author: LE BLANC, Justice. FOURNET, Chief Justice

text:
    217 La. 425
    BRANTLEY v. CLARKSON et al.
    No. 39312.
    Supreme Court of Louisiana.
    April 24, 1950.

      Warren Hunt and John C. Morris, Jr., Rayville, for plaintiff and applicant.
    Cotton & Bolton, Rayville, for defendants.
   LE BLANC, Justice.

This -is a suit for personal injuries and for damage to his automobile brought by John N. Brantley against Mary L. Clarkson and William Clarkson, her husband, arising out of an automobile accident which occurred at about six o’clock in the afternoon of July 25, 1947, .on Highway 80, near Dunn in the Parish of Richland. The demand is for the sum of $1250.00 of which $250.00 is for personal injuries alleged to have been sustained by plaintiff and $1000.-00 for the alleged total demolition of his automobile.

The suit is predicated on the negligence of Mrs. Mary L. Clarkson, who was driving an automobile said to belong to her husband, in failing to give any signal of her intention to make a left-hand turn from the highway and into a narrow driveway constituting a private entrance to the home of her husband’s parents, and in suddenly making such turn directly in the path of his automobile, thus forcing him to make manuever-s in his effort to avoid running into her car, which resulted in his car turning over on the paved portion of the highway . and causing:. the damage complained of.

Plaintiff alleged in his petition that Mrs. Clarkson was driving the automobile with her husband’s knowledge and consent and with his permission and authority, that she was driving it on business for the community which exists between them; therefore he is liable, in solido, for the damages caused by her • negligence which is a liability of the .community.

After certain exceptions had been disposed of, the defendants filed a joint answer in which the negligence charged against Mrs. Clarkson was denied; and, in the alternative, the contributory negligence of plaintiff is alleged and pleaded against him as a bar to his recovery. With regard to the demand insofar as it affects the community of acquets and gains between the defendants, it is urged that there is no liability because, on the occasion on which Mrs. Clarkson was driving the automobile when the accident occurred, she was concerned with her own social affairs and activities, as she was returning home from a social visit to a neighbor where she had gone without the knowledge and consent of her husband; all of which was in no-wise connected with, nor on behalf of, or for the benefit of the said community.

The trial in the district court resulted in a judgment in' favor of the plaintiff and against both defendants, in solido, in the ■sum of $925.00 with interest and costs. On appeal by defendants to the Court of Appeal, Second Circuit, the judgment was affirmed as to the defendant, Mrs. Mary L. Clarkson, but reversed as to the other defendant, William Clarkson, her husband. Brantley v. Clarkson, La.App., 39 So.2d 617. Application for a writ oif certiorari was made to this Court; the writ was granted and the case is now before us in order that we may review the judgment of the Court of Appeal.

We need not dwell on the issue of negligence on the part of Mrs. Clarkson and her consequent liability for the damages awarded to the plaintiff, as that question was fully discussed and considered in the opinion of the Court of Appeal and we are not disposed to disturb its finding on this question of - fact. Therefore, we will limit our review to the issue concerning the liability of William Clarkson, the husband, as head and master of the community existing between 'himself and his wife, for the tort committed by her while using the automobile belonging to the community with his consent as ■ is now conceded. This necessarily leads to a reconsideration of the case of Adams v. Golson, 187 La. 363, 174 So. 876, 879, on the authority of which the Court of Appeal held that the husband was not liable under the facts of this case because it concluded that on the occasion of this accident, Mrs. Clarkson, while driving the car, was engaged on an errand which had for its purpose something that was for her own personal use, pleasure and enjoyment and had nothing to do with the community.

The law under which the husband may be held liable, generally speaking, in cases of this kind, is well expressed in the case of Adams v. Golson, supra, but our further consideration of the question has led us to the conclusion that its application to the facts in the case was too restricted.

As is pointed out the liability of the husband results from a line o'f jurisprudence in this State which holds that where a wife uses an automobile which belongs to the community, with the express or implied consent of the husband, on an errand or mission with which the community is concerned, she is acting as an agent of the community and if she commits a tort, the husband is liable since he is the head and master of the community. The agency of the wife is developed from the articles of our Civil Code relating to mandates, these being articles 2985 and 2986 on which proposition the court stated: “It is our opinion, therefore, that in order to hold the husband liable as head and master of the community for torts committed by his wife within the meaning and contemplation of the provisions of article 2986 af the Revised Civil Code, it would have to be shown affirmatively that she was expressly or impliedly authorized to and was, at the time of the commission of. the act, actually attending to .the affairs or business of the community.”

. ■ It appeared that the wife, in that case, was .using the automobile on the occasion of the accident with the intention of going to and attending a meeting of a 'fraternal organization of which she was an officer. She intended to stop at a restaurant for her evening meal before going to the meeting and it was while on her way to the restaurant that the accident happened. It was held that the primary object in using the automobile that evening was to go to this fraternal organization meeting which was for her own pleasure and benefit and was in no way associated with the community existing between herself and her husband. The decision leaves no doubt that the court did not consider the pleasures and enjoyment of the wife as anything having to do with the community of acquets and gains and that the husband would not be liable as head and master of the community for a tort committed by the wife while engaged on a mission having such things for its purpose.

In the case presently under review the facts as found by the Court of Appeal show that Mrs. Clarkson had left her home that afternoon and had gone to the home of a friend and neighbor for the purpose of borrowing a circular knitting needle which she intended to use in knitting a sweater for herself. The neighbor she intended visiting was not at home, and it was on her return to her home, while still on the highway, that the accident occurred. It was under such facts that the court found that Mrs. Clark-son was not engaged on an errand having anything to do with the community, but that the errand was one for her own personal use and pleasure. That is why, following the ruling laid down in Adams v. Golson, it rejected plaintiff’s demand against the husband. The court painstakingly reviewed the jurisprudence of the Courts of Appeal in this State on the subject wherein it is shown that in some cases, some of the •courts held the husband liable where, apparently; the car was being used by the wife for her own recreation and pleasure, and rather significantly expressed its own opinion by stating: “Were- this .question res nova before this court on the facts presented it would be our inclination to hold the husband liable, and such a conclusion would be based upon the premise that the legitimate, pursuits of a wife, whether for wholesale recreation and pleasure or for other purposes consonant with the intangible and imponderable obligations of the marital relationship should be considered as within the scope of community activities.” [39 So.2d 617, 620]

We are impressed with the soundness oif this reasoning although it is in conflict with the ruling in Adams v. Golson, as is readily conceded by the Court of Appeal. We find the same reasoning advanced in the opinions and decisions of other cases of the Courts of Appeal, some of which are cited in Adams v. Golson, and have now concluded to adopt it even though it produces a change in the ruling as laid down in that case.

We are unable to make the distinction between the purpose of the mission of the wife as was made in Adams v. Golson as long as she is using the automobile belonging to the community with the express or implied consent of the husband. The wife is entitled to her own recreation, enjoyment and pleasures as well as the husband and the community owes her those things in the same manner as it owes her the food or the clothes she requires. If the husband, in using a car belonging to the community, commits a tort while on an errand in which he is to indulge in his own pleasures and recreation and thereby becomes liable, there is no reason which suggests itself why the same community, out of which the liability may have to be paid, should not likewise be liable for a tort committed by the wife under the same circumstances.

For the reasons assigned, the judgment of the Court of Appeal in favor of plaintiff is affirmed as to the defendant, Mary L. Clarkson, and reversed and set aside as to the defendant, William Clarkson, and the judgment of the trial court is reinstated as the final judgment of this court. Costs of this appeal to be paid by defendants.

FOURNET, C. J., dissents.

MOISE, J., concurs in part and dissents in part.

FOURNET, Chief Justice

(dissenting).

I have no quarrel with the author of the majority opinion in his feeling that a wife is as entitled to her personal recreations and enjoyments as to her food and clothes, 'but in permitting this sentiment to control the decision in this case he overlooks the basic law of this state and the jurisprudence thereunder which is to the effect that a wife cannot bind the community and hold the husband as head and master thereof for even the necessaries of life unless the husband has failed or refused to supply them for her. It is admitted in the majority opinion that our law in this respect was correctly stated in the opinion of this court in Adams v. Golson, 187 La. 363, 174 So. 876.

In that case we pointed - out that there can be no liability in this ■ state for damages sounding in tort except in those instances that are specifically provided for in the Revised Civil Code and in our statutes and that -since a wife under our system of marital relations is without authority to contract a debt that will bind the community, even though that debt be for the necessities of life, except under the conditions just mentioned, a husband could never be -held liable as head and master of the community for the tortious acts of his wife unless it was affirmatively shown that at the time these acts were committed she was, with the express or implied consent of her husband, attending to the business or affairs of the community. Since the facts of that -case clearly established that the wife became involved in the accident while on a pleasure trip to Baton Rouge to attend a style show and fraternal meeting, the court concluded the community was not liable.

The Adams case, written some 13 years ago, was decided by a unanimous court in accordance with the law and jurisprudence with respect to the wife’s right to bind the community for debts contracted in the furtherance of her personal pleasure as its then component members understood it. It therefore seems to me that any change in this law lies within the exclusive province of the legislature. However, even though the majority of the court has concluded to undertake the province of enlarging the husband’s liability for the debts and torts of 'his wife without legislative action, I believe the court has erred in concurring with the .conclusion of the Court of Appeal for the Second Circuit with respect to the proximate cause of the accident and the law applicable thereto.

