicating liquors which deceased was suspected' of transporting; that when Britt failed to halt as ordered, Merritt fired, in quick order, three shots toward him from the last o'f which, wounds were inflicted that caused death two days later.

Answering the petition, Merritt, in effect, ■ generally denies- the allegations' thereof upon which' plaintiffs depend for success herein, except he does admit firing the shot that took the life of Britt at the time and place alleged.

. Further' pleading, Merritt charges that some days prior to the killing, Britt, who he knew held' ill will against him, made threats against his life to several persons, which were ’communicated to him; that immediately prior to the killing he was walking along the road leading from his home to Sabine River when the deceased drove into the road behind him, and tried to run the jeep over him; and “That respondent stepped out of the road and called upon Britt to stop; that Britt continued to drive his jeep directly toward respondent while, reaching in the rear of the jeep as if to draw a weapon, which was his practice to carry with , him, and respondent being in fear of his life shot Britt in order to save himself from death or great ¡bodily harm.”

The sheriff and his surety resist the suit on; the ground, as by them alleged, that when Merritt killed Britt he was not acting in the capacity of deputy sheriff nor “in any other official capacity by authority or under direction of T. M. Phillips, Sheriff”; and while Merritt’s appointment as deputy sheriff, as alleged, is admitted, they aver that he was only “authorized to serve as such when called upon” by the sheriff to do so.

The Court sustained the defense of the sheriff and his surety but rejected Merritt’s alleged excuse for taking the life of Britt. Judgment against him in favor of Mrs. Britt in the sum of Three Thousand ($3,000.00) Dollars, plus medical, hospital and funeral expenses, was awarded; and in favor pf each of the five minors for Six Hundred ($600.00) Dollars. Merritt and plaintiffs appealed.

The trial judge gave written reasons for the judgments he rendered. Concerning the case against Merritt he made factual findings as follows, to-wit:

“The testimony of Merritt under cross examination is that on the Sunday afternoon of the homicide, as he was returning home with his family from Texas, he stopped at a friend’s house and while there he saw Britt pass. Merritt went home, got a ten gauge shot gun loaded with shells which, contained a mixture, of buck and squirrel shot, and started walking South on the road toward the home of his tenant, Carvee Phillips. Merritti looked ■ 'back . north and at some distance -saw Britt traveling the road in’ a jeep ’coming from toward Ivy Morris’ ;and that he, Merritt, turned and continued walking south on the road. That Merritt turned again toward the direction in which Britt was coming and saw Britt, some, seventy-five (75) or ninety (90) feef' away and began shooting. The medical testimony shows that one buck shot went in the back of Britt’s head just left of the mid-line and ranged forward lodging near the left eye; that two buck shot went in the upper part of Britt’s back just to the right of the mid-line, and one buck shot and some two or three squirrel shot hit Britt in the back of the right shoulder.
“The defense of Merritt is twofold: He contends that he became alarmed by the fact that Britt was coming toward him and he was afraid he might be run over. Coupled with this, Merritt says Britt reached back as if to get a gun whereupon he shot Britt.
“The defense that Britt was trying to run over Merritt and at.the same time was reaching back for a weapon is, as we see it, an inconsistent defense.. As the road was narrow and through a wooded section, it appears that Merritt could have very easily avoided being run over by simply stepping out of the road as he testified he had done two (2) or three (3) times in the past. It is customary for pedestrians to give the right of way to motor vehicles on the highway or regularly traveled dirt roads. If Merritt was concerned about avoiding trouble with Britt, to the extent that he purchased a residence at Many, Louisiana, with the intention of moving there, surely he could have stepped out into the woods rather than kill the man if he thought he was about to be run over.
“As to the proposition that Merritt had, reason to believe that Britt was about to kill him because he reached ¡back as if to-get a gun, we will say that while we know very little about firearms and do not know what effect the mixing of buck and squirrel shot in a shell would have, it is a matter of common knowledge that at a range of seventy-five (75) or ninety (90)' feet a person armed with á ten gauge shot gun loaded with buck shot has the decided advantage over one armed with a .22 rifle or pistol, these being the two weapons that defendant claims Britt was in the habit of carrying. Furthermore, a person standing on the ground has an advantage of one traveling by automobile in a shooting affray. Merritt says he saw Britt reach back but he does not testify that he ever saw anything that looked like a weapon, and after the jeep came to a stop, lodged between two trees, and Britt lay mortally wounded only a few feet from the road, Merritt passed the jeep three (3) times and did not look in or examine the jeep to see if a weapon could be found.
“The law of self-defense is- set forth in article 20 of the Louisiana Criminal Code which reads in part as follows: *A homicide is- justifiable (1) When committed in self-defense by one who reasonably be-lives that he is in imminent danger of losing his- life or receiving great bodily harm and that the killing is necessary to save himself from that danger-.’
“In connection with this case the writer has reviewed several criminal law ' text books on the quéstion of self-defense. The law of self-defense resolves itself down to this: It is not what the timid man nor the unusually courageous man would have done, but what the average man would have done under like or similar circumstances. -
“If it had been shown that Britt was a desperado and 'expert marksman; thát he habitually carried firearms; and, that he had made threats which were communicated to Merritt that he would shoot him on sight, there might have been some justification for Merritt shooting Britt in the manner and method that he did, otherwise not. It is not shown that either of these situations existed. The most that can be said is that the evidence shows Britt to have been an' undesirable citizen, but this does not, in itself, justify 'taking human life.”

We find ourselves in complete accord with the conclusions of fact embodied in the -foregoing quotation, but disagree with some of the conclusions of law therein, particularly that the rule and principal of criminal law enunciated in Article 20 of the Louisiana Criminal -C-ode has application to a civil suit for damages resulting from death or the infliction of bodily injury by one person upon another.

It is entirely possible under the jurisprudence of this state for a person to be properly charged with and convicted of the killing of another, or of inflicting great bodily harm upon him,-and the injured person or his heirs, in case of his death, be without recourse civilly against the person so charged and Convicted. This happens when the deceased or -injured person provokes, instigates or ■ creates conditions by words or action, of such character ' as to make him the aggressor in the difficulty out of which the action is' alleged to have arisen. For instance, a man may, without provocation, violently strike anoth-ér with his fist, they 'being equal or nearly so in physical strength, and if the one struck should with a pistol shoot his assailant and is thereafter charged with and convicted of the shooting, the injured man, the one who started the difficulty being the aggressor, is without right to recover civil damages, from the other. The fact .that the other man is not excusable for his offense is immaterial in the' civil phase of the case. See: Oakes v. H. Weil Baking Co. 174 La. 770, 141 So. 456, and cases cited therein; Massett v. Keff, 116 La. 1107, 41 So. 330; Miller v. Meche, 111 La. 143, 35 So. 491; Welch v. Van Valkenburgh, La.App., 189 So. 297; Ponthieu v. Coco, La.App., 18 So.2d 351; McCurdy v. City Cab Co., La.App., 32 So.2d 720; Finkelstein v. Naihaus, La.App., 151 So. 686.

Merritt’s testimony with respect to the shooting and the circumstances under which and the reasons why it was done, abounds in absurdities, inconsistencies, and contradictions. According to his version -of the facts Britt had not passed him when the last shot was fired, yet the fatal shot put one buckshot through the back of his head and several in his back and shoulder.. This shot, without question was fired when 'Merritt was behind the jeep. ■ The first, shot, it is reasonable to conclude, miss-: ed- the jeep entirely; the second was 'at close-range (Merritt says eight or ten feet). The>charge entered the right front seat, twelve inches above the cushion and made exit, without scattering. Surely, when the thjrd shot was.fired, there was no danger to Merritt from being run over by the jeep and surely Britt was not then in the attitude of reaching backward as for á weapon.

It is shown that Britt on several occasions threatened harm to Merritt, which' threats .were communicated to him, 'but the fact that he had made the threats rather promiscuously and had made no serious effort to enforce them creates, the impression that he never really intended to do so. He was a sort of braggart and doubtless wished to intimidate Merritt. Anyway, the trial judge decided there was no overt act- or hostile demonstration against Merritt by Britt and we fully agree with this conclusion. . ■

It -would require reckless courage and daring on the part of a driver of a motor vehicle to wilfully try to run over a pedestrian armed with a shotgun on a highway, especially when the one so armed was hol-loing “Stop”, “Halt”, etc. at the driver.

