author: HAWTHORNE, Justice. HAMITER, Justice ■MOISE, Justice MOISE, Justice. McCALEB, Justice HAWTHORNE, Justice PER CURIAM.

text:
    217 La. 325
    ROBBERT v. EQUITABLE LIFE ASSUR. SOC. OF UNITED STATES.
    No. 37674.
    Supreme Court of Louisiana.
    June 30, 1949.
    On Rehearing March 20, 1950.
    Rehearing Denied April 24, 1950.

      Michel Musson, Harry P. Gamble, Jr., New Orleans, for plaintiff-appellant.
    Rosen, Kammer, Wolff, Hopkins & Burke, New Orleans., for defendant-ap-pellee.
   HAWTHORNE, Justice.

Plaintiff-appellant, Henry J. Robbert, the insured in a life insurance policy issued by the defendant-appellee, The Equitable Life Assurance Society of the United States, instituted this suit to recover total and permanent disability benefits alleged to be due under the terms and provisions of the policy and to recover the amount of premiums paid by him during the existence of such disability. He prays for judgment for the amount of the premiums paid and, under the provisions of Act No. 310 of 1910, for double the amount alleged to be due for disability benefits and for attorney’s fees as a penalty for failure to pay.

After trial on the merits, the lower court rejected plaintiff’s demands and dismissed his suit. He has appealed.

Plaintiff’s suit is predicated on a provision of the insurance policy that “ * * * if the insured becomes wholly and permanently disabled before age 60 the Society will waive subsequent premiums and pay to the Insured a Disability-Annuity of One Hundred Dollars a month * * * ”, subject to certain terms and conditions as set forth in the policy.

On January 7, 1939, while the insurance policy was in full force and effect, with all premiums paid, plaintiff became ill, and as a result of this illness was totally disabled until on or about August 31, 1939, approximately eight months later. He spent a part of this eight months’ period in a hospital, part of it confined to bed at home, and part convalescing in the Parish of St. Tammany. During this entire period all .premiums falling due, amounting to $293.55, were, paid by the plaintiff.

On or about July 9, 1940, nearly a year after plaintiff had resumed the practice of his profession as an optometrist, he was informed by a friend that his insurance policy contained a provision for disability benefits —a fact of which he had previously been unaware. He then presented 'his claim for total and permanent disability 'benefits to the insurance company’s cashier. His lack of knowledge of the provision regarding disability explains his delay in presenting his claim, but he does not contend or make any showing that the alleged disability rendered him incapable of presenting his claim or furnishing proof in support thereof during the eight, months’ period for which he is claiming disability benefits. Upon the insurance company’s denial of liability, plaintiff instituted this suit on December 4, 1941'.

Plaintiff alleges that due to his illness he was totally and permanently disabled within the meaning and terms of the insurance policy. The insurance company takes the position that, even if the disability was total while it lasted, it was not permanent within the meaning of the policy. Under the disposition which we have concluded should be made of this case, however, it is not necessary for us to decide this issue.

The terms and conditions of the policy with reference to total and permanent disability and waiver of premiums are as follows :

“Total and Permanent Disability

“(I) Disability Benefits before age 60 shall be effective upon receipt of due proof, before default in the payment of premium, that the Insured became totally and permanently disabled by bodily injury or disease after this policy became effective and before its anniversary upon which the Insured’s age at nearest birthday is 60 years, in which event the Society will grant the following 'benefits:—

“(a) Waive Payment of All Premiums payable upon this policy falling due after the receipt of such proof and during the continuance of -such total and permanent Disability; and

“(b) Pay to tlie Insured a Monthly Disability-Annuity as stated on the face hereof; the first payment to he payable upon receipt of due proof of such Disability and subsequent payments monthly thereafter during the continuance, of such, total and permanent Disability.” (Italics ours.)

As we have heretofore pointed out, plaintiff alleges and contends that he became totally and permanently disabled within the meaning and terms of the policy on January 7, 1939, but he does not contend or allege that his disability was total and permanent within the meaning of the policy subsequently to August 31, 1939, or that it was such on July 9, 1940, the date on which he presented his claim.