My appreciation of the facts of this case, after a careful study and analysis of the record, leads to the inescapable conclusion that the plaintiff’s own negligent and careless operation of his car was the sole and proximate cause of tile accident. However, giving his version of the accident, and his evidence introduced in support thereof, its most favorable interpretation there can be no doubt that ‘he was guilty of contributory negligence, and, consequently, is barred from any recovery.

I find the undisputed facts disclosed by the record to be that the accident occurred 'on Highway No. 80 about 5:45 p. m. on July 25, 1947, not far from Dunn, Louisiana, and at a point where the lane leading into the Clarkson home from tire highway intersected it. The Clarkson car, the Brant-ley car, and the car of Purvis (one of plaintiff’s most important witnesses) were all proceeding on the south lane of this highway in an easterly direction, and in that order. Mrs. Clarkson had negotiated a safe left turn across the north lane and had entered the roadway leading to her home when she observed that one of the two cars that had been following her swerved to the right, then to the left, and came to rest some distance away in an overturned position, with the . result that it was seriously damaged.

In order to properly appraise and give correct credence to the weight of the testimony in this case the allegations of the .plaintiff’s pleadings and of the defendants’ answer must be set.out rather fully before an analysis of the evidence introduced by both parties in support thereof is approached.

In his petition the plaintiff alleges that just immediately prior to the accident, arid while he was driving carefully at a moderate rate of speed on his side of the highway, he observed the 'Clarkson car ahead and gave timely notice of his intention to pass it by sounding his horn; that he then proceeded to- cross the black line to the north half of the highway, again giving notice of his intention to pass by sounding his horn, but that Mrs. Clarkson, without any warning of such intention, suddenly attempted to make a left turn and becoming excited, stopped the car, thus blocking the highway immediately in front of him. He further alleges that he thereupon applied his brakes to avoid striking Mrs. Clark-son and, in turning his car to the right, ran completely off the pavement to the south shoulder oif the highway; that finding he was then headed for a 'deep ditch in which there was a post 'he was forced to make a sharp turn back to the left; “that the sudden application of his brakes, the sharp turn to the right to avoid striking the Clarkson car, then the sharp turn to the left to regain the pavement caused petitioner’s car to swerve and turn perpendicular to the Highway with the right side facing east; that the car made a complete roll in the middle of the pavement, starting on the right side, making a complete turn and ending on its right side.” (Italics mine.) ■

While denying that the plaintiff sounded his horn or gave any other signal of his intention to pass, Mrs. Clarkson’s version of the accident, according to the allegations in ■her answer, is that she negotiated a left turn with complete safety and was in the lane leading to her home when she heard the skidding of the car and its' overturn. Her allegations are that she was traveling along the south side of the highway in a slow and prudent manner and that just before she made the turn into 'her lane she saw by looking in her rear view mirror, that two cars were approaching from the rear but that they were in excess-of 300 feet behind her; that she gave a -signal that she was turning left by extending her left hand and arm out of .the automobile and drove to the left across the north side of the highway without stopping or driving in -front of the plaintiff’s car; that it was after she had driven up this lane a short distance that she heard the grinding, of the brakes and the noise of the automobile skidding and turning over, at which time she looked hack and saw "the plaintiff’s automobile engaged in a series of reckless, dangerous and highly complicated man-oeuvres across and upon the paved highway, first from one side of the road and then to the other,” coming to rest finally on the highway completely turned over.

To sustain his version of the accident the plaintiff in his own testimony stated that, returning home from his job as an oil field worker, he was traveling along the highway at a rate of 55 miles an hour; that when he was about 300 feet to the rear of the Clarkson car he sounded his horn to indicate his intention to pass and again sounded the horn when he was approximately 150 feet to the rear; that h? then proceeded to cross the black line and when he was about half over this line and some 25 or 30 feet to the rear of the Clark-son automobile he sounded his horn a third time “to be sure she heard” him. He says that after he had crossed the black line and was preparing to pass the Clarkson car Mrs. Clarkson made a short turn, without giving any signal, and stopped her car across his path in the road. At this time he was so close to her he “could see that she was over the black line on the 'left of the road.” Therefore, in order to avoid striking her car he “hit” his brakes (explaining by this he meant he just touched them with his foot “otherwise I would have skidded and slipped into her”), pulled sharply to the right, swerving again to the left when he observed he was headed for a deep ditch and post, and turned over on the highway some 50 or 75 feet from the point where he passed the. Clarkson car. He says Mrs. Clarkson came over to see if she could render any assistance, at which time, in the presence of Purvis she said she was returning from “getting her laundry.”

In an effort to corroborate his version of the accident Brantley offered the testimony of his fellow-worker, Pete Purvis, who was his principal witness. Purvis states he was following • some 250 yards (not 250 feet as the Court of Appeal states in its opinion) behind Brantley’s car and, traveling at approximately 60 miles an hour, was overtaking him. He observed Brantley pull to the left to pass the Clark-son car and saw the Clarkson car turn to> the left and stop “approximately middle, ways of the black line.” He says Brant-ley then some 6 to 8 feet to the rear of the Clarkson car, turned quickly to the right, swerved again to the left, and skidded and. turned over on the opposite side of the highway. He viewed the premises which showed the Brantley car had gone some 20 or 30 inches onto the shoulder of the road at a spot just exactly opposite the driveway to the Clarkson home, as evidenced by skid marks made there. (In this respect he is corroborated iby the state highway policeman who viewed the scene and -interrogated the witnesses soon after the accident.) He corroborates Brantley’s testimony with respect to what Mrs. Clarkson told them had been the nature of h'er missions, i. e., that she had been to get her laundry. However, he failed to support the plaintiff’s testimony on a most important point, that is, that Brantley signaled his intention to pass the Clarkson car by sounding his horn on three different occasions. His 'testimony in this respect corroborates that of Mrs. Clarkson, who said she had heard no horn blown.

Mrs. Clarkson testified substantially as ■set out in her answer, both when she was called to the witness-stand on cross-examination under the rule and when she was a witness in her own behalf. She states she had been to the home of a friend to borrow some knitting needles and, finding no' -one at home, was returning to her house; that she was traveling about 20 miles an hour and when about 15 feet from the entrance to the roadway leading to her home reduced her speed to 10 miles, looked in 'her rear mirror and seeing two cars approaching from that direction, the first about 300 feet behind, gave, a signal that she intended to turn to the left; that she successfully negotiated the 'turn without stopping, as stated by Brantley and Purvis; that upon 'hearing the noise of the brakes and the overturning of the car she stopped her car in the lane leading to her 'home and returned to the scene of the accident, the car then lying overturned some ISO or 200 feet if rom h'er driveway.

The Court of Appeal in analyzing this testimony failed to take into consideration the well-recognized rule of law that “where-ever witnesses differ, the court should reconcile the apparent contradictions their testimony presents, if possible, and, if such cannot be done, then consider probabilities or improbabilities of their respective statements, in the light of their capacity, opportunity, or incentive for observation, amount of corroboration, if any, and degree of proof required.” Cockrell v. Penrod Drilling Co., 214 La. 951, 39 So.2d 429.

Clearly from the foregoing it will be seen that the plaintiff is not corroborated by his witness Purvis in many of the material aspects of the case. Purvis not only testified he did not hear any of the three signals the plaintiff said he gave of his intention to pass Mrs. Clarkson by the sounding of his horn, but he also fails to corroborate the plaintiff's testimony that Mrs. Clarkson made a sudden turn without giving any signal for while he did testify on direct examination that Mrs. Clarkson h'ad not given a signal of her intention to turn to the left, on cross-examination, when asked whether he could definitely state Mrs. Clarkson had not held out her hand to signal her intention to turn left, he replied: “There is a possibility she could have held out her hand but I did not see any hand signal.” He corroborates Mrs. Clarkson’s statement with respect to the skid marks on the shoulder of the highway just exactly opposite the Clarkson driveway, and, as a necessary corollary, her version of the accident, as will be hereinafter demonstrated.

In addition to these weaknesses in the plaintiff’s case, it is to be observed that the Court of Appeal did not believe tíre plaintiff’s story, in which he was corroborated by Purvis, that Mrs. Clarkson told him she was returning from getting her laundry. Furthermore, aside from these instances 'in which the plaintiff’s testimony is 'impeached or contradicted, I find that there is no corroboration for his statement that his car, when it overturned, was only 50 or 75 ifeet from the Clarkson driveway. Mrs. Clarkson’s statement, on the other hand, that the car was some 150 or 200 feet from her driveway, is overwhelmingly established by the testimony of other witnesses.

' It is obvious, therefore, that the preponderance of the evidence is clearly in favor of Mrs. Clarkson’s contention that the sole and proximate cause of the accident was the plaintiff’s attempt to pass the Clarkson car without giving any signal and while traveling at a rapid rate of speed.

If there could be any doubt in this respect, however, I think the physical facts in this case conclusively show the testimony of the plaintiff and of his principal witness is incredible, and, in fact, supports Mrs. Clarkson’s version of the accident. Simple mathematics will show that the Brantley car, traveling at the rate of 55 miles an hour, was covering approximately 80 feet a second and could not possibly have avoided striking the Clarkson car if, as testified, this car stopped directly in front of the plaintiff in the middle of the highway when he was only 25 or 30 feet to the rear (and still more so if he was only the 6 or 8 feet to the rear Purvis, in contradiction of Brantley, says).' On the other hand, the Clarkson car, which Mrs. Clarkson testifies she slowed, to 10 miles an hour when she was 15 feet from the driveway, was covering approximately 9 feet a second. This means that it would take her a little over 3 seconds to negotiate the turn across the south lane of the highway and the additional 18 feet across tire north lane. During this crucial time the plaintiff, admittedly traveling 55 miles an hour and therefore covering 80 feet a second, would have arrived at the approximate point from which Mrs. Clarkson began her turn. This unquestionably corroborates Mrs. 'Clarkson’s testimony and the ifact that she negotiated the turn without being struck. It is even more incredible that Brantley, at this rate of speed and in such close quarters, could have gone only 20 or 30 inches off the pavement at a spot exactly opposite the Clark-son driveway, when he swerved to the right to avoid striking Mrs. Clarkson.

