author: HAWTHORNE, Justice.

text:
    216 La. 1062
    FRANKLIN et al. v. MUTUAL LIFE INS. CO. OF NEW YORK.
    No. 39112.
    Supreme Court of Louisiana.
    March 20, 1950.
    Louis Lyons, Bossier City, for plaintiffs-appellants.
    Louis W. Dawson, New York City, Montgomery, Fenner & Brown, New Orleans, H. W. Hill, Alexandria, for appellee-defendant.
   HAWTHORNE, Justice.

The plaintiffs have appealed from a judgment denying them recovery under the double indemnity provision of a life insurance policy on the life of their brother, Jesse J. Franklin. The insurance company paid the face amount of the policy, but denied liability under the double indemnity provision.

The provision for double indemnity benefits, insofar as pertinent, reads as follows :

“The Double Indemnity will be paid upon receipt of the proof that the Insured died as a direct result of bodily'injury effected solely through external, violent, and accidental means, independently and exclusively of all other causes, and of which, except in the case of drowning or .asphyxiation, there is evidence by a visible contusion or wound on the exterior of the body * * * provided that the Double Indemnity shall not be payable if death resulted * * * directly or indirectly from disease or bodily or mental infirmity. * * *", (Italics ours.)

On December 20, 1945, Jesse J. Franklin was found lying on the sidewalk on a principal thoroughfare of the Town of Lees-ville, bleeding from the left ear and the nostrils, with a bruised and abraised condition of the chin, one hand, and the side of his head. He was taken to the hospital and remained totally unconscious for about 48 hours, and was conscious only momentarily from that time until his death on December 27.

The physician who first saw the decedent at or near the scene where he was found, and who attended him until his death, signed the certificate of death on December 27, in which he gave the immediate cause of death as “diabetic coma” of 48 hours’ duration due to “chronic diabetes” of 20 years’ duration. This certificate also stated that other conditions were “hypertension- — fall to sidewalk — fracture right lower jaw”. The record discloses that at the time of death the decedent was suffering from diabetes in its advanced stages, hypertension, and Bright’s disease, and was drawing total and permanent disability benefits due to his physical condition from the defendant insurance company.

The appellants take the position that they have proved that the injuries received by the deceased were the predominant cause of his death, and that they are entitled to recover under the policy even though disease contributed to his death.

The appellee contends that it is encum-bent upon the plaintiffs to prove that death was caused solely by accidental means, and that in this case they have not produced any evidence whatsoever to show an accident. It further contends that the record does not show that the injuries were the direct cause of death, or that the injuries were the predominant cause of death. The argument is made that the decedent’s fall was caused in all probability by disease, and the doctors concede that hypertension could at any time cause dizziness resulting in a fall.

„ The first question for our consideration is whether the fall of the deceased was an accident within the meaning of the policy if, as contended by the insurance company, it was induced by disease — that is, if the decedent fell because he was overcome by diabetic coma or hypertension.

Although we have found no cases direct? ly in point in this state, the following cases support the insurer’s contention that a fall induced by disease would not be an accident, so that injuries suffered thereby would not be by accidental means under the provision of the policy relating to double indemnity: Illinois Commercial Men’s Ass’n v. Parks, 7 Cir., 179 F. 794; Wallace v. Standard Acc. Ins. Co. of Detroit, Mich., 6 Cir., 63 F.2d 211; Harrison v. New York Life Ins. Co., 6 Cir., 78 F.2d 421; New York Life Ins. Co. v. Roufos, 6 Cir., 83 F.2d 620; New England Mut. Life Ins. Co. v. Flemming, 9 Cir., 102 F.2d 143; Phillips v. Travelers’ Ins. Co. of Hartford, Conn., 288 Mo. 175, 231 S.W. 947. On the other hand, our research reveals that there is also authority to the effect that, even though a fall is induced by disease, it would nevertheless be an accident within the meaning of the provision. Provident Life & Accident Ins. Co. v. Watkins, 256 Ky. 645, 76 S.W.2d 889, and cases therein cited; 5 Couch on Insurance, sec. 1142, at pp. 4007-4008, and cases cited therein.

No proof whatever was introduced by plaintiffs to show what caused the fall, or to show how the deceased came to be lying on the sidewalk. So far as the record discloses, there were no witnesses to the fall, and we have no way of knowing what, caused it, but, like counsel’s, our conclusions can only be the result of surmise, conjecture, and speculation.

Under the facts and circumstances of this case, however, we are inclined to agree with the insurer that the fall in all probability was induced by disease; but, even if we concede for the sake of argument only and without deciding the matter that it would nevertheless be an accident within the meaning of the policy — a view most favorable to the plaintiffs — ,the question remains whether the injuries sustained in the accident were the cause of death within the meaning of the policy.

This court in De Blieux v. Travelers Ins. Co., 185 La. 620, 170 So. 14, 16, had occasion to consider a similar double indemnity provision in a life insurance policy. The provision in that case, insofar as it is pertinent here', read: “ ‘If death should result from bodily injuries, effected directly and independently of all other causes through’ external, violent and accidental means, * * * which shall cause such injuries, and of which * * * there is a visible contusion or wound on the exterior of the body, provided, that such (death) does not result, directly or indirectly, from diseases in any form, defendant will pay on receipt of due proof thereof * * *.’ ” (Italics ours.) In the cited case this court quoted at length and with approval from the case of Carnelious v. Louisiana Industrial Life Ins. Co., 18 La.App. 739, 138 So. 533, 535. In the Carnelious case, in answer to the insurance company’s contention that no recovery could be had because the accident must be the sole and independent cause of the disability, the court said:

“ * * * Our understanding of the meaning of this clause, as interpreted by the courts generally, is that it suffices if the cause of injury or death be the efficient or predominant cause. The phrase 'resulting directly, independently and exclusively in death,’ refers to the efficient, or, as some courts speak of it, the predominant cause of death at the time it occurs. Illinois Commercial Men’s Ass’n v. Parks, 7 Cir., 179 F. 794.” See other authorities therein cited, and Jones v. Washington Nat. Ins. Co., La.App., 2 So.2d 696.

The insurance company further contended in the De Blieux case that the meaning of the clause in question as announced by the authorities in the Carnelious case had no application for the reason that the provision in the policy in the De Blieux case contained the further proviso (as does the policy in the instant case) that death shall not result directly or indirectly’ from disease in any form. In answering this contention the court said that this “proviso is merely for the purpose of emphasizing the preceding language of the policy — that the death must result from ‘bodily injuries, effected directly and independently of all other causes through external, violent and accidental means.’ Proof to that extent necessarily makes the disease proviso inapplicable.” ,;

In Ardoin v. Fireside Mut. Aid Ass’n, 180 La. 309, 156 So. 363, the plaintiff instituted suit under an accident insurance policy for the loss of an eye as a result of an alleged accident, contending that such injury was caused solely, directly, and independently of all other causes by external means of a violent or accidental nature within the terms of the policy. The defendant insurance company contended that the eye was not lost as the result of the accident but that its loss occurred prior thereto as the result of disease. The Court of Appeal, First Circuit, rendered judgment in favor of the defendant; see 151 So. 248, rehearing refused 153 So. 60. Plaintiff in that case made application to this court to review the judgment of the Court of Appeal on the ground that it erred in holding that the burden of proof rested on him. This court in its opinion found that the Court of Appeal correctly placed the burden of proof in such a case on the plaintiff, and affirmed its decision. In the course of that opinion we said:

“It is a rule of law that one who sues upon a contract must allege and prove every fact necessary to bring him within the contract. Here it was necessary that plaintiff allege and prove facts showing that he held a policy from defendant; that this policy insured him against the loss of an eye; that his eye was lost while the policy was in force; the loss being caused solely, directly and independently of all other causes, by external means of a violent or accidental nature. * * *” [180 La. 309, 156 So. 364]

The court further held that the plaintiff must establish by a preponderance of the evidence that the loss was caused solely, directly, and independently of all other causes by external means of a violent or accidental nature; that without such proof he could not recover because he had not brought himself within the terms of the policy.

In the De Blieux case, supra, this court found that the plaintiffs established by a preponderance of the evidence that the deceased diéd from septicemia resulting from the accident and the' infection caused by it, and not from the chronic blood disease with which the deceased was afflicted. In that case the plaintiffs correctly conceded, as pointed out by this court, that they had the burden of establishing that death resulted from external, violent, and accidental causes, independently of all other causes, including disease in any form.

Furthermore, under the double indemnity provision of the policy in the instant case, the insurance company agrees to pay the amount thereof upon receipt of proof that the insured died as a direct result of bodily injuries effected solely through external violence and accidental means, independently and exclusively of all other causes. Thus the contract itself places the burden of proof on the plaintiffs.

Under the well-established jurisprudence of this state, therefore, for the plaintiffs to recover in the instant case, they must prove by a preponderance of the evidence — the burden of proof being on them — that the injuries received in the conceded accident were the predominant cause of death.

Plaintiffs placed several witnesses on the stand to prove that during the day on which the decedent received his injuries his equilibrium was good, and that he was in good spirits. Apparently the purpose of this showing was to overcome any inference that the fall was induced by disease. Since we have conceded that the fall was an accident, their testimony is of no value.