The defendant insurance company contends that, under the above quoted terms and provisions of the policy, receipt of due proof of disability is a condition precedent to the liability of the company to make the disability payments of $100 per month and to waive any premiums; or, in other words, that it was not liable for waiver of any premiums falling due during the disability before receipt of proof of such disability, or for any disability payments accruing before receipt of such proof.

It is so well settled that no citation of authority is necessary that, if the provisions of a life insurance policy are ambiguous and of doubtful meaning, the construction most favorable to the insured will be adopted. In other words, in such a case a liberal construction is given in favor of the insured. In the instant case, however, the terms of the policy are clear and free from ambiguity. The language used therein is susceptible of only one interpretation — that the obligation of the insurance company does not rest alone upon the existence of the disability, and that receipt of proof of such disability is a condition precedent to the insurance company’s liability or obligation to waive premiums subsequently falling due and to pay disability benefits. To hold differently we would have to give to plain words a strained, abnormal, and uncommon meaning, and would, in effect, be rewriting the insurance contract. In Bergholm et al. v. Peoria Life Ins. Co., 284 U.S. 489, 52 S.Ct. 230, 231, 76 L.Ed. 416, after stating that, where the terms of the policy are of doubtful meaning, the construction most favorable to the insured will be adopted, the. court said that “* * * This canon of construction is both reasonable and just, since the words of the policy are chosen 'by the insurance company; but it furnishes no warrant for avoiding hard consequences by importing into a contract an ambiguity which otherwise would not exist, or, under the. guise of construction, by forcing from plain words unusual and unnatural meanings.”

The policy in this case provides that, if the insured becomes wholly .and permanently disabled before the age of 60, the society will waive subsequent premiums and pay to the insured a disability-annuity of $100 a month; that these disability benefits are ef'fective upon receipt of due proof, and that the company will waive all premiums payable upon the policy which fall due after receipt of such proof. These words clearly mean that the company will waive all premiums falling due after receipt of proof of disability, and are' susceptible of no other interpretation. Likewise, the policy explicitly provides that the society will pay the monthly disability-annuity, the first payment to be payable upon receipt of due proof of such disability. The “first payment” in such a case can mean only the first monthly payment of $100.

The appellate courts of five of our sister states — Minnesota, North Dakota, Georgia, Kansas, and Pennsylvania — and the Federal Circuit Court of Appeals for the Eighth District have had occasion to interpret the provisions of insurance policies which are identical with those of the policy which we are here considering. The defendant in each case was the same insurance company as the one here. In every instance the court concluded that the policy was clear and free of ambiguity, and that submission of proof of disability was a condition precedent to the liability of the insurer under the disability provisions of the policy. From our independent research we have found no case in which an appellate court construed this particular provision otherwise. These cases are so called “goose cases”, all of the geese being of the same color and in perfect step. They are: Equitable Life Assur. Soc. of United States v. Mercantile Commerce Bank & Trust Co. et al., 8 Cir., 143 F.2d 397; Equitable Life Assur. Soc. of United States v. Adams, 56 Ga.App. 5, 192 S.E. 90; Bott v. Equitable Life Assur. Soc. of the United States, 147 Kan. 671, 78 P.2d 860; Lindskog v. Equitable Life Assur. Soc. of United States, 209 Minn. 13, 295 N.W. 70; Mullaney v. Equitable Life Assur. Soc. of the United States, 65 N.D. 235, 264 N.W. 663; Equitable Life Assur. Soc. of United States v. McCausland et al., 331 Pa. 107, 200 A. 85.