The clear preponderance' of the evidence exonerates the deceased of the charge of being the aggressor. '

In view of the foregoing conclusions the question logically arises: Why did , Merritt shoot Britt? The answer is equivocal. ■■ He either wilfully murdered him or shot him while acting in the capacity of deputy sheriff, in furtherance of the desire to. stop -him at any cost and search the vehicle for contraband liquor. The question now looms: Which of the two theories is the more logical and probable? We believe the latter is. The evidence in the -case supports this view. No person will be presumed to wilfully desire to take human .life]

Britt, it is not denied, to the knowledge of nearly everyone in his community, habitually engaged in transporting from ‘Texas and selling (bootlegging), in violation qf.lpw, beer and whiskey.- His activities. .were not confined to the community in which, he and Merritt lived. -Hi.s reputation as a. petty; law violator was well known. It gave the community considerable concern. His, jeep .and his home were often searched by deputy sheriffs for spirituous liquors. He blamed Merritt for much of this. . - ■ . ■ •

As found .by the. lower Court, on the afternoon of March 30, 1947, a very brief time prior to the killing, Merri.tt returned from a trip with -his family from. across Sabine River.- Prior to arriving at his home he saw Britt in the jeep. ,'He tarried for. only a few minutes 'at his home, then picked up his ten. gauge ; shotgun, loaded with buckshot, and began: walking down the road that led to his tenant’s house, some three hundred or four hundred yards away, over which Britt was known to often travel, and which Merritt had just traveled. And why he should immediately, well armed, desire to again traverse that same road, the record does not satisfactorily disclose. He does say that he carried the gun for his protection.

In his answer Merritt alleged that when he.-observed that Britt intended to run 'him down, he stepped out of the road and hol-loed to-him tq “stop”; He .testified; that when he saw Br-itt reaching as .for a weapon, he yelled at him: “Don’t do it.” His tenant, Phillips, whose home was not over one hundred fifty yards distant, says that he heard Merritt utter loudly one word in an instant prior to the shooting, but'he did not understand exactly ,the word used. Plaintiffs contend that the word was “Halt”, the customary hail by an .officer to one in motion he wishes to arrest. This contention, in view of all the circumstances of the case, is quite persuasive.

We conclude that Merritt’s purpose in arming himself and immediately leaving his home afoot after returning from the Texas trip, was to. halt Britt if they met, search the jeep and arrest him if it contained spirituous liquors. The first shot hit neither Britt nor the jeep, and was likely fired in the hope of frightening him into stopping; and seeing' that Britt was, perhaps, contemptuous of his action and did not intend' to stop, confirmed in Merritt’s mind that 'he was transporting contraband liquors. "His mental processes were moving'rapidly. Not urilikely he was enraged at Britt’s refusal to heed his effort to stop him. It us fair to conclude that he decided, as many deputies'would erroneously have done, that he was authorized to effect arrest even though it required the most drastic .methods. ■ ,

In view of the broad language of the commission to Merritt, to warrant holding that he was not authorized thereunder to arrest one suspected of being in the act of violating liquors laws, unless specially authorized' by the-' sheriff, the evidence would have to be unusually strong, clear and convincing.

There is dispute as to why Merritt was appointed deputy sheriff., He contends, and so does Sheriff Phillips, that the appointment was made at the request of ‘Several citizens of the community who wished to have a peace officer present, at church gatherings. None of the mentioned citizens testified on the subject. The community is rather remote, being eighteen miles from' Many, the parish seat. One witness, obviously impartial, testified that the sheriff told'him he appointed Merritt to serve at church services, but had instructed him “if he had „a chance ’to help them out in catching Britt, to help, them.” Merritt was paid a salary of $35.00 per week. It .is difficult to believe that such a substantial compensation would be paid a deputy sheriff simply to be present at church services, which perhaps occurred only a few times each month. ■ . ■

Merritt’s commission, it will be recalled, embraced the entire parish. It, in legal -effect, conferred upon’him the authority to function parish’wide. It seems, tó us to be . conceded that he had the authority to search for and seize contraband liquor, without warrant, anywhere in the parish, when transported in a motor vehicle, and arrest anyone in whose possession such liquors were found. It is shown- that he did act as deputy sheriff for several days in a community other than ■ his own.

It is also contended that notwithstanding the comprehensive language of the "commission, Merritt had no authority from the sheriff to effect the arrest of persons suspected of violating state or parish liquor laws, except after communicating --with ■ the sheriff and being expressly authorized by him to do so.' This does not strike us-as being a reasonable: ■ policy n'or' of usual practice by sheriffs. Certainly such a'rule would greatly hinder and handicap a'deputy •in the discharge-of his duties! While -try:ing to communicate with the sherriff,' a criminal or suspected person -could -well escape.

' We also conclude that Merritt was clothed with'legal .authority to árfest'Britt .or any other, person suspected 'Of transporting contraband liquorsy for; sale, and make search therefor; and .that he was ■so acting when Britt was.shot.

In our former opinión in -this casé we cited and analyzed several cases that 'involved action’s against sheriffs because of ‘ alleged violation of duty'by a- deputy. The case of Sanders v. Humphries, 143 La. 43, 78 So. 168, 169 clearly announces’the'law pertinent to such cases. It is : “But neither the sheriff nor the surety on his official bond is responsible for' á wrongful act of' a deputy sheriff unless it was done in violation or ■in an unfaithful or improper performance of.an official.duty.”

Of course, the converse of this legal principle is correct. If a deputy’s'act is one in violation of an official duty or if he unfaithfully or improperly performs an official act in-order to accomplish a desired end, and death or injury results, the sheriff and his surety on his bond are responsible in -damages therefor.' •

Plaintiffs offered .in evidence the report and findings of the Coroner’s Jury to prove facts other than the date, the fact and cause of death to,which objection was made. The objection was sustained,. Complaint of the ruling is made here. It was correct. Johnson v. Sundbery, La.App., 150 So. 299.

Britt was thirty-six years of age 'when killed. 'While his income was'not large, for this day and tirfi'e, it was sufficient' tó provide support'for'his wife and .five children, the oldest of whom now is nine years .of age.

All .things considered, we are of the opinion that the amount of • damages due plaintiffs, as determined by the lower court, •,is too conservative.. Regardless of the shortcomings of the deceased, his wife and children by his untimely, death have suffered mid will:suffer damages in an amount ■ in excess of. that fixed by the trial judge. think Twelve- Thousand ($12,000.00) Dollars, will more nearly meet the ends of justice.

The sheriff’s bond is for $6,000.00. This .is the limit of the surety’s liability.

'Therefore, for the reasons herein assigned,- the judgment rejecting plaintiffs’ demand against T. M. Phillips and the Maryland Casualty Company is annulled, avoided and reversed; and the judgment in favor of plaintiffs and against C. C. Merritt is set aside. And for said reasons, it is now ordered, adjudged and decreed that plaintiff, Rosie Turnley Britt, do have and ..recover judgment, in solido, against the defendants, C. C. Merritt, T. M. Phillips and the Maryland Casualty. Company, in the- sum. of Three Thousand, and No/100 ($3,000.00) Dollars.

It is further. ordered, adjudged and decreed that plaintiff, Rosie Turnley Britt, do have and recover judgment, in solido, against defendants C. C. Merritt and T. M. Phillips in the sum of Three Thousand and No/100 ($3,000.00) Dollars.

It is further ordered, adjudged and decreed that Mrs. Rosie Turnley Britt, as natural tutrix of her five minor children, to-wit: Mary Bell Britt, Douglas Britt, Molly Britt, William Huey Britt and Warren Harlond Britt, do have and recover judgment against C. C. Merritt, T. M. Phillips and the Maryland Casualty Company, in solido, in the sum of Three Thousand and‘No/100 ($3,000.00) Dollars, being Six Hundred ($600.00) Dollars for each minor.

It is further ordered, adjudged and decreed that Mrs. Rosie Turnley Britt, as natural tutrix of her said five minor children, do have and recover judgment against C. C. Merritt and T. M. Phillips, in solido, in the sum of Three Thousand and No/100 ($3,000.00) Dollars, being Six Hundred ($600.00) Dollars , for each minor.

It is further ordered, -adjudged and decreed that interest at the legal rate on all of said judgments run from judicial demand. And, that defendants pay all costs of suit.


source: Caselaw Access Project

author: PER CURIAM.-

license: Public Domain

text:
    SALTER v. ZODER.
    No. 7256.
    Court of Appeal of Louisiana. Second Circuit.
    April 5, 1950.
    Rehearing Denied April 28, 1950.

      Thomas M. Comegys, Jr., Shreveport, for appellant.
    Morgan, Baker & Skeels, ' Shreveport, for appellee.
   PER CURIAM.-

Plaintiff’s six year old daughter, Frieda, suffered incision of the left cheek when she accidentally fell against a piece of sheet metal on top of a stack' of lumber placed by the defendant upon a concrete walk on his property. For the use and benefit of the minor, plaintiff sued the defendent to recover damages, and, individually, sued to recovef the expenses necessarily incurred by him to have the child treated for the injury.

The District Court rejected plaintiff’s demands and on appeal to this court that judgment was affirmed. 37 So.2d 464. The Supreme court granted a writ of review in the case and reversed both of said judgments, holding that defendant was liable in damages to plaintiff. 216 La. 769, 44 So.2d 862. However, the case was remanded to this Court with directions that we fix the amount of damages to which plaintiff is entitled. . .

