author: HAMITER, Justice. McCALEB, Justice

text:
    217 La. 510
    LAKESIDE DAIRIES, Inc. v. GREGERSEN et al.
    No. 38909.
    Supreme Court of Louisiana.
    March 20, 1950.
    Rehearing Denied April 24, 1950.

      L. W. Cockfield, New Orleans, for defendant and appellant.
    Henriques & Mayo, New Orleans, for appellee.
   HAMITER, Justice.

Defendants, in this action for specific performance, are appealing from a judgment which ordered (among the other things hereinafter noted) that they transfer to plaintiff certain land, and the improvements thereon, located in Bridgedale Subdivision,1 Jefferson 'Parish, particularly identified as 5100 Airline Highway.

In a written contract of date September 22, 1942, prepared on a printed lease form, defendants (as owners) rented and leased unto plaintiff the mentioned property for a period of one year commencing October 1, 1942, and ending September 30, 1943, the stipulated rental therefor being $150 per month. The contract further recited that the lessee had the right to lease the premises under the same terms and conditions for an additional period of four years beginning October 1, 1943, it to notify the lessors or their agents in writing on or before August 1, 1943 of its desire to so extend the lease.

Other pertinent provisions of the contract, which were entirely typewritten, stated:

“The lessors, as an additional consideration for this lease agree to and give the lessee the privilege of purchasing the entire property and premises leased herein at any time during the life of this lease or during the life of any extension or renewal thereof, for the price and sum of ($11,100.00) Eleven Thousand One Hundred Dollars. It is understood and agreed that if the lessee should'take advantage of this option and privilege to purchase the property herein leased, the sum of One Hundred ($100.00) Dollars per month out of the monthly rent herein shall be applied to the purchase price at the time of the transfer of the title to the property to the lessee.

* * * * * *

“In the event the lessee exercises the option to purchase the property herein leased, the lessors will be given the privilege to purchase Lots No. 7 to 16 inclusive facing Rose Avenue, or any of them, for the price and consideration of One Hundred Fifty ($150.00) Dollars per lot, this privilege extending for a period of six months from the time the lessee should take title under the exercise of its option.”

On the confection of the lease contract-the property was burdened with a mortgage held by the Jefferson Standard Life Insurance Company, it having been executed on July 9, 1941 to secure a loan in the principal amount of $12,000. The act of mortgage contained a provision that all rentals accruing -under any present or future lease would be paid to the mortgagee, its successors and assigns.

While in possession of the premises, and having paid all rentals due under the contract, plaintiff addressed a letter to defendants of date July 30, 1943; giving notice of its exercise of the privilege to extend the lease for a period of four years beginning October 1, 1943. Thereafter, without any objection from defendants, it retained possession and continued the payments to the mortgagee of the agreed monthly rentals, these having been made in advance and in quarterly installments.

* In a letter dated August 15, 1944, plaintiff’s attorney wrote to defendants as follows : .

“I have been instructed by my clients, Lakeside Dairies, Inc., through Mr. C. E. Roemer, to notify you that the said Lakeside Dairies, Inc., hereby exercises its rights under the lease executed by and between you and said Lakeside Dairies, Inc., on September 22, 1942, and which lease was renewed for a term of five years, together with all the terms and conditions therein specified, on July 30, 1943, and that said Lakeside Dairies, Inc., under the terms of said lease, hereby exercises its option and privilege of purchasing said property in accordance with the terms of said lease and hereby agrees to purchase said property under said terms and conditions contained in said contract of lease, said property being known as #5100 Airline Highway, Jefferson Parish, and more fully described in the act of sale and purchase attached to said lease and in copy of mortgage annexed thereto, said act of sale being by Mr. and Mrs. Carl E. Robyn to Mrs. Grace Liddell Gregersen.

“I would appreciate it if you would advise when it .would be convenient for you to sign the act of sale transferring said property to said Lakeside Dairies, Inc., so that I may prepare the necessary act to be signed by you and by the Lakeside Dairies, Inc.

“Awaiting your further advices, I am. * * *

No steps seem to have been taken by any of the- litigants in connection with this letter. The defendants did not even acknowledge receipt of it. And there was no offer of performance by plaintiff, either by way of making tender of the purchase price or submitting a deed for defendants’ signature; rather,-thereafter it continued to make the regular rental payments to the Jefferson Standard Life Insurance Company for credit on defendants’ mortgage indebtedness.

Approximately eleven months later," specifically on July 23, 1945, plaintiff (through its treasurer) addressed the following letter to defendants:

“Under date of August 15, 1944, the writer instructed Mr. Mayo, our attorney, to notify you that the ■ Lakeside Dairies, Inc., had exercised its right under the lease executed by and between you and said Lakeside Dairies, Inc., on September 22nd, 1942, and which lease was renewed for a term of four years, together with all the terms and conditions therein specified on July 30, 1943, and that said Lakeside Dairies, Inc., under the terms of said lease exercises its option and privilege of purchasing said property, in accordance with the terms of said lease and option, and you were notified to that effect on August 15, 1944, by registered mail, received by you on August 16, 1944.

“At that time you were requested to notify Mr. Mayo when it would be convenient for you to sign the Act.of Sale, transferring said property known as 5101 Airline Highway, Jefferson Parish, New Orleans, Louisiana, so that the necessary Act of Sale could be signed, but you failed to acknowledge receipt of said letter.

“We now wish to again notify you, that the Lakeside Dairies, Inc., hereby exercises its right under the said lease and option to purchase the said property designated in said lease, known as 5101 Airline Highway, Jefferson Parish, which property is described in an Act of Sale and Purchase, and in a copy of Mortgage annexed, and made part of the original lease.

“Under the terms of said lease and option we hereby take up and exercise our right to purchase said property for the price and sum of $11,100.00, as specified in said contract, subject to a credit of $100.00 per month paid under the terms of said lease, which is to be applied to the purchase price and we to assume the mortgage existing on said property in favor of the Jefferson Standard Life Insurance Company.

“We hereby notify you to appear at the office of Harry M. Mayo, Notary Public, 310 Richards Building, Corner Gravier and Baronne Sts., New Orleans, La., on Friday, July 27, 1945, at the hour of 3:00 o’clock P.M. in order there and then to pass the Act of Sale covering the property which we are ready to purchase from you, and which you have contracted to transfer to us, all in accordance with said contract and option dated September 22, 1942.”

Defendants failed to respond to this letter. Plaintiff’s officers, on the other hand, appeared at the designated time and place, •willing, ready, and able to accept title in accordance with the terms of the original contract.

On October 5, 1945, plaintiff’s attorney again wrote defendants implying that suit would be filed in the event an amicable adjustment of the matter could not be made. No such adjustment was ever reached; and this action, the primary prayer of the petition of which is for specific performance of defendants’ obligation to sell, followed on October 29, 1946.

To the action defendants pleaded principally (1) that plaintiff had not timely exercised its privilege to extend the lease, as a result of which the option to purchase became ineffectual; and, alternatively (2) that the contract of sale, growing out of plaintiff’s exercise of the option to purchase, was attended with lesion beyond moiety.

The district court rejected both of these defenses. As shown by the formal judgment it ordered defendants to transfer the property to plaintiff within ten days, by an act of sale and free of all encumbrances, upon plaintiff paying the sum of $11,100 (the purchase price agreed on in the original lease contract), less a credit of $6000 (rent of $100 per month paid by plaintiff to defendants from October 1, 1942, to September 30, 1947, both dates inclusive, to be applied on the purchase price in accordance with the terms of the contract). Further, the district court decreed that in default of the execution of a formal act of sale plaintiff be recognized as the owner of the property upon its depositing with the clerk of court the sum of $11,100, less the above mentioned sum of $6000 and also less the sum of $4935 (the latter amount being the then unpaid balance of the mortgage indebtedness on the property). Additionally, the judgment condemned defendants to pay to plaintiff the sum of $378.48 (certain taxes and costs paid by plaintiff); it reserved to plaintiff the right to claim additional sums advanced in connection with the property and also to claim damages of $50 per month from July 27, 1945, until defendants transfer title; and it decreed that defendants have the privilege of repurchasing Lots 7 to 16, inclusive, facing Rose Avenue, within a designated period.

Defendants are appealing from this judgment, and they urge here the same two defenses offered in the district cqurt.

Undoubtedly correct was the ruling rejecting the contention that no extension of the original lease resulted. Even if defendants did not receive plaintiff’s renewal notice (letter dated July 30, 1943), as they testified, until some 12 or 14 days after the stipulated date (August 1, 1943) for exercising the extension privilege, they are without right now to urge the tardiness of that notice. Following such date defendants remained silent, at no time making protest of plaintiff’s occupancy of the premises; also they accepted and approved, at least tacitly, the numerous rental payments made by plaintiff to the Jefferson Standard Life Insurance Company and credited on their mortgage indebtedness. Under these circumstances they waived the contractual requirement respecting the giving of timely notice. Lingle v. Wainwright, 215 La. 117, 39 So.2d 843.