In Equitable Life Assur. Soc. of United States v. Adams, supra, the plaintiff claimed to have become totally and permanently disabled in August, 1930. Notice or proof of disability was filed with the insurance company in September, 1935. Plaintiff contended that he was entitled to be paid disability benefits covering the period between the date of the commencement of disability in August, 1930, and the date of the filing of proof of disability in September, 1935, and also that he was entitled to recover premiums paid during this period. The court disallowed his claim, and in construing and interpreting the insurance policy, which had provisions identical to the ones we have here under consideration, said: “ * * * But, in the instant case, according to the provisions of this policy, ‘the disability benefits * * * shall be effective upon receipt of due proof * * * that the insured became totally and permanently disabled after this policy became effective * * * the first payment to be payable upon receipt of due proof of such disability and subsequent payments month’ ly thereafter.’ The policy in the instant case provides that disability benefits ‘shall be effective upon receipt of due proof.’ The key word is ‘effective.’ A rent contract is entered into, effective on a certain date. An increase in salary is made effective on a certain date. A law is enacted, effective on a certain date. In Mullaney v. Equitable Life Assurance Soc., 66 N.D. 235, 264 N.W. 663, 664, the Supreme Court of North Dakota, in dealing with the provisions of a policy identical with the provisions in this policy, discusses the word ‘effective’: ‘The term “effective” as it relates to disability benefits does not differ in meaning from the same term’when applied to the policy itself. Before any rights accrued to the insured, the policy itself had to become “effective”; that is, go into effect and be biiiding upon the parties. The contract could not become effective until all the steps required to make a contract had been complied with, or waived. The same way with the disability 'benefits. The right to these benefits does not go into ef- ’ feet until the prerequisites occur — the contract must remain in force, the insured must not be over sixty years of age, must be totally and permanently disabled, and due proof of such disability must be furnished the company. All these are necessary steps before the disability benefits become effective. The time this- portion of the contract goes into effect — payment of disability benefits — is as much a fundamental element as is the disability itself.’ The obligation of the company under the language of the present policy does not rest on the existence of the disability, standing alone, but it is the receipt by the company of proof of disability which is definitely made a condition precedent to a waiver by it of payment of the premium becoming due after the receipt of such proof. Bergholm v. Peoria Life Insurance Company, 284 U.S. 489, 52 S.Ct. 230, 76 L.Ed. 416. * * * ” [56 Ga.App. 5, 192 S.E. 92.]

In Bott v. Equitable Life Assur. Soc. of United States, another of the cases cited supra, suit was instituted to recover permanent disability benefits under two insurance •policies issued by the defendant. According to the allegations- of the petition, three years and four months before his death, the insured suffered a complete nervous breakdown caused by a combination of diseases, and from that time was totally disabled until his death. The death benefits were duly paid by the insurance company, and suit was instituted to recover the permanent and total disability benefits of $25 per month under one of the policies and for the amount of the premiums paid during the period of disability. No proof of total and permanent disability was furnished to the insurance company during the deceased’s lifetime. The Supreme Court of Kansas affirmed a judgment in favor of the insurer, saying: “These provisions [identical with the ones here] are free from ambiguity. The receipt by the company of the proof of the disability is definitely made a condition precedent to the waiver of the payment of the premiums in the two policies, or the payment of the monthly annuities in the larger policy. Bergholm v. Peoria Life Ins. Co., 284 U.S. 489, 52 S.Ct. 230, 76 L.Ed. 416.” [147 Kan. 671, 78 P.2d 862.]

In the course of its opinion the Kansas court quoted from the case of Smith v. Missouri State Life Ins. Co., 134 Kan. 426, 7 P.2d 65, 67, 69, the following language which we think is pertinent here: “ ‘ * * * All actuarial calculations are based upon the payment of premium at the time specified in the contract, and by reason thereof the state is able to determine whether the company can make good its contracts. If the beneficiary may wait until more that a year after the claimed disability and the death of the insured to make the claim of total disability, which is generally a question of fact, then the certainty of liability of insurance companies cannot be established nor the amount of their reserve definitely determined. Anything that destroys the certainty of contracts necessarily affects the whole structure, and the sacredness of contracts should not be unnecessarily invaded or impaired by judicial interpretation.’ ”

The Federal Circuit Court of Appeals in Equitable Life Assur. Soc. of United States v. Mercantile Commerce Bank & Trust Co, et al., supra, a case from the Eastern District of Missouri, in construing two life insurance policies having provisions identical to the ones here involved, said: “ * * * We agree with appellant’s [the insurer’s] contention that proof of claim by the insured is a condition precedent to the liability of the insurer under the provisions of the policies. The. .Missouri rule is that unless the language of an insurance policy is ambiguous the courts must give effect to its plain meaning. * * * On the other hand, if the language used is ambiguous it must be construed liberally in favor of the insured. * * * In the instant case the waiver of premiums is clearly limited by condition 1(a) of the policy to premiums ‘falling due after the receipt of such proof and during the continuance of such total and permanent Disability.’ This language is not ambiguous. It excludes waiver of all premiums payable, or falling due, prior to receipt of such proof. * * *

“Neither is the provision for the payment of disability benefits ambiguous. Clause (1) of the policy, supra, provides that: ‘Disability Benefits before age 60 shall be effective upon receipt of due proof * * * (b) * * * the first payment to be payable upon receipt of due proof of such Disability and subsequent payments monthly thereafter during the continuance of such total and permanent Disability.’