The wound was slightly curved, approximately two inches long, just below the left •cheek bone, its ends nearly on a line between the corner of the mouth and lower •end of the ear.- The incision severed the skin and the underlying tissue .but did not reach the borie. No other injury resulted from the accident, and np infection set up.

The child, imipediately after the accident, was carried to a sanitarium where competent surgical service was rendered -to her. Ether or gas was administered and the wound sutured. Several stitches were, necessary. These were removed after the lapse of a few days. She returned home the following morning but visited the doctor several times thereafter for observation. It was then simply a matter of giving the wound time to heal. This took place as quickly and as efficiently as could have been expected. She was out of school two weeks. She did not suffer intense pain at any time but dijd experience some discomfort due to the itching of the wound while in the process of healing.

At time of trial, nearly nine months after the accident, the wound had completely healed. The scar tissue then was only one-sixteenth of an' inch wide and pinkish in color. The healing did not affect the adjacent skin. No drawn, or irregular surfaces followed. The medical testimony is to no one accord that as 'time passes the hue of the scar tissue will gradually grow lighter until it becomes white, possibly a little whiter than the adjacent skin; and that as the face grows larger, the scar area will become comparatively smaller and less noticeable. It is, nonetheless, permanent.

On account of the little girl’s tender age, the wound healed more quickly with demarcation less vivid than would be the- case of an adult. The record leaves little or no doubt that it will be but a few years before the scar tissue will be. of such color and be blended with the adjacent skin in such way that its presence will not only be not conspicuous’ but little noticed by others.

The fixing of an award in .damages in a case, of this character is not free of difficulty. We have , reviewed -the numerous cases that involve face wounds, disfigurements, scars, etc., and found not one having facts as they appear in the'-case at bar. In no two is the award the same. In this connection, a statement by Judge McCaleb in Schultz v. Kinabrew, La.App., 177 So. 450, 454, is apropos, to-wit: “It is always difficult to. gauge with exactness the measure of damages and it would serve np purpos.e .to set forth in detail the, amounts allowed in cases involving scars and. disfigurements, for each case must stand upon its own particular facts, and the authorities cannot be looked to as a definite precedént by which we can be guided. * * * ”■

It is our belief that an award of $500 for the use and benefit of thé minor child will be adequate. .',

Plaintiff proved that he incurred obligations in the sum of $63.50, necessary to have the child treated.

For the reasons herein given, there is now judgment in favor of plaintiff, for the use and benefit of his minor daughter, Frieda Salter, and against defendant, Harry L. Zoder, in the sum of $500 with legal interest from judical demand until paid.

It is further ordered, adjudged and decreed that plaintiff, individually, have and recover judgment against the defendant for the sum of $63.50, with legal interest from judicial demand until paid. .And, that ¡defendant pay all costs of court.


author: KENNON, Judge.

text:
    HADNOT v. THOMASON et al.
    No. 7479.
    Court of Appeal of Louisiana. Second Circuit.
    April 5, 1950.
    Rehearing Denied April 28, 1950.
    John G. Gibbs, Natchitoches, John Mak-ar, Natchitoches, for appellants.
    Gahagan & Pierson, Natchitoches, for ap-pellee.
   KENNON, Judge.

Alleging that she had acquired a certain 2-1/2 acre tract of land, and the house located thereon, as a portion of a 58 acre tract of land deeded to her on February 18, 1946 'by C. M. Thomason, Sr., and that this 2-1/4 acre tract was being claimed by one C. M. Thomason, Jr. by virtue of a subsequent deed from C. M. Thomason, Sr.,' plaintiff filed suit against both parties asking that her' ownership of the described 2-^4 acres of land be recognized.

In the alternative, and in the event the Court should find that the 2-J4 acre tract was not covered by the February 18, 1946 deed, plaintiff prayed that the deed, be reformed so as to include same in accordáríce with the intent of the parties. She further prayed that the deed from C. M. Thomason, Sr. to C. M. Thomason, Jr. be declared a simulation and void. -

Defendant C. M. Thomason, Sr. denied that the 2acre tract was included in the sale of the 58 acres to plaintiff, and set forth that he had sold the 2-1,4 acre tract to his son for a valuable consideration. C. M. Thomason, Jr. in his answer asserted his own claim to the 2-1,4 acre tract by virtue of 'the deed from his father. Both prayed that plaintiff’s demands he rejected.

The District Court gave judgment , for plaintiff. Defendants appealed.

The deed over which the controversy arises is in the usual form and contains the following description: “Fifty eight (58) acres of land more or less together with all buildings and improvements thereon located and situated in the Southeast Quarter of the Northwest Quarter (SE]4 of NW%), .and the northeast quarter of the southwest quarter (NE^ of SW%J and the Southwest quarter of the northeast quarter of Section 23, Township 9 North, Range 8 West, and more particularly described as bounded on the north by Eli Stephens and Delrio, east by Pridgen, south by Breedlove and west by Thomason Estate.”

The 2-]4 acre tract in controversy is a part of a 58 acre tract owned by the defendant, Thomason,. Sr.-, which formed a single tract but lay partly in each of the four central “forties” of the above mentioned Section 23. The 2-]4 acre tract is in the NWy4 of SEj4 of the above, listed Section 23, the remainder of the 58 acre tract lies partly in each of the other three of the four central “forties.”

The description insofar as it describes the land as being located in the three above listed “forties” does not include the 2-1,4 acre tract. However, a study of the sketch and an examination of the testimony shows that the description of the land in the deed “as bounded on the north by Eli Stephens and Delrio, east by Pridgen, south by Breed-love and west by Thomason Estate” would include the 2-1/4 acre tract since same is a part of the 58 acres so described by bounds, and the 2-y4 acre portion is bounded on the east by land belonging to Pridgen. Had the tract sold plaintiff not included the 2-1/4 acres, the east boundary would, have, include ed this retained Thomason tract. . ...

The District-Court based'-its judgment in favor of plaintiff on the grounds that' both parties at the time of the transaction intended that-the 2-1/4 acre tract be'included, and upon the further finding that the defendant, C. M. Thomason, Jr., was not an innocent third party purchaser on the faith of the public record. The evidence, although conflicting on some points, atnply supports these findings of the District Court. Thomason, Sr. had purchased only 66 acres of land. He had sold eight acres to one John Jeter, leaving him 58 ácres, the exact acreage set forth in the deed to plaintiff. Prior to the sale of his property, C. M. Thorriason, Sr. went over the boundaries with plaintiff,' and showed the house site 2-1/4" acres as a part of the 58 acre tract being offered to her. Plaintiff’s principal reason for making the purchase was to provide a home for her daughter and son-in-law. At the time the deed was passed, Thomason agreed to vacate the premises in thirty days and did so shortly after this time passed. After staying a short time in Leesville, Louisiana, he returned, and paid rent to occupy a place within' a few miles of the house which he claimed was retained by him in the sale to plaintiff.

The case of Owens v. Owens et al., 16 La.App. 588, 135 So. 87, involves the two points of law presented by the case before us. In that case the plaintiff s.ought to reforpi an authentic act of sale which erroneously described a tract of ground purchased by plaintiff from one of the defendants as the .west half of a specified Lot 4, when in fact the vendor intended to sell and vendee to purchase the entire Lot 4. In that case — as in the case before us — the original .vendor transferred the- controversial portion of the property to his .son. In that case this Court held (see authorities there cited) that deeds will be corrected where the evidence shows clearly the error complained of. This case reiterated the principle that relief against such.errors cannot be granted when, by doing so, the rights of bona fide third parties would be prejudiced. With reference to what constituted good or bad faith in such matters, the Court stated that no inflexible rule can be laid down and each case must depend largely upon its own facts and circumstances.

In the case before us, the. record discloses that young Thomason had full knowledge of the claims of plaintiff; that he had endeavored to raise money in order to purchase from plaintiff the tract in controversy ; that, in 1948, he caused a supplementary assessment to be made on the 2-i/£ acre tract for the years 1946 and 1947, obviously for the purpose of building up his claim to title. No cash consideration was given at. the time the deed was passed, both parties stating that the consideration consisted of various advances made at different times by young Thomason to his father.

The testimony discloses a multitude of other circumstances and actions leading to the conclusion that the , 2-^4 acre tract was a portion of the land bargained for by plaintiff and intended by both parties to be included in the February. 18, 1946 deed, and that Thomason, Jr. was not a bona fide purchaser, and there was a concert of effort on the part of the two defendants to wrongfully deprive plaintiff of the 2-i/£ acre tract.'

Defense counsel, in brief, makes the contention that the suit “compares more closely to a suit for the diminution' of a price by asking that more land and improvements be added” and that consequently the prescription of one year under Article 2498 of the Civil Code is applicable, and that the exception of no cause or right of action should be sustained. Our appreciation of the case isi that it is one for reformation of a deed and that the codal article relative to a suit for the diminution of price is not applicable.