A more serious question is presented by the defense of lesion beyond moiety; some of the articles of the Louisiana Civil Code relating to which doctrine read as follows :

“Art. 2589. If the vendor has been aggrieved for more than half the value of an immovable estate by him sold, he has the right to demand the rescission of the sale, even in case he had expressly abandoned the right of claiming such rescission, and declared that he gave to the purchaser the surplus of the thing’s value.

“Art. 2590. To .ascertain whether there is a lesion beyond moiety, the immovable must be estimated according to the state in which it was, and the value which it had at the time of the sale.

“Art. 2591. If it should appear that the immovable estate has been sold for less than one-half its just value, the purchaser may either restore the thing and take back the price which he has paid, or make up the-just' price and keep the thing. (As amended, Acts 1871, No. 87.)

******

“Art.- 2598. The buyer is entitled to repayment for ameliorations which he has effected, although they be merely for pleasure and convenience.”

Plaintiff’s counsel insist that lesion beyond moiety cannot be pleaded successfully here for several reasons, one of which is that the doctrine is not applicable in a suit to enforce specific performance of an option to purchase since the codal provisions, especially Article 2590, contemplate only a completed sale. In considering this position it is to be noticed first that plaintiff, in this action, does not seek to enforce an option to purchase; rather, it purposes to compel defendants’ performance of a contract of sale which grew out of the admitted exercise by plaintiff of the originally granted option to purchase. Had there been no exercise of the option with a resultant contract of sale clearly plaintiff’s petition would set forth no cause of action. Hence, the correct question- for consideration now is whether the doctrine may be applied as to a contract of sale. .

To say that it is applicable solely to a completed sale and cannot be urged by a vendor under a contract of sale is to say that it is no defense to a suit for specific performance brought by the vendee under such a contract; for in a suit of that character there is always involved only a contract of sale (the enforcement of which the vendee seeks), never a completed act of sale. Furthermore, to so hold would make for a multiplicity of suits and lead to an absurdity. Thus, when a vendor complies with a judgment (in a specific performance action) ordering him to perform under the contract of sale, surely he has the right to attack the completed sale for lesion in a subsequently instituted suit. The question posed above, in our opinion, must be answered in the affirmative.

In Ronaldson & Puckett v. Bynum, 122 La. 687, 48 So. 152, which involved a factual situation almost identical with that presently before us, the defense of lesion was recognized as being proper. There, as here, plaintiff had sued for the specific performance of a contract of sale which resulted from its exercise of an option to purchase contained in a lease contract executed by the defendant. True, the contract in that case did not provide for the application of some of the rental payments to the purchase price on the exercise of the option (as does the instant contract); but that fact furnishes no important distinction.

Next, plaintiff’s counsel argue that the lesion doctrine is inapplicable because of the provision in the lease contract which grants to defendants the privilege of repurchasing certain lots (a part of the entire property) at $150 each. They say, in this connection, that by reason of such privilege defendants have the opportunity of profiting, just as plaintiff has, from any value' attained by the property in excess of that originally agreed upon. We find no merit in the argument. The mentioned privilege is nothing more than an option in favor of defendants, the exercise of which can be performed by them only in the event plaintiff acquires title to the whole property after the termination of this litigation. Even should that event occur, defendants would not be obligated to repurchase the lots; nor does it appear certain that they would be able financially to do so. But should they exercise the option ultimately, plaintiff could then urge lesion, just as they are doing now.

Finally, counsel for plaintiff contend that if the defense of lesion is appropriate here the true value of the property must be determined as of the date of the contract of lease (September 22, 1942) which granted to it the option to purchase, not as of the date on which the option was exercised; and that, this being true, defendants have not shown that the property was worth in 1942 more than double the agreed purchase price ($11,100).

In the case of Ronaldson & Puckett v. Bynum, cited supra, and which presents as afore stated almost identical facts, this court held definitely that with respect to the issue of lesion the’ date on which the option was exercised or accepted is controlling in arriving at the property’s value, not the date when it was granted. That holding, obviously, is logically sound. As stated in Civil Code Article 2590, quoted supra, the value of the immovable at the time of the sale governs in ascertaining whether there is lesion. Qearly, a mere purchase option, on being granted and unexercised, contains no elements of a sale. True, it affords the grantee the privilege of buying and obligates the grantor, during its existence, to sell; but until the option is exercised the grantee has no enfdrceable rights as owner. In the absence, of a proper exercise of the option, as pointed out above, the grantee cannot succeed in a specific performance action in obtaining a compulsory transfer of the property. Neither can the grantor, under the same circumstances, require the grantee to take title.

Counsel for plaintiff cite numerous decisions of this court as authority for the contention that the date of the contract granting the option governs in determining the value; but none appears to support it. Thus, the real holding in Succession of Witting, 121 La. 501, 46 So. 606, 15 Ann.Cas. 379, was that by taking either the date of the contract granting the option (1903) or the date when the option was exercised (1906) the result respecting lesion would be the same, because the evidence failed to show that the agreed purchase price was less than one-half of the value ' of the property at any time between those dates. The cases of Murphy v. Hussey, 117 La. 390, 41 So. 692, Kinberger v. Drouet, 149 La. 986, 90 So. 367, and Standard Oil Company of Louisiana v. Milholland, 167 La. 707, 120 So. 59, present no issues of lesion. In Haas v. Cerami, 201 La. 612, 10 So.2d 61, 64, the court only concluded that * * * there is no right of action to annul a contract for the sale of mineral rights on the ground of lesion, under article 1860 of the Civil Code, or on the ground that the price stipulated is out of proportion to the value of the mineral right, under article 2464 of the Civil Code, when the mineral right is on nonproduc-ing land, and has therefore only a speculative value. * * * ”

Considering then that the defense of lesion is proper in this action, and that the property’s value is to be determined as of the time of plaintiff’s exercise of the option, there arises the further question of whether such exercise resulted from the notice thereof given in the above quoted letter of plaintiff’s attorney dated August 15, 1944, or from that contained in the letter of plaintiff’s treasurer of date July 23, 1945. The exercise of the option, in our opinion, resulted from the latter notice, and therefore occurred in July, 1945. As above pointed out it was not until then that plaintiff made any attempt to perform under the option. Meanwhile, following the former notice, its possession was entirely as lessee, it having paid the rentals in accordance with the lease agreement during the period of some eleven months. Furthermore, the pleadings of plaintiff indicate that it considered July, 1945 to, be the month in which it exercised the option, for in the petition it alleges and claims damages for the rent which it has paid from July 27, 1945 until the property is transferred.

This brings us to an issue of fact regarding the value of the affected property as of July, 1945. If the value then was not more than twice the agreed purchase price of $11,100, plaintiff is entitled to succeed in this action for specific performance; if otherwise plaintiff may either restore the property to defendants and obtain reimbursement for the ameliora-tions he has effected thereon or make up the just price and keep it (Civil Code Articles 2591 and 2598, quoted supra). But such factual issue cannot be determined presently for the reason that the record contains no proof whatever respecting the property’s value in 1945.

Some evidence was offered as to values in 1942 and 1944. This evidence, as stated in Ronaldson & Puckett v. Dy-num, supra, was admissible, for it may tend to prove something about the 1945 value; but it cannot serve as the basis for the judgment herein. Proof of value during the last named year must control. Therefore, in the interest of justice and in order that a correct decision may be reached, the case will be remanded for the restricted purpose of permitting the parties litigant (both plaintiff and defendants) to introduce evidence in proof of the property’s value in July, 1945. After it is introduced the trial judge will render judgment in accordance with law, based on both the new evidence and that heretofore received.

For the reasons assigned the judgment appealed from is reversed and set aside and the case is remanded to the district court to be proceeded with according to law and consistent with the views herein expressed. The costs of this appeal shall be paid one-half by plaintiff and one-half by defendants. All other costs shall await the final determination of the litigation.

McCALEB, J., dissents in part with written reasons.

MOISE, J., recused.

McCALEB, Justice

(dissenting in part).

While I fully subscribe to all other views of the main opinion, I am not in accord with the ruling that, in applying the doctrine of lesion beyond moiety to an option contract, the date upon which the option is exercised governs instead of the date upon which the contract was made.

Article 2590 of the Civil Code, relied on by the majority, declares that, in ascertaining whether there is lesion, the property must be estimated “according to the state in which it was, and the value which it had at the time of the sale”. This, of course, is perfectly clear when applied in cases of ordinary sales. But it is to be borne in mind that, at the time of the adoption of our Code and, in fact, until the passage of Act 249 of 1910, amending Article 2462 of the Code, an option contract was foreign to our law. See Moresi v. Burleigh, 170 La. 270, 127 So. 624. And, while such contracts were not unknown to the courts, an examination of the jurisprudence will reveal that common law rules were employed in determining- their validity. See Murphy v. Hussey, 117 La. 390, 41 So. 692 and Succession of Witting, 121 La. 501, 46 So. 606, 15 Ann.Cas. 379.