“It is said that clause 1(b) is ambiguous in that the words ‘the first payment’ may be construed to include the sum of all monthly payments accruing during the period from the commencement of disability until the receipt of proof of such disability, or that it may mean the first monthly payment only; and that the clause must * * * be construed against the insurer in favor of the insured. We do not think that clause 1, when considered as a whole, is ambiguous. The insurer agrees to ‘(b) Pay to the Insured a Monthly Disability-Annuity as stated above; the first payment to be payable upon receipt of due proof,’ etc. This clearly means the ‘first (monthly) payment.’ ” [143 F.2d 401.]

The Pennsylvania Supreme Court in Equitable Life Assur. Soc. of United States v. McCausland et al., supra, in construing the same provision had this to say:

“The policy of insurance contained a provision for the payment of disability benefits, such benefits to be ‘effective upon receipt of due proof, before default in the payment of premium, that the insured became totally and permanently disabled by bodily injury or disease * * * in which event the Society will grant the following benefits: (a) Waive payment of all premiums payable upon this policy falling due after the receipt of such proof and during the continuance of such total and permanent disability ;***’.***

“Where a policy of life insurance provides that disability benefits will be payable upon receipt of due proof that the insured has become totally and permanently disabled, and that the payment of all premiums falling due after the receipt of such proof and during the continuance of such disability will be waived, the furnishing of the proof of disability is a condition precedent. * * * ” [331 Pa. 107, 200 A. 86.]

Appleman discusses the issue before us in the instant case thus: “The most important question which arises, however, in connection with disability contracts and proof of loss, is where the contract limits recovery of benefits to the time that proof of loss is received, or to a certain length of time after proof of loss is made. In such event, the courts 'have, on the whole, considered that the insured may not recover any benefits prior to that date, regardless of the date of the inception of the disability. * * * ” 1 Appleman, Insurance Law and Practice, § 615, p. 755.

“ * * * Of course, the existence of disability is always a condition precedent to liability on the part of the insurer for disability payments, -but the majority of courts have held that the proof of disability Í9 likewise such a requisite. And where the policy makes it clear that the insurer will not consider itself bound for disability payments accruing prior to the time that proof or notice of disability is made or given, delay on the part of the insured prevents recovery for any benefits accruing prior to such times.” 3 Appleman, op. cit. supra, § 1395, pp. 16, 17.

Bergholm et al. v. Peoria Life Ins. Co., 284 U.S. 489, 52 S.Ct. 230, 76 L.Ed. 416, a leading case by the Supreme Court of the United States, held that receipt of proof by insurer of insured’s disability was a condition precedent to waiver of premiums under a policy of insurance with provisions very similar to the ones here. The policy in that case provided, among other things, that the insurance company, upon .receipt of satisfactory proof that the- insured was totally and permanently disabled, would pay for the insured all premiums becoming due on the policy after receipt ■ of such proof and during the continuance of the total and permanent disability of the insured. In that case the insured died on April 18, 1929, and judgment was sought for disability benefits from December 1, 1927, to April 1, 1929. Prior to the death of the insured, the policy had lapsed unless saved by the terms of the disability clause. From the evidence in the record, the court concluded that it could reasonably be found that the insured was totally and permanently disabled from a time before the premium first became in arrears, and that this condition continued until his death. Petitioners contended that this was enough to bring into effect the promise of the insurance company to pay the premiums which became due. after the disability began, notwithstanding the fact that no proof of total and permanent disability was furnished to the insurance company. In holding that the insurance company was not liable, the court in the course of its opinion stated:

“ * * * Here the obligation of the company does not rest upon the existence of the disability; but it is the receipt by the company of proof of the disability which is definitely made a condition precedent to an assumption by it of payment of premiums becoming due after the receipt of such proof. The provision to that effect is wholly free from * * * ambiguity * * *. It is true that where the terms of a policy are of doubtful meaning, that construction most favorable to the insured will be adopted. * * *

“Contracts of insurance, like other contracts, must be construed according to the terms which the parties have used, to be taken and understood, in the absence of ambiguity, in their plain, ordinary, and popular sense. Imperial Fire Ins. Co. v. Coos. County, 151 U.S. 452, 462, 463, 14 S.Ct. 379, 38 L.Ed. 231. As long ago pointed out by this court, the condition in a policy of life insurance that the policy shall cease if the stipulated premium shall not be paid on or . before the day fixed is of the- very essence and substance. of the contract, against which even a court of equity cannot .grant relief. * * * And to discharge the insured from the legal consequences of a failure to comply with an explicitly stipulated requirement of the policy, constituting a condition precedent to the granting of such relief by the insurer, would be to vary the plain terms of a contract in utter disregard of long-settled principles.” [284 U. S. 489, 52 S.Ct. 231.]

The general rule or doctrine as announced in the Bargholm case has been approved by this court in the cases of Compton v. Amicable Life Ins. Co. of Waco, Tex., 182 La. 991, 162 So. 751, 105 A.L.R. 1087, and Hickman et al. v. Pan-American Life Ins. Co., 186 La. 997, 173 So. 742. See also Jones v. Metropolitan Life Ins. Co., La. App., 157 So. 147, and Hardin v. Mutual Life Ins. Co. of New York, La.App., 12 So. 2d 488, 490 (Court of Appeal, Second Circuit). In the Plardin case, notice of the insured’s disability was not given to the insurer until about a year and a half after the disability had ceased. In refusing to allow the insured to recover under the disability provisions, the court stated: “There is no doubt in our minds as to the conclusion that the requirement upon the insured to furnish proof of disability constitutes a condition precedent, a suspensive condition. The burden was clearly upon the insured to perform the condition required by the policy, failing which performance there could be no liability or obligation upon the insurer to bestow the benefits provided.”

There are many other cases involving provisions in insurance policies similar to those in the instant case which follow the doctrine of the Bergholm case, to the effect that the submission of proof of disability is a condition precedent to liability on the part of the insurance company for total and permanent disability benefits, as well as to its obligation to waive premiums. Among these cases are: New York Life Ins. Co. v. Farrell, 187 Ark. 984, 63 S.W.2d 520; Massachusetts Mut. Life Ins. Co. v. Montague, 63 Ga.App. 137, 10 S.E.2d 279; Wead v. Ætna Life Ins. Co. of Hartford, Conn., 160 Kan. 274, 160 P.2d 258; Floyd M. Andrews, Inc., v. Ætna Iife Ins. Co., 198 Minn. 1, 268 N.W. 415, 106 A.L.R. 1085; Berke et al. v. New York Life Ins. Co., 208 Minn. 210, 293 N.W. 248; Rowan et al. v. New York Life Ins. Co., Mo.App., 124 S.W.2d 577; Feinberg v. New York Life Ins. Co., 233 Mo.App. 707, 127 S.W.2d 82; Thomas v. Prudential Ins. Co. of America, 131 Neb. 274, 267 N.W. 446; Gunter v. Prudential Ins. Co. of America, 187 Okl. 11, 100 P.2d 851; Binder v. General American Life Ins. Co., 66 S.D. 305, 282 N.W. 521; Jenkins v. New York Life Ins. Co., 122 W.Va. 73, 7 S.E.2d 343.

What was said in another connection by Chief Justice Hughes of the United States Supreme Court in Williams v. Union Central Life Ins. Co., 291 U.S. 170, 180, 54 S. Ct. 348, 352, 78 L.Ed. 711, 92 A.L.R. 693, is pertinent here: “As there is no ambiguity in the provisions under consideration, there is no occasion for resort to the familiar principle that equivocal words should be construed against the insurer. While it is highly important that ambiguous clauses should not be permitted to serve as traps for policyholders, it is equally important, to the insured as well as to the insurer, that the provisions of insurance policies which are clearly and definitely set forth in appropriate language, and upon which the calculations of the company are based, should be maintained unimpaired by loose and ill-considered interpretations.”