From my appreciation of the evidence, the conclusion is inescapable that the plaintiff, who was traveling at a rapid rate of speed, saw the Cla-rkson car, as he testified, some several hundred feet ahead and at the time Mrs. Clarkson was preparing, as she had signaled, to make a left turn.' Because of the distance between them, he believed the turn would be negotiated successfully 'before he reached the crucial point but, suddenly realizing the Clarkson car would not quite clear his path, he found' it necessary to make a quick swerve to the right that carried him off the pavement some 20 or 30 inches. It was in his effort to get back on the pavement at the 55-mile-an-hour pace he was traveling, and which he admittedly did not appreciably reduce, that he lost control of the car and overturned.

For these reasons I respectfully dissent.


source: Caselaw Access Project

author: MOISE, Justice.

license: Public Domain

text:
    217 La. 444

    McCARTY et al. v. TRICHEL et al.
    No. 39072.
    Supreme Court of Louisiana.
    April 24, 1950.
    Blanchard, Goldstein, Walker & O’Quin, Shreveport, for plaintiffs and appellants.
    Lunn & Trichel, Shreveport, for defendants and appellees.
   MOISE, Justice.

Plaintiffs take this appeal from a judgment dismissing proceedings instituted by them to have annulled and set aside a nun-cupative will by public act executed by Mrs. Louise Cook Hardwick on November 26, 1946, and all proceedings taken in her succession, on the ground that “At the time of the execution of the will * * * Louise Cook Hardwick was not of sound mind and mentally incapable of executing a will.” (Art. 3, plaintiffs’ petition.) They pray that an olographic will made by the testatrix on July 18, 1946, in which they were the named legatees, be declared the last will and testament of the testatrix.

Defendants filed an answer denying plaintiffs’ allegations. They contend that the testatrix was fully capable of comprehending the condition and extent of her property, and that she was fully aware of the meaning of her testamentary acts; and was conscious of the effects thereof at the time said will was executed.

The case went to trial on the merits and the district court rejected the plaintiffs’ demands and dismissed their suit. They have appealed.

The sole question presented for our determination is one of fact — whether or not the testatrix was sane at the time the will of November 26, 1946 was executed.

It is our settled jurisprudence that “Testamentary capacity is presumed, and the person attacking the will has the burden of alleging and proving lack of such capacity when the will was executed.” Succession of Stafford, 191 La. 855, at page 861, 186 So. 360, 361; Landry v. Landry, 196 La. 490, 199 So. 401; Succession of Lambert, 185 La. 416, 169 So. 453; Succession of Edgar, 184 La. 775, 167 So. 438.

In our study of this case, the following factual recital is helpful:

Mrs. Hardwick died on March 3, 1947. She had no children nor descendants or ascendants whatsoever, her only relatives being distant collaterals and a husband, against whom a suit for separation from bed and board was pending at the time of her death. Her succession was opened and her last will of November 26, 1946 was filed and ordered executed. Louisa Gregory, one of the defendants herein and a principal legatee, was named and duly qualified as executrix. Some two months later, this suit was filed by two of the legatees named in a prior will of July 18, 1946, one of whom is also named as a legatee in the will of November 26, 1946, which plaintiffs seek to have declared null. The will, of November 26, 1946, was executed before a Notary Public for the Parish' of Orleans on the eve of a major operation for a suspected brain tumor. The operation was not successful. The testatrix did not die immediately but she never recovered from its effects.

Mrs. Hardwick, the testatrix, and her husband had had a turbulent married life. They had separated on several occasions and on March 8, 1943, she obtained a judgment of separation of bed and board from him. A reconciliation in the Fall of 1943 was followed by a new separation suit in 1946. This suit was pending at the time of her death, in fact, a summons had been issued to Mrs. Hardwick while at the Touro — the case having been set for trial on November 26, the day the will was written and the day before .the operation. Mr. Hardwick was insisting on the trial of the case, in spite of Mrs. Hardwick’s predicament. Although this case had not been tried on the merits, certain phases dealing with property rights had been hotly contested. Testatrix’s husband had tried to force the sale of the home and she was able to remain there only by order of court. She obtained alimony by rule. While being deeply concerned and worried over her physical condition, this constant litigation with her husband and his opposition at her every turn caused Mrs. Hardwick great mental anguish and had no good effect on her state of mind. Over a period of about three years, she had written four known wills. The final will executed on November 26, 1946, revoked all previous testaments. This is- the will plaintiffs seek to have annulled. By this testament, the testatrix bequeathed all of her property equally to four legatees by universal title, namely, Louise McCarty and Louisa Gregory, named in the three wills previously written, Mrs. Katie Lee Bettis, named in the previous will of July 18, 1946, and in the last will, and Mrs. Byrd Morris Lantz, who cared for testatrix almost constantly during her illness and had accompanied her to' New Orleans, and was with her when she underwent surgery on November 27, 1946. The Oklahoma attorney of testatrix and her Shreveport attorney, and Louisa Gregory were named as executors.

Testatrix was admitted to the Schumpert Sanitarium in Shreveport on September 17,. 1946, at which time she had paresis of the right arm and right leg, which subsequently was shown to have been caused by a brain tumor. She was taken to New Orleans on November 14, 1946, and was first seen by Dr. Dean Echols of the Oehsner Clinic, who was head of the Department of Neuro Surgery, who diagnosed her condition as being caused by a tumor on the brain. On November 25, she was removed to the Touro Infirmary for surgery. Oh the night of the 26th, Mr. Rosen, of the firm of Rosen, Kammer, Wolff, Hopkins & Burke, attorneys, and who is a member of the Board of Trustees of the Touro Infirmary, was called for Mrs. Hardwick with a view of drawing her last will. Mr. Rosen saw Mrs. Hardwick and talked with her, and then called Mr. Felix H. Lapeyre, an attorney and notary with his firm, and had him call at the Touro and take Mrs. Hard-wick’s will, explaining to him that she was to go through brain surgery the following day. Mr. Lapeyre called at the hospital and there the will of Mrs. Hardwick was executed in nuncupative form.

The plaintiffs contend that Mrs. Hard-wick was habitually insane from October 27, 1946, and that this condition became progressively worse until her death and, therefore, she was of unsound mind at the time the will was executed.

The evidence shows that testatrix was a vivacious and impulsive person; that'she was talented and dramatic. She had taught school, lectured, written, played dramatic parts and written radio skits — and that just before her illness she had made plans to support herself by doing radio work, writing. and lecturing. She had traveled extensively and had given travel lectures.

At the trial of this case on the merits, a number of witnesses, both medical experts and lay witnesses, gave testimony regarding the mental condition of the testatrix prior to and at the time of the execution of the will of November 26, 1946. None of the doctors who testified were present at the time of the taking of the will, and, as is ’usual in such cases- as this, their testimony is conflicting. The witnesses 'for the plaintiffs, with the exception of Dr. Echols (whose testimony is 'most impressive) testified that, in their opinion, Mrs. Hardwick did not have the mental faculties to execute a valid will. The expert witnesses for 'the defendants gave every indication that Mrs. Hardwick was in full possession of her mental faculties and capable of making a will. Dr. Echols, an outstanding Neuro Surgeon, widely known in his field, testified that in his opinion the testatrix was capable of understanding the extent of her property and her delations with those persons who might-hormally expect to benefit from her beneficence. He saw testatrix many times, before and after her operation, and was present during the operation. Dr. Willis P. Butler, who has had extensive experience in the general field of medicine and has been Coroner of Caddo- Parish, La. for approximately thirty years, and has had opportunity to observe cases similar to Mrs. Hardwick’s, made a thorough study of the case history of testatrix. He testified that in his opinion,. a person afflicted as was Mrs. Hardwick, with a brain tumor, may very well have full possession of her mental faculties and is capable of understanding what she is doing and what is going on about her. The lay witnesses who saw Mrs. Hardwick at or near the -time of the execution of the will were all of the opinion that she fully understood what she .was doing.

Further, in his well-written reasons for judgment, the district judge made these important observations:

“When we study the provisions of fhe will executed by Mrs. Hardwick and compare them with previous wills, we are certainly unable to say that the provisions of the will indicate that she did not understand her relations with the persons to whom she desired to make bequest. Three of the legatees have been named in previous wills, and the fourth, Mrs. Byrd Morris Lantz, had been in constant attendance upon her and had befriended her in the darkest hours of need. The fact that she didn’t make the extent of her property entirely clear to Mr. Rosen, is not sufficient to convince us that she did not know the extent of her property. She insisted to Mr. Lapeyre that he use the phrase ‘of right, title and interest in and to my property,’ or words to that effect. Having gone through the legal skirmishes with regard to property rights that Mrs. Hardwick had been through, indicates to us that she had a full appreciation of the fact that some of her property might have been held by precarious title, and that she was disposing of only such rights as she had in and to her property.