To prove that the injuries were the predominant cause of death rather than disease, the plaintiffs rely on the testimony of three doctors. Two of them attended the deceased after he received the injuries, and the third had treated him several months previously. The two doctors who attended him agreed that the diseases were contributing causes of his death, but they testified that in their opinion he died from fracture of the skull. Neither physician could testify positively, however, that he had a fractured skull. ■ One testified that the symptoms that the patient had usually indicated a fracture, and the other testified that the deceased apparently had a fracture. They both testified that no positive evidence could be obtained because the patient could not remain still long enough for them to get an X-ray picture. It is significant that the doctor who filled out the death certificate immediately after death stated the cause of death to be diabetic coma of 48 hours’ duration caused by chronic diabetes of 20 years’ duration, and did not even mention fracture of the skull as a condition of the patient; that as late as February 9, 1946, more than a month after the death, this doctor in a statement of the case, addressed “To Whom It May Concern”, was uncertain as to the predominant cause of death; and that the other doctor testified that even at the time of the trial he did not know how he would fill out the death certificate. The third doctor’s testimony is of no value on this point because he did not see the deceased after his fall.

The trial judge in denying the plaintiffs recovery apparently was of the opinion that they had not proved their case, and we cannot say that he was manifestly erroneous in his conclusion. On the contrary, we are fully convinced that the plaintiffs have not proved by a preponderance of the evidence that the injuries received were the predominant cause of death.

Plaintiffs rely on Konrad v. Union Casualty & Surety Co., of St. Louis, Mo., 49 La.Ann. 636, 21 So. 721, and Donnell v. Prudential Life Ins. Co. of America, La.App., 160 So. 828. We have carefully read these cases and do not find that they support plaintiffs’ claim to recover under the double indemnity provision.

For the reasons assigned, the judgment is affirmed; appellants to pay all costs.


source: Caselaw Access Project

license: Public Domain

text:
    216 La. 1072
    STATE v. PREJEAN.
    No. 39606.
    Supreme Court of Louisiana.
    Feb. 13, 1950.
    Rehearing Denied March 20, 1950.

      Rufus D. Hayes, Baton Rorige, for appellant.
    Bolívar E. Kemp, Jr., Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Fred S. LeBlanc, Dist. Atty., Wilbur D. Atkins, Asst. Dist. Atty., Baton Rouge, for appellee.
   HAWTHORNE, Justice.

Defendant, Luke D. Prejean, charged in a bill of information with the crime of indecent behavior with a juvenile, was convicted and sentenced to serve seven months in the parish jail. From this conviction and sentence he has appealed to this court, relying for reversal on two bills of exception. The first bill of exception was reserved to the overruling by. the court of a motion to quash the information,, and the other to the refusal of the trial judge to. grant a continuance on motion of the defendant

The trial judge in overruling defendant’s motion to quash granted him the right to file a motion for a bill of particulars within five days in order that he could require the State to furnish additional information. Reserving his rights under his motion to quash, defendant then filed a motion for a bill of particulars in which he requested the State to set out the particular acts or particular conduct claimed to have been committed upon the person of the juvenile, and the State furnished the information requested. On the day the case was fixed for trial, defendant filed a motion for a continuance on the ground that he had not had sufficient time in which to prepare a defense against the charge contained in the bill of information and the acts alleged in the State’s answer to the motion for a hill of particulars. This motion for a continuance was overruled.

It is the contention of the defendant under his first bill of exception that the bill of information, in which the act done is described merely as a “lewd and lascivious” one, is not sufficient to inform him of the nature of the crime which he is charged as having committed. He contends that the very nature of the crime is such that an accused in order to be guilty must have committed some act upon the person or in the presence of a child under the age of 17 years; that therefore the act necessary to constitute the crime is of necessity the very essence of the crime, and that, if the bill of information does not specify the act which the accused has committed, it is fatally defective.

The crime of which defendant stands convicted is denounced in Article §1 of the Louisiana Criminal Code thus: “Indecent behavior with juveniles is the commission by anyone over the age of seventeen of any lewd or lascivious act upon the person or in the presence of any child under the age of seventeen, with the intention of arousing or gratifying the sexual desires of either person. Lack of knowledge of the child’s age shall not be a defense.”

The bill of information charges the offense as follows: “ * * * That Luke D. Prejean * * * then and there being, a person over the age of seventeen years, did feloniously and unlawfully commit a lewd and lascivious act upon the person of (a named juvenile), she being a child under the age of seventeen years, with the intention of arousing and gratifying the sexual desires of the said Luke D. Prejean * *

In support of his contention under this bill, defendant relies principally on Article 1, Section 10, of our Constitution, which provides: “In all criminal prosecutions, the accused shall be informed of the nature and cause of the accusation against him * * The same guaranty is contained in the Sixth Amendment of the Federal Constitution. The question, then, is: Does the bill of information meet this mandatory requirement of the Constitution?

The crime denounced in Article 81 may be committed in two ways, (1) by the commission of a lewd or lascivious act upon the person, or (2) ,by the commission of a lewd or lascivious act in the presence, of any child under the age of 17, etc. See State v. Hebert, 205 La. 110, 17 So.2d 3. The bill of information in the instant case charges the offense as having been committed upon the person of the juvenile and is in the language of the statute. As a general rule, an indictment or information in the language of the statute is sufficient, but an exception is made where the statute defines the crime in such general terms that the accused is not apprised in an indictment couched in its. language of the nature and cause of the accusation against him, to the end that he may prepare his defense and plead the judgment as a bar to any subsequent prosecution for the same offense. This principle of law is so well established that no citation of authority is necessary.

The crime denounced by the statute is indecent behavior with juveniles, and the statute sets forth with clarity and certainty all elements necessary to constitute ' the crime: (l)'The commission of a lewd or lascivious act (2) upon the person or in the presence (3) of any child under 17 (4) by any person over the age of 17 (5) with the intention of arousing or gratifying the sexual desires of either person.

The words “lewd” and “lascivious” found in the statute are not vague and indefinite. On the contrary, they have a well defined, well understood, and generally accepted meaning, and by their use an accused is informed of the nature of the act he is alleged to have committed. The word “lewd” means lustful, indecent, lascivious, and signifies that form of immorality which has relation to sexual impurity or incontinence carried on in a wanton manner. The word “lascivious” means tending to excite lust, lewd, indecent, obscene, relating to sexual impurity, tending to deprave the morals in respect to sexual relations. See Black’s Law Dictionary (DeLuxe Ed.). Moreover, we aré entitled to study these words in their context, and, when we do this, there can he no possible doubt as to their import here. These words are used in the statute to describe an act done “with the intention of arousing or gratifying the sexual desires”, so that, by the bill of information as worded, the accused is fully informed of the nature and cause of the offense charged, that is, that he is charged with having done an act upon the person of a juvenile which is lustful, obscene, indecent, tending to deprave the morals in respect to sexual relations, and relating to sexual impurity or incontinence carried on in a wanton manner.

Upon analysis it is obvious that defendant’s real complaint is that the bill of information in the instant case does not set forth the nature of the evidence by which the State expects to prove the charge.

Such crimes as murder, manslaughter, and negligent homicide, for instance, may be committed in many different ways and by many different acts. In an indictment charging any of these offenses it is not necessary to set forth the particular acts constituting the elements of the crime, and there is no sound reason why an information couched in the language of Article 81 of the Criminal Code should not be similarly regarded.

The Constitution of the State of Illinois contains the same guaranty in its bill of rights as does ours (Ill. Const, of 1870, Art. II, sec. 9.), and that state has a statute very similar to the one we have here under consideration, which reads: “ * * * any person of the age of seventeen years and upwards who shall take, or attempt to take, any immoral, improper or indecent liberties with any child of either sex, under the age of fifteen years, with the intent of arousing, appealing to or gratifying ,the lust or passions or sexual desires, either of such person or of such child, or of both such person and such child, or who shall commit, or attempt to commit, any lewd or lascivious act upon or with the body, or any part or member, thereof, of such child, with the intent of arousing, appealing to or gratifying the lust or passions or sexual desires,, either of such person or of such ,child, or of both such person and such child * * * shall be imprisoned * * *Act of May 17, 1907, p. 266, 38 Smith-Hurd Ann. St. Ch. 38, sec. 109.

In People v. Sims, 393 Ill. 238, 66 N.E.2d 86, 87, defendant, charged under that statute, contended in a motion to quash that the indictment was insufficient to charge him with any crime whatever, in that it failed to allege or set forth any facts sufficient to show that he had actually taken immoral, improper, or indecent liberties with a child. The indictment in that case charged that “ * * * the defendant, Charles C. Sims, being a male person of the age of seventeen years and upwards,, unlawfully and feloniously did then and' there take certain immoral, improper and indecent liberties with a certain female child under the age of fifteen years and of, to-wit: the age of fourteen years, with intent then and there of arousing, appealing to and gratifying the lust, passions and sexual desires of him, the said Charles C. Sims..