The judgment'appealed from is affirmed, with costs. ■ •


text:
    BROWN et al. v. MAYFIELD.
    No. 7486.
    Court of Appeal of Louisiana. Second Circuit.
    April 5, 1950.
    Rehearing Denied April 28, 1950.

      Blanchard, Goldstein, Walker & O’Quin, Shreveport, for appellants.
    Meadors, Shaw & Meadors, Homer, for appellee.
   KENNON, Judge.

Plaintiffs, alleging that they were owners of one-fourth of the minerals under a described tract of land in Claiborne Parish, Louisiana, having inherited the interest from their father, filed the present petitory action against J. Earl Mayfield, from whom their father had acquired the described mineral interest on March 21, 1934. The petition set forth the execution of various leases, pooling and unitization contracts and orders of the conservation commission as a basis for the mineral interest continuing in force beyond the original ten year period. . There was no., allegation, that the defendant was jn possession, but there was attached to the petition a copy of all pleadings in a prior jactitory action in which Mayfield, as plaintiff, was granted a .default judgment against the present plaintiffs.

In addition to the petitory relief, the present petition asked for a declaratory judgment “declaring such mineral interest now to be in full -force and effect.”

The petition also asked that the above mentioned September, 1949 ' default judgment be declared null and void for the reason that, at the time the default was taken and the confirmation judgment signed, there had been filed in the jactitory suit an exception of no cause or right of action in which plaintiffs (then defendants) denied that the jactitory plaintiff wa.s or had been in possession of the mineral interest involved ¡since. 1934. ■. ..

Mayfield filed an exception of res judi-cata, an exception of lis pendens, a plea of prescription' and an answer. The District Court overruled the exceptions of lis pendens and res judicata, and rendered judgment maintaining the exception of no oause or right of action. From this judg-merit, plaintiffs 'have appealed, and contend in brief that the petition sets forth a valid cause of action with respect to the petitory action, also under the Declaratory Judgments Act, Act No. 22 of 1948, Ex Sess., and in its attack on the September, 9th default judgment.

We will first discuss the petitory demands. Defendant’s contention is that the petition is fatally defective in that plaintiffs did not deraign their entire title nor allege possession in the defendant.

Plaintiffs, in their petition, have traced their asserted title to the defendant himself. In the case of Moore v. Blount, 160 So. 319, 322, this Court held that it was unnecessary that the plaintiff in petitory action deraign his title “back of the title of the common author”.

In the case before us, the omission of the allegation in the petition itself that defendant is in possession of the property is cured because plaintiffs did attach to their petition a copy of the entire proceedings in the previous jactitory suit involving the same land and between the same parties. In this attached jactitory petition, the present defendant himself sets forth that he is the owner and in possession of the. property in dispute.

The judgment in that suit ordered that the present plaintiffs bring suit in re-vindication of their rights in sixty days on .penalty of being forever barred, etc. When a petitory action is brought in compliance with a previous jactitory judgment, it is not necessary that the petition set forth possession by the -defendant. Such was the ruling of this Court in the case of Henderson v. Graham, 199 So. 439.

We next consider that portion of the petition seeking to nullify the default jactitory judgment. Previous to the entry of the default and the confirmation of the judgment; the jactitory defendants had filed an exception of no cause or right of action' in which it was asserted that the jactitory plaintiff had neglected to set forth that the servitude described had ¡been extinguished ¡by prescription liberandi causa or otherwise. Another paragraph of the exception denied the jactitory plaintiff’s possession in the following language,:

' “That appea-rers -specially deny that plaintiff is now or has been (at any time since March 21, 1934) in possession of the mineral interest Or servitude involved herein and show that your appearers (and their ancestors in title) have at all times ¡been in possession thereof, as will be shown on trial of this exception.”

The attorney filing .the above exception executed in proper notarial form the following certificate:

“Before me, the undersigned authority; came and appeared Leon 0"Quin, who being -first sworn, deposes and says that he'is of counsel for defendants in the above cause; that all allegations of fact set forth in the foregoing exception are true and correct to the best of his knowledge, information and belief, and that a copy hereof has been mailed to counsel -for plaintiff.”

Notwithstanding the filing of the above described exception, the attorneys for the jactitory plaintiff entered a default and in due course confirmed -same, relying upon Section 1, Paragraph 6 of Act No. 157 of 1912, as amended, which provides as follows :

“Sixth: Every exception which may be filed in advance of the,filing of an answer, shall be accompanied by a certificate of the counsel filing the same to the effect that it is filed in good faith and not merely for the purpose of delay; and in the case of every such exception involving matters of fa'ct, the same must also be verified as to •such matters of fact in the manner and form hereinabove prescribed for the verification of petition and answers. Unless accompanied by the certificate of counsel aforesaid, no such exception shall have any effect as a defense or to prevent the taking in regular course of a judgment by default; and ' in the case of exceptions involving matters of fact, unless same be verified as above provided, they shall be overruled as ■a matter of course; .provided that in such case, the Court may, in its discretion, allow the verification to be supplied or amended upon such terms as to the payment of costs, or otherwise, as it may deem proper.”

It is noted that the quoted paragraph requires that the certificate of counsel be “to the effect that it (the exception) is filed in good -faith and not merely for the purpose of delay”. The exception set forth a statement of -fact (lack of possession in plaintiff) which, if true, would have been a valid and effective defense to plaintiff’s suit and would have warranted dismissal of the entire cause of action. The affidavit of counsel that a statement of fact which, if true, would completely defeat plaintiff’s cause of action is equivalent to a statement “to the effect” that the exception is filed in good faith. .

We next consider the question of whether or not it was fatal for counsel’s verification not to contain the statement that the exception was filed “not merely for the purpose of delay”. An exception of no cause or right of-action filed to a jactitory suit and alleging lack of possession of the plaintiff as a defense must be filed in limine. This requirement, is in our law -by virtue of a special .act on that subject, Act No. 241 of 1946. The title to the Act reads as follows: “An Act. Regulating the method of pleading lack of possession and/or failure of-the plaintiff properly to'plead possession as defenses in actions of jactitation or slander of title.” In the body of the Act it is required that if any defendant desires to raise as a defense the-lack of sufficient possession of the property involved, he shall raise and plead “all such defenses” by exception “filed in limine litis.”

Since there is a specific law of the state requiring that this particular defense be raised by means of an exception filed prior to the time that issue is joined, it cannot be said that the issue was raised in an exception “merely -for the purpose .of delay”. In a case where an allegation o-f fa.ct in an exception, if true, would justify a dismissal of plaintiff’s suit, it is likewise not tenable to take the position that such an exception was filed “merely for the purpose of delay”.

We therefore conclude that the affidavit of -counsel as to the truth arid correctness. of the defenses, taken in cónnection with the obvious serio-us import of sa-me, and in the light of the -act requiring 'specifically that-same be presented prior’to ' answer filed, was the equivalent in effect to ' á certificate that the document was filed' in good faith and not merely -for the purpose of delay.'

, A further circumstance in'the case before iis, which operates as a bar. to the .taking of default and. confirmation of ■same while the exception of np right of action was -pending, is the practice that once an issue.of fact is raised in an exception of no right of action, the exceptor is entitled to a separate trial on this question! of,fact. ,By the specific terms of the 1946.act, this question of possession of necessity haci to .be raised — and, logically, disposed'"of — prior to the filing of an answer. At the time the , default was taken and confirmed, the allegation of plaintiff’s petition that he was in possession of the property in controversy had been specifically and •directly denied and put at issue by the statement in defendants’ exception that an opposite state of fact existed. Under these circumstances, whether-technically true or not, the fact remains that issue had been joined between 'the parties on a question of fact, the determination of which was decisive to-the entire litigation. ' Under these circumstances, the taking and confirmation of a default by the jactitory plaintiff without notification to counsel for his adversaries could only -be justified by finding that the case -met fuily and squarely the conditions set forth by section 1, Paragraph 6 of Act No. 157 of 1912.

'Having -found' that, under the -circumstances o-f this case, the affidavit of coúnsel 'was the equivalent of a -certificate that'same was filed in good faith, and having noted that the requirement o-f law that the subject exception 'o'f necessity must be filed in limine litis, and having' found that the exception as filed partakes somewhat of the 'nature of an answer in that issue was joinéd on a question of fact alleged in the petition ánd denied in the exception, which -ccmld’be decisive of the entire litigation, we conclude that the petition stated a valid cause of ac- ’ tion on this phase of the casé.