“The testimony of the lay witnesses in the case show, at most, that Mrs. Hardwick had some eccentricities and did a lot of playing, acting, and, in many cases, dramatized occurrences beyond their true value. We must bear in mind that Mrs. Hardwick was, in fact, a sick woman and a dying person. We cannot, therefore, expect her actions to be entirely what we would expect of a person completely sound of mind and body. However, Mrs. Hardwick, in our opinion, had a fuller realization and better appreciation of the predicament that she was in than we could normally expect of a person so situated. * * * To her friends who saw her just prior to the time of the execution of the will, and to the people who saw her execute the will, she gave no appearance of lacking the capacity to understand the consequences of her acts. Had she shown signs of being mentally incapable of executing the will, we do not believe that Mr. Rosen would have summoned Mr. Lapeyre to take the will, nor would Mr. Lapeyre have taken the will had she exhibited any signs of being abnormal. * *

After analyzing all of the evidence, we believe, as did the learned district judge, that plaintiffs have failed to establish by a preponderance thereof, that testatrix was mentally incapable at the time of the execution of the will of November 26, 1946, and it is our opinion that she realized what she was doing, just what she had and what she wanted to do with it.

Under the law, in the absence of forced heirs, a testator may dispose of his property as he pleases. “ * * * The fact that a man is subject to disease of the brain is, per se, no better reason for depriving him of testamentary power than would be his having a disease of the liver.” Kingsbury v. Whitaker, 32 La.Ann. 1055, 36 Am.Rep. 278; Wood v. Salter, 118 La. 695, 43 So. 281; Succession of Heinemann, 172 La. 1057, 136 So. 51; Rostrup v. Succession of Spicer, 183 La. 1087, 165 So. 307. And, in the Kingsbury v. Whitaker case, supra, our Court had this to say: “To wrest a man’s property from the person to whom he has given it, and divert it to others from whom he has desired to withhold it, is- a most violent injustice, amounting to nothing less than post-mortem robbery, which no court should sanction unless thoroughly satisfied that the testator was legally incapable of making a will.” Godden v. Burke, 35 La.Ann. 160; Ducasse’s Heirs v. Ducasse, 120 La. 731, 45 So. 565.

Multiple cases have reached this Court involving the question of testamentary capacity and it has been in rare instances only' — where the evidence of insanity was positive and overwhelming — that the wills were annulled and voided. Our court has consistently held that medical testimony unsupported by concrete factual evidence of insanity actually affecting the execution of a will is insufficient. This is particularly true where the medical evidence is conflicting. Interdiction of Escat, 206 La. 207, 19 So.2d 96; Chandler v. Barrett, 21 La.Ann. 58, 99 Am.Dec. 701; Kingsbury v. Whitaker, 32 La.Ann. 1055, 36 Am.Rep. 278; Godden v. Burke, supra; Succession of Bey, 46 La.Ann. 773, 15 So. 297, 24 L.R. A. 577; Succession of Jacobs, 109 La. 1012, 34 So. 59.

In the instant case, we have observed that there is no evidence that this testatrix was ever insane or incompetent or that interdiction proceedings were ever applied for; and the true test in all such cases as this is whether, at the time of the making of the will, the testatrix was of sufficient mind to understand the nature of the testamentary acts and appreciate their effect. The evidence shows that Mrs. Hardwick was; and the trial judge who saw and heard the witnesses reached this same conclusion, and we find nothing in the record to convince us that he was manifestly erroneous. Therefore, his judgment will not be disturbed.

Fpr these reasons, the judgment appealed from is affirmed at plaintiffs’ costs.


author: KENNON, Judge.

text:
    BLACK v. DUNN et al.
    No. 7497.
    Court of Appeal of Louisiana. Second Circuit.
    May 31, 1950.
    Harwell L. Allen, Winnfield, for appellant.
    C. D. Moss, Winnfield, for appellees.
   KENNON, Judge.

On June 4, 1948, L. L. Dunn, engaged in the hauling and drayage business in the Town of Winnfield, Louisiana, was employed by plaintiff, H. L. Black, to move his household goods from his home in Winn Parish, Louisiana, to Atlanta, Texas. While en route, some ten miles from Shreveport, Louisiana, the truck owned by Dunn and then being driven by his employee and brother, caught fire from some cause unknown. The damage to plaintiff’s goods was estimated from $800.00 to over $2,000.00. Plaintiff, alleging that the Continental Insurance Company had issued a policy of insurance to Dunn covering his liability for damage to the goods while in transit, filed this suit against Dunn and the insurance company to recover the value of the goods damaged.

The defendant insurance company answered, admitting that Dunn was engaged in the drayage business in the Town of Winnfield, and that it had issued a policy of motor cargo insurance covering a 1941 model Ford truck which was used by Dunn as a common carrier. Defendant further admitted the destruction of plaintiff’s household goods, but averred that same were being transported in a 1945 model Ford truck which was not covered by insurance with the defendant company.

The answer further set forth that the defendant Dunn had the privilege, under the terms of the policy of insurance, of substituting another truck for the truck covered by the policy, provided he did, as soon as practicable, report such substitution in writing and pay the additional premiums due, and that on the date of the loss, no such substitution had been made and consequently the defendant company was not liable under its policy.

In the alternative, and in the event the Court should determine that a valid substitution had been made, defendant contended that Dunn had no permit as a common carrier beyond the seven mile radius of the Town of Winnfield and, therefore, no liability would exist under the policy of insurance since same contained a clause excluding loss or damage as the result of any act of illegal transportation. In the further alternative, defendant set forth that the value of the goods 'being transported at the time was three times the amount covered under the policy and that its liability, under the coinsurance clause, would be limited to one-third of the loss sustained.

No answer was filed by defendant Dunn, nor was any default taken. After trial, the District Court rejected plaintiff’s demands, finding that his household goods were being transported on a truck not covered by the policy, and denying plaintiff’s contention that a valid substitution had been made on the theory that the goods .when destroyed were being hauled on a trailer float attached to a 1945 truck and that there could be no substitution of such a combination vehicle for the stake body truck covered by the policy. Plaintiff appealed.

There is no contest over the fact that the policy issued by the Continental Insurance Company covered a 1941 model Ford truck and that plaintiff’s goods át the time of the fire were being transported on a 1945 model Ford truck (with float or trailer), which was not mentioned in the insurance policy itself. Plaintiff’s contention is that the Toss was covered by virtue of the policy provision set forth below: “Substitution — Privilege is hereby granted the Assured to substitute other truck or trucks owned and/or operated by the Assured for the truck or trucks herein described; and in consideration thereof the Assured warrants and' agrees to report to th£ Company, in writing, all cases of such substitution, as soon as practicable,- and to pay additional premium if and as required.”

The record discloses that the defendant Dunn had been in the hauling business for many years. At the time of the loss, he owned and operated three dump trucks, the 1941 model Ford stake body truck, and the 1945 model Ford truck with the trailer float. Plaintiff contends that the 1941 Ford truck (covered by the policy) was in the garage undergoing repairs on the day his household goods were damaged while being transported on Dunn’s 1945 Ford truck. Defendant’s contention is that both trucks were in operation on the day in question and that, in any event, no valid substitution was made. The defendant insurance company’s Winnfield agent testified that defendant Dunn had told her that his 1941 truck, on the day of the loss, was “on another run.” In support of his contention, plaintiff introduced testimony and shop tickets showing that the 1941 truck was in the repair shop at Winnfield on the date in question. Defendant’s agent testified that no notice of substitution of another truck under the policy had been given to her covering the trip on the day of the loss or for any other trip or day. Plaintiff himself did not introduce any testimony that the assured, Dunn, had complied with the substitution clause of the policjr by giving a report of such substitution either “as soon as practicable” or “in writing.” Such report as was belatedly given was not in writing as required by the policy. Defendant Dunn, when asked as to whether the truck involved in the fire had been “substituted” for the 1941 truck, gave the following testimony:

“A. Well, I don’t remember for sure whether I told her I substituted it then or not. I don’t know for sure.

“Q. Did you ever report it to her? A. Yes, I told her afterward.

“Q. A good while after? A. It might have been a week or so.”

Since the policy of insurance did not cover the truck upon which plaintiff’s goods were being transported at the time of the loss, the burden was upon plaintiff to establish by a preponderance of the evidence the facts that would extend the substitution coverage of the policy to Dunn’s second truck. The testimony does not show any difference in the normal use of the two trucks. As far as the record shows, both were owned by Dunn and both were used by him in the conduct of his business. Should we assume that the 1941 truck was undergoing repairs on the day in question, and the 1945 truck was used in its place, we find that the record fails to establish that the named assured had complied with the “substitution” clause in the policy, which required that in cases of substitution, a report of same be made to the company as soon as practicable and in writing.

Since we find that there had been no “substitution” of the truck being used in the transport of plaintiff’s goods for the truck covered by the policy issued by the defendant company, we find it unnecessary to pass upon the other defenses raised.

The judgment appealed from is affirmed, with costs.


author: HARDY, Judge.

text:
    GASPARD v. BAKER TANK CO. et al.
    No. 7490.
    Court of Appeal of Louisiana. Second Circuit.
    May 31, 1950.
    Philo Coco, Marksville, for appellant.
    Gist, Thornton & Murchison, Alexandria, Earl Edwards, Marksville, for appellees.
   HARDY, Judge.

This is a compensation claim in which plaintiff seeks to recover total permanent disability from defendant, Baker Tank Company, and its insurer. After trial there was judgment in favor of defendants rejecting plaintiff’s demands, from which this appeal has been taken.

Plaintiff claims to have sustained an epi-gastric hernia, sometimes called a ventral hernia, while working as a laborer in the employ of the defendant, Baker Tank Company, engaged in clearing a site for oil drilling operations. Particularly plaintiff claims that he sustained the said injury while lifting a thorn tree which was described as being about 18 inches in diameter and some 75 to 100 feet in length. In answer to question of his counsel on direct examination as to how he was hurt, plaintiff made the following answer: “By taking up a thorn tree. And I was grabbing my end and had my stomach against it on the end of the tree, and when I lift it, it struck me a pain.”