The pertinent portion of Article 2462, .as amended by Act 249 of 1910. and Act 27 of 1920, declares: “One may purchase the right, or option to accept or reject, within a stipulated time, an offer or promise to sell, after the purchase of such option, for any consideration therein stipulated, such offer, or promise can not be withdrawn before the time agreed upon; and should it be accepted within the time .stipulated, the contract or agreement to •sell, evidenced by such promise and acceptance, may be specifically enforced by •either party.”

It will be observed from the foregoing that, whereas an option is not converted into a contract of sale until it has been accepted, it is fully complete and binding as to the vendor from and after the date on which it is given; it is an irrevocable agreement by him to sell at the stipulated price during its life. Hence, it is different from a mere pollicitation or offer to sell which is binding .on the vendor only when and if accepted by; the grantee. Standard Oil Co. of Louisiana v. Milholland, 167 La. 707, 120 So. 59.

In view of the fact that options were unknown to our law at the time the Civil Code was adopted, it seems plain that Article 2590, in providing that the time of the sale governs in determining whether there has been lesion, is either inapplicable to option contracts or, if applied, is subject to interpretation. Adopting the latter method, in an effort to fit Article 2462 into the scheme of civil law, re-, ■quires consideration of the fundamental reason for the doctrine of lesion. Lesion is based on implied error or imposition by. virtue of the inadequacy of the price. Hence, when Article 2590 states that it is to be estimated according to the value which the thing had at the time of the sale, it means nothing more than that the law will be applied for the protection of the vendor as of the date or time he made his bargain. This view is in conformity with Article 1871 of the Civil Code which declares that in all questions of lesion “the value of that which was the subject of the contract at the time of making it, is the rule by which the lesion is to be ascertained”. Article 1871 is, of course, to be read and considered with Article 2590 as they are laws in pari materia.

By applying Article 1871 to the case at bar, it will be immediately perceived that the date on which defendants granted the lease containing the option to sell their property for $11,100 is the date they made their irrevocable contract, i. e., the date of their bargain and, in ascertaining whether there has been imposition or lesion, the yalue of the property at that time is the only pertinent inquiry.

It is true that the opposite conclusion of the majority is fully sustained by the opinion in Ronaldson & Puckett Co. v. Bynum, 122 La. 687, 48 So. 152. That case was decided in 1908, prior to the passage of the amendment to Article 2462 relative to option contracts, and is founded upon a literal application of the provisions of Article 2590 of the Code, i. e., that the date of the sale is the date to be used in ascertaining the question of lesion.

Aside from the failure of the court in the Ronaldson case to advert to Article 1871 of the Code, the opinion discloses a lack of understanding of the difference between an option and a pollicitation and indiscriminately treats them as one and the same thing. Consequently, the court did not give thought to the fact that, in the granting of an option, the prospective vendor makes his bargain and, insofar as he is concerned, all elements of a contract of sale are present, i. e., the thing, the price and consent.

For these reasons, I do not believe that the decision in the Ronaldson case should be perpetuated and I respectfully dissent from the majority view that the question of lesion is to be reckoned as of the date the option is exercised.


source: Caselaw Access Project

author: FOURNET, Chief Justice. HAWTPIORNE, Justice

license: Public Domain

text:
    217 La. 532
    STATE ex rel. MARTIN v. GARZA et al.
    No. 39054.
    Supreme Court of Louisiana.
    March 20, 1950.
    Rehearing Denied April 24, 1950.
    Julian E. Bailes, Natchitoches, J. Vance Thompson, Alexandria, for relatrix-appel-lant.
    John G. Gibbs, J. E. Pierson, Natchi-toches, for respondent-appellee.
   FOURNET, Chief Justice.

The relatrix, Mrs. Elva V. Welborn Martin, is appealing from a judgment recalling a writ of habeas corpus previously issued, directed to the respondents Sam Aaron Garza and Stella Garza, commanding them to produce the relatrix’ minor child, Hershel Schmeleberger, and rejecting her demand to have the custody of the child restored to her.

The relatrix instituted these proceedings to recover her 20-month-old son, born of her marriage to John Schmeleberger, alleging that the subject child was being unlawfully detained by the respondents in that he was being held without her consent; that at the time she left the child with the respondents on April 7, 1947, she did so because of illness and financial inability to care for him, with the understanding that the respondents would care for the child until such time as she recovered; that her signature to a purported consent to the adoption of the child was obtained by the respondents without relatrix being informed of the import thereof, and under the representation of the respondents that the purpose of her signature to the instrument was to keep anyone else from getting the child; that soon thereafter she regained her health and obtained employment, but upon calling for the child the respondents refused to surrender him unless $700 was paid to them; that this amount was later reduced to $500; and that though she made several demands for her child they still persisted in keeping it, although she is willing to pay all reasonable expenses incurred by the respondents for his upkeep. She further alleged that she is now married to and living with her second husband, Aubrey Martin, has a good home and is able to take care of the child, and that respondents are not fit persons to care for him.

The respondents first filed a motion for bond for costs and a plea of vagueness, and on the -return day filed an answer, admitting that they had possession of the child and that the matter of surrendering the child upon payment of a stipulated sum of money had been discussed, but denied that the child was surrendered to them due to any misrepresentation, averring that on the contrary it was due to the serious illness of the child and of the mother, for which her own conduct was responsible, and that it was to the best interest of the child that he should remain with them.

Before undertaking the trial of the habe-as corpus proceeding, the trial judge recessed as the Tenth Judicial District Court and reconvened as the Tenth Juvenile Court, in order to dispose of the proceeding there instituted on the 22d day of September, 1947, by the Garzas, respondents herein, for the adoption of the child, the relatrix here having appeared therein for the purpose of withdrawing her consent to the adoption and seeking to have revoked the interlocutory decree granting temporary custody of the child to the Garzas. After a hearing was had on the motion to revoke the interlocutory decree —which not only showed relatrix’ withdrawal of her consent to the adoption of her child by the respondents but affirmatively showed that the child’s father was not dead, as alleged in their petition, but that he was living in New York and had visited in Natchitoches since the filing of the adoption proceedings and that his consent to such adoption was lacking — the court recessed as the Tenth Juvenile Court, reconvened as the Tenth Judicial District Court, and proceeded to trial on the merits of the habeas corpus proceeding. After the relatrix was called to the stand to testify on her own behalf, the respondents objected to the introduction of any evidence on the ground that .the district court was without jurisdiction in the matter since the juvenile court had already assumed jurisdiction of the subject child. ■The objection was overruled and after a trial on the merits, the court being of the opinion that the sole issue was the welfare of the child, concluded that since the respondents had nursed the child back to health from the time they had assumed the responsibility for his care and custody, he thought it to the child’s best interest and welfare that he should remain with them, and accordingly rendered judgment rejecting the demands of relatrix, from which judgment she prosecutes this appeal.

The respondents have filed an answer here to the appeal, urging that their plea to .the jurisdiction of the district court should have been sustained by the trial judge. The record reveals that no such plea was ever formally filed, but instead, as above stated, the plea was offered by way of objection to the evidence, and was overruled by the trial judge — and we think correctly so. -

While the Tenth Juvenile Court was vested with jurisdiction in the proceedings for the adoption of the subject child, La. Constitution, Art. 7, Sec. 52, those proceedings were properly disposed of by the trial judge upon the showing made. Green v. Paul, 212 La. 337, 31 So.2d 819, and authorities'therein cited; Owles v. Jackson, 199 La. 940, 7 So.2d 192; Revised Statutes, Sec. 2328, Dart’s La.Gen.Stats. Sec. 4839.8. The Tenth Judicial District Court was the proper forum to determine the issues raised on the writ .of habeas corpus, that is, whether the child was being illegally detained by the respondents. La. Constitution, Art. 7, Sec. 2; State ex rel. Simpson v. Salter, 211 La. 918, 31 So.2d 163; State ex rel. Fazzio v. Triolo, 156 La. 824, 101 So. 211; State ex rel. Billington v. Sacred Heart Orphan Asylum, 154 La. 883, 98 So. 406.