With referencé to'the declaratory jud-g- ' ment features of the petition, ’ the relief prayed for is- contained in the underscored portion of the prayer to the petition, which .prayer is quoted below in .'full:- “Wherefore, petitioners pray that. J. Earl Mayfield be served with a copy of this petition and cited to answer the same, and that after due proceedings had there -be judgment in favor of your petitioners, and against the defendant adjudging petitioners to be the owners of the mineral servitude described in Paragraph (Í) of this petition and that a declaratory judgment he rendered in petitioners’ favor recognising and declaring such mineral interest now to be .in full force and effect; and that the judgment purportedly rendered on September 9, 1949 in the suit styled ‘J. Earl Mayfield v. J. Herman Brown, et al.’ No. 18181 on the docket of this court, be annulled and decreed void; and for all orders necessary and for general and equitable relief.” (Italics by the Court).

We note that the prayer asks -for judgment adjudging petitioners “to be the owners of the mineral servitude described” and that a declaratory judgment be rendered declaring ‘.‘such mineral -interest now to be in full.force and effect.” Were the ■first prayer — decreeing petitioners to be owners of the mineral servitude described —granted, then it would necessarily follow as a result of that decree that the mineral servitude would “be in full force and effect” as of-the date that judgment was effective. Under these circumstances, the prayer for a declaratory judgment as worded presents no additional issue and the inclusion of same in the decree would recognize no rights in the plaintiff that the granting of the first prayer would- not have already disr posed of. Since the pleadings, .including the prayer for the declaratory judgment, are no.t made in the alternative, we conclude that same could not be the basis -for granting relief, other than that contained in the petitory portions of the petition- and prayer. Of course, the inclusion of the request for such a declaration of plaintiffs’ rights does not effect the legality or effectiveness of the petitory action.

The District Court did not pass upon the plea of prescription or the question of law which will determine the merits of the case, and counsel for defendant has stated in brief that he desires to waive any rights which may have accrued to his client by virtue of the maintenance of the exception of no cause of action that might go' into the merits of the controversy.'

For the reasons assigned, the judgment •appealed from is reversed, the exception of no cause or right of action is overruled, and the case is now remanded to the District Court for .further proceedings in accordance with law and consistent with the views herein expressed. Costs of this appeal to be paid by defendant; other costs to await the final outcome of the litigation.


author: HARDY, Judge.

text:
    ALEXANDER v. HALL.
    No. 7487.
    Court of Appeal of Louisiana. Second Circuit.
    April 5, 1950.
    Rehearing Denied April 28, 1950.

      Dickson & Denny, Shreveport, for appellant.
    Smith, Hunter, Risinger & Shuey, Shreveport, for appellee.
   HARDY, Judge.

This is a suit in which plaintiff seeks the correction and amendment of the judgment in a succession proceéding to the extent of decreeing plaintiff to be the sole owner of certain property in the City of Shreveport described as being Lot 113 of Hotch-kiss Subdivision in the City'of Shreveport, Caddo Parish, Louisiana, together with all improvements thereon.

Plaintiff is the daughter and sole heir of one Hobert Hall, who died May 22, 1947, the child of his first marriage to Martha Newton Hall, who died August 19, 1938, and the defendant is the surviving widow of the said Robert Hall, whom he married June 20, 1941, of which union no children were born nor by the parties adopted.

By proceedings in Suit No. 97,423 on the docket of the First District Court, Caddo Parish, Louisiana, filed May 24, 1947, entitled Succession of Robert Hall, the plaintiff, Isabell Hall Alexander, and the defendant, Annie Bell Gilyard Hall, presented a petition to the court and secured a. judgment on the same date .recognizing the said parties as owners and placing them in possession of all the property belonging to the estate of the decedent in the proportion of an undivided one-half interest therein to each.

The petition in the succession, proceeding, to which reference is above made, contains a detailed recital of all pertinent facts, including a detailed descriptive list and valuation of the property comprising the decedent’s estate. ■ Article 7 of the petition specifically. alleges . that the property described as Lot 113, Hotchkiss Subdivision, Caddo Parish, Louisiana, with all buildings and improvements thereon, “was acquired during the existence of the comrnunity of acquets and gains formerly existing between decedent and the deceased- Martha Newton Hall, but that nevertheless petitioners desire that they each be recognized and entitled to a one-half each, as to Annie Bell Gilyard Hall, widow of the decedent herein, and Isabell Hall Alexander, sole surviving .heir of decedent”.

The petition .was verified by proper affidavit signed by both the named parties in which they declared “that they are the petitioners named in the foregoing petition, and that .all of the. facts. alleged therein are correct”.

. ■ ■ Pursuant. to the; representations of the joint- petition, judgment was rendered recognizing petitioners as the surviving spouse and the sole heir of the decedent and sending and' putting them into possession of all the property of the decedent in the proportions of an undivided one-half interest each.. In. the judgment the property involved in,the, instant case was particularly described. ,. ,

:■ In this case exceptions of res judicata and . renunciation, together with a plea of estoppel, :were filed in the District Court on behalf of defendant, and in this court defendant has filed an exception o,f no right or cause of action. There was judgment overruling the exception of res judicata but- sustaining the plea of estoppel and dismissing plaintiff’s suit. Reasons for the judgment were set forth in a forceful, convincing and logical written opinion by our distinguished brother of the District Court. From the judgment of dismissal plaintiff has brought, this appeal' and "the appeal has been answered by defendant, who prays that the exception of res judicata and renunciation be sustained by this Court and that, otherwise, the judgment appealed . from be affirmed.

The only serious defense which appears to have been urged on béhál’f of plaintiff in' the lower Court was the 'plea' that plaintiff was laboring1 under an error of law by reason of which she joined in the succession ’ proceedings above ■' described. This defense is'unavailing-and'untenable under Article 1846 of the Civil Code, which provides that an error of law may 'not be relied upon for the avoidance of a contract unless it was the sole or principal' cause therefor. Plaintiff has made'no allegation to this effect: ' ' “

The correctness of the judgmeri.t of the District Court in sustaining 'the' .plea of 'estoppel -is so unassailable as to obviate the necessity for any extended' discussion. A plainer and moré convincing, illustration of an estoppel by record by judicial declaration could scarcely’ bé conceived. Numerous authorities on the exact point make definite pronouncements in support of this conclusion. Succession of Rufin, 143 La. 828, 79 So. 421; Succession of Carter, 149 La. 189, 88 So. 788; Succession of Kranz, 162 La. 546, 110 So. 750; Succession of Williams, 168 La. 1, 121 So. 171; Doll v. Doll, 206 La. 550, 19 So.2d 249. The cases cited definitely dispose not only of the question of estoppel but also the point raised as to the plea of error in láw.-

In view of the fact that the determination of the'plea of estoppel, in our'opinion, definitely and certainly disposes of this matter, we think no useful purpose would be served by a consideration of the other pleas and exceptions urged on behalf of defendant, though we concede their'merit.

Counsel-'for plaintiff did not'appear before this Court for Oral argument and has contented himself with filing' a one- page brief 'before -this Court. The- effect óf this brief would seem'to indicate'the abandonment of all contentions made on behalf of plaintiff in the lower court W'ith the exception of one point which counsel.' states was raised beloW in connection1 with an application for rehearing. The burden of the argument advanced is that the judgment in the succession proceeding did not follow the prayer of the petition and that the prayer should govern the recovery under the provisions of Article 156 of the Code of Practice.

First, we observe that in our opinion the article referred to has no- possible application. Second, a reading of the prayer of the petition in the succession proceeding indicates that counsel is grossly in error in observing that under said prayer the joint petitioners “only prayed to be put in possession of his (decedent’s) property .* * *” Tim second paragraph of the prayer specifically provides: .“That they be 'declared entitled to the ownership, and s.en.t and put into possession, of all of the property, whatsoever left by decedent, in the proportions of an undivided one-half interest therein, to Annie Bell Gilyard Hall, widow of Robert Hall and an undivided one-half interest therein to Isabell Hall Alexander, wife of Robert Alexander.”

The judgment was responsive to the prayer as made and, accordingly, there can be not the slightest merit in the contention noted.

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


author: TALIAFERRO,-Judge: '

text:
    JINKS et al. v. EMPLOYERS MUT. LIABILITY INS. CO. OF WISCONSIN.
    No. 7498.
    Court of Appeal of Louisiana. Second Circuit.
    April 5, 1950.
    Rehearing Denied April 28, 1950.

      ■ Jácksón"& Mayer,'Shreveport," Frank S. Kennedy, Shreveport, for appellant.
    Irion, & . Switzer, Shreveport, Harry A. Johnson, Jr., Shreveport, C. C. Burton, Jr., Shreveport, 'for appellees.
   TALIAFERRO,-Judge: '

'The' four door Nash sedan of the co-partnership o'f Jinks and Clark Insurance Agency, composed of. James R. Jinks and John F. Clark, residents of the City of Shreveport, Louisiana, was damaged from forceful contact with 'a Chevrolet stake body truck of Norman'D. Perkins, doing business as'Caddo Wholesale Beer Distributors, in the town of Bossier City, Louisiana, in the day time, on September 17, 1948. At the time of the accident the automobile was being driven by said Jinks. He was accompanied' by his partner, Clark. They were proceeding south on U. S. Highway No. 71, sometimes called Barksdale Boulevard, en route to Barksdale Field, on partnership business. The truck was proceeding in the same direction, and was being driven by defendant’s agent, Charles Tuminello.