Two defenses are urged. First, conceding the existence of an epigastric or ventral hernia, it is denied that the same resulted from any accidental injury while in the employ of defendant, but, on the contrary, had been of long standing over a period of years, and, second, it is denied that plaintiff was in the employ of defendant, Baker Tank Company.

In our opinion this case turns upon the question of fact as to whether plaintiff actually sustained the hernia in the manner and at the time claimed. The testimony of witnesses for the parties plaintiff and defendant is in violent conflict, but we think a brief analysis of the salient features of the testimony before us will serve to substantiate our conclusions.

The testimony of a number of medical experts was introduced but the effect of this testimony is inconclusive 'by reason of the divergencies of opinion. However, an analysis of the expert testimony preponderates in favor of a finding that plaintiff showed no evidence of trauma which should have been present if the accident occurred in the manner contended, and the fact is established, as has been true in other cases of a similar nature too numerous to mention, that the period of existence of a hernia as a general rule cannot be approximated within any reasonable period of time. In other words, medical science cannot accurately fix the time of occurrence of a hernia, by external examination, within a period of weeks, months or even years, although occasionally doctors express an opinion as to whether a hernia has been of long duration or recent occurrence.

In view of the uncertainty of the medical testimony, it is necessary to turn to the testimony of lay witnesses. Plaintiff tendered in support of his own testimony that of his father, with whom he was working on the clearing job at the time of the alleged accident. As opposed to this testimony the defendant produced as witnesses plaintiff’s former wife, her father and the husband of plaintiff’s sister, all of whom testified that the hernia of which plaintiff complains had existed for a long period of time prior to the date fixed by plaintiff as the occurrence of the accident. These three witnesses knew of the existence of the hernia not only by plaintiff’s statements to them but by actual observation, and his divorced wife testified that he had shown her the hernia immediately after their marriage some two years more or less prior to the alleged accident.

Counsel for- plaintiff strenuously urges that the testimony of these witnesses of defendant is prejudiced, motivated with enmity and tainted with utter falsity. Examination of the record does' not disclose any certainly established facts which would justify the -Court in accepting these conclusions. There is no more reason, so far as we are able to discern, to support conclusions of perjured testimony against defendant’s witnesses than there would be against plaintiff and his father, who testified in his behalf.

Under these circumstances, more than ordinary consideration must be accorded to the finding of the trial Judge before whom the witnesses appeared, who had the opportunity of evaluating their credibility. Certainly we would not be justified in concluding that the trial Court was guilty of manifest error.

Looking at the case in the most favorable light, insofar as plaintiff is concerned, it is nontheless clear to us that he has utterly failed to establish his claim by the required preponderance of the evidence.

Our findings of fact which we consider to be determinative of the issues here tendered preclude the necessity of considering the other ground of defense above noted.

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


author: HARDY, Judge.'

text:
    GUNN v. CREDIT SERVICE CORPORATION.
    No. 7434.
    Court of Appeal of Louisiana. Second Circuit
    Jan. 31, 1950.
    Rehearing Denied March 8, 1950.

      Ferdinand A. Cashio, Shreveport, for appellant.
    Irion & Switzer, Shreveport, for appel-lee.
   HARDY, Judge.'

This is a suit in which plaintiff seeks to enjoin the Sheriff of Caddo Parish from advertising and selling plaintiff’s automobile, under a writ -.of fieri facias sued out by the defendant as judgment creditor, on the ground that the said automobile is a tool or- instrument ..necessary -and essential-to plaintiff in the exercise of the trade or calling by which he makes a living for himself and his family, and, consequently, exempt from seizure. Plaintiff has prayed for the allowance of attorney’s fees. After trial -there was judgment in favor of plaintiff granting the injunction sought and releasing the automobile from seizure, but the demand for attorney’s fees was rejected. From this judgment defendant has appealed and plaintiff has answered the appeal, seeking the amendment of the judgment to the extent of the allowance of the attorney’s fees as prayed.

Defendant contends that under the facts of the instant case the automobile in question is hot a necessary tool or instrument for the 'exercise of the calling by which plaintiff makes- his living and -therefore, plaintiff is not - entitled to the exemption -provided by Article 644 of the Code of Practice.'

We think the evidence - definitely and conclusively preponderates against defend-ant’s contention. It is established that plaintiff is an independent insurance adjuster, and, in the ordinary course of the prosecution of this business- or calling, he is subject to call at any time for the purpose of making investigations of accidents both in the City of Shreveport and a considerable surrounding area in rural sections. The claim that plaintiff could use public transportation facilities for the purpose of making these investigations is clearly untenable and is not substantiated by the evidence. On the contrary, it is established that under certain conditions public transportation facilities would be impracticable and, indeed,, unavailable. The conclusion is further inescapable that in plaintiff’s business his failure to promptly respond to- calls for investigations would militate against his efficiency.

Defendant relies upon Morris-Wilson Buick Co., Inc. v. Robertson, La.App., 146 So. 339, in which case this Court held that the automobile of a traveling insurance agent was not exempt from execution. Tlie cited case is easily distinguishable' from the case at bar and, in our opinion, there is no analogy between the business', trade- or calling of an insurance agent and that of an insurance adjuster.

This Court has recently had occasion to discuss the principles here applicable in Holt v. Flournoy, La.App., 24 So.2d 171, and Strozier v. Long, et al., La.App., 40 So.2d 254, in which we attempted to- analyze and apply the general rules and principles involved in this class of cases.

In the final analysis the resolution of the question must turn upon a determination of fact, that is, whether the partieuluar instrument or tool involved is necessary to the trade or calling. Of necessity the facts of each individual case must be considered and only in such facts can be found the answer to the question presented.

As above observed, we have determined in this case, from the established facts, that the automobile under seizure is necessary to plaintiff in the prosecution of the trade or calling by which he earns a living for himself and his family. Perforce, it follows that the judgment perpetuating the injunction and ordering the vehicle released from seizure is unquestionably correct to this extent.

We now proceed to a consideration of plaintiff’s claim for attorney’s fees and are confronted with what appear to be two opposed lines of jurisprudence under the holdings of the Supreme Court.

In the case of Fallin v. J. J. Stovall & Sons, 141 La. 220, 74 So. 911, 916, the Supreme Court squarely held that a claim for attorney’s fees as. damages was not allowable, and expressed its- holding in these words: “As to the damages for attorney’s fees, such are not allowed when the plaintiff in injunction is the defendant in execution. Smith v. Bradford, 17 La. [263], 265; Flynn v. Rhodes, 12 La.Ann. 239; Neveu v. Vorrhies, 14 La.Ann. 739; Chappuis v. Preston, 28 La.Ann. 729; Townsend v. [Fontenot], Sheriff, 42 La.Ann. [890], 892, 8 So. 616; Oxford v. Colvin, 134 La. 1098, 64 So. 919.”

However, in the case of Marine Bank & Trust Co. v. Shaffer, 166 La. 164, 116 So. 838, 842, the Supreme Court appears- to have reversed its position and a claim for attorney’s fees was allowed. The court made the following statement: “As relates to the demand of -the Shaffers for attorney’s fees for being forced to employ counsel to sue out the injunction to restrain the illegal seizure of their property, the trial judge allowed them $1,250. Attorney’s- fees may be allowed the plaintiff in injunction in a proper case. Ludeling v. Garrett, 50 La.Ann. 118, 23 So. 94.”

We confess that we are unable to reconcile what appears to us to be diametrically opposed pronouncements on the part of our Supreme Court. It is therefore incumbent upon this court to choose to follow the holding which, in our opinion, best accords with the equitable considerations here presented.

Unquestionably, under our findingof fact, the seizure of plaintiff’s automobile was illegal since the vehicle must be regarded as exempt under the provisions of Article 644 of the Code of Practice. Of necessity plaintiff was required to employ counsel to restrain the sale of his property and to release the seizure. It appears to us that it would be exceedingly inequitable for the plaintiff to be penalized to the extent of employing and paying an attorney in order to- protect him against an illegal act of seizure. For this- reason we prefer to follow what we regard as the rule established by the Supreme Court in the Marine Bank case, supra, and approve plaintiff’s claim for the allowance of attorney’s fees. We think under the circumstances the sum of $100 would be a fair value for the services rendered by plaintiff’s counsel thus- far.

For., the. reasons assigned the judgment appealed from is amended to the extent of allowing plaintiff’s demands for attorney’s fees -to the extent of the sum of $100, and, as amended, the judgment appealed from is affirmed at appellant’s cost.


author: McBRIDE, Judge. REGAN,; Judge

text:
    SCIAMBRA v. EMBLEM, Inc.
    No. 10,371.
    Court of Appeal of Louisiana. Orleans.
    May 15, 1950.
    Stanley McDermott, New Orleans, for plaintiff and appellant.
    Oliver H. Dabezies and Howell Carter, Jr., New Orleans, for defendant and ap-pellee.
   McBRIDE, Judge.

On December 18, 1948, plaintiff, Jake Sciambra, purchased from, defendant, Emblem, Inc., a television receiving set for the price and sum of $1,428.48, upon which he paid cash the sum of $450.00, and for the balance-gave defendant a note for $978.48, which was- secu.red by chattel mortgage. Plaintiff brought this suit to rescind and cancel the said sale, to recover the sum of $450.00 paid on account, and to compel defendant to cancel and return to him the promissory note for $978.48.