It might be well to observe that, if the failure of the insured to present proof of his disability in the instant case had been due to a disability which rendered him incapable of making or giving such proof, his case would then fall within the doctrine announced by this court in Hickman et al. v. Pan-American Life Ins. Co., supra, in which recovery was allowed when such failure was due to the insanity of the insured.

The opinion of this court in Turner v. Metropolitan Life Ins. Co., 189 La. 342, 179 So. 448, does not reflect that the contention was made by the insurance company that liability arose under the disability provisions of the policy involved as of the date of giving of notice during disability by the insured rather than as of the date of disability. The insurance company defended the claim of the insured on three grounds: First, that the proof and notice of injury were not made out and served within a reasonable time; second, that plaintiff was not totally and permanently disabled; and, third, that plaintiff was judicially estopped from claiming that he was totally and permanently disabled because of -his injuries, by judicial allegations to the contrary which he made in another suit. That case, therefore, does not appear to be pertinent to the issue of this case. Our .examination of the other cases relied upon by plaintiff-appellant shows that they involved policies with provisions entirely different from those in the one involved in the instant case, and are not controlling here.

For the reasons assigned, the judgment appealed from is affirmed, appellant to pay all costs.

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

MOISE, J., dissents with written reasons.

O’NIELL, C. J., takes no part.

HAMITER, Justice

(concurring in part and dissenting in part).

The provision of the policy relating to the waiver of premiums is free from ambiguity, and I agree that the only reasonable interpretation to be given it is that announced in the majority opinion. It clearly recites an agreement on the part of the company to waive payment of all premiums payable upon the policy falling due after receipt of proof of the disability.

But I do not agree that the disability-annuity provision is likewise unambiguous, the numerous so-called “goose cases” from other jurisdictions to the contrary notwithstanding. It stipulates that the company will “Pay to the Insured a Monthly Disability-Annuity as stated on the face hereof; the first payment to be payable upon receipt of due proof of such Disability and subsequent payments monthly thereafter during the continuance of such total and permanent Disability.”

This stipulation, by adding the word “monthly” to the phrase “the first payment”, can be interpreted as the majority has done. However, as written and without the addition, it logically can be construed also as obligating the company for disability benefits from the inception of the disability with the obligation dischargeable or payable only after receipt of due proof. Thus, preceding the semi-colon is a complete sentence expressing unqualifiedly an obligation to pay a monthly disability-annuity. Standing alone this could only mean payment for the entire disability. Then follows a recitation of the method by which the annuity is to be paid, it being that the first payment (not necessarily the first monthly payment) is payable upon receipt of due proof. This first payment, especially since the word “monthly” is not used in connection with it, may well be interpreted as covering all of the disability theretofore experienced, that is from its inception to the date of such first payment.

Being susceptible of two different interpretations, and hence ambiguous, the disability-annuity provision should be given that construction which is most favorable to the insured.

For these reasons I respectfully concur in part and dissent in part.

■MOISE, Justice

(dissenting).

Following the theoretical standard of prior interpretation without looking to the concrete conditions prevailing should not be exclusive of all other means of relief. One must separate the essentials of the contract, the prime mptives thereof^ and the incidentals. The insured purchased a policy, the prime motive and essential was to protect himself during permanent disability, and like all other insurance contracts, his protection began from the moment that the contract was completed, that is, the delivery of the policy, coupled with the payment of the premium. An incidental to the contract was the method to be effected in order to insure payment in case of disability— the submission of proof to the company. I do not believe that the contract should be interpreted so that a mere incidental payment should be made to supercede the policy provisions and the prime motive of the assured for its purchase.

The rule of reason should be applied here as is applied to policies of life and fire insurance. On such policies, after the pay-merit of the premiums, the company contracts to p.ay the amount specified in the policy after death, and on a fire policy, the loss sustained by fire. Here; we have the essentials of the contract but'the incidentals of the payments of these contracts are proof of death and of loss sustained through fire.