In such cases the sole question for the court’s consideration is whether the parent 'by his or her conduct has forfeited his or her parental right to the child, for it is the well settled jurisprudence of this state that the courts are not authorized to interfere with a parent’s authority over his or her children, except if the court is satisfied that he, or she, will neglect them, or expose them to improper influences, in which case the paramount interest which society has in seeing to it that they be well taken care of and properly brought up would justify the court in making some other disposition of them, Ex parte Lincoln, 128 La. 278, 54 So. 818; State ex rel. Martin et al. v. Talbot et ux, 161 La. 192, 108 So. 411; State ex rel. Bethany v. Corley et ux, 172 La. 266, 134 So. 87, and the burden is on those resisting the parent's right to show his or her disqualification or unfitness to have the custody of the child. State ex rel. Burleigh v. Savoie, 185 La. 985, 171 So. 98; State ex rel. Perdue v. Carkuff, 182 La. 920, 162 So. 729; Heitkamp v. Ragan, 142 La. 81, 76 So. 247. In the case of Heitkamp v. Ragan, supra, this Court quoted with approval the holding in Hibbette v. Baines, 78 Miss. 695, 29 So. 80, 51 L.R.A. 839, as follows: “And while we are bound also to regard the permanent interests and welfare of the child, it is to be presumed that its interests and welfare will be best promoted by continuing that guardianship which the law has provided until it is made plainly to appear that the father [or mother] is no longer worthy of the trust. The breaking of the ties which bind the father [or mother] and the child can never be justified without the most solid and substantial reasons.” (Brackets ours.) 142 La. at page 84, 76 So.- at page 248.

We think, therefore, that the trial judge erroneously based his decision in the matter (apparently reluctantly) on his appreciation of the best interest of the child, without giving consideration to the paramount right of the mother to her child, nor did he give consideration to the attempt made by the respondents to establish the relator’s unfitness to have the custody of her child.

We have carefully studied and analysed the evidence in this case, and without detailing the same, suffice it to say that the respondents have totally failed’ to carry the burden that was theirs to prove that relatrix by her conduct has forfeited her right to her child, or that she is otherwise disqualified to have custody of the child. We are convinced from the evidence that the relatrix never intended to abandon her child or to permanently part with his custody when she surrendered him to the respondents. On the contrary, the overwhelming preponderance of the evidence shows that she did so because at the time she was ill and financially unable to care for the child, who was also ill and required medical attention in addition to ordinary care. As soon as relatrix recovered her health she immediately secured employment, and within three or four months after the child had been left with the respondents she called for him. In spite of the fact that her earnings were very meager at the time she employed an attorney and paid him a fee of $35 (although the record does not show what action was taken by this attorney) ; she also sought assistance of the attorney who was the notary before whom her purported consent to the adoption had been executed, and he testified to having accompanied the relatrix at her request to the home of the respondents, where the matter of the payment of a reasonable consideration to the respondents for the care of the child was discussed and was recommended by the attorney — which, however, relatrix was unable to pay. Her earnestness and desire to secure the custody of her child is revealed not only by the repeated efforts and demands made by the relatrix, but the record further discloses that her anxiety to recover the custody of the child, with the attendant worry connected therewith, caused her to nearly collapse with a nervous breakdown, forcing her to discontinue the work she was pursuing. After recovering from this condition she was married to Aubrey Martin, who . assisted her with the necessary finances for instituting these proceedings and appeared in the trial of the case to support the allegations of the petition that not only did he consent to relatrix bringing the child into their home but also that he was able and willing to care for him.

The suggestion by the respondents that they have given the child care and attention, have treated him- as their own, learned to love him, and that the child has learned to know and love them as his parents, beside the fact that they own their own home and are better able to care for the child than the relatrix, does not authorize the court to deprive the mother of her parental right and authority over the care and custody of her child. 'State ex rel. Perdue v. Carkuff, supra; Heitkamp v. Ragan, supra. In the latter case this Court aptly observed: “A judge has some discretion over the care and custody of children; but it has to be exercised on solid and substantial grounds. Nor can the fact that other people are attached to the child, or that the child is attached to other people, or that the ability of other people can better provide for the care, etc., of the child deprive the father [or mother] of his [or her] parental right and authority to have the care and custody of his [or her] own child. * * * ‘The discretion to be exercised is not an arbitrary one, but in the absence of any positive disqualification of the father [or mother] for the proper discharge of his [or her] parental duties, he [or she] has, as it seems to us, a paramount right to the custody of his [or her] infant child, which no court is at liberty to disregard. * * *»” (Brackets ours.) 142 La. at page 83, 76 So. at page 247. See, also, Ozanne v. Delile, 5 Mart.,N.S., 21.

For the reasons assigned, the judgment of the lower court is annulled and set aside; and it is now ordered, adjudged and decreed that the respondents,' S.am Aaron Garza and Stella Garza are hereby ordered and directed to surrender the custody of the minor child, Hershel Schmeleberger, to his mother, Mrs. Elva V. Welborn Martin; all costs to be paid by respondents.

HAMITER, J., concurs in the decree.

HAWTHORNE, J., concurs and assigns written reasons.

MOISE, J., takes -no part.

HAWTPIORNE, Justice

(concurring).

I am in full accord with the decree in this case awarding custody of the minor child, Hershel Schmeleberger, to his mother and with the reasons given therefor.

I concur in the opinion insofar as it holds that the district court was the proper forum to determine the issues raised in .the habeas corpus proceeding for the reason that the judge of the district court/before undertaking the trial of the habeas'corpus matter, opened the juvenile court for the purpose of passing upon a motion filed in an adoption proceeding pending in that court at the time the habeas corpus suit was filed. This motion had been filed in the juvenile court in behalf of relatrix to revoke the interlocutory decree of adoption and dismiss the adoption proceeding in which the temporary custody of the child had been granted to " the respondents herein!

. On the trial of the motion it was shown, that the relatrix had withdrawn her consent to the adoption, and that the child’s father was not dead, as alleged, and had not consented to the adoption. On this showing it was entirely proper for the judge of the juvenile court to dismiss the adoption proceeding pending in the juvenile court, and this is, in effect, exactly what he did; otherwise the district court was without jurisdiction. This court should notice ex proprio motu the lack of jurisdiction under the well settled rule of law that, when two courts have concurrent jurisdiction over the same subject matter, the court which first obtains jurisdictioand possession of the res retains it to the end of the controversy to the exclusion of all others. See State ex rel. Terry v. Nugent et ux., 212 La. 382, 31 So.2d 834.

That the district judge was familiar with this rule of law and the holding of this court in the Nugent case, supra, is established beyond any doubt by the fact that, prior to proceeding with the trial of the habeas corpus suit, he opened the juvenile court for the purpose of disposing of the motion to dismiss the adoption proceeding pending therein. There was no reason otherwise for him to convene the juvenile court and try the motion. In his written-reasons for judgment the district judge states that the respondents in the habeas corpus proceeding pleaded that the district court was without jurisdiction, since the juvenile court had first obtained jurisdiction in the adoption proceeding. I am unable to find a plea to the jurisdiction of the district court in the record. If any such plea was made, I think the judge was correct in overruling it, for, as I interpret the record ás made up, he had previously sustained relatrix’ motion in the juvenile court to revoke the interlocutory order of adoption and dismiss the adoption proceeding.

Furthermore, I am unable to reconcile the opinion of this court in the Nugent case with the opinion in the case of State ex rel. Simpson et al. v. Salter et al., 211 La. 918, 31 So.2d 163, 165. In each of these cases a proceeding for adoption of a child was pending in. the juvenile court at the time the habeas corpus proceeding'was-filed in' the -district court. In the Simpson case, which was decided first, this court awarded custody of the minor -to the relatrix in the habeas' corpus proceeding in' the district court, stating: “The plea of lis pendens is not well founded for the reason that the cause of actions [causes of action] are entirely different and are not such tlwt present concurrent jurisdiction. In the first place the Juvenile Court has exclusive jurisdiction in adoption proceedings of children under seventeen years of age and in the second place the civil district court has exclusive jurisdiction over a contest between a parent and a third person for the custody of a minor.” (All italics mine.)

In the Nugent case, however, this court dismissed the habeas corpus proceeding in the district court, saying in the course of that opinion:

“The issue in contest is the right to custody of the child, Allen Reed.- If, as an incident to his- adoption, the Juvenile Court acquire[d] jurisdiction to determine the question of custody, the Civil District Court was without jurisdiction under the well-se-t-tled rule that, when two courts have concurrent jurisdiction over the same subject matter, the court which first obtains jurisdiction and possession of the res retains it to the end of the controvery to the exclusion of all others. See Geilinger v. Philippi, 133 U.S. 246, 247, 10 S.Ct. 266, 33 L.Ed. 614; Lake Bisteneau Lumber Co. v. Mimms, 49 La.Ann. 1283, 22 So. 730 and cases there cited. Hence, since the adoption proceeding was filed in the Juvenile Court prior to the filing of the instant suit, the only inquiry in the case is whether adoption proceedings filed under Act No, 154 of 1942 vest the Juvenile Courts -with, jurisdiction over the children sought to be adopted.

"We experience no difficulty in cmswer-ing the query in the affirmative. * * * ” [212 La. 382, 31 So.2d 835.]

In the Simpson case, therefore, the basis of the decision was that the courts did not have concurrent jurisdiction, and the basis of the decision in the Nugent case was that they did.