Defendant answered, admitting the execution of the -contract, but denying that it was indebted to plaintiff in -any 'sum whatsoever. Defendant reconvened, seeking judgment on the note for $978.48, with eight per cent interest thereon from January 18, 1949, until paid, with twenty-five per cent attorney’s fees on the principal and interest, and for recognition of its vendor’s lien and privilege and chattel mortgage on the television set, and for a judicial sale thereof by the Civil Sheriff, at public auction, without appraisement, for cash, to the highest bidder, and that the avails of the sale be applied pro tanto towards payment of the judgment.

After a trial on the merits in the court below, plaintiff’s demand was dismissed, and defendant recovered a judgment in re-convention as prayed for. Plaintiff has appealed.

Plaintiff operates a restaurant and bar in the City of.New Orleans, and'defendant is a retailer of television receivers- and other appliances. During August, 1948,. the -knowledge was widely circulated¡-th,at television reception would shortly be made available to the residents of- New Orleans. At that time, few, if any retail dealers possessed samples of television receivers, and, therefore,, sets were sold from illustrated pamphlets or catalogues, and for future delivery. Defendant .was one of those engaged in the retail selling-of television receivers for future delivery, and had in its -employ, as salesman on.a part-time' basis, one John Perino, whose, principal occupation was the “tile business.” . In order that Perino might acquaint himself with television sets for which defendant was taking orders for future delivery, he was given two pamphlets, one of which contained illustrations o’f the set as it would appear if recessed in a wall, and the other illustrating the set in diagram form. Possessing this superficial information, Perino set out to sell television receivers. He contacted a friend, one Walter Clark, who was employed as a liquor salesman, and requested Clark to introduce him to his “accounts.”

On August 30, 1948, Clark brought Peri-no to Sciambra’s establishment, and Perino attempted to sell plaintiff, who was obviously interested, a television set. The substance of the sales discussion is in dispute. Sciambra, who had never seen a television receiver, agreed to purchase a set designated as an “RCA Clubman,” for the agreed price of $1,095.00, plus an installation charge of $200.00, taxes and freight $48.85, or a total amount of $1,343.85, to which was to be added finance or carrying charges. Perino testified that he had seen a television receiver only once, in Chicago-about three months prior to his negotiations with Sciambra, and that when he contacted Sciambra he had been engaged in selling sets for only about two weeks. Plaintiff made the agreed deposit of $100.00, and obligated himself to pay, when the set was delivered within sixty days, the further sum of $350.00 cash, and to execute a note for the unpaid balance. Qark, who was present during the entire discussion, corroborates in substance the testimony of plaintiff. The set • was delivere'd between December 18 and 20, 1948, and it was upon delivery of the set to plaintiff that the present controversy arose. When the set reached Sciambra, the television receiving mechanism was attached to a chassis and enclosed by a steel frame; photographs are in evidence, which reflect a naked television receiving mechanism. Plaintiff who had been laboring under the erroneous impression that a “beautiful cabinet” would arrive at a later date, with the service men to install the set, paid, the sum of $350.00 to defendant’s employee who delivered the set, and Sciambra later that day executed a note in favor of defendant for $978.48 for the unpaid balance, as well as a chattel mortgage securing the same, all as was previously agreed upon between the parties. On the following day, a representative of the Radio Corporation of America, the installation agent for defendant, called at plaintiff’s place to “check the wiring,” and observing the unenclosed television receiving mechanism, volunteered suggestions to plaintiff as to the manner in which a cabinet might be constructed to enclose the set. It was then that plaintiff realized that a misunderstanding may have occurred, and he immediately telephoned defendant’s office and advised that the cabinet had not arrived, and requested information as to when the arrival of the cabinet might be expected.

Sciambra was advised by an employee in defendants’ office that if he desired a cabinet, an additional charge of $150.00 would, be added to the original purchase price. Sciambra protested that the set which he-had agreed to purchase was enclosed in a. cabinet “like a radio or piano;” defendant’s employee informed plaintiff ’that he-was in error.

A day or so after Christmas of 1948, Sci-ambra, in company with a friend, Roy Martin, visited defendant’s business establishment and discussed the matter with Dr. Joseph LaNasa, who is the president and. principal stockholder of defendant company. Dr. LaNasa told plaintiff there were-five other people who ordered the set, and. that if he was not satisfied with it, Emblem, Inc., would send for it the next day and. return Sciambra’s money. Plaintiff agreed to this, and departed from defendant’s establishment, believing that the matter was. closed and that defendant would send for the set and refund the payments made on account of the purchase price. It seems,, however, that on the following' day defendant’s president had a change of mind! and thereafter lefused to send for the television set and return to plaintiff the payments previously made. The set is still in, its shipping crate in plaintiff’s place of' business.

It is plaintiff’s contention (1) that defendant's salesman, Perino, misrepresented!, the appearance of the set in describing it-to plaintiff as a “beautiful set,” ■ which plaintiff interpreted to mean that it would, be enclosed in a cabinet such as encloses, a piano or music box, and (2) that the sale-of the television receiver had been can— celled by mutual agreement. On the other hand, defendant maintains that its salesman did not misrepresent the set to plaintiff, and denies that the sale of the television set had been cancelled by mutual consent.

After carefully considering the record, our opinion is that there was never a meeting of the minds as between plaintiff and defendant’s representative, with respect to the sale and purchase of the television receiver. We are impressed by the fact that Perino testified that he, Clark, and Sciam-bra, were present during the entire negotiations leading up to the sale; that prior to the sale, Perino had been selling television receivers for only approximately two weeks, and had effected only one sale prior to the date on which the sale was made, to plaintiff, and on that same day he sold five other sets. Television reception was very new in the New Orleans area, and the only informátion in Perino’s possession, relative to a description of television receivers, which he could convey to prospective purchasers, was “the diagram, the book, and I was told it comes on’a frame and placed in the wall,” and that was all Perino knew about television receivers; and when he showed the diagram to plaintiff, “I showed this particular set has no cabinet, it’s put in the wall,” and that it was. a “beautiful set.”

In answer to questions propounded by the trial judge, Perino testified:

“Q. Did you leave that pamphlet which was introduced in evidence, showing the screen of the television set, — did you leave that with Mr. Sciambra? A. I didn’t leave it with Mr. Sciambra. I gave Mr. Clark some later to give. That was the only one that I had.

“Q. I’m speaking about the little book? A. That is the only' one I had and I couldn’t afford to leave it.”

Sciambra testified that Perino “put the pamphlet on the desk and he showed me the picture; it’s fifteen by twenty, with this size picture, you can see the picture from any corner of the bar, it can be well seen. * * * So I bought the set with the understanding — and they made me vision it was a beautiful set, and what they sent me was just a skeleton and doesn’t make no comparison. Like if you buy an automobile and in the catalogue you see the automobile and then they send you a chassis and motor.”

Clark’s testimony is:

“Q. Mr. Clark do you recall ever hearing Mr. Perino say that the set when delivered would be delivered on an open steel frame, with the inner works, inner parts all exposed? A. No, I didn’t.

“Q. Do you remember or rather can you give us a general outline, some idea, from Mr. Perino’s description what the set would look like? (Objection by counsel which was referred to the merits.)

“Q. You were present throughout the whole of the conversation? A. That’s right.

“Q. You heard Mr. Perino selling the set to Mr. Sciambra? A. That’s right.

“Q. Now, what kind of looking thing was it that you personally thought was being sold? A. My thoughts, by Mr. .Per-ino’s having seen, one in Chicago or New York, was that .it was beautiful and I thought it would come in some sort of a cabinet, like a music box or something to that effect

******

“Q. What was your first reaction when you saw the set in Mr. Sciambra’s store? A. When I saw it, Mr. Sciambra called me; ‘Mr. Jake, they didn’t sell you this for a television?’ He said ‘Yes.’

“Q. Now, did you hear Mr. Perino say that in addition to the above cost, 1395, that Mr. Sciambra would have another expense? A. No, I never- heard anything like that.

“Q. Did you hear him say it would cost anything other than $1095 for the machine, $200 for installation, $38.95 for tax and $10 for freight. Did -you understand that would be the total expenses or costs that Mr. Sciambra would have? A. That is what he was selling.”

It is manifest that Perino was insufficiently informed as to the appearance and characteristics of the television receiver which he undertook to sell, and that the television receiver was described, to Sciam-bra in a most vague and indefinite manner. Perino knew as little about the appearance of the set he sold to plaintiff as did plaintiff, who agreed to purchase it. Perino endeavored to sell a comparatively new contrivance, which he had seen only once, a few months before in Chicago, and plaintiff purchased only what he had imaginatively conceived from the vague sales description given him by Perino, and the receiver which he received turned out to be something other than he had actually intended to purchase, and, therefore, there was never a legal meeting of the minds, for what was vaguely described and sold by defendant was not what plaintiff actually believed he was buying. The evidence convinces us that he is entitled to the relief which he seeks.

Article 2439, R. C. C., provides:

“The contract of sale is an agreement by which one gives a thing for a price in current money, and the Other gives the price in order to have the thing itself.
“Three circumstances concur to the perfection of the contract, to-wit: the thing sold, the price and the consent.”
Under the provisions of R. C. C. art. 1881, the injured party has a right to avoid his contract made through error: “Engagements made through error, violence, fraud or menace, are not absolutely null, but are voidable by the parties, who 'have contracted under the influence of such error, fraud,' violence or menace, or by the representatives of such parties.”