Article 1764 of the Revised Civil Code, dealing with what subject matter of contracts is to be considered provides : “Accidental stipulations, which belong neither to the essence nor the nature, of the contract, but depend solely on the will of the parties. The term given for the payment of a loan, the place at which it is to be paid, and the nature of the rent payable on a lease, are examples of accidental stipulations.”

The concrete essential of this contract is protection during disability and the accidental stipulation is the method of procedure in order to obtain the prime motive thereof, the submission of proof of disability. The condition for payment is that the policyholder should be under 60 years of age and there be no default in payment. The denial of payment by the company when there is a default in premium or the assured is over 60 yeárs of age is the proper denial of liability. But here we have a provision of the policy that t'he ,effective date of payment shall be on the submission of proof and all prior payments during disability have been forfeited. The words “effective date” have been interpreted retroactively to deny the prime motive of the contract and the construction given as to the waiver of premium by the .company gives to this company the unjust enrichment of the payments that plaintiff has made during disability.

For these reasons, I respectfully dissent.

On Rehearing

MOISE, Justice.

Plaintiff having died after the original hearing of this case, his testamentary executor became a necessary party to this proceeding, under Section 1 of Rule XIV of this Court. The executor’s application for a rehearing was granted and we now 'have this litigation before us for further consideration.

In addition to the facts substantially set forth in the original opinion, we find in the record an agreed statement of fact in which it is admitted that the policy was in full force, that the premiums were all paid during the disability period from January 7, 1939 to August 31, 1939, that the assured was during said period totally disabled by reason of illness as set forth in Article 5 of his petition, and that at all times during said disability period he was under the orders, care and attention of five physicians.

It was also shown that the policy was in effect for thirteen years prior to the time of the filing of the suit. Mr. Robert Crump, the agent of the company who sold the policy to plaintiff was still with the company and was the agent who called at t'he Hotel Dieu during his total disability and obtained from assured the policy for the purpose of having the company change the beneficiary. Mr. Kammer, Attorney for the insurer stated: (during the trial of the case on the merits) “We will admit that for the purpose of changing the beneficiary the policy had to be in the possession of the company for the interim.”

Considering, the admissions in the above referred to stipulations as to assured’s total disability it is not necessary to further discuss this point. The policy contract likewise provides that disability for a period of three months shall be regarded as total disability.

In consultation it was discovered that a majority of the. Court felt that a recovery should be had and that the original decree herein should not be reinstated. Chief Justice FOURNET wrote a dissent against the reinstatement of the original decree and because the decree was- not reinstated that dissent remains unrecorded. We now quote this unrecorded dissent with approval:

“In the words of Justice HAMITER in his dissenting opinion on the original hearing of this case, ‘the numerous so-called “goose cases” from other jurisdictions to the contrary notwithstanding,’ I cannot subscribe to the views expressed in the majority opinion.

“A careful study and analysis of the provisions of the policy in controversy, in my opinion, and as demonstrated by Justice HAMITER in his dissent (that was only released after the majority opinion on the original hearing had been signed in consultation), shows that the clause in controversy is susceptible of two interpretations. Under our civil law we are admonished in construing contracts, and particularly clauses susceptible of two interpretations, to give them the interpretation that carries out the object and purpose of the contract. Articles 1945 and 1951 of the Revised Civil Code. The object and purpose of the contract here under consideration is to indemnify the insured in the case of total permanent disability. Also, under our civil law we are admonished, in a doubtful case, to interpret the agreement against ‘him who has contracted the obligation.’ Article 1957. These two civil law rules of interpretation are in accord with the general rule governing insurance contracts that a policy, whenever ambiguous, should be given a construction that is most favorable to the insured.

“While the ‘so-called goose cases’ of . other jurisictions are sometimes persuasive and of great aid in deciding cases, when the contract is so clearly susceptible of two different interpretations, as ably demonstrated in the dissenting opinion above referred to, it is my opinion that it is the duty of the court to ignore such holdings and to exercise its own judicial prerogatives.”