* * * (All italics ours.) The Supreme-Court of Illinois said:
“ * * * The charge is made in the-■language of the statute.
“ * * * we have held that it is sufficient to charge the offense in the language-of the statute when the words of the statute so far particularize the offense that by their use alone the defendant is notified with reasonable certainty of the precise offense-with which he is charged. * * * The-indictment was substantially in the language-of the statute and was entirely sufficient to notify the defendant of the nature of the offense with which he is charged.. * * * _
* * * * * *
“The indictment specifically charged that plaintiff in error had taken immoral, improper and indecent liberties with a child of a certain age with intent of arousing, appealing to, or gratifying the lust, passions or sexual desires of the said plaintiff' in error, * * * and this certainly apprised the plaintiff in error of the offense-with which he was charged. * * * ”

In People v. Scattura, 238 Ill. 313, 87 N.E. 332, 333, the defendant was charged! with violating that statute, in the following language: “ * * * ‘being a male person of the age of seventeen years and upwards, unlawfully and feloniously did take certain immoral, improper, and indecent liberties with a certain female child under the age of fifteen years and of the age of seven years * * *, with the intent of arousing, appealing to, and gratifying the lust, passions, and sexual desires of him, the said Giralamo Scattura.’ ” The court in the course of its opinion said:

“A motion was made to quash the indictment because it did not describe the particular acts constituting the immoral, improper, and indecent liberties. Under section 408 of the Criminal Code [Smith-Hurd Stats, c. 38, § 716] an indictment is sufficient which states the offense in the terms and language of the statute creating the offense or so plainly that the nature of the offense may be easily understood by the jury. In the construction of this section we have held that it is sufficient to charge the offense in the language of the statute when the words of the statute so far particularize the offense that by their use alone the defendant is notified with reasonable certainty of the precise offense with which he is charged. * * * The indictment ■was substantially in the language of the statute, and was entirely sufficient to notify the defendant of the nature of the offense with which he was charged. The motion to quash was properly overruled.”

The Supreme Court of Illinois in other cases has held that in indictments in the language of that statute it is not necessary to set out the facts constituting the elements of the crime. See People v. Rogers, 324 Ill. 224, 154 N.E. 909; People v. Jensen, 392 Ill. 72, 64 N.E.2d 1; People v. Johnson, 392 Ill. 409, 64 N.E.2d 878.

The Supreme Court of the United States in Bute v. People of State of Illinois, 333 U.S. 640, 68 S.Ct. 763, 766, 92 L.Ed. 986, had for its consideration an indictment drawn under the Illinois statute which read thus :• “that Roy Bute * * * being a male person of the age of seventeen (17) years ánd upwards, did then and there unlawfully and feloniously take certain immoral, improper and indecent liberties with a certain female child, under the age of fifteen (15) years, and of the age of eight (8) years, to-wit, * * * with intent of arousing, appealing to and gratifying the lust, passion and sexual desires of him the said Roy Bute * * *

With reference to the sufficiency of this indictment the Supreme Court said: “An indictment stating this offense substantially in the language of the statute, though not setting out facts constituting the elements of the crime, was sufficient. * * * ”

The following quotation from State v. Kernan, 154 Iowa 672, 135 N.W. 362, 363, 40 L.R.A., N.S., 239, shows that the Iowa court has made a similar holding: “The accused was indicted under [a statute] denouncing as a crime the willful commission of ‘any lewd, immoral, or lascivious act upon or with the body, or any part thereof, of a child of the age of 13 years or under, with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of such person, or of such child.’ The indictment was substantially in the language of the statute and, as it so individuated the offense that the accused had proper notice of the crime charged, the indictment was good. * * * ” See also State v. Schumacher, 195 Iowa 276, 191 N.W. 870.

In other'jurisdictions the courts have held that indictments couched in the language of statutes - denouncing certain sex crimes are sufficient, stating that it is unnecessary to set out any facts constituting the elements of the crime. Koa Gora v. Territory of Hawaii, 9 Cir., 152 F.2d 933, certiorari denied 328 U.S. 862, 66 S.Ct. 1362, 90 L.Ed. 1632; Glover v. State, 179 Ind. 459, 101 N.E. 629, 45 L.R.A., N.S., 473; People v. Carey, 217 Mich. 601, 187 N.W. 261.

Further in' support of his contention the-defendant cites and relies on the case of State v. Hebert, 205 La. 110, 17 So.2d 3. This court in that case sustained a motion t'o quash the bill 'of information which charged that the defendant “ * * * being over the' age of seventeen did unlawfully and ' feloniously commit indecent behavior, as defined by Article 81 of the Louisiana Criminal Code (Act 43 of 1942)' with-, a juvenile under the age of seventeen years.” The basis of our ruling in that case was that the statute under which the defendant was charged clearly set forth that the offense of indecent behavior with a juvenile could be committed in two ways, as we have hereinabove pointed out, and that the bill of information did not inform the accused in which way he was charged with having committed the offense. It is true that the court said in the course of its opinion that in either case the defendant was entitled to specific information as to the kind and character of the acts he is alleged to have committed, but this expression is merely obiter dictum and was unnecessary for decision in that case, and is not a correct statement of our appreciation of the law applicable to the instant case.

We therefore conclude that the bill of information in the case here under consideration, written in the language of the statute, was sufficient and fully informed the defendant of the nature and cause of the accusation against him so that he might prepare his defense and plead the judgment as a bar to any subsequent prosecution for the same offense. Since we have reached this conclusion, it is not necessary for us to discuss what effect, if any, defendant’s motion for a bill of particulars and the State’s answer thereto had on the bill of information as drawn.

With reference to the second bill of exception, which was reserved to the overruling of defendant’s motion for a continuance made on the ground that he did not have reasonable time to prepare his defense after the State’s answer to his motion for a bill of particulars was filed, the record discloses that defendant was arraigned and pleaded not guilty on March 4, 1949, three months before he was tried. The case was fixed for trial for March 11 but was not tried on that date. On May 13 the case was fixed for trial for May 18 but was continued at the request of the attorney for the defendant to May 25. On this date the court overruled defendant’s motion to quash, and defendant was given five days in which to file a motion for a bill of particulars. On May 27 the case was fixed for trial for June 2. On May 31 defendant filed his motion for a bill of particulars, which was answered by the State on June 1. Defendant was tried and adjudged guilty on June 2.

The granting or refusing of any continuance is within the sound discretion of the trial judge, but any arbitrary or unreasonable abuse of such discretion may be reviewed by this court. Art. 320, La. Code Cr. Proc. The record does not disclose any arbitrary or unreasonable abuse of the trial judge’s discretion in denying defendant’s motion for a continuance, nor does the defendant point out to this court that, due to the short time which intervened between the filing of the State’s answer and the trial, he was deprived of any witness who would have testified in his behalf, or that he was met with any surprise evidence against which he was not prepared to defend.

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


author: PONDER, Justice.

text:
    216 La. 1087
    DAMMAN et al. v. VIADA.
    No. 38962.
    Supreme Court of Louisiana.
    March 20, 1950.

      Richard J. Member, John T: Charbonnet, New Orleans, for plaintiff-appellant.
    Bernard J. Bagert, New Orleans, for defendant-appellee.
   PONDER, Justice.

In this suit the plaintiff, as tutrix of her minor child, seeks to have the defendant adjudged the father of the child. Pier demand was rejected in the lower court and she has appealed.

The plaintiff alleges that she has never been married; that during October 1945 the defendant persuaded her to have sexual intercourse with him from which the minor child was born on July 28, 1946; that no legal impediment has ever existed for a marriage between plaintiff and defendant; that the defendant refuses to acknowledge that he is the father of the child and has refused to contribute to its support. She alleges in her amended petition that the defendant had sexual intercourse with her five> times on three occasions in Detroit, Michigan during the months of October and November 1945; and that she was engaged to be married to the defendant at the time these acts took place.

The defendant in his answer denied that he had ever had sexual intercourse with the defendant and avers that the plaintiff had sexual intercourse with various naval officers at Detroit during the months of September, October and November 1945.

“Illegitimate children, who have not been legally acknowledged, may be allowed to prove their paternal descent.” Article 208, R.C.C.

“In the case where the proof of paternal descent is authorized by the preceding article, the proof may be made in either of the following ways:

“(1) By all kinds of private writings, in which the father may have acknowledged the bastard as his child, or may have called him so: (2) When the father, either in public or in private, has acknowledged him as his child, or has called him so in conversation, or has caused him to be educated as such: (3) When the mother of the child was known as living in a state of concubinage with the father, and resided as such in his house' at the time the child was conceived.” Article 209, R.C.C.
“The oath of the mother, supported by proof of the cohabitation of the reputed father with her, out of his house, is not sufficient to establish natural paternal descent, if the mother be known as a woman of dissolute manners, or as having had an unlawful connection with one or more men (other than the man whom she declares to be the father of the child) either before or since the birth of the child.” Article 210, R.C.C.

The testimony of the plaintiff and defendant is in hopeless conflict. Several letters from the defendant fo the plaintiff were introduced in evidence. There is language in' these letters indicating that there might have been an improper relationship between them and that the defendant was cognizant of the pregnancy of the plaintiff. In these letters it appears that the defendant gave the plaintiff advice concerning her pregnancy. However, there is nothing in these letters to indicate that the defendant recognized or acknowledged that he was the father of the child. The evidence produced by the defendant to prove the plaintiff’s familiarity with other men is vague and not sufficient to establish this fact.