This case is similar in several respects to Wellington-Stone Co. v. Thomas, 11 La.App. 242, 123 So. 410, 411, wherein the court annulled a sale because the buyer labored under 'a, misapprehension as to what he had agreed to purchase. The court said:

“The evidence seems clear to us that defendant wanted a davenport suite and not a settee suite,, and that he so understood his order when he gave it to plaintiff’s salesman. It is shown by the testimony that in' the New Orleans .territory a davenport is understood to be a sofa, which, when opened, may. serve as a bed, and, on the other, hand, it is contended'that in the Chicago trade a settee and a davenport are ordinary sofas, and the terms settee and davenport are interchangeable..
“Be that as it may, the testimony convinces us that defendant did not get delivery of what he intended to buy, and that in making the contract there was not the aggregatio mentium necessary to constitute a valid contract of sale. Defendant bought a sofa bed and plaintiff sent him a sofa settee.” . .

Having concluded that plaintiff is entitled to a rescission of the sale for the reason that the minds never met, and, therefore, there actually was no sale, we shall not discuss the legal question which might have been- presented had there been a sale. This legal question was raised by the plaintiff’s second contention, which, obviously, was in the alternative, that even if there had been a sale originally, it was cancelled by mutual consent. If There was no sale, then there was not ■ presented any legal question as to whether such consent would have been binding.

For the reasons above assigned, the judgment appealed from is annulled and reversed, arid it is now ordered that there be judgment herein in favor of plaintiff, Jake Sciambra, and against the defendant, Emblem, Tnc., rescinding and cancelling the sale of the television receiver, and, further, condemning defendant to return to plaintiff the sum of $450.00 cash and his promissory note for $978.48, dated December 18, 1948, and plaintiff is ordered to return to defendant the “RCA Clubman” television receiver; defendant’s reconven-tional demand is dismissed, and costs of both courts are to be borne by defendant.

Reversed.

REGAN,; Judge

(concurring).

■ The majority opinion finds as á 'fact that there was ‘no meeting of the' minds between plaintiff and defendant with respect to the sale and purchase of the television receiver, the subject of this litigation, and, therefore, no contract of sale existed.

The. reasons for • judgment written by the court, a qua, impressed upon the author that initially a question of law and not one ■of fact had ‘been raised by that court and presented to this court, which, because of the very nature of our appellate jurisdiction, required primary consideration in the majority opinion of this Court.

In conformity with this view of the matter, and for the purpose of this concurring opinion, the author is accepting the trial court’s finding of fact that there was a complete meeting of minds with respect to the sale arid purchase of the television receiver, which is a view most favorable to the defendant; however, the author retains his .opinion that the judgment of the •court, a qua, should be reversed and that plaintiff should be permitted to recover for the reason that the sale of the television receiver was abrogated by mutual agreement and, in this connection, it is interesting to note the following extract from the trial judge’s reasons for judgment:

“.There is evidence to the effect that the president of the defendant corporation agreed to take the set back, because the plaintiff coinplained that it was not in accordance with his idea of what .he had purchased; that, as he said, he believed he was going to get a set encased in a beautiful cabinet. The complaint was made after the set was delivered. The testimony of the president of- the defendant corporation to the effect that he had not agreed to take back the set is at variance with paragraph 3 of defendant’s answer, in which it is stated:
“ ‘The defendant admits that the plaintiff contacted its president regarding the said set, but avers that at the time the president ■ did not know the facts, and believed that the said sale had not been consummated by its General Manager, N, Bunol, who had full charge of all such matters, plaintiff was then advised that said set' would not be taken back, and insisted on full payment by said plaintiff.’
“This court believes the testimony of the plaintiff in this respect, that the defendant’s President did agree to take■ the set back, but there was no consideration for such gratuitous agreement to tc-ke the set back and cancel the sale.” (Italics ours.)

The author is in'full accord with the trial court’s findings of fact “that the defendant’s president (Dr. LaNasa) did agree to take the set back” a fortiori in the author’s opinion only the question of the trial court’s interpretation of the law that “there was no consideration for such a gratuitous agreement to take the set' back and cancel the- sale” is posed for consideration.

The author is of the opinion that the trial court’s interpretation of the law in this respect was in error. As paradoxical as it may seem, both counsel for plaintiff and defendant rely on the case of Noto v. Blasco, La.App., 198 So. 429, 431, to sustain their respective adverse contentions. The facts in that case are that plaintiff entered into a contract on February 7th, 1938, with defendant to purchase three lots of ground for $1,700.00, and that on that day he gave his check for $50.00 to defendant’s agent. Plaintiff alleged that four days after the contract was entered into, defendant' requested a release from the contract to sell these lots, giving ás a reason, among others, that he and his wife wanted to build a duplex thereon ,and that they had no intention of selling them to any one else. Plaintiff did release the defendant from his contract to sell • the lots and defendant returned the check 'for $50.00 to the plaintiff. --Defendant, a few days after the release was granted, sold the lots to one,- Tuminello, for $1,850.00. The prayer ,of plaintiff’s, petition was for damages representing the difference in the price for which plaintiff agreed to purchase the lots and the price for which they were sold to , Tuminello and, in the alternative, that if the contract was not a- sale, but only a promise of sale with the giving of earnest money, that he recover $50.00 as earnest money. Plaintiff contended that the release which he granted to defendant should be annulled because (1) the release was invalid because it was not in writing; (2) because there was no consideration for the release; and (3) on account of fraud and misrepresentation practised in obtaining the release.

While the case' finally ■ turned on the point that <f'a release or discharge fr'om an obligation is itself- a contract, and it follows that if such a release or discharge was procured through fraud, error or mistake, it can.be set aside the same as any other contract may be annulled for these causes. C.C.Arts.1832 and 1847; Reed v. Holderith, 3 La.App. 379; Brandon et al. v. Gottlieb et al., 16 La.App. 676, 679, 132 So. 283; Winzey v. Louisiana Industrial Life Ins. Co., La.App., 195 So. 67,” however, the court did hold that “the decided weight of authority is to the effect that an unexecuted commutative contract may be abrogated by the parties bound without a new consideration, the release of each of the parties bound from his obligation to execute the contract being a sufficient consideration for the release. Civil Code, Art. 2199; Mouton v. Noble, et al, 1 La.Ann. 192, 12 Am.Jur. p. 988, par. 409.”

Counsel for defendant, in distinguishing the case at bar from Noto v. Blasco, place great emphasis on the fact that the court in that case used the phrase that “unex-ecuted commutative contract may be abrogated by the parties bound without a new consideration” and, therefore, the reasoning of that case makes it inapplicable to this case where the contract was admittedly consummated.

Apart from the fact that the author believes that the word “unexecuted” was improperly used to convey the organ of the court’s intention - in Noto. v. Blasco, see Home Services v. Marvin, La.App., 37 So. 2d 413, and that the correct word should have been “executory”, the author fails to see that the distinction between an execu-tory contract and a consummated contract would have created a different' result in the conclusion reached in Noto w Blasco. Assuming in that case that an act of sale had occurred in place of the agreement to buy and sell (which.in itself is a complete contract — subject to an action for specific performance) would the court’s reasoning and conclusions have been altered by this fact? The author does - not think so. In the author’s opinion the court would still have had to hold that a release of each of the parties from the contract (executory or consummated) was sufficient consideration for the release of the other.

When defendant informed plaintiff “if you are not satisfied with it, we will send for it tomorrow and give you your money back” and plaintiff agreed to this, this constituted a release under the contract for the sale of this television receiver and that agreement was not void for want of consideration, since, a release of each of the parties from the contract was sufficient consideration for the release of the other. Civil Code Article 2199. Although contracts legally entered into have the force and effect of law between the parties thereto, contracts nmy be abrogated or revoked by the mutual consent of the parties. Civil Code Articles 1901, 1945 and 2130. Therefore, the release of each of the parties bound by the contract was sufficient consideration for the release of the other and the contract may, therefore, be abrogated without other independent consideration.

There is no question but that an obligation may be extinguished by the creditor by remission. Civil Code Art. 2130. Benson v. Smith, 2 La. 102, and, in the author’s opinion, there is no reason why the philosophy immaculately conceived by the subject of remission is not inclusive of the instant case. Remission is in the Civil láw, the demonstrated intention of the creditor to release the debtor. A creditor may demonstrate his intention to release the debtor by expressly so declaring. The creditor can not revoke his remission, the debtor’s acceptance of it is presumed. Civil Code Article 2201. Lee v. Ferguson, 5 La.Ann. 532. A creditor may make this declaration orally or in writing; he may make it in a formal writing-or in a mere informal writing as the law does not prescribe any particular form of remitting- a debt. In other words, the proof o'f remission may be oral, by parol, or by writing, and formal or informal, if in writing. Civil Code, Article 2199, La.Civil Code of 1870; Mouton v. Noble, 1846, 1 La.Ann. 192; Succession of Piffet, 1887, 39 La.Ann. 556, 2 So. 210; Noto v. Blasco, 1940, supra; Civil Code Article 1989, La.Civil Code of 1870, where “revise gratuite d’une dette” in the French text of the Article 1984 of the Revised Civil Code of 1825 is translated as “release of a debt without payment”; also see note in 9 Tulane Law Review 616, wherein it is stated that “the release of a debt may be gratuitous”; 15 Tulane Law Review 504 and 3 Louisiana Law Review 634.