I do not agree with the holding in the Simpson case, and for that reason dissented from the refusal to grant a rehearing. I concurred in the decree in the Nugent case for the reason that in the course of the opinion in that case this court concluded that the holding therein was not in conflict with that of the Simpson case. I do not agree with that conclusion. In distinguishing the two cases the court stated in the Nugent case: “The difference between the Simpson case and the instant one is apparent. There, although the jurisdiction of the Juvenile Court attached, it was subsequently divested by the refusal of the mother to give her consent to the adoption proceedings, or rather, the withdrawal by her of the consent previously given. * * *»

An examination of the opinion in the Simpson case will disclose that the parents of the child filed in the juvenile court an opposition to the adoption proceeding which was not ruled upon by that court, and this opposition was pending in that court at the time the habeas corpus proceeding was filed and tried in the district court. I do not understand how the mere filing of this opposition, whatever the basis for it, whether the withdrawal of consent for adoption or otherwise, .could ipso facto divest the juvenile court of jurisdiction and vest jurisdiction in the district court of the habeas corpus proceeding filed therein. The Simpson and Nugent ■ cases, therefore, in my opinion cannot be distinguished.

For these reasons I respectfully concur.


author: KENNON, Judge. TALIAFERRO, Judge

text:
    BRADFORD v. RAPID TRANSFER & STORAGE CO., Inc.
    No. 7495.
    Court of Appeal of Louisiana Second Circuit.
    May 31, 1950.
    Polk & Culpepper, Alexandria, for appellant.
    Vincent Hazleton, Alexandria, for ap-pellee.
   KENNON, Judge.

The defendant is the operator of a bonded warehouse in the City of' Alexandria, Louisiana. Alleging that on August 14, 1946, he had stored with defendant some sixty odd cases of whiskey of assorted brands, for which he had paid the regular storage rates and charges, and that ten of these cases, of a value of $479.32, were lost, plaintiff filed suit to recover this amount from the defendant. The petition recited that Miss Harriet Powars, Secretary-Treasurer of the defendant corporation, notified plaintiff in November, 1946 that the warehouse had been burglarized and the ten cases of whiskey belonging to plaintiff had been lost, and that Miss Powers, as a duly authorized agent and majority stockholder of the defendant corporation, acknowledged liability and promised that payment would be made for the loss of plaintiff’s merchandise. The particular acts of negligence set forth included: The failure to provide strong and theft proof outer doors to the warehouse and to provide a safe place of inner-storage in the warehouse to protect the whiskey from pilfering by defendant’s own employees.

Defendant admitted the acceptance of the whiskey for storage; that ten cases were lost; denied any negligence on the part of its agents or employees, and denied that any promise to pay for the whiskey had been made. Asserting that the warehouse in which plaintiff’s merchandise was stored was safeguarded by proper locks and bars and that the loss was not occasioned by any fault on its part, defendant prayed that plaintiff’s demands be rejected.

After trial the District Court rendered judgment in favor of plaintiff as prayed for. Defendant has appealed.

Defendant operates a rather large storage warehouse adjacent to one of the railroads in the City of Alexandria. On August 14, 1946, it issued to plaintiff six negotiable warehouse receipts for sixty odd cases of whiskey of different brands (including the ten cases which were not returned). Within the warehouse the cases of whiskey were stacked in a smaller room or pen made of packing box or beaver board type of material and extending six to eight feet upward from the floor. The door to this pen was secured by a hasp and padlock. There was an open space of six feet or more between the. top walls of the pen and the ceiling of the. warehouse.

On a Sunday morning in November, 1946, Miss Harriet Powars, upon reaching the warehouse, found the back door open and a padlock on same broken off. With the police officers who answered her call, she made a survey of the inside of the warehouse. They found the door to the whiskey “pen” undisturbed. Both police officers testified that they saw no indication that anyone had entered the door of the pen or climbed over its sides. One officer, when asked if he attempted to look over the top of the whiskey pen, stated: “No sir, I couldn’t. If I remember correctly I did look up to see. if I could find anything around the door where anybody had gone over but I couldn’t find anything.” Miss Powers testified that she made an inventory of the whiskey at a later 'date and found that ten cases were missing.

An examination of the record as a whole leaves us uncertain as to whether or not the ten cases were lost on the night before Miss Powars found the broken locks and open doors to the warehouse. Miss Powars testified that the padlock and hasp securing the door to the whiskey pen were undisturbed. The policemen who came and made a thorough investigation found not the slightest indication that anyone had gone over the walls of the pen. Had a burglar entered the warehouse and stolen the whiskey the night before, doubtless he would have necessarily forced the lock on the door to the whiskey pen, or would have placed a ladder or boxes of merchandise of some sort against the pen walls in order to climb over same and bring out the whiskey. The lock to the whiskey pen was not disturbed. There is no evidence that there was a ladder in the warehouse. It is hardly logical to believe that, had the burglar made a temporary stile or some means of climbing over with the merchandise or material in the warehouse, he would have carefully removed same and placed each article back in its former position, nor is it likely that an outside burglar would have contented himself with only ten cases of the more generous supply contained in the pen.

The fact that there had been a prior burglary of the defendant warehouse and that the burglar had left a note in Miss Powars’ typewriter that the job was not one by her employees, tends to throw suspicion upon these employees.

The defendant corporation employed from five to eight laborers about the warehouse, and while Miss Powars testified that she locked the warehouse when she went home to lunch, it is obviously true that these workmen, singly or collectively, had occasion to be in the warehouse at times when Miss Powars or her principal assistant were busy in the office or temporarily absent from the premises. Miss Powars on cross-examination at first denied that the warehouse had been broken into previous to the November, 1946 burglary. The evasive character of her testimony is shown by the following extract from the record:

“Q. On several occasions just prior to November 26th, hadn’t your place been entered? A. No, sir.

“Q. Didn’t you inform Mr. Bradford that it had been so entered and on one occasion the person who had entered it had left a note on your desk stating that the person who had entered it was not an employee of yours? A. No, I don’t remember. I’m not going to answer the question because I do not remember.

“Q. Do you recall finding any note on your desk referring to any breaking and stating that the person who had broken in was not— (interrupted) A. I take it back. They broke in the safe and robbed the safe.

“Q. Did they leave a note? A. Yes sir, on the typewriter.

“Q. What did the note say? A. I don’t remember' — -I think it said the employees weren’t responsible.”

From all of the circumstances, we conclude that the record does not establish that the ten cases of whiskey for which plaintiff has sued were lost through burglary as contended by the defendant corporation. Of course there remains the possibility that those who broke the outside locks removed the ten cases of whiskey, but the clear preponderance of the evidence is that the cases were lost through pilfering by defendant’s own employees, or others who had access to the warehouse in the ordinary course of business.

We now examine the law relative to the liability of a warehouseman for goods lost under these circumstances. On the back of the warehouse receipts introduced in evidence is printed a long list of “standard contract terms and conditions” adopted by representatives of shippers, warehousemen, and others at a general conference in Washington, D. C. in 1926 and approved by the United States Department of Commerce. Section 10(a) of the standard terms is as follows: “Liability — Sec. 10(a) The responsibility of a warehouseman, in the absence of written provisions, is the reasonable care and diligence required by law.”

This measure of the liability of the warehouseman is almost identical in substance with the Louisiana act on the same subject, Section 21 of Act 221 of 1908, which we quote: “A warehouseman shall be liable for any loss or injury to the goods caused by his failure to exercise such care in regard to them as a reasonably careful owner of similar goods would exercise, but he shall not be liable, in the absence of an agreement to the contrary for any loss or injury to the goods which could not have been avoided by the exercise of such care.”

The liability of a bailee under the Louisiana statute and jurisprudence is set forth at length in the rather late case of Luke v. Security Storage & Van Co., Inc., La.App., 24 So.2d 692, 693 (quoted in defendant’s brief), which we quote below:

“We need not cite a host of authorities to show that a bailee is not' responsible merely because the goods which formed the object of the bailment have been destroyed. The proper rule is stated in Poydras Fruit Co. v. Weinberger Banana Co., 189 La. 940, 181 So. 452, 455: ** * * when the bailee shows that the property was destroyed by fire, and there is nothing in the showing made by the bailee to indicate that there was fault or negligence on his part, the burden of proof rests upon the bailor to show that there was fault or negligence on the part of the bailee. McCullom v. Porter, Thomas & Foley, 17 La.Ann. 89; Gibbons v. Yazoo & M. V. R. Co., 130 La. 671, 58 So. 505; Scott v. Sample, 148 La. 627, 87 So. 478; Austin v. Heath, 168 La. 605, 122 So. 865; Cau v. Texas & Pacific Ry. Co., 194 U.S. 427, 24 S.Ct. 663, 48 L.Ed. 1053.’