The plaintiff has failed to prove the paternal descent of the child as required by the provisions of Article 209, Revised Civil Code. The writings she relies on do not contain an acknowledgment of the child by the defendant. Moreover, the plaintiff alleged and testified that the defendant has refused to acknowledge the child.

Article 210, R.C.C. has no application because there is no proof of cohabitation between the parties to support the testimony of. the plaintiff.

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


author: McCALEB, Justice.

text:
    216 La. 1090
    W. T. BURTON CO., Inc. v. STEVENS & COMPANY, Inc.
    No. 39746.
    Supreme Court of Louisiana.
    March 20, 1950.
    Patin & Patin, Lake Charles, for appellant-defendant.
    Thompson, Lawes, Cavanaugh & Hickman, Lake Charles, for plaintiff-appellee.
   McCALEB, Justice.

The judgment in this case was read and signed on November 15, 1949 and, on the same day, defendant was granted an appeal returnable to this court on January 2, 1950. The appeal was perfected by the giving of bond but the transcript was not filed until January 11, 1950. Appellee now moves to dismiss the appeal on that ground.

The motion is well taken. It is established that where the appellant perfects the appeal and fails to file the transcript on or before the return day, or within the three day grace period following the return day (unless extended by order of the appellate court), he is conclusively presumed to have abandoned the appeal. Articles 587, 588, 589, 590, 883 and 884, Code of Practice; Whitney Central Trust & Savings Bank v. Greenwood Planting & Mfg. Co. Ltd., 146 La. 572, 83 So. 834, Dupierris v. Sparicia, 164 La. 290, 113 So. 851; Aaron v. Mizer, 196 La. 481, 199 So. 398 and McDermott v. Kilpatrick, 198 La. 1053, 5 So.2d 332.

The appeal is dismissed.


author: HAMITER, Justice.

text:
    216 La. 1092
    THOMPSON v. VARINO.
    No. 39608.
    Supreme Court of Louisiana.
    March 20, 1950.

      J. Norman Coon, Monroe, for plaintiff-appellee.
    W. Decker Moore, West Monroe, for d e f endant-app ellant.
   HAMITER, Justice.

In this action plaintiff, Roy H. Thompson, sues for specific performance of a written contract under which defendant, George V. Varino, agreed to sell and convey to him a parcel of land in the City of Monroe, Ouachita Parish, containing 2.03 acres, together with the improvements thereon. He prays also that defendant be condemned to pay attorney’s fees of $500.

After trial the district court rendered judgment ordering defendant to specifically perform the obligations of his contract. Plaintiff’s demand for attorney’s fees, however, was rejected.

Defendant appealed. Plaintiff has answered the appeal, asking that the judgment be amended to the extent of awarding the demanded attorney’s fees.

The purchase price of the property in question, as shown by the written contract dated November 29, 1940, was $2500. Of this amount plaintiff paid $200 initially. The balance, bearing interest at the rate of 5% per annum, was payable in monthly installments of $15 each. The contract, among other things, further provided:

“It is understood that the party of the first part [defendant] will pay all taxes and insurance due on this property for the year 1940 and the party of the second part [plaintiff] will pay all taxes and insurance due on the property thereafter. It is understood that the failure of the payment of these taxes and insurance by the party of the second part [plaintiff] at the option of the party of the first part [defendant], this contract will be forfeited, annulled and voided.
“It is agreed that upon the payment of the sum of Seven Hundred ($700.00) Dollars on the principal and exclusive of interest in the manner stipulated herein, the party of the first part [defendant] agrees to execute a deed to the above described property, retaining a vendor’s lien and special mortgage for the balance. The balance due on the property is to be paid in the manner stipulated in this contract.” (Brackets ours)

In December 1940, according to the record, plaintiff took possession of the property, and on it has since continuously resided.

On February 21, 1949, up to which date all of the stipulated $15 monthly payments had been made, defendant’s attorney addressed to plaintiff the following letter: “In conformity with the terms of your contract with George V. Varino to purchase certain property you are hereby notified that the same is hereby cancelled, annulled and voided for the reason of your failure to pay the taxes due on said property and to have the buildings insured, all as provided in said contract.”

On March 1, 1949, plaintiff tendered to defendant the sum of $15, this being in satisfaction of the installment due on that date; but it was refused. Shortly thereafter plaintiff made the following additional tenders which were also refused: (1) $105 to cover installments due from March 1, 1949, to September 1, 1949, both dates inclusive, the acceptance of which would have effected a total payment of $706.43 on the agreed purchase price (exclusive of interest) ; (2) $141.71 to reimburse defendant for certain taxes (hereinafter discussed) paid by him; and (3)-an instrument signed by plaintiff (credit deed) stipulating a vendor’s lien and special mortgage on the property, together with an appropriate promissory note.

In refusing to accept the last named two amounts defendant’s counsel 'informed plaintiff’s counsel, in a letter dated March 22, 1949, as follows:

“This will advise you that Mr. Varino is insisting that the contract entered- into by him and Mr. Thompson has been violated and therefore is void and to that end I am . returning to you the two checks, one of $141.21 and the other for $105.00, given as a tender by Mr. Thompson.
“Therefore we are still relying upon our letter of February 21, 1949, to Mr. Thompson notifying ‘ him of the cancellation of this Contract.” ■ ■

On the grounds assigned in the letter of February 21, 1949, announcing the cancellation of the contract, the defense to this action is predicated, they being the alleged failure of plaintiff to secure insurance and to pay the taxes as they became due.

Clearly there is no merit to the contention that plaintiff failed in his agreement to keep the improvements on the property insured; in fact, defendant does not urge it in this court. The record discloses that plaintiff, as soon as possible after taking possession, had the improvements insured and that the insurance since then has been in force and effect continuously. Each of the policies listed plaintiff as the insured and contained a loss payable clause in favor of defendant. All of them were retained in the office of the insurance agent, however, and defendant did not know of their existence until after the filing of this suit.

As to the taxes on the property, the assessment of which stood in the name of defendant, it appears that defendant paid all of them throughout the duration of the contract with the exception of the city taxes due for 1941, these having been paid by plaintiff. But the record further discloses that at various times during the period plaintiff went to the offices of the tax collecting officials to make the payments and on each occasion found that the taxes had already been paid.

We notice also that in 1947 plaintiff called on defendant to ascertain the unpaid balance under the contract. The latter was busy at the time and requested the former to return later for the information. Plaintiff did not return for the reason (he explains) that after making certain required repairs he had insufficient funds to retire the balance as he had hoped to do. However, during the mentioned visit plaintiff, according to his testimony, called attention to the fact that he owed some taxes and the defendant stated that he could pay them when the balance of the obligation was satisfied. This testimony must be accepted as true; for defendant does not deny having made the statement; he merely says “I don’t remember mentioning that.” Furthermore, defendant admits that at the meeting he made no demand for payment of taxes, and the record is silent with reference to such a demand at any other time.

Under the described circumstances we cannot conclude that plaintiff has breached his agreement with respect to the insurance and tax matters. 'Accordingly, and in view of the above mentioned tenders, we hold that the district court correctly ordered specific performance of the contract.

Plaintiff’s demand for attorney’s fees (reurged here in an answer to the appeal) was properly rejected. We have found no provision of law authorizing the award in a suit of this nature. To the contrary, in Manning v. Cohen, 124 La. 869, 50 So. 778, which was a specific performance action, this court said: “Attorney’s fees cannot be recovered in a case of this kind.”

As authority for the demand plaintiff’s counsel relies on Bonfield v. Tichenor, La. Appeal, Orleans Circuit, 189 So. 635. In that case, in addition to ordering specific performance, the court did allow certain items of damage. It is to be noticed, however, that therein the court, after citing and quoting from Manning v. Cohen, supra, specifically affirmed that portion of the trial court’s judgment which denied attorney’s fees as an .element of damage.

For the reasons assigned the judgment appealed from is affirmed.


author: LE BLANC, Justice. ■ PER CURIAM.

text:
    216 La. 1099
    RAYNER v. RAYNER.
    No. 39268.
    Supreme Court of Louisiana.
    Feb. 13, 1950.
    Rehearing Denied March 20, 1950.
    Redmond & Harkey, Monroe, for plaintiff-appellant.
    Kent Breard, Monroe, for defendant-appellee.
   LE BLANC, Justice. ■

This is a suit instituted by Henry W. Rayner in which he seeks to- obtain judgment for an absolute divorce from his wife, Mrs. Ivy Falgout Rayner, to whom he was married during the month of September 1930. Coupled with his demand for a divorce is one to have a considerable amount of property listed in his -petition declared to be community property and that he be recognized as the owner of an undivided one-half thereof.

After setting out that he has always fulfilled his duties as a husband, his wife, on the other hand, has so conducted herself that he' has separated from her and has not lived with her since on or about March 30, 1947.

He alleges unfaithful conduct on her part while she was living in the matrimonial domicile which had been established at the corner of Carleton Street and Lee Avenue in the city of Monroe, charging specifically that she has lived openly with a certain party by the name of Joe Battaglia. He avers in detail, several acts which would constitute misconduct on her part with -this individual and which, if sustained by competent proof, might well entitle him to the judgment of divorce he prays for.