Both occupants of the Nash car suffered physical injuries in the accident. They sued for damages on that account, and the partnership sued to recover the amount expended to repair .the car. The suit is against Norman D. Perkins and his insurer, Employers Mutual Liability Insurance Company of Wisconsin.

Plaintiffs allege that as their car drew close to the truck; desiring to pass the same, the horn was sounded as a signal of their intention to pass, and promptly thereafter the car was pulled to its left- and into the left lane; that while occupying that position and while alongside, of the truck the driver thereof, without giving any warning or signal of .his: intention so to -do, suddenly swerved the truck to, his left, causing it to encroach upon the east lane of the highway and to strike the Nash car about the handle of the right front door thereof ; that the impact was so heavy the driver of the Nash car lost control thereof, and it proceeded some thirty yards down the highway and finally rested in the ditch on the east side thereof. The negligence of the truck driver, in the respects mentioned, is alleged to have been the proximate cause of the accident and the resulting injury and damages.

Defendants deny that the accident occurred because of any negligence of the truck driver. They charge that the accident was due wholly, to the negligence of the driver of the Nash in that the accident occurred when he was attempting to pass the truck while traveling at a speed in excess of the limit fixed by ordinance of the Town of Bossier ■ City; that he was negligent in attempting to pass the truck when too close to it, and in not maintaining proper control of his vehicle and not maintaining a proper watch of the highway.

In the alternative,' defendants allege that plaintiffs’ contributory negligence in the respects mentioned -bars recovery by them or either of them. ■ ■

Further, in the alternative, defendants plead that should the truck driver be found to have been negligent as a cause or proximate cause of the accident, in that event he' should be exonerated'therefrom because his action arose as the result of a sudden emergency that was created by a pedestrian suddenly darting into the path of the vehicle he was driving, and his efforts to escape running over him.

Defendants further aver that said co-partners, when the accident occurred, were on a joint mission in a jointly owned vehicle, under their joint control, and that the negligence of the one is imputable to the other. • •

There was judgment for each of the plaintiffs and defendants appealed.. Plaintiff Jinks individually answered the- appeal and asked for-increase in the judgment in his favor to the amount sued for.

The facts of the case are, with one exception, not in controversy. • The exception has to do with the relative position of the vehicles when contact between them occurred.

Mr. Jinks testified that the Nash car was traveling at the rate of between twenty-five and thirty miles per hour and that the truck was making about the same speed; that as he drew close to the truqk he pulled the Nash slightly to his left in order to observe traffic conditions in the left lane, and finding them favorable he undertook to pass the truck. Pie is positive that prior to doing this he sounded the horn to apprise the truck driver of his presence and desire to pass him; that after straightening out his car in the left lane and when parallel to the truck, the driver thereof suddenly swerved it to the left and that contact between the vehicles then, occurred. The Nash was struck about the handle of the rear right door and its right rear fender was crushed. Jinks and Clark are sure some part of the left side of the stake body, while the vehicles were traveling side by side, scraped the Nash. Anyway, the violent contact was followed by loss of control by Jinks. If the Nash car wa.« traveling at the moderate speed contended by plaintiffs, it must, have been accelerated after the contact as its speed was rapid thereafter until it rested in the east side ditch.

Jinks’ testimony is corroborative of that of Clark’s. There is virtually no difference between them as regards the facts.

We are quite certain the accident did nqt happen precisely in the manner Jinks and Clark think. Had the vehicles collided after the Nash had straightened out in the east lane and after the truck had veered to its left, there would have remained evidence of the contact on the vehicles toward their forward ends. As it was, the truck sustained no injury whatever. Its left rear corner, after the accident, was observed to be colored with paint of the same hue as that of the Nash car at the locus of the door injury. Police officers who investigated the accident immediately thereafter, reached the conclusion that no part of the -truck’s body contacted the car save the mefitioned corner. And we agree with them. From this conclusion follows the ultimate conclusion that this corner scraped the Nash while it was being driven into the east lane of traffic, and likely the contact occurred simultaneously with the. truck’s left .movement to avoid running over the pedestrian. When the truck’s left front end crossed the medial line, necessarily its left rear corner slightly moved westward,

The operator of the truck and his assistant testified that -they did not hear the signal allegedly given by the Nash driver,' nor did they know that the vehicles had contacted until after the Nash car, out of control, passed them.

It • is true, as alleged, that immediately prior to the accident, a Negro child, four years old, suddenly ran from the west athwart the path the truck then not over fifteen feet away, but reversed its course in time to escape being run. over. The action of this child was the cause of the truck being suddenly swerved to its left.

To offset the alternative defense of sudden emergency, appellees say that as the child and two other children with him, were in plain view, approaching the highway, the truck driver should have reduced his speed and brought the truck under such control as to have.obviated the necessity of swerving it to the left to avoid an accident, if either child had acted as the one in question did. It is our view that this point is not pivotal. But, in passing,, we do say that regardless of the rate.of speed at which a vehicle is traveling when an'emergency of this character suddenly "Confronts him, the driver will instantaneously swerve his vehicle to his left, as though by involuntary action, and without any effort to pbserve traffic conditions behind him. If he should take time to ascertain traffic conditions to the rear, that action would enhance the chances for an accident. The element of time is pivotal.

In this connection appellants make the point that as the children, as alleged by plaintiffs, were in plain view of the truck driver, they were likewise in plain view of the driver of the Nash; that the duty of driving carefully, in view of these conditions, to avoid an accident regardless of the movements of either child, rested. as heavily upon plaintiffs as it did upon the truck driver; and that plaintiffs’ action in passing .the truck when-and where they did, was negligence of a gross character and- contributed - to. the qnsuing accident. Jinks .and - Clark both- testified that they did not see the children -prior to the accident. The well established legal principle that a motorist will be held to have seen that which he could and should have seen, has application. . .

We view the point as having merit, but prefer to predicate judgment upon another defense, the correctness of which we think admits of no doubt to any extent.

Jinks and Clark agree that in order to pass the truck it was necessary for the Nash to attain a speed in excess of twenty-five or thirty miles per hour as the truck was going that fast. Under ordinance of the Town of Bossier City the limit of speed therein, for motor vehicles is fixed at twenty-three miles per hour. It is, therefore, not questioned that when the accident occurred the Nash car was traveling at a speed that was in violation of this town law. It is too well settled to require citation of authorities, that the violation of a.traffic law constitutes negligence per se. This sort of negligence may not serve as a basis for a suit for damages unless it is the or1 a proximate cause of the accident in which it plays a part.

Regardless of what may be said for or against the action of the truck driver immediately. prior to the time the child ran upon the road, can it be said that his action was. the sole proximate cause of the accident that followed? We are clearly of the opinion that this question must be answered in the negative. Had the Nash driver observed the law, regardless of the truck driver’s action in the emergency, there would not have been an accident. Surely, the violation of the town’s ordinance, in reality, caused or was a cause of the accident. If not the proximate cause thereof, certainly it' was' a proximate cause.

The rights of no third person are involved as the undisputed facts establish that Jinks and Clark were on a joint mission for the benefit of the partnership, using a company car over which each exercised equal control. This point is not disputed by appellees.

For the' reasons herein assigned, the judgments frdm which appealed are hereby annulled, avoided a’nd reversed, and there is now judgment in favor of defendants rejecting the demands' of plaintiffs, and dismissing their suit at their cost. ■


text:
    GROSS & JANES TIE CO. v. SMITH et al.
    No. 7406.
    Court of Appeal of Louisiana. Second Circuit.
    April 5, 1950.
    Rehearing Denied April 28, 1950.
    .. Wallace & Stinson, Benton,. for appellants. .
    Campbell & Campbell, Minden, for ap-pellee. . ■
   KENNON, Judge.

Defendant,: Dr. H. H. Smith,' owner of 325 acres of land in Bossier Párish, Louisiana, executed á timber dried in October,, 1944 in which he- conveyed to T. J. Barnard all of the timber six inches in diameter and over on said land, granting purchaser until November 1, 1946 to remove the timber. The timber deed contained the following provision, which is the basis of the present suit: “It is agreed that the purchaser, its successors or assignors will1 only cut the timber on the land once and when, the timber has been- cut over < once it reverts back to the said Dr. H. EL Smith.” -

' The purchaser, T. J. Barnard, went on the land and cut and removed- -the pine pulpwood, finishing this operation in September, 1945. Meantime, in May, 1945, Barnard executed a deed to Gross & Janes Tie Company (plaintiff herein) conveying all hardwood timber on the land over six inches in diameter. In June, 1946, while plaintiff company was engaged in cutting and removing this hardwood timber,, the defendant Smith, after his request to cease cutting had been refused, instituted criminal proceedings against plaintifPs agents and workmen. Plaintiff, on September 5, 1946, filed the present suit against Dr. Smith and his agent, Allen Meares, seeking an injunction restraining both these defendants from interfering with plaintiff’s timber operations on the tract in question.