It is interesting to observe that when you are analyzing the component parts of an express remission you simply have to consider what has been proven to be said or written and to interpret what has been said or written according to the ordinary terms that the creditor makes use of. This remission may be definitely implied. In other words, the creditor may say something which demonstrates' his intention to release the debtor. This implied remission evidenced by the conduct of the creditor may be shown by any fact whatsoever which indicates the creditor’s intention; any method apart from what the debtor says which clearly implies and recognizes a release of the debtor would bind the creditor as a remission. Therefore, in the author’s opinion, this release or express oral remission which was granted to plaintiff by defendant in connection with the television receiver, was not void for want of consideration since the release of each of the parties bound from the contract was sufficient consideration for the release of the other.


text:
    THWEATT v. NATIONAL LIFE & ACCIDENT INS. CO.
    No. 7401.
    Court of Appeal of Louisiana. Second Circuit.
    Jan. 31, 1950.
    Rehearing Denied March 8, 1950.
    Albert E. Bryson, Shreveport, 'for appellant.
    Wilkinson, Lewis & Wilkinson, Shreveport, f.or appellee. ■ :
   KENNON, Judge.

This: is a suit by plaintiff to .recover the $500 face amount- of an industrial life insurance policy issued by defendant and insuring the life of her deceased husband.

The defense to the action is that the deceased wilfully misrepresented and concealed material facts in the application for the policy sued upon.

The District Court rendered judgment in favor of defendant, except for the money deposited in the registry of the Court representing the amount of premiums paid by deceased. Plaintiff appealed.

A study of the record, which contains an agreed statement of fact, a copy of the application signed by deceased, the certificate of the superintendent of the defendant company, and the certificate of the physi-cial who attended deceased, discloses the the following facts.

The defendant company on November 17, 1947, without medical examination, but after receiving a written application for insurance dated October 13, 1947, made out by its agent and signed by the deceased on the line marked with a penciled X, issued a policy of insurance on the life of the deceased which was in force at the time of his death.

This application form included the following questions and answers:

“Are you in Good Health?”
“Yes.”
“Who is your Doctor?”
“U. S. Army Hospital.”
“Have you ever had heart disease, asthma, turberculosis, cancer, ulcers, diabetes, fits, kidney disease, syphilis, paralysis, rheumatism, sciatica, vertigo, or any illness or disorder of the brain, lungs, spine or nervous system, or any disease not common to both sexes; or suffered the total or partial loss of a hand, foot, eye, or the use thereof? Are you deformed? Do you use intoxicating liquors, morphine, or other narcotics to excess? If yes, give particulars.”
“No.”

On the back of the application, under “Remarks,” was included the following statement:

“$5000.00 policy issued on medical Exam, in last 12 mo. Physical OK.”

On the front of the application, under “insurance in other companies,” is the reply, “New York Life, $9500.00.”

On November 12, 1946, deceased consulted a Shreveport physician, complaining of pain in his right shoulder and swelling in his right hand. He was treated by this physician again in January, 1947 and on January 23rd an x-ray revealed that he was suffering from a tumor. On February 21, 1947, he was examined at the Barnes Hospital, St. Louis, Missouri. No other treatment or examination is shown until March, 1948, when an operation was preformed upon him by Dr. Ochsner in New Orleans. A second operation was preformed in August, 1948. Deceased’s right lung was removed. He died on November 4, 1948, the cause of death, shown on the physician’s statement, introduced in evidence by defendant, being, “(1) coronary occlusion (2) la grippe (3) threatened pneumonia.” Listed secondary causes included complications resulting from operations for removal of right lung and a tumor.

Plaintiff has contended that because the policy of industrial life insurance sued upon was issued without medical examination, the defendant is precluded from introducing evidence of misrepresentations made by the insured, notwithstanding the fact that an application for insurance was made in writing. This contention was upheld in the case of Bordelon v. National Life & Accident Insurance Company, Inc., La.App., 187 So. 112, but specifically overruled in the later case of Succession of Ryan v. Life & Casualty Insurance Company of Tennessee, La.App., 198 So. 522. We will therefore examine the record for evidence of fraudulent representations.

The policy provides that all statements made by the insured shall, in the absence of fraud, be considered representations and not warranties. Therefore, if the misrepresentations in the written application were knowingly and fraudulently made and the facts misrepresented or concealed are such that it is reasonable to believe that the policy would not have been issued had the falsity of the statements been known to the company, the defense of fraudulent representation must be sustained. Such were the facts in the case of Gongre v. Life & Casualty Insurance Company of Tennessee, La.App., 36 So.2d 71, cited by defendant. In that case the insured made an application in writing on August 1, 1946 in which it was stated that'she had never had any disease of the kidneys; that she was in sound health and that she had not been under the care of any physician within three years prior to the date of the application. The record disclosed that less than sixty days before that time, she had been confined in a sanitarium suffering from acute nephros-is or “Bright’s disease,” and had, immediately thereafter been referred to and treated for the same condition by a kidney specialist. Her physician testified that the disease was so advanced at the time he treated her in June — -less than sixty days before the policy was issued — that little could be done in the way of treatment. The insured died six months after the policy was issued from the condition which existed to the knowledge of the insured and the beneficiary at the time the untrue representations were made.

In the case before us, the application for insurance was made in October, 1947. It is true that he was advised of the existence of a tumor in January, 1947. According to the statement in that part of the application signed by the superintendent of the defendant company and introduced in evidence by the defendant, the deceased had undergone a medical examination by a doctor representing the New York Life Insurance Company at some time less than one year prior to October 13, 1947, which, necessarily would have been within three months of the time the tumor was discovered. A $5000 policy was issued after this examination. It is well known that a tum- or is something which develops slowly, and a tumor discovered on January 23, 1947 doubtless existed in October, 1946. There is no evidence that deceased was bedridden or confined to his home or hospitalized in connection with the tumor prior to the signing of the application and issuance of the policy sued upon. The application form did not include the direct question as to whether or not the applicant had ever suffered from tumor. Deceased may well have thought that since the condition existed at the time of the New York Life Insurance Company examination, which was successfully passed, it was not so serious as to preclude the issuance of the $500. policy with the defendant company.

The case before us is further distinguishable from the Gongre case, supra, in that plaintiff’s husband’s death did not come as a direct result of the tumor which defendant sets up as the principal false representation. Death of the insured in the Gongre case came six months after the policy was issued. In the case before us, there were more than twelve months between the filing of the application and the death 'of plaintiff’s husband.

Examination of the application form, introduced in evidence by the defendant, shows that same contained, in addition to the form on the front, signed by the deceased, a form on the back of the first sheet headed, “Manager’s or Superintendent’s Inspection Report.” At the bottom of this form appears the signature of Arnold Kirkland, who gives his title as superintendent. Nis signature appears in the space which includes the following certificate: “I certify that my answers to the above questions are true and that applicant signed in .my presence.” The line above the signature- of defendant’s superintendent has the statement that it is for the “signature of party inspected.” Plaintiff’s husband did not sign this form. Under remarks on this superintendent’s form, there is contained the following statements:

“22-23 Appendectomy, 1913, 2 weeks duration, fully recovered — Don’t remember Drs. name — 1-6—$5000.00 policy issued on medical exam, in last 12 mo. Physical OK ■ — Draft Class. 4A — age limit. Note — This policy taken out as cash emergency fund.” (Italics ours).

The numbers 22, 23 and 16 evidently refer to questions oh the other side of the sheet bearing those numbers. Question 23 being: “What illness, injury or accident have you ever had? Give details.” There is a space . one line wide, - approximately seven inches long in which to fill in the answer to this question, which, if answered literally, would include a rehearsal of all illnesses, injuries and accidents ever suffered by the applicant over the fifty-two years of his life.

■ Question 16 is: “Are you now insured in >ther Companies?” To which the answer is given, “Yes. New York Life — $9500.00.” It thus appears that defendant’s superintendent — who also signed as a witness to applicant’s signature and as agent for the company on the application form — undertook on his own responsibility, to fill in on the superintendent’s inspection report such parts of the information given him by the applicant as .was not included, either for lack of writing space or because not considered sufficiently important, on the side of the principal application.

It is to be noted that the statement with reference to applicant’s having passed a medical examination for a $5000 life insurance policy (identified on the reverse side as the New York Life Insurance Company), was not signed by the applicant, but was included in the certificate appearing on the back of the application and signed by a representative of the defendant there labeling himself as “superintendent.” .

The Court has no way of knowing what other information the applicant gave to Mr. Kirkland beyond that contained in the answers written in by Mr. Kirkland in the scanty space provided on the face of the application form. The fact that Mr. Kirkland put additional information (the appendectomy and the’New York Life physical examination) on his own certificate on the back of the form indicates conclusively that more information was given by the applicant to defendant’s agent and superintendent than he elected to write down on the form. The statement made by Mr. Kirkland on the back of the form indicates that the applicant also told him the date of his medical examination by the representative of the New York Life Insurance Company. (While not in the testimony or the agreed statement of facts, statement of counsel in Court indicates that this examination "occurred on: December 11, 1946, less than four weeks prior to the time that the fact that plaintiff "had a tumor was made known to him). At the trial of the case, defendant did not offer- its agent and superintendent, Mr. Arnold Kirkland, as a witness. The applicant, of course, was deceased. Hence, we have no direct evidence as to what transpired at the time the application was taken. Since defendant neither introduced Mr. Kirkland nor offered any explanation for not doing so, the presumption is logical that his testimony would not have been favorable to defendant’s case.

Fraud is never presumed. Evidence in the record does not justify the conclusion that the deceased made the representations with fraudulent intent. Under the terms of the policy the statements were not to be considered as warranties. We therefore conclude that the judgment of the District Court dismissing plaintiff’s suit was erroneous.

The judgment appealed from is reversed, and judgment is now rendered in favor of plaintiff, Mrs. Betty G. Thweatt, and against the defendant, The National Life & Accident Insurance Company, in the sum of $500, with legal interest from judicial demand until paid, and for costs of both Courts.