In her answer the defendant admits that she and her husband separated and have not lived together since March 30, 1947- and that she has since occupied the home— referred to in his petition. She categorically denies each and every allegation in which she is charged with unbecoming com duct and avers that her husband’s leaving her on March 30, 1947 was due to no fault of hers at all. She admits -that there is a community interest between them consisting of a lot of household goods but affirmatively avers that all of the real estate and properties alleged by him to have been community property are, in fact, her separate -paraphernal property under her separate control and solely administered by her with no assistance from him: She then alleges that it was necessary for her to employ attorneys to represent her in this suit to whom she has become indebted in the amount of $1250.00 of which $250.00 has been paid in cash out of her separate funds and that she is entitled to have the fees recognized as a debt of the community interest between herself and her husband, and to a judgment in her favor for that amount in full.

The trial judge, after submission of the case, rendered judgment in favor of the defendant, rejecting the demands of the plaintiff and dismissing his suit at his costs. He further granted judgment in favor of defendant and against plaintiff in the sum of $200.00 for attorneys fees. From that judgment the plaintiff has taken this appeal. Defendant has answered asking for an increase in the amount of the award for attorney’s fees to the sum of $1250.00.

We find it unnecessary to go into a lengthy review of the testimony regarding the alleged misconduct on the part of the defendant as we are satisfied that all that the proof shows are matters which might well give rise to some suspicion but in no manner convince us as being sufficient to sustain a judgment for divorce on the ground of adultery.

Plaintiff produced the testimony of five witnesses, besides his own, and it all relates to incidents which they say were witnessed at the house of the defendant. Whilst one of them claims to have seen the defendant and her alleged paramour in a rather compromising situation, his testimony is weakened by his admission that Bat-taglia is not the type of man he thinks the defendant would be carrying a courtship with. Furthermore, it is shown that the defendant’s mother, a lady sixty-nine years old, and sickly, lived with her and it would seem unlikely that if her daughter cared to indulge in the illicit relations she is charged with carrying on, that she would have done so in her home, under those circumstances.

Otherwise the proof is all of a circumstantial nature and whilst we appreciate the fact that in cases of this kind it is difficult to produce direct proof and that circumstantial or indirect evidence may suffice to support a charge of adultery, it is equally true that the proof should be clear and convincing in order to place the stigma of unchastity upon a married woman who, like the one in this case, has apparently been a faithful wife for seventeen years before her husband separated from her.

The case, after all, is one which has to be decided on the testimony of the witnesses and on the credibility which is to be attached to that testimony. These are matters which the trial judge is in a better position to pass on than the appellate court and his findings should not be disturbed unless manifest error appears. We find no such error in this case.

In view of the ruling in the demand for divorce, it becomes unnecessary to consider the demand for separation of property.

With regard to the demand for an increase in the amount allowed the defendant for attorney’s fees, in view of the amount of property involved and of the legal services rendered in the lower court and before this court as well, we believe that the sum of $200.00 is inadequate and it will accordingly be increased to $500.00.

For the reasons stated, it is ordered that the judgment appealed from be amended by increasing the amount which plaintiff was condemned to pay for defendant’s attorney’s fees from the sum of Two Hundred ($200.00) Dollars, to the sum of Five Hundred ($500.00) Dollars, and that as thus amended, it be affirmed.

On Application for Rehearing

PER CURIAM.

The application for rehearing is based on an allegation that the judgment rendered is contrary to the law and the evidence and also on the proposition that it improperly allowed the demand made by the wife for attorney’s fees and increased the amount awarded; the contention on the latter proposition being that the wife is not entitled to recover the fee in her own name, for the reason that she cannot sue the husband during the community to recover a debt.

The facts in the case have been thoroughly reconsidered and we find that the judgment correctly dismissed the demand for divorce which carried with it the rejection of the demand for a separation of the community.

On the question of attorney’s fees the contention presented may technically have some merit but as it was not raised in the lower court, nor contested in this court, we will not, therefore, consider it when it is presented for the first time in this application for rehearing. See State ex rel. Murtagh v. Department of City Civil Service et al., 215 La. 1007, 42 So.2d 65, on rehearing.

Rehearing denied.


author: HARDY, Judge.

text:
    WILSON GOLD STAMPING MACH. CO. v. WEBB HARDWARE & FURNITURE CO., Ltd.
    No. 7489.
    Court of Appeal of Louisiana. Second Circuit.
    April 5, 1950.
    Eugene J. Coen, Shreveport, for appellant.
    D. W. Stewart, Jr., Minden, for appellee.
   HARDY, Judge.

This is an action in which plaintiff seeks to collect an amount alleged to be due by defendant for goods sold and delivered. After trial in the City Court of Minden,, Webster Parish, Louisiana, there was judgment in favor of defendant rejecting plaintiff’s demands, from which plaintiff had appealed.

Examination of the transcript discloses it to be so incomplete that we do not feel we can intelligently pass upon the merits of this case. The record contains a mass of exhibits apparently tendered by both plaintiff and defendant, but there is no indication either on the exhibits themselves or in the minutes as to whether any or all of these exhibits were properly offered and received in evidence. The same is true as to-the depositions of two witnesses on behalf of plaintiff. It further appears that although certain oral testimony was taken on trial of the case, the record does not contain either a note of such evidence nor a. statement of facts agreed on, by the parties or made up by the Judge of the lower court..

Under the old rule the appeal in this case would be subject to dismissal, but in the case of Nunez v. Serpas, 198 La. 415, 3 So.2d 673, the Supreme Court held that this-rule has been modified by the provisions of Act No. 234 of 1932, which, in effect, provides that a court shall not dismiss an appeal unless it first allows to the appellant a period of time within which to cure and correct the informalities and irregularities existing in the transcript.

Accordingly the appellant is ordered to complete the record:

(a). By proper official certification identifying the exhibits tendered and received in-, evidence by the respective parties;

• (b). By similar proper showing as to the interrogatories of plaintiff’s witnesses; and,.

(c). By the preparation and insertion in the record of a statement of facts agreed on by the parties or made up by the Judge of the lower court as to the testimony of such witnesses as were heard on trial of the case.

Appellant is allowed a period of twenty days from the date this judgment becomes final within which to complete the record in accordance with the above instructions, and, in the event of its failure to comply with this order, the appeal will be dismissed at appellant’s cost.


author: McBRIDE, Judge.

text:
    WILLIAMS v. ARMOUR FERTILIZER WORKS, Inc.
    No. 19383.
    Court of Appeal of Louisiana. Orleans.
    April 10, 1950.
    Aubrey C. Evans, New Orleans, for plaintiff and appellant.
    Jacob H. Morrison, New Orleans, for defendant and appellee.
   McBRIDE, Judge.

Victor Williams was killed on February 28, 1948, while working within the course and scope of his employment with defendant, Armour Fertilizer Works, Inc. His widow, Jeneva Bernard Williams, from whom he had been extra-judicially separated for 25 years, claiming that she was actually dependent upon Williams for support, brought this suit against defendant under the provisions of Act 20 of 1914, as amended, seeking to recover 300 weeks compensation at the rate of 37% per cent of the weekly wages earned by Williams. Her suit was dismissed by the lower court, and she has appealed.

Section 8, sub-section 2, paragraphs (A), (B), (D), and (K) of the act as amended by Act No. 242 of 1928, pages 358, 359, 361, Dart’s La.Gen.Stat. 4398, is the controlling law of the case. These provisions of the statute establish the rule that where a wife is living with her husband at the time of the accident and death, there arises a conclusive presumption that she was wholly and actually dependent upon his support, but paragraph (D) declares that: “ * * * In all other cases, the question of legal and actual dependency in whole or in part, shall be determined in accordance with the facts as they may be at the time of the accident and death; * * *»

Therefore, the sole question for decision, one of fact, is whether plaintiff, who bad been separated from the deceased workman, was actually dependent upon him for support.

It is undisputed that Victor Williams and Jeneva Bernard were married in 1921 and lived together for a few years in Shrews-bury in Jefferson Parish. Jeneva Bernard separated from Williams about 25 years before his death, and moved to New Orleans, where she was still living at the time of his death. Their daughter, who is now married, was reared by 'relatives of Victor Williams in a small Negto settlement at Shrewsbury. Williams, after the separation, continued to reside in Shrews-bury, and his brother and three. sisters .all lived within . a few blocks of him. He was a man about 65 years old, and for 11 years prior to his death he had lived with Mary Neal, a Negro woman about 35 years of age, in a room in a small house which Mary Neal claims to own, and the mother of Mary Neal, and a child who, had been abandoned to Mary Neal by its parents, occupied the other room in the house. Previously, Williams had lived with one or two “common law wives.”

Jeneva Bernard testified that Victor Williams came to New Orleans to see her at intervals of from one to two weeks, and that he would spend one or more nights with her on these visits. She stated that she is in a poor state of health, and was entirely dependent upon him for her support, and that if he came every week he would give her from $12 to $15, and that if he came every other week he would give her from $18 to $20. Such relationship and arrangement, she testified, had existed from the inception of the separation. Two witnesses were produced in an effort to corroborate her statements, one being her aunt, who claim that they knew of Williams’ visits to Jeneva Bernard, and of his having given money, to her.