“Another excellent statement of the rule established in Louisiana is to. be found in La. Digest Annotated, Vol. 7, page 327, Warehouses’: ‘A warehouseman, in order to escape responsibility for the loss of goods intrusted to its care, must show that the loss did not occur through its -fault; but where it is shown that the usual precautions have been taken to prevent a fire, which is not shown to have occurred through any fault of the warehouseman, it is not liable for the loss due to the fire. Schwartz v. Baer, 21 La.Ann. 601, cited—Gibbons v. Yazoo, & M. V. R. Co., 130 La. 671, 58 So. 505.’

“Where property is stored in a warehouse and the warehouseman (bailee) cannot return it because it has been destroyed by fire, the duty is on the bailee to show that he was free from negligence. In doing this it is not always necessary that he show the exact cause of the fire.”

In an examination of the case before us and applying its facts to the above quoted statute and rules adopted by the Louisiana courts, we find that the plaintiff has not shown any fault or negligence on the part of the defendant insofar as the locks on the outside doors are concerned or insofar as defendant’s failure to provide a night watchman constitutes negligence.

On the question of whether the defendant exercised due care when it stored the whiskey in the open pen, we reach a different conclusion. The cases of whiskey were comparatively light weight (less than fifty pounds) and could easily be carried or passed over the low walls which enclosed them. The fact that the defendant corporation placed the whiskey in the pen indicated the realization that valuable light weight articles—particularly such tempting ones as whiskey—should not be placed in open warehouse storage.

The only testimony as to what the “usual precautions” taken by other warehousemen in regard to similar merchandise was that of Mr. J. M. Ellington, who testified that whiskey in his warehouse was placed in a completely enclosed room which was not only padlocked, but further secured against stealing or inside pilfering by the use of a railroad type seal which was inspected from time to time so that if the room should be entered even by someone who might gain access with a key, the fact of entrance could be discovered and prompt remedial action taken.

Miss Powars testified that she owned, in 1946, sixty per cent, of the stock of the defendant corporation and that she was in active charge of the business. She denied that she had promised to pay plaintiff for the loss of the merchandise. However, the testimony of plaintiff that she did make such a promise is amply corroborated by disinterested witnesses. While we have found that the record establishes the negligence of the defendant corporation and that plaintiff need not rely on this admission, we find that she did promise to pay plaintiff for the loss in question.

We further find that Miss Powars was a majority stockholder and in complete charge of the storage business and warehouse of the defendant corporation, and that a prima facie showing has been made of her authority to bind the corporation by her admission of liability, made in the usual course of business and in conformity with her apparent authority. Defendant made no affirmative showing to the contrary.

The judgment appealed from is affirmed, with costs.

TALIAFERRO, J. dissents and assigns written reasons.

TALIAFERRO, Judge

(dissenting).

I respectfully dissent from the majority opinion in this case and submit the following as my reasons therefor, to-wit:

As I view the case there is but one question involved, and that is whether the facts disclose lack of ordinary or reasonable care on the part of defendant, with respect to providing security for the safety of the whiskey.

The jurisprudence of this State and the statutes require of the warehouseman only ordinary and reasonable care in order to fulfill his obligation to those who deposit goods with him. Section 21 of Act 221 of 1908. See also: Austin v. Heath, 168 La. 605, 122 So. 865; Scott v. Sample, 148 La. 627, 87 So. 478; Livaudais v. Lee She Tung, 197 La. 844, 2 So.2d 232; Munson v. Blaise, La.App., 12 So.2d 623; Luke v. Security Storage & Van Company, Inc., La.App., 24 So.2d 692; Dugan et al. v. Central Storage & Transfer Company, La.App., 23 So.2d 634.

In the present case the warehouseman fastened the outside doors with heavy metal hasps and correspondingly strong padlocks. Other warehousemen employed the same degree of safety to protect merchandise in their care. Of course, when jewelry, silverware and other like valuables, of small volume are stored, different means of safety are and should he employed.

I believe defendant did not fail in its duty by not having a strong inner room for the storing of whiskey. Had the provided room or stall been constructed of heavier material, does it not seem reasonable to assume that the burglars would have forced entrance thereto as they did the strong outer door? The fact that theretofore burglars entered this same .warehouse and broke open an iron safe therein and stole valuables therefrom argues convincingly that when once on the inside, no lock or fastening is beyond their power to force.

There is nothing in the record to support the contention that the theft of the'whiskey was an “inside job”. The legal situation would not be altered if we knew the burglars were employees of the defendant. The burglary was effected from the outside with considerable force. This was necessary to the success of the venture regardless of whether employees or strangers promoted it.


author: TALIAFERRO, Judge.

text:
    TYSON v. ARKANSAS OAK FLOORING CO., Inc., et al.
    No. 7522.
    Court of Appeal of Louisiana. Second Circuit.
    May 31, 1950.
    Stafford .& Pitts, Alexandria, for appellants.
    Vincent Hazelton, Alexandria, for ap-pellee. ,
   TALIAFERRO, Judge.

On the theory that he was permanently totally disabled from the effects of an accident on or about October 18, 1948, while performing the duties of his employment with defendant, Arkansas Oak Flooring Company, Incorporated, plaintiff instituted this suit against his employer-and its insurer, Fidelity and Casualty Company of New York, to recover workmen’s compensation at the rate of $30 per week for 400 weeks, less payments made on that account.

The gravamen of the action is embodied in paragraph 5 of the petition, which we quote, to wit: “ * * * while pulling a board 5/4" x 16" x 14' off a stack and placing it in a rip saw, the board kicked back and around out of the saw, causing petitioner to slip, knocking him against an iron table the board striking petitioner’s right hand, and when petitioner struck said table, his body was in a twisted position and he strained his right side and felt a sharp pain in his right inguinal region.”

He then alleged that as a result of the accident “the bones in and about petitioner’s right hand were crushed and he suffered an inguinal hernia”, from which said disability arose.

In a supplemental petition, it is alleged that in addition to the injuries described in his original petition, he also sustained “a right sacro-iliac strain in the lumbar-sacral region with an involvement of the right sciatic nerve, and as a result thereof petitioner is and has been totally and permanently disabled”, etc.

Defendants admit that on or about the alleged date plaintiff did sustain a minor injury, being a bruise of the right wrist. They aver that prior to this accident plaintiff's right little finger was stiff or malformed. They deny that plaintiff is disabled to perform work of the character he has followed. There was judgment for plaintiff as by him prayed. The defendants prosecute appeal.

Plaintiff’s version of the facts of the alleged accident, and what happened soon thereafter, in so many respects is so palpably at variance with established facts, that his testimony as a whole, deserves the closest scrutiny. He testified, as by him alleged, that the board that kicked back from the rip saw and struck him was S/4" thick, 12" wide and 14' long; that he was standing on the left side of and facing the board as it passed over the rollers and through the saw; that all of the board had passed the saw, excepting four feet (next to him) when the accident occurred.

In describing his and the board’s movements at moment of the accident, he said: “It swiped around backwards, and I jumped around the side, out of the way of the board, and it struck me.”

He was asked if the board struck his right hand, to which he replied: “Yes, sir. It bumped that as I was going around and that boy that catches sticks caught me, and I called the bossman and told him I had to go in, I was hurt.”

Here, it is well to interpolate that the boy referred to was not introduced as a witness by plaintiff and no excuse is offered to explain the failure to do so. When pressed for the identity of the “bossman” he called and advised of the accident, he finally named Adam Rue. This man was a millwright and was on duty • at that time, but he positively denies that he knew anything about the accident and likewise denies that plaintiff notified him of it. Other superiors of plaintiff, to whom notice of an accident would ordinarily be given, testified as did Rue. Plaintiff also testified that Willie Harris, another co-laborer was there and saw the accident. Harris denied seeing it, although not far away at the time.

It is also of some importance to note that the testimony clearly shows that no such table, as plaintiff testified he fell against and was removed from, was about the locus of the accident.

Plaintiff testified that immediately after the accident he felt pain in his right side above the belt line, and in the lower part of his stomach; that he at once went to his home, called a cab and reported to the clinic of Dr. Blanchard Texada, the employer’s regular physician. This is not entirely true. He went to the clinic on October 25th and in giving a history of the accident, said it occurred on the 20th. The company records disclose that he quit work on the 21st. Therefore, four days elapsed between date of the accident and the trip to the clinic.

We here make note of the fact that plaintiff has had a most unusual record of accidents and operations. Prior to the accident involved herein, the time not being fixed, he underwent an appendectomy. On another occasion he lost two fingers of the left hand. In November, 1941, he suffered an accident in which his right hand and wrist were injured. In September, some thirty days prior to the present accident, he claimed to have had an accident that involved the lower part of his back and right inguinal region.

Dr. Texada testified that he treated plaintiff for the alleged September accident. He then had a swollen testicle, due to gonorrheal infection, for which a sus-pensory was prescribed. Plaintiff says the suspensory was recommended after the October accident. Again he is in error.