Defendánts in answer denied plaintiff’s claims and sought recovery, as plaintiff in reconvention,- for the following items:

200,000 ft. of hardwood timber at $10.00 per thousand $2,000.00
15,000 ft. of pine timber at $15.00 per thousand - 225.00
Damage to young and growing timber 500.00

After trial, the District Court rendered judgment in favor of plaintiff and rejected defendants’ reconventional demands. The case is before us on defendants’ appeal.

The record shows that in the summer of 1945 Barnard, the purchaser, -went on the land, cut and removed a large quantity of pine pulpwood, and a considerable number of pine poles. While defendants contend that he at this time’ also cut over the hardwood timber, the record discloses that Barnard confined his cutting of hardwood to the securing of the number of logs necessary to make a foundation for the piling up and storing of the pine poles during the interim between their cutting and removal' from the tract, and for other uses incidental to the stacking and storing of the pine.

In the summer of 1946, the plaintiff company as purchaser from Barnard, began to cut and remove the, hardwood from the Smith tract. Operations were interrupted when defendants caused the arrest o.f plaintiff’s agents, but resumed after an injunction was issued restraining defendants from further interference. The plaintiff company, before November 1, 1946, completed the removal of all hardwood timber six inches and over from the tract.

Defendants contend that the action of" the purchaser Barnard in cutting the pine timber on the land in 1945 placed him in the position of’having “cut the timber on the land once” within the meaning of the above-quoted clause, and that consequently the hardwood timber reverted to defendant Smith as landowner and that he is entitled to be reimbursed for such timber as was removed from his land in 1946.

Plaintiff’s contention is that the purchaser Barnard had a right to make a selective cutting of the timber for pulpwood purposes, to be followed up by a selective cutting of the hardwood or saw- logs and that until both operations had been completed, the tract could- not be considered as “cut over once” within the meaning, of the limiting clause contained in Barnard’s deed from Dr. Smith.

The Supreme Court of Louisiana in the case of Clark v. Weaver Brothers Realty Corporation, 197 La. 63, 200 So. 821, 827, recognized the doctrine previously laid down by that Court in the case of American Creosote Works, Inc., v. Campbell et al., 172 La. 866, 135 So. 659, namely, that if the purchaser’ of designated timber goes over, the, entire tract and removes therefrom the timber which he purchased, he cann.qt later go upon the;cut over land and renew operations, even though the time given for removal has not expired. In the Clark case, Clark had 'sold timber on a 233 acre tract, giving the purchaser (or its assignees) fifteen years in which to remove same. Some six years later, the purchaser caused to be cut from over the entire tract in question the timber that was suitable fo’r making “caps, , stringers, and deckers.” Some timé later, when the purchaser began the cutting of saw logs from the Clark tract, plaintiff filed suit to recover the value of the logs removed. The Supreme Court in denying recovery stated that the ■cutting of the lumber suitable for “caps, stringers, and deckers” constituted a “selective cutting” and that the purchaser’s right to remove the trees not suitable for the special purpose for which' the first cutting was made was not lost by this first selective cutting. ,

In view of the- interpretation of timber contracts by the Supreme Court in the above-cited cases, the inclusion of the clause in the timber 'deed before us that the purchaser could only cut over the timber on the land once, made little difference in the rights of the parties to the timber sale, and the case turns on the question of whether or not, under the rule laid down in the American Creosote Works case, supra, the 1945 selective cutting (of pine tiiriber) was such a removal of timber from the entire tract as to prevent the 1946 .harvesting of the hardwood timber.

Defendants argue that because some of the hardwood was cut and used for the purpose of .storage racks and to otherwise facilitate the cutting of the pine, that the 1945 operations, constituted a cutting of the hardwood timber. However, the evidence discloses that no hardwood was cut for sale in 1945, and there were some 200,000 feet of hardwood timber-remaining on the place at the' conclusion of the 1945 cutting. Therefore, we find that the 1945 operation was a selective -cutting of the pine timber only and the 1946 operations by plaintiff were not in violation of the clause in the deed that the purchaser “will only cut.the timber on the land once.” . .

The judgment appealed' from is-affirméd, with costs. '


author: ■TALIAFERRO, Judge.

text:
    MESSINA v. BATTAGLIA.
    No. 7465.
    Court of Appeal of Louisiana. Second Circuit.
    April 28, 1950.
    Dhu Thompson, Lea S. Thompson, Monroe, for appellant.

      1 Travis Oliver, Jr., Monroe, Hillyer S-Parker, Monroe, for appellee.
   ■TALIAFERRO, Judge.

Plaintiff sued the defendant for. the sum óf $533.26, with five per cent (5%) per an-num interest thereon from judicial demand.. The principal amount consists of three different items, to-wit:

A promissory note of the defendant in favor of the plaintiff, dated June 23, 1947, and due one year from date. $500.48'
Cash loaned... 20.00'
Balance due on account. 2.77
Total .......... $523.25

In brief, plaintiff’s counsel concede that the true amount due plaintiff is $523.25.

Defendant denies that plaintiff is the holder and owner of the note for value, and denies that he owes him any amount. The-demand was rejected and plaintiff appealed! to this Court.

On November 26, 1946, plaintiff sold to: defendant a motor truck for $850.00. He was without cash to make a down payment on the -price .and in order to realize for plaintiff' $450.00 thereof, defendant gave his note for $574.20, payable in twelve (12)-equal monthly installments, secured by mortgage on the truck, which was negotiated . to the Motor Securities Company,, Inc., of Monroe, Louisiana for that amount. Plaintiff agreed to carry the balance of. $400.00 on open account without any definite understanding as to maturity. The.truck was purchased by defendant to enable him to conduct the business of buying and selling hogs and cattle for market, which -business was being financed by the plaintiff.

Plaintiff owned and operated a small grocery store in the City of Monroe, at which defendant made credit purchases, and, in addition, at times, he was advanced small amounts in cash by plaintiff, besides the larger advances with which to buy cattle and hogs.

Plaintiff testified and contends that on June 23, 1947, the date of the note sued upon, defendant still owed him the $400.00 balance on the truck, and, in addition, $100.48 on account; and,, hence, "the note was taken to put in liquid form the two obligations. As concerns the note, defendant testified and argues that when he signed it, it was in blank; that plaintiff told him he was then in a “tight” for ready cash and desired the note to negotiate to procure funds; that he acceded to the request as an accommodation only. It seems that he did not make inquiry as to the amount the note would be filled out, nor as to its maturity. He contends also that when plaintiff asked for this accommodation, it was in the summer of 1948 and not in 1947, the year the note is dated.' 'The significance of the year in which the note was signed is of considerable importance as we shall demonstrate later on in this opinion. At this date (June, 1947) the business relationship between plaintiff and defendant had ceased.

On July 9,' 1947, when there was unpaid on the $574.20 note, above mentioned; thé sum of $239.25, defendant mortgaged the truck to the Three Way Finance Company of Monroe, for $458.40, payable in twelve monthly installments of $38.20 each. The net proceeds of this note were $400.00. He says all of this amount was used by him to purchase cattle,' whereas plaintiff testified that from said proceeds the first mortgage nóte was paid. This would appear to be correct as the first mortgage note is in the record and is marked paid July 23rd, fourteen days after the second mortgage was given. On this issue defendant’s ’Counsel, in brief, assert that the $400.00 was employed to pay to plaintiff the balance due on the truck. So, we have three different versions of the disposition of the $400.00.

In December, 1947, on account of ill health, defendant was forced to enter a hospital in Little Rock, Arkansas, where he remained for forty-five (45) days. He then owed the Three Way Finance Company on above mentioned mortgage note $343.80. Prior to leaving for the hospital, on December 9, 1947, he signed a bill- of sale of the truck to N. B. Thurmond, wherein the price is stated to be $343.80 cash. But, this is not true. Thurmond, however, on said date, paid to the mortgagee $76.40, being the amount of two installments then due. The truck was .at that time delivered to him.

Defendant denies that he sold the truck to Thurmond and persisted in this denial, even after being confronted with the unregistered notarial bill of sale.

On December 19, 1947, Thurmond, by written act, transferred and delivered the truck to the plaintiff. The price stated therein reads: “For the balance noté;’ N. B. Thurmond $76.40. Balance due the Three Way Finance”, which means, in the light of after events, that Thurmond was refunded the $76.40 he had paid to the finance company and plaintiff agreed to pay the balance due that company, or.$267.40. He did pay $38.20 thereof on January 9, 1948, and the balance of $229.20 on February 10, 1948. These payments extinguished the mortgage against the truck.