The testimony of Orena Brumfield, one of plaintiff’s witnesses, is of doubtful veracity, and its validity is brought into serious question because of a statement which, it is said, she made after leaving the witness stand. Mary Neal and Charley Williams, the brother of Victor Williams, both testified that Orena Brumfield in effect stated that she knew nothing of the specific details of the case about which she had testified, and that she hoped she would not have to return to court. She denied having made such statement.

On the other hand, several defense witnesses testified that Williams at no time mentioned to them that he supported his wife, or contributed to her upkeep, and that as far as they knew he always remained in Shrewsbury, and that if he had spent such time in New Orleans, as was testified to by Jeneva Bernard, they were in a position to have known of it. Charley Williams further stated that on several occasions when Jeneva Bernard visited Shrewsbury after the separation, Victor Williams refused to have anything to do with her, and would not even speak to her.

The record discloses that at the time of Williams’ death Mary Neal was working in Chicago, but that Williams was, and had been, actually supporting Mary Neal’s mother and the child who lived in the house with them, and that he also contributed to the upkeep of one of his sisters.

Upon the death of Williams, an investigation was launched by Armour Fertilizer Works, Inc., to learn to whom workman’^ compensation would be payable as a result of Williams’ death. The investigation-was conducted by Mr. Al. C. Terrebonne, defendant’s officer manager, and by defendant’s attorney, and during its course Jene-va Bernard called at the office of Armour Fertilizer Works, Inc., and stated that she was the lawful wife of Williams. When. questioned regarding her - separation from Williams, and as to her dependency upon him, she admitted to Mr. Terrebonne and the attorney that she was not -dependent upon Williams for support: The statement attributed to her was denied by plaintiff, but her testimony bearing upon that point is not at all impressive. .

Jeneva Bernard maintained that Williams had made the weekly or semi-weekly contributions for many years, dating back as far as the time of the separation. Records of Armour Fertilizer Works, Inc., were produced, which reflect that Williams did not earn as much as $15 per week until a few years ago, and that he had been earning $36.40, which was his weekly pay at the time of the accident, for only a relatively short period of time. It is beyond our understanding how Williams, who had several concubines since his separation from Jeneva Bernard, and who supported or contributed to the support of several persons, would have been able or willing to give from $12 to $15 each week to Jeneva Bernard out of his meager earnings. Moreover, it is' just as inconceivable that Williams, who had been separated from Jeneva Bernard for 25 years, and had refused to have anything to do with her or even speak to her, and who lived with several other women in the interim, would have been-so solicitous of her well-being that he would contribute the major portion of each week’s pay to her.

There is another circumstance appearing from the evidence, which is most damaging to plaintiffs cause. The two witnesses produced by plaintiff, while stating that they were acquainted with Williams and knew of his visits to Jeneva Bernard, and of his having given money to her, could not agree on a description of him. Orena Brumfield said he was a “kind of stout” black man of medium height, and Stella Hartwell, plaintiff’s aunt, described him as “kind of slender * * * short and had a bullet head and black and old.” The evidence unmistakably shows Victor Williams to have been a thin man about six feet tall.

In view of the separation, the law imposed upon Jeneva Bernard the burden of proving by a preponderance of evidence that she was actually dependent upon Victor Bernard for her support, which burden, in our opinion, she has not met. In his written reasons for judgment, the trial judge observed that the testimony of plaintiff’s witnesses is vague and indefinite, especially as to the amounts which plaintiff claims she received from Williams, and his conclusion was that the evidence produced by defendant was. the more probable, and he rendered judgment accordingly. We not only fail to perceive manifest error in the judgment, but our opinion is that the evidence fully justifies the conclusions reached by the lower court. In a compensation case, as in every other case, an appellate court should not disturb the findings of. the lower court as to facts, unless the judgment is manifestly erroneous,, which is not the case here.

Plaintiff’s counsel has directed our attention to several cases, in each of which a wife who was separated from- the workman at the time of the accident and death, was awarded'compensation, and he argues that they are most persuasive and should govern the'adjudication in the instant case. We have carefully examined the cited cases, and we do not think they have application here, as the facts therein differ from those prevailing in the case -under consideration, particularly as in none of the cited cases was the separation between the spouses of so long a duration as that which existed between plaintiff and Victor Williams.

The judgment appealed from is affirmed.

Affirmed.


author: JANVIER, Judge.

text:
    GENOVESE v. NEW ORLEANS PUBLIC SERVICE, Inc., et al.
    No. 19384.
    Court of Appeal of Louisiana. Orleans.
    April 10, 1950.

      Herman and Herman, New Orleans, for plaintiff and appellant.
    Alvin R. Christovich, Wm. W. Ogden, New Orleans,' for New Orleans Public Service, Inc;, defendant and appellee.
    John May, John E. Hurley, New Orleans, for Boh Bros. Const. Co., and Travelers Ins. Co., defendants and appellees.
    Deutsch, Kerrigan & Stiles and Breard Snellings, New Orleans, for .Lang Co., defendant and appellee.
    Rosen, Kammer, Wolff, Hopkins & Burke, New Orleans, for Clement Bet-pouey, Jr. & Co. and Maryland Casualty Co., defendants and appellees.
   JANVIER, Judge.

Mrs. Dorothy Adams, divorced wife of George M. Daniels,’and wife of Joseph Genovese, as tutrix of her five and one-half year old minor son, James Robert Daniels, brought this suit for' damages on her own behalf, and for the use and benefit of her said minor son, against New Orleans Public Service, Inc., Boh Brothers Construction Company, Lang Company, and Clement Betpouey, Jr. & Company, and the liability insurers of the last three named defendants. She based her claim on the allegation that her son-lost his eye as the result of being hit by a rail spike, thrown at him by. another minor, Junior Cecil Prowell, age five.

The cause of action is based on the alleged fact that the various defendants (not including the insurers) were responsible for the presence of the rail spike which constituted an “attractive nuisance,” and which, with numerous others, was left on one of the streets of New Orleans where the various defendants were engaged in removing tracks of New Orleans Public Service, Inc.

While Article, 2317 of the Civil Code is not referred to in the petition, it is contended that the said defendants are liable not only because the spikes constituted attractive nuisances but also because of the mere fact that they owned or controlled the said spikes, it being argued that because of this, liability results - since that article provides that: “We are responsible, not only for the damages occasioned by our own act, but for that which is caused by the act of persons for whom we are.answerable, or of the things which we have in our custody. * * * ”.

It is charged that New Orleans Public Service, Inc. was making preparation for the substitution of busses to take the place of rail street cars on Jackson Avenue, and that it had entered into a contract with the firm of Boh Brothers Construction Company to remove the tracks- and cross-ties, and that this defendant and the other contractors named were engaged in various phases of this work, including the re-surfacing of Jackson Avenue, the putting in of drainage, etc.

It is especially alleged that large quantities of rail ;spikes were removed from the cross-ties, and that those spikes were not taken' from the street and that some of them were being used by some of the contractors-as stakes outlining the work which was being done on Jackson Avenue and on Rousseau Street which crosses Jackson Avenue.-. It is not alleged in detail just what particular part of 'this work each of the defendants was engaged in performing.

The negligence charged against the defendants is that they permitted these spikes to remain on the street where they might be played with by the young children of the neighborhood, in spite of the fact that to the knowledge of the various defendants, the spikes were inherently dangerousi, and in spite of the fact that the defendants had been warned that the children were making use of them as toys, improvising javelins and spears which they threw at one another, and that they used them as hammers. It is alleged that the children were not of sufficient age to realize 'the danger of making such use of these spikes, and that on various occasions these dangerous practices were called to the attention of the agents or employees of the several contracting defendants.

It is especially charged that one of the children of the neighborhood, young Pro-well, with one of these spikes struck petitioner’s son in the right eye, so badly damaging it that it -became necessary that it be removed.

All of the defendants filed exceptions of no right of action and no cause of action based on two grounds, — (1) that there was no actionable negligence in leaving such spikes on the streets, for the reason that such spikes are not within the category of things inherently dangerous which inay be called attractive nuisances, and (2) that the accident to plaintiff’s son was not the proximate result of the fact that the spikes were left on the street, but was the direct result of an unforeseen and unforeseeable intervening act of a third person.

These exceptions were sustained and the suit was dismissed. Plaintiff has appealed.

We repeat that the contention of plaintiff is that the petition states a cause of action for eithe.r or both of two reasons— (1) that, under the circumstances recited, the spikes constituted attractive nuisances, and (2) that in any event there is liability because of the effect of Article 2317 which, counsel for plaintiff contend, creates liability for damage caused by “the things which we have in our custody.” The point sought to be made in this second contention is that the mere fact of ownership or control of an object, which causes damage, fixes liability for anything which may be caused by the use of the said object and this, regardless of whether the said object is inherently dangerous.