As regards the back injury, on plaintiff’s profession of pain and the subjective symptoms, Dr. Texada’s diagnosis was .lumbo-sacro-iliac strain. Strapping, appropriate and normal treatment, was applied. This immobilized the back. In about ten days this was removed. The plaintiff reported for duty on October 19th. He performed his regular duties until October 21st, which is the true date of his last accident.

In giving the fact history of the last accident he stated to Dr. Texada 'and to Dr. Aderhold, associated with Dr. Texada, that “a board ‘hit his right hand 'and wrist”, emphasizing the wrist. He did not then mention about being thrown against and removed from the mythical table, as alleged by and testified to by him; nor did he mention the alleged back injury or hernia.

Examination of the plaintiff on October 25th, revealed slightly swollen right wrist, without evidence of contusion. X-ray disclosed no fractures of wrist or hand; However, evidence of the effects of the November, 1941 injury was obvious, consisting of “old fracture and ankylosis of the proximal end of the phalangeal joint; * * * mal-union of the head'of the fifth metatarsal bone with displacement,” etc. These conditions refer to the right little finger.

The Roentgenologic and Fluroscopic findings of the Baptist Hospital in Alexandria, Louisiana, made on April 13, 1942, some five months after the November, 1941 accident, in part, read; “Right Hand (AP & LAT): The fifth metacarpal bone shows a fracture in the distal portion of the shaft with the distal fragment displaced to the palmar aspect causing some shortening and a hump in the palm of the hand. There is union of the fragments. The distal end of the second metacarpal bone shows evidence of a fracture also but there is very little displacement in this fracture. The wrist and hand show a slight amount of osteoporosis.”

The accident referred to was caused by the hand being caught in a roller of a planing mill. The report further states: “There was some stiffness of all the fingers but more of the fifth finger. He can not completely close the hand and there is some fullness and thickness of the palm — disability at least 25%.”

After the examination on October 25th, to allay the swelling in the wrist, an elastic bandage was applied to it and a portion of the hand. Infra-red heat was also applied. At the proper time the bandage was removed and the patient advised to passively exercise the hand and wrist to prevent swelling and stiffness that might arise from disuse.

On November 4th, plaintiff reported back to the clinic, at which time he was complaining of pain and swelling in the right little finger. X-ray disclosed a fresh fracture of the proximal phalanx of this finger. Plaintiff informed the doctor that this fracture occurred the night previous while the hand was being massaged. It was immobilized by a small splint. This splint was applied so that the remainder of the hand would be unaffected thereby. It was the doctor’s opinion that even with the splint in place the hand could be used as formerly. Dr. Aderhold was asked: “In the course of your examination and treatment could you find anything that might have aggravated or increased the disability of the old injury of that hand?”

He replied: “None, whatever.”

Plaintiff continued to complain of pain in the lower portion of his back, but nothing objective was found to confirm the complaints. It was finally diagnosed by Dr. Aderhold, possibly out of an abundance of caution, as lumbar sacro-iliac strain, and appropriate treatment therefor administered. Dr. Aderhold last examined plaintiff thoroughly on June 4th, two days prior to trial of the case. He was then still complaining of pain in his lower back. Customary and approved tests were made but these, in the doctor’s opinion, did not confirm the professions of pain made by plaintiff. It was Dr. Aderhold’s opinion that the right hand had a 25% disability.' This corresponds to the hospital’s findings on April 13, 1942.

Dr. Milton Honigman, of Alexandria, first saw and examined the plaintiff on February 2, 1949, and again on June 4th following. As a witness for the plaintiff he described in detail the physical conditions of the hand and wrist. On cross-examination he was asked the following questions and gave answers thereto, as here quoted, viz. :

“Q. Doctor, you practice at the Baptist Hospital? A. Yes, sir.

“Q. Do you know Dr. Barker, the X-ray man up there? A. Yes, sir.

“Q. I hand you what purports to be a copy of the X-ray report on this man by Dr. Barker of the Baptist Hospital and ask you to read that over and then I will ask you a question about it. (Witness does so.) What I want to ask you is whether that appears to be substantially what you found with reference to the X-ray showings in this case? Does that appear to be substantially what you found with reference to his right hand? A. Yes, sir.

“Q. If I were to tell you then, doctor, that this report was made by Dr. Barker on April 13, 1942, the conclusion would be obviously that the trouble with his hand was an old injury and not any injury in October, 1948, would it not? A. Unless the accident re-damaged the hand."

Based upon complaints of the patient and subjective symptoms, Dr. Honigman was of the opinion that plaintiff’s lower back has a sacro-iliac strain. He found his physical condition unchanged between time of the two examinations.

Drs. Texada and Aderhold agreed with Dr. Honigman that Dr. Barker’s report, above mentioned, in substance, described plaintiff’s physical condition as found by them after the accident of October, 1948.

So íar as concerns disability allegedly arising from back injury and hernia, the record fully warrants ruling it out. Drs. Texada and Aderhold are positive there is no evidence of hernia, while Dr. Honigman only found evidence of potential 'hernia, not sufficient to create disability and which did not necessarily arise fro|m! trauma.

It is shown that a back strain of the herein discussed character is curable within a week or ten days. There is no evidence to support what plaintiff, says on this- subject. The symptoms are all subjective, and his credibility has been so badly marred by the record, we are not warranted in according to his testimony the weight and credit that are usually accorded one seeking compensation on account of physical injury. The weight of this conclusion is augmented by the fact that when plaintiff reported to Dr. Texada on October 25th, he complained only of injury to his hand and wrist, and stated that these parts had been hit by a board. It will be recalled that he alleged that immediately after the accident the back and hernial pain set in.

There is serious controversy as to whether a board of the dimensions described by the plaintiff, when once it has advanced on the rollers -beyond the rip saw, can be “kicked” back, as alleged. We entertain some doubt of it. Anyway, we cannot conceive how this large board could have been forcibly dislodged from its proper position, hurled into the air and against plaintiff with the force he says, and not one of the several co-laborers working in close proximity thereto, so far as the record discloses, have seen the accident. This can only be accounted for by concluding that the acT cident was not of the character claimed by the plaintiff.

The testimony of Earl Allen, a witness for plaintiff, is illuminating. He testified that he was working about two feet from plaintiff at the time he claims to have been hurt. He was asked if he saw him get hurt, and gave the following testimony in reply, to wit: “A. I might as well have seen it. When I looked around he had a hold of his side where the board had kicked out.

“Q. Did you see the board that had kicked out of the machine? A. Yes, sir, I saw it.

“Q. Where was the board that had kicked out of the machine? A. It was laying down off on the side — it wasn’t too long a board; it was a short board.

“Q. Was it close by where Jack was standing ? A. It wasn’t too far from him. It was close by.

“Q. Was that the only board on the floor? A. The only one I saw.”

* * * # * *

“Q. Allen, you say there was a short board that kicked out. How short was it? A. It could have been about 2y2 feet, maybe.

“Q. About that long — about 2% feet? A. It’s been quite a good while; I can’t remember exactly, but it was about that long.

“Q. How wide was it? A. A little board about 1% inches wide.

“Q. And about 21/2 feet long? A. Yes.

“Q. You saw it on the ground? A. It was back on the floor.

“Q. And you presumed that was the board because you didn’t see it? A. He had his hand on his side.

“Q. But you didn’t see the board hit him? A. He said it was the one.”

This small piece of lumber may have, in some manner, played a part in'the accident; and, again, the hand may have, in some way, got slightly bruised in a roller as happened once before.

The record indicates that plaintiff, after being discharged by the doctors in April, 1942, worked regularly at saw mills notwithstanding the absence of two fingers of the left hand, and .malformation of the right. We are of the opinion that now the right hand is in practically the same condition as it was ' following the 1941 accident, save possibly the little finger thereof may be slightly more out of its normal relation to the fingers beside it. This, if true, may be ascribed to plaintiff’s own carelessness in massaging it. Anyway, it is not made clear that the finger’s present condition militates to any material extent against doing the same character of work he was performing when the accident occurred.

Plaintiff was required to prove his case. He has failed to do so.

For the reasons herein assigned, the' judgment from which appealed is annulled,' avoided and reversed; and there is now judgment in defendants’ favor, rejecting the demand and dismissing the suit at plaintiff’s cost. ■ :


author: JANVIER, Judge. .

text:
    EDRINGTON v. LEHMANN.
    No. 19367.
    Court of Appeal of Louisiana. Orleans.
    May 29, 1950.
    Irving Novick, New Orleans, for defendant-appellant.
    John H. McBride, New Orleans, Julian B. Humphrey, New Orleans, for plaintiff-ap-pellee.
   JANVIER, Judge. .

Plaintiff, Thomas C, Edrington, desiring to purchase a residence for his own .use through the defendant, M. Arnold Leh-mann, a licensed real estate agent, executed a written offer to purchase certain property which was owned and occupied iby Mr. and Mrs. William T. de Valcourt. This offer was dated June 25, 1948, and was accepted by de Valcourt. It contained a stipulation reading as follows: “Possession 60 days from act of sale. Owner to pay $50.00 per week if not out at specified time.”