It is plaintiff’s position that after defendant returned from the hospital the two had an understanding as to the disposition of the truck, which was that it should be repaired and then sold by plaintiff to best advantage and the proceeds of sale credited on the account due by the defendant. Defendant denies this agreement, but we believe it was had. The cost of repairs amounted to $100.47. The truck was sold on February 5th for $450.00 cash, against which plaintiff charged the following items, to-wit: $76.40, $38.20, $229.20 and ,$100.47, a total of $444,27, leaving the small credit balance of $5.73. .

Defendant testified positively that he paid plaintiff the $400.00 balance due on the price of the truck, and to support the plea introduced in evidence a ■ receipt of which the following is a copy, to-wit: .■■

'« 8-1-471
Mike Battaglia . .
Cash $425.00
Paid—Sam Messina.”

As is obvious from the form of this instrument it has more of the appearance of a memorandum of cash advanced and receipt for its re-payment, than it has of a straight-out receipt. The word “paid” and the signature “Sam Messina”, from appearance, were not written with the same pencil and at the same time as was the other portion of the instrument.

Defendant testified that the extra $25.00 in the receipt covered payment of an amount then due by him to plaintiff on merchandise account. Plaintiff testified that this instrument is simply a memorandum of money advanced to defendant with which to buy cattle and was marked paid by him at the end of the week, on return to him of that amount of cash.

We advert to the date of the note sued on, June 23, 1947. Defendant testified emphatically that he did not owe plaintiff one penny when he signed the blank note, buf repeated that it was signed in the summer of 1948 and not in the summer of 1947. He evidently was influenced in making this statement, which we believe to be erroneous, by the date of the above quoted receipt, because, had he not done so, he would have put himself in the position of having paid a debt which he had previously testified he did not owe.

Defendant admitted that he and plaintiff had dealt in the purchase of cattle and hogs for ten or fifteen years. It is shown that during the year 1947 and perhaps prior thereto, some of the cattle purchased by him were slaughtered, part of which were retailed by plaintiff, while some were resold on foot and that at the end of each week profits, if any, were equally divided and the cash advanced by plaintiff repaid. But defendant denied that any one repayment of cash to plaintiff exceeded $50.00, while plaintiff testified that weekly cash advances by him to defendant regularly ran into hundreds of dollars^ ,It is shown, a fact well known to all persons having knowledge of the value of cattle, that during the past several years, ordinary cattle in good condition, sell for more than $100.00.

The reason assigned by defendant for plaintiff’s desire for,him to execute the note is, to say the least, absurd. The record unmistakably reveals that during the year 1947 and the early part of 1948, at least, defendant was without ready cash with which to operate. He was financially unable. to pay down any amount on the price of the truck, and when he hád tó go to the hospital, in order not to lose the truck to his mortgagee, he solicited Thurmond to take over the truck and meet the installments. On the other hand, it is shown by the record that plaintiff owned one mercantile establishment and had an interest in another in the City of Monroe.' It does not appear that he was at any time in need of ready cash he did not have or could not get. Surely, he did not need defendant’s note to , bolster his financial condition or on which to procure needed cash. Relevant to this phase of the case it is shown that defendant remortgaged the truck on December 24, 1947, for $182.52, at which time the first mortgage thereon had not been wholly paid.

-The credibility of the litigants is at issue, but the outcome of the case does not wholly turn upon this issue. There are legal presumptions and principles applicable to the facts, as we find them, that unbalance the scales in plaintiff’s favor. Defendant’s version of some of the facts is unreasonable and not in keeping with every-day human experience. It is unthinkable that plaintiff would request him to sign a note -in blank on which to borrow money when he, defendant, at the time was impecunious. It is not in keeping with human experience nor with sound business practices for a man, who is careful about incurring civil obligations, to sign, as an accommodation, a note for another without knowing the amount of the note and its maturity. The presumption is that he will not do this.

We are clear in the opinion that when defendant signed the note involved herein, it was complete in all of its parts; that it was intended to put in liqúid form the balance due by defendant to plaintiff1 on the truck and on1 open account; and that it was signed on the date it bears! This conclusion completely destroys defendant’s position in the cas'e, but we- will briefly further discuss the legal principle involved.

The burden of establishing the correctness of a plea of payment rests upon the one who tenders it. Defendant has not met the burden with respect to the balance due on the truck. - He testified, as said 'before, that when he signed the note he was not due any amount to -plaintiff, yet he offers in evidence a receipt which he ‘ says paid the balance due on the price of the truck that bears date several months- after the note was signed. -

Plaintiff i has proved :the • correctness of his demand to the extent of $523.25. ■ The note stipulates for the payment,of interest from date and ten per cent (10%) attorneys’ fees, but neither is sued for.

For the reasons herein assigned, the judgment from which appealed .is annulled, avoided and reversed, and there is now judgment in favor of the plaintiff, Sam Messina, and against the defendant, Mike J. Battaglia, in the sum of Five Hundred-Twenty-Three and 25/100 ($523.25) Dollars, with legal interest thereon from judicial demand until paid, and for all costs o-f suit.


author: i KENNON, Judge. PER CURIAM. •

text:
    YARBOROUGH v. CONSOLIDATED UNDERWRITERS.
    No. 7492.
    Court of Appeal of Louisiana. Second Circuit.
    April 5, 1950.
    Rehearing Denied April 28, 1950.
    John B. Files, Shreveport, for appellant.
    Cawthorn & Golsan, Mansfield, for ap-pellee.
   i KENNON, Judge.

Alleging that he was totally and permanently disabled from an injury received in the course of his' employment, plaintiff filed this'suit against his employer’s insurer, seeking to recover maximum compensation for .a period of four hundred weeks, less twenty-four weeks already paid.

The defendant' in. answer admitted the employment, but denied that plaintiff received-any injury, and in the alternative, if the plaintiff did receive an injury, asserted that he had fully recovered from same. The defendant further asked for judgment in reconvention for the twenty-four weeks compensation and medical expenses paid to "plaintiff.

From a judgment of the District Court in favor of plaintiff, defendant prosecutes this appeal.

Plaintiff, a mechanic by profession, was employed at a sawmill operated by defendant’s insured. He testified that on December 9, 1948 as he was lifting an acetylene drum, “the pain hit me in my back;” that although the pain was severe, he continued to work; that on the 14th day of the same month as he again lifted the same article, the pain recurred. He worked until the 17th or 18th and then went home to bed. On the 18th he consulted a Mansfield, Louisiana physician, Dr. H. P. Curtis, who-piaced plaintiff -in the hospital for about five weeks and continued to treat him up until the time of the trial in’ November, 1949. ' '

The only testimony that plaintiff suffered-a back injury on the. date alleged is 'from the plaintiff himself. .The occurrence of the accident is corroborated by the fact that plaintiff was employed and carried out the duties of his employment, which required the performance of hard labor and the lifting of heavy objects before the accident, even though he was suffering from an arthritic condition which was of long duration and chronic in nature.

The medical witness for plaintiff, Dr. Curtis, was of the opinion that plaintiff’s disability was caused by a slipping forward of the fourth vertebra of plaintiff’s back. He was strengthened in this diagnosis by the existence of a nerve disturbance in plaintiff’s leg evidenced by an increased sensitivity.

Dr. W. J. Taylor, called by the defense, found a limitation of spinal, and thigh flex-ion and extension.

Dr. J. C. Willis, Jr., called by defendant, concluded that there had been “strained ligaments in the area of the fourth and fifth -lumbar vertebrae.” He further testified that the plaintiff did have á “disability of some kind” and thought it was the result of the injury “he received working fo'r the •McCoy Lumber Company.” (Defendant’s insured.) .

Dr. J. B. Brown, called by defendant, testified that plaintiff' possibly had “an old traumatic arthritis” and that plaintiff’s condition was attributable to the stirring up of an “old pre-existing arthritis.”

The fourth doctor called by the defense did not consider the plaintiff to be disabled.

Without burdening this opinion with more details of the testimony, it is sufficient to say that the testimony in the record, while conflicting, amply supports the finding of the District Court in plaintiff’s favor for compensation during disability for a period not exceeding 400 weeks, subject to credit for 24 weeks previously paid by defendant.

The judgment appealed from-is affirmed, with costs.

On Application for Rehearing

PER CURIAM. •

In defendant’s application for rehearing, our attention is called to the error in the original opinion in which Dr. J. C. Willis, Jr. is referred to' as called,by defendant instead of'by plaintiff. This doctor is well known to the Court, and the circumstance that he was called by plaintiff does not alter the conclusion we have reached from a review of his and the other testimony in the record.

Rehearing refused.