We find no force whatever in this second contention and shall eliminate it from further consideration by merely stating that obviously there can be no liability which results from mere ownership of a perfectly harmless object unless, for some peculiar reason of which the person who own-s it or controls it should have knowledge, there is liability ' because of some peculiarly dangerous characteristic which is not understood by the person who may come into contact with it. As a matter of fact it is our thought that the doctrine of attractive nuisance-is itself based on such a premise 'as that which is found in Article 2317, and surely there is no liability under the attractive nuisance doctrine when the object owned or controlled has not in it some quality which may make it dangerous if used in a particular way by some one who may not be familiar with it, or may not have sufficient intelligence to under stand the probable danger which may result if it is so used.

We conclude then that unless the doctrine of attractive nuisance is applicable to the facts alleged in the petition, there can be no liability in any or all of the defendants merely because of the allegation that any or all of them owned or ha.d custody of the spikes.

Counsel for the various defendants argue that in Louisiana and in most, if not all ¡other jurisdictions, it has been held almost universally that the attractive nuisance doctrine has' no application unless the object, which is pointed to as the 'attractive nuisance, has a latent characteristic which- con'stitutes a 'hidden or not appreciated danger. They contend that the doctrine is only applied in such cases as that of an engine or a machine which may be set in motion by a child, a dynamite cap, gun powder, a turn table, poisons of various kinds, etc. They say that such objects as hammers, nails, spikes, baseball bats, pebbles and rocks have no hidden dangers and that no objects such as these can be characterized as attractive nuisances. Counsel seek to illustrate the distinction between those two groups of objects, one of which is represented by the hammer, the other by the dynamite . cap. They say that if a child picks up a hammer and, with it, strikes another, there is no liability under the attractive nuisance doctrine, but if the child, uses the hammer to strike a dynamite cap and, as a result of the resulting explosion, some one is injured, there may be liability under the doctrine, not because of'the use.of the hammer, which is not inherently dangerous and has no characteristics of an attractive nuisance, but because by the use of-the hammer the dynamite cap was exploded, which dynamite cap obviously has hidden dangerous characterisr tics concerning which, a young child certainly would have no knowledge.

Counsel for plaintiff counter with the contention that even if this may be ordinarily a sound argument, nevertheless there are other situations in which, by the doctrine of attractive nuisance, there may be created liability. They say that, if a perfectly harmless object is customarily used in a way which is dangerous to children and this use is, or ought to he known, there is liability in one who permits such objects to remain where children may obtain possession of them.

Counsel for defendant point to various text-writers and various cases as supporting the view that there can be no liability unless the object from which the danger results has inherently dangerous characteristics. They cite American Jurisprudence, Volume 38, Verbo Negligence, section 149, page 815 :

“The character of the instrumentality by which the injury complained of was received is of great importance in determining liability under the attractive nuisance doctrine. :--
* -* * * * *
“ * * * The fact that a thing is attractive to children is not of itself a ground for invoking the attractive nuisance doctrine. Clearly, not everything which may possibly excite the curiosity " of a child amounts to an attractive nuisance. If everything containing'some element'of danger to a boy, of which a plaything possibly can be made by' him, amounts to an attractive nuisance, there, is almost no limit to the application of the doctrine. * * ' * The tendency of the courts is to' exclude from the application of the attractive nuisance doctrine things not in their nature dangerous or peculiarly alluring or attractive to children, natural conditions, common or ordinary objects such as walls, fences, and gates, simple tools and appliances, and conditions arising from the ordinary conduct of a business.”

Counsel call attention to McKenna v. City of Shreveport, 16 La.App. 234, 133 So. 524, 526, in which the Court of Appeal, Second Circuit, held that ordinarily a pond is not to he classified as an attractive nuisance. There the Court said: -

" * * * The doctrine , does not apply to objects attractive and dangerous to children unless the danger be unknown, concealed, or hidden.
“■* * * assuming .the' pond to be an ordinary one, we must further assume that the element of danger that did exist was not latent or unknown, but, on- the contrary, was obvious * * *. The average child of the age of ten years, under the weight of authority, is chargeable with knowledge of the danger of drowning/’

We are not certain ourselves whether a pond is or is not ordinarily to be considered ■in the category' of “attractive nuisance”, but our interpretation of expressions of our Supreme Court, to be found in Saxton v. Plum Orchards, Inc., 215 La. 378, 40 So.2d 791, 795, leads us to the belief that a pond is not to be considered as an attractive nuisance unless there is about it some characteristic, in addition to the mere presence of water, which renders it unusually attractive and inherently dangerous. In that case the Supreme Court held a pond to be an attractive nuisance, but said that there were unusual characteristics .about the particular pond, which was there involved, which made it most attractive and at the same time inherently dangerous. The Court quoted, apparently with approval, the following language from American Law Reports, Volume 36, page 224: “The weight of authority is to the effect that the attractive-nuisance doctrine does not apply to ponds, — at least, where there is no unusual danger.”

The Court then went on to show that there were unusual dangers in the pond then under consideration, saying: \ * * The instant pool, undoubtedly, was unusually attractive and alluring to children in view of its contents and location. In it was a large quantity of debris, consisting of small timbers, sticks and short' pieces ■ of boards, — of the kind with which children enjoy playing, using them as boats. Additionally, it contained crayfish, minnows and frogs, — -marine life that invariably attracts childish interest. * *' *"

As supporting the contention that the object must have a hidden or not understood danger in order that the doctrine of attractive nuisance should apply, counsel for defendant cite various other cases: Tomlinson v. Vicksburg, S. & P. R. Co., 143 La. 641, 79 So. 174; Latta v. Brooks, 293 Ky. 346, 169 S.W.2d 7; Peters v. Town of Ruston, La.App., 167 So., 491; Southern Cotton Oil Co., v. Anderson, 80 Fla. 441, 86 So. 629, 16 A.L.R. 255; 20 R.C.L. 93; Capps v. Carpenter, 129 Kan. 462, 283 P. 655; Davidson v. Sprague, 305 Ill.App. 157, 26 N.E.2d 736; Browne v. Rosenfield’s, Inc., La.App., 42 So.2d 885; Emery v. Thompson, 347 Mo. 494, 148 S.W.2d 479; Martin v. Latex Construction Co., D.C., 50 F.Supp. 424; Brinkley Car Works & Mfg. Co. v. Cooper, 70 Ark. 331, 67 S.W. 752, 57 L.R.A. 724.

In the Tomlinson case children were playing on a pile of cross-ties.' One of the ties became dislodged. One of the children was hurt. The Court held that such: a pile of cross-ties did not constitute an attractive nuisance.

In the case of Latta v. Brooks, supra, the Supreme Court of Kentucky held that ordinary unslaclced lime does not constitute an attractive nuisance, saying: “ * * * It i-s practically harmless in its unslacked form, * * *. We think that we would be going far afield should we place ordinary, unslaclced lime in the same category with turntables, engines, gunpowder, dynamite caps and gasoline tanks.” [293 Ky. 346, 169 S.W.2d 9]

In Peters v. Town of Ruston, supra, the Court of Appeal for the Second Circuit said: “There are innumerable things and conditions ordinarily in existence which are both attractive and dangerous, and to hold that all of them constitute implied invitations for children to use and enjoy' would be contrary to reason, and would require of property -owner-s such vigilance and care as would depreciate the value of property and seriously handicap business. Accordingly, it is generally held that for the rule to be -applicable, the condition or agency must be of an unusual nature and character so as to render -it peculiarly attractive * * * to children.” [167 So. 492]

In 20 R.C.L. 93, supra, appears the following: “Simple tools and appliances, as has been noted, embody no perils that are not obvious even to the mind of a young child, and consequently no recovery will be allowed as a rule for injuries sustained therefrom.”

In Capps v. Carpenter, supra, the Court said:

“A boy’s sword of lath can injure an eye, and innumerable toys, -and house and garden and farm articles, utensils, and implements are capable of inflicting 'serious bodily injury. That does not make them dangerous instrumentalities. * * * and to - call á chattel, not in its nature normally destructive and reasonably certain to imperil life or limb, a dangerous instrumentality because it may be misused, confuses the issue in- negligence cases.
“ * * * When probability of harm -depends on the immaturity, incompetence, inexperience, recklessness, or ferociousness of the person to whom a chattel is given for use, quite a different issue is presented. The person receiving the chattel is the dangerous agency.” [129 Kan. 462, 283 P. 657]

In Browne v. Rosenfield’s Inc., supra, the Court of Appeal for the First Circuit said: “The trial judge in 'his short written reasons for judgment disposed of the case by stating that because, in his opinion, an escalator was not per se a dangerous instrumentality, a plaintiff seeking to recover for an injury sustained while using one' must not only allege but prove actionable negligence on the part of the defendant. We agree with him when he says that an escalator is not per se a dangerous instrumentality and as that seems to be also one of the elements required in order to invoke the doctrine as i'S .pointed out in the quotation from American Jurisprudence, we agree with him that even under the allegations contained in the petition of the plaintiffs in this case, they have no cause of action.” [42 So.2d 888]

In Emery v. Thompson, supra, the Supreme Court of Missouri refused to apply the attractive nuisance doctrine to a pile of railroad cross-ties, holding that that doctrine has no application unless the object is inherently dangerous. The Court said: “ * * * 'Inherently dangerous means that danger inheres in the instrumentality or condition itself, at all times, so as to require special precautions to be taken with regard to it to prevent injury; instead of danger arising from mere casual or collateral negligence of others with respect to it under particular circumstances.’ ” [347 Mo. 494, 148 S.W.2d 480]

See Hull v. Gillioz, 344 Mo. 1227, 130 S.W.2d 623.