The agreement also provided that the act of sale would be passed on or before August 15, 1949.

The purchaser, Edrington, arranged for a loan through a homestead association, and, accordingly, on September 17, 1948, the parties met in the office of the notary public of the association to consummate the transaction. (The -fact that the sale was not executed on or before August 15th, as stipulated, plays no part in this controversy.) When the parties met in the office of the notary public, Edrington raised the question of what rent would be paid by de Valcourt for the continued use of the property during the sixty-day period following the execution of the act of sale and de Valcourt answered that he would pay no rent during that period. Thereupon, Ed-rington, the prospective purchaser, declared that unless he should be paid rent during the period, he would refuse to make payment for the property and to take title thereto.

In that situation the defendant Lehmann, the real estate agent who had negotiated the transaction, signed and delivered to Ed-rington a letter reading as follows:

“Sept. 17, 1948

“■Commander Thomas C. Edrington

“New Orleans, La.

“Dear Sir:

“In connection with the sale today from Mr. and Mrs. de Valcourt to you of the property 404 Dodge Avenue, and in order to carry out the agreement had by you with me in this matter, I obligate myself to pay to you at the rate of $2.53 per day, for each day that Mr. and Mrs. de Valcourt remain in said property up to the time of sixty days from this date.

“By way of example, if the de Valcourts remain in the property for say thirty days, I am obligated to pay to you $75.96, and so on.

“The consideration of this obligation on my part is that you have advised me you would not go thru with this sale today unless you were compensated for your estimated loss of $75.00 per month during the time the de Valcourts remain in the property up to the sixty-day period.

“Yours very truly,

“(Signed) M. Arnold Lehmann”.

On receipt of this letter, Edrington took title to the property, de Valcourt remained in the property beyond the sixty-day period and accordingly, Lehmann, if he is legally liable to Edrington under the above quoted agreement, became liable for $151.80.

On October 1, 1948, Lehmann paid to Edrington $32.89, representing $2.53 per day for the last thirteen days of September, but thereafter refused to make any further payment, taking the position that the agreement under which he had promised to make payment to Edrington was without consideration and therefore was not binding on him.

This suit is the result of that refusal. Edrington prays for judgment for $118.91, the balance for which Lehmann is liable if he is bound by that letter.

Lehmann first filed an exception of no cause of action, which was overruled, and then an answer, and from a judgment against him as prayed for, he has appealed suspensively.

Lehmann’s contention that there was no consideration for- his agreement to pay Ed-rington for such period as de Valcourt might remain in the premises is based on the well established legal principle which is set forth in Monroe Inv. Co., Limited, v. Ford, 168 La. 475, 122 So. 586, 587, in which the Supreme Court quotes the following from 13 Corpus Juris 351, Contracts, section 207: “* * * ‘ a promise to do what the promisor is already bound to do cannot be a consideration, for, if a person gets nothing in return for his promise but that to which he is already legally entitled, the consideration is unreal. Therefore, as a general rule, the performance of, or promise to perform, an existing legal obligation, is not a valid consideration.’ ” See, also, 17 C.J.S., Contracts, § 110.

-Counsel for Lehmann argues that the contract under which Edrington agreed to purchase the property was clear and unambiguous and that it plainly obligated Ed-rington to pay for the property, to take title thereto, and permit de Val-court to remain in the -property “rent free” for sixty days, and that, therefore, when Edrington took title only on condition that he -be paid rent during the sixty-day period, he demanded and received something for which he -gave no consideration whatever.

-Counsel for Edrington, on the other hand, maintain that there was ambiguity in the contract; that while it did provide for a rather severe penalty should the vendor 'fail to vacate at the end of the sixty-day period, it contained n-o provision whatever concerning whether there should be any rent -paid for that sixty-day period and counsel maintain that, as a result of this ambiguity, there could have arisen litigation over that question. They argue that since the matter might have been delayed until that dispute could be terminated, by litigation if necessary, any party who had an interest in a speedy determination of that issue might legally bind himself in any way which would bring about a settlement without delay.

It is obvi-ous that the judge a quo felt that the contract was ambiguous on the question of whether or not anything should be paid for the right of occupancy during the sixty-day period, for when objection was made to the introduction of any oral evidence tending to explain the written contract, — the objection being based on the argument that the contract was- clear and unambiguous — he overruled the objection and permitted oral evidence to be introduced, saying: “I -cannot agree with you, Mr. Novick, that the instrument or document is unambiguous; if it was clear this suit wouldn’t be here today; under ordinary circumstances rents are usually due from the date the property is delivered, the act of sale passed; objection overruled.”

When oral testimony was introduced, it consisted of the statements of plaintiff and ■defendant, and these statemen 3 evidence a sharp dispute between them as to how it came about that the contract did- not contain an express provision as to whether rent should be paid.

Edrington said that when the agreement to buy was presented to him: “we questioned the defendant at the time as to whether or not we would be recompensed for the time that we, in effect, owned the house, yet the de Valcourts were living in it, and I was assured by the defendant that it was customary in all cases for people who are making the sale and living in the house to pay the rent payments due on the mortgage, and I asked him to enter that in the contract and was assured it was not necessary, that those payments were customary; * * * jje added that on several later occasions: “on checking up on the progress of the act of sale I questioned him again about it and was on each occasion assured that there would be no question * *

In one part of his testimony, Mr. Edring-ton says that Mr. Segler H. Lehmann, an employee of -defendant, negotiated the transaction and the burden of his testimony is that the statements made concerning the custom as to payment of rent were made by Mr. Segler Lehmann.

It is shown that, shortly before the agreement to purchase was entered into, another offer was signed by Mr. Edrington for the same property and that this offer was identical with the one which was later accepted by -de Valcourt, except as to the amount of the purchase price. This first agreement had been prepared by Mr. Segler Lehmann and it contained a similar stipulation concerning the penalty to be paid after the •sixty-day period, but it contained no stipulation as to rent during the sixty-day period. And it is apparently in connection with this first offer to purchase that Mr. Edring-ton says that Mr. Segler Lehmann told him that it was customary that rent be paid under those circumstances.

The -defendant says that he was not present when Mr. Segler Lehmann and Mr. Ed-rington -discussed the first contract and that ■he did not know what discussions took place between them. Mr. Segler Lehmann was not placed upon the witness stand.

Defendant says that Edrington did not mention the matter of rent until at least thirty days or more after he had executed the offer and after it had been accepted, and that at no time did -he himself tell Ed-rington that it was customary for rent to be paid under such circumstances. He says that he did tell Edrington: “* * * of course, if you can talk them into paying you that matter is up to you.”

•Counsel for defendant points out that Edrington expressly required that there be inserted a clause providing for the rather severe penalty of $50 per week should de Valcourt not surrender possession at the end of sixty days, and he argues that since that clause was inserted, it is evident that had Edrington raised the question of whether rent should be paid during the sixty days, a clause concerning rent would have -been inserted. Edrington’s explanation for requiring the rent clause and not the other is that he was most anxious to get possession as soon as possible and that, therefore, he required a severe penalty for failure to deliver possession after the sixty-day period, but that, in view of the fact that it seemed absolutely essential that de Val-court remain in possession for sixty days, he agreed to that and inserted the clause concerning the penalty but did not insist on a stipulation concerning rent because of the assurances of defendant that, under the circumstances, it was customary that rent be paid.

We feel that, in view of this dispute between the parties, there was ample consideration for Lehman’s agreement to' settle the entire controversy by agreeing that he himself would pay the rent for the period in question. If there had been litigation over that question and it had appeared that he had failed to properly protect the rights of Edrington, he might have been liable to Edrington. He was an expert in the real estate business and if what Edrington says is true, his failure to insist that the necessary clause be inserted in the contract might have been held to be the cause of Ed-rington’s failure to secure rent.

We do not say that, we find as a fact that Lehmann -did give that advice, but the controversy was there and there was a possi'bility that if it developed into litigation, Lehmann might lose. His agreement to pay was amply compensated hy the avoidance of litigation and the speedy determination of the matter with the result that he received his commission of some seven or eight hundred dollars. The speedy determination of that controversy was sufficient consideration. We so held in Hirsch v. Rosenberg, La.App., 14 So.2d 331.

■Since we -find that there was consideration because of the fact that Lehmann himself might have lost his commission as the result of litigation, it is unnecessary that we discuss the question of whether in fact the contract was ambiguous, though we again call attention to the fact that the judge a quo thought it ambiguous, and that in Segari v. Uchello, La.App., 44 So.2d 722, we considered a somewhat similar situation which resulted in rather heated litigation.

Ou-r conclusion is that there was ample consideration for the agreement which defendant made, and that he is liable under that agreement. Accordingly, the judgment appealed from is affirmed at the cost of appellant.

Affirmed.

McBRIDE, J., recused.