Counsel for plaintiff, on the other hand, cite many cases in which the doctrine was applied, for instance, Schultz v. Kinabrew, La.App., 177 So. 450; Westerfield v. Levis Bros., 43 La.Ann. 63, 71, 9 So. 52; Lynch v. Nurdin, 1 Q.B. 29; Palermo v. Orleans Ice Mfg. Co., 130 La. 833, 58 So. 589, 40 L.R.A.,N.S., 671; Southern Public Utilities Co. v. Thomas, 4 Cir., 78 F.2d 107; Hunt v. Rundle, 10 La.App. 604, 120 So. 696; Smolenski v. Cooke Asphalt Paving Co., 252 Mich. 517, 233 N.W. 400; Kelley v. Parker-Washington Co., 107 Mo.App. 490, 81 S.W. 631; Boylhart v. Di Marco & Reimann, 270 N.Y. 217, 200 N.E. 793; DeGroodt v. Skrbina, 111 Ohio St. 108, 144 N.E. 601, 38 A.L.R. 591; Sroka v. Halliday, 41 R.I. 322, 103 A. 799, L.R.A.1918E, 688; United States Natural Gas Co. v. Hicks, 134 Ky. 12, 119 S.W. 166, 23 L.R.A., N.S., 249, 135 Am.St.Rep. 407; Parnell v. Holland Furnace Co., 234 App.Div. 567, 256 N.Y.S. 323; New York Eskimo Pie Corp. v. Rataj, 3 Cir., 73 F.2d 184; Golden Saw Mill Co. v. Jourdan, 156 Miss. 813, 127 So. 287; Byrd v. Rector, 112 W.Va. 192, 163 S.E. 845, 81 A.L.R. 1213; Katz v. Helbing, 215 Cal. 449, 10 P.2d 1001; Koch v. City of Chicago, 297 Ill.App. 103, 17 N.E.2d 411; Brogan v. City of Philadelphia, 346 Pa. 208, 29 A.2d 671.

In Schultz v. Kinabrew, supra, the object which was complained of as an attractive nuisance was a can of lye which' was left unguarded so that. it might be played with by children. The Court said: “Lye is a very strong caustic and even when used by a person of age and experience must be handled with a great deal of care and caution. * * * ” [177 So. 452]

In Westerfield v. Levis, supra, there was left unguarded on the street a street roller which was pulled by mules. The children climbed on -it and started the mules. In Lynch v. Nurdin, supra, a cart was left unattended on the -street and a child climbed upon it and -started the horse. In Palermo v. Orleans Ice Mfg. Co., supra, the defendant allowed hot water and steam to' flow into the gutter where it was attractive to children who obviously could not appreciate the danger. In Southern Public Utilities Co. v. Thomas, supra, a child not quite five years old, took some gasoline, which had been left in a can on the front porch of his home by workmen, and poured it into his mother’s kitchen stove, saying that he wanted to “make mama’s fire burn better.” The Court referred to gasoline as “a volatile liquid, highly inflammable when contact with fire is established.” [78 F.2d 108.] In Hunt v. Rundle, supra, an employee of the defendant left gasoline in a can where it was easily accessible to children. In Smo-lenski v. Cooke Asphalt Paving Co., supra, the objects were small cars which had no brakes and which, when not in use, were ordinarily chained to the track. The defendant’s employees left the cars unfastened where children might play upon them. One of these cars was started by other children and a minor was- injured. In Kelley v. Parker-Washington Co., supra, the object in question was a road grader to which there was attached a pan which fell as the result of merely pushing a lever. A little girl climbed on the grader with her younger brother who pushed the lever and released the pan with resulting injuries to the little girl. In Boylhart v. Di Marco & Reimann, supra, isteel beams were piled on the street in such a way that if climbed on some of the top ones might fall. Children were playing “follow the leader”. One of them climbed on top of the pile of beams and a young child was hurt when one of them fell. In DeGroodt v. Skrbina, supra, a dump wagon, left unsecured, was set in motion by children who played with it. In Sroka v. Halliday, supra, there was involved an unexploded aerial bomb which exploded when set off by a match by a seven year old boy. In United States Natural Gas Co. v. Hicks, supra, there was a defective gate valve in a pipe line which permitted large quantities of gas to escape into a box covering the pipe line. An eight year old boy was playing marbles and one of them went into a crack in this box. Another young boy, in an attempt to find the marble, lighted some tar paper and held it in the box with a resulting explosion. In Parnell v. Holland Furnace Co., supra, the defendant left a dismantled automobile standing in an open yard and in it an exposed .gasoline tank with gasoline in it where it might be played with by children. In New York Eskimo Pie Corp. v. Rataj, supra, there was involved “dry ice” which is. solidified carbon dioxide with a temperature of 110 degrees below zero. A young, child placed some of, it in a bottle which was partially filled with water. There was an explosion, with resulting injury. In Golden Saw Mill Co. v. Jourdan, supra, the object which it was contended was an attractive nuisance was a mixture of ingredients, including coal tar, creosote and gasoline, which ■ created a gas in a drum which exploded when it was played with by children who lighted a match. In Byrd v. Rector, supra, the object was a dynamite cap. In Katz v. Helbing, supra, the contractors left caustic lime available to children who did not know, of course, of the dangers of playing with it. In Koch v. City of Chicago, supra, a mixture of caustic soda was involved.

It thus appears from a study of every case relied upon by plaintiff that.in not one of them was the object which caused the injury free of inherent danger. Attached to each there was a latent danger which could not be understood by an irresponsible minor. In every one of them there was something about the object which was dangerous to any one not familiar with its characteristics and which could not be appreciated and understood by a young child.

We find ourselves unable to attach to a railroad spike any of the characteristics which we 'have found in each of the cases cited on behalf of the plaintiff. To hold that merely leaving such harmless objects where they may be found and played with by children, a contractor or an owner of such objects would make himself liable for injuries sustained by a child is to extend the doctrine of attractive nuisance beyond reasonable limits.

Nor does the fact that certain employees were told that children were playing with these spikes alter the situation. If an object is harmless and does not constitute an attractive nuisance, we do not see that the fact that the owner, or the person 'having it in his custody, is told that children are playing with it makes it inherently dangerous, if it did not already possess dangerous characteristics not readily understood. Children are wont to play with sticks -and stones and to play games with them. Suppose a contractor is building a house and children make javelins out of scrap lumber and injure one another (Capps v. Carpenter, supra) surely there would be no liability under the attractive nuisance doctrine. The mere fact that children were tying these spikes to the ends of sticks did not give them a dangerous characteristic which could not be understood by children.

The Supreme Court, in Saxton v. Plum Orchards, Inc., supra, quoted from page 1263, Volume 152 of the American Law Reports, certain tests to be applied in determining whether the 1 attractive nuisance doctrine is applicable to any particular situation. It was said that in order to make out a case under that doctrine the following must appear:

“1. That the injured child was too young to understand and avoid the danger.
“2. That there was reason to anticipate the presence of such children, either because of some attraction on the premises, or because the danger was in some place where children had a right to be.
“3. That there was a strong likelihood of accident.
“4. That the'danger was one other than those ordinarily encountered.
“5. That the precautions not taken were such as a reasonably prudent person would have taken under the circumstances.” [215 La. 378, 40 So.2d 795]

So far as- test No. 1 is concerned, we do not see that the children involved here were too young to understand and avoid the danger of hitting each other with spikes, since-there was nothing about the spikes which even the youngest child. could not understand. There was no mechanical contrivance which might be set in motion. The spikes were merely inert objects no more calculated to cause damage than any other pieces of metal or stones or tools which, might have -been scattered about.

The .second requirement wa-s met in that there was reason to anticipate the presence of children.

We do not think that the third requirement was met for the reason which we have already said; we do not see that there was any strong likelihood of an accident. Nor was the fourth requirement -met since the danger was not one other than those ordinarily encountered. There was nothing particularly dangerous about the presence of railroad spikes. Nor was the fifth requirement met since we do not see that any reasonably prudent person would have done any more than was done by those who were in charge of the railroad spikes.

Our conclusion is -that the attractive nuisance, doctrine has no application to the facts -alleged in the petition and accordingly that the defendants would not be liable even if all of the allegations of the petition were shown to be true.

Believing then, as we do, that there was no actionable negligence in any of the contractor-defendants in permitting the spikes to remain on the streets, it becomes unnecessary that we consider the other very interesting question of whether the proximate Cause of the unfortunate accident was the presence of the spikes. Nor need we consider the very interesting special defense of New Orleans Public Service Inc.,, which is based on the. allegations of the petition that that corporation was not itself engaged in doing the work and had let the contract to an independent contractor. Nor need we consider the other special defense ' of the Lang.Corporation of the Betpouey corporation that, from the allegations of the petition, it is a necesary conclusion- that neither of those defendants had.anything to do with the removal of the rails,-or the.leaving of the spikes upon the streets.

For the reasons assigned, the judgment appealed from is "affirmed at the cost of appellant..

Affirmed.