In the dissent of Mr. Justice HAM-ITER to the original opinion, the obscurity in the language of the policy clauses — the bone of contention — is clearly shown. To arrive at the conclusion reached by the majority opinion, the civil law precept must be ignored and this ambiguous clause interpreted in favor of the company and against the assured. Mr. Justice HAMITER stated: “It stipulates that the company will ‘Pay To The Insured a Monthly Disability-Annuity as stated on the face hereof; the first payment to be payable upon receipt of due proof of such Disability and subsequent payments monthly thereafter during the continuance of such total and permanent Disability. This stipulation, by adding the word ‘monthly’ to the phrase ‘the first payment’, can be interpreted as the majority has done. However, as written and without the addition, it logically can be construed also as obligating the company for disability benefits from the inception of the disability with the obligation dischargeable or payable only after receipt of due proof.”

This interpretation is in keeping with the codal articles Nos. 1945, 1951, 1952 and 1957. Of course, proof must be submitted of a loss, a death, or total disability, in order to ascertain the truth, to render the policy provisions effectual. All disability must be specifically and clearly set out by proof. With this requirement the law of right will supercede might and the rule of common sense like the atmosphere we breathe will surround all mankind in a policy-protection after death or during total disability.

The codal articles also provide that “the reality of the cause is a kind of precedent condition to the contract, without which the consent would not have been given, because the motive being that which determines the will, if there be no such cause where one was supposed to exist, or if it be falsely ■represented, there can be no valid consent.” Article 1824, R.C.C.

There was no valid consent by the assured to the forfeiture of the payment of disability and waiver of insurance premiums. If such were the case as hpld by the majority-original opinion, the company should have made this clear in the language of the contract, or given an explanation. The cause and motive for the contract indicates that plaintiff believed that he was purchasing a monthly disability annuity without deduction at maturity when payments became due, as provided for on the face of the policy, and without this understanding his consent would never have been obtained. R.C.C. Art. 1824. The company knew that assured was in the hospital. The company knew that the assured had a policy for permanent disability because it had that policy in its possession for a time during assured’s disability for the purpose of changing the beneficiary. The company received all of the benefits and all of the profits hut yet disavowed any responsibility whatsoever and refused to make any payment after admitting the permanent disability of the assured during the time from January 7, 1939 until August 31, 1939. For what purpose then did the assured comply with the contract, to each and to all of its provisions — as to age, payment of premiums, etc. His - purchased protection becomes a meaningless abstraction. Courts will limit “man’s inhumanity to man” in some degree by providing rules of interpretation of contracts. Our Code has provided under Articles 21 and 1965 the equitable provisions and the codal articles, also provide the law. We have a sacred relationship of lawyer and client, physician and patient, but is there any more sacred relationship than insurer and assured? The lawyer gives legal advice and guidance to the client, the physician eases or cures infirmities of the body of a patient and the insured deals with man in most cases where the soul has left the body and provides for his loved ones’ protection after death or during total disability. We admit that the insurance company is unlike the doctor or lawyer and that it has its stockholders and policyholders to protect, and that it owes to them a fair and prudent administration and that it has the right to place in its policies provisions as to proof of loss or disability or death for the giving of notice of claims. The proof is one thing, a forfeiture of all protection is another. Timely proof of disability is for the purpose of preventing fraud and ill-practices on the part of an assured or his heirs, and further, not to place the insurance company at a disadvantage in obtaining the evidence for its defense. These are proper means of protection for the business and if in a given case like here where the records of the Hotel Dieu are available, where five physicians who attended the assured were all alive at the time of the trial on the merits and the general good reputation of the insured for integrity was beyond questioning, the cause of the policy provisions having -been removed, no longer existed.

The organ of the Court in the majority opinion quoted authorities from numerous common law jurisdictions. In these jurisdictions they do not have the articles of our Code. The infiltration of these decisions menaces the clear provisions of our Civil Code and our settled rules of interpretation. It is not permissible under our Code to add any words to the contract, to free the clause from ambiguity. The word “monthly” must be added before the words “first payment” to give the provision the interpretation placed upon it by the original opinion. We should not make an interpretation fit a preconceived theory but make the theory conform to the law. The civil law rules of interpretation are traditional with Louisiana. We as judges worship our traditions. Our identity and individuality as a civil law state must be maintained if we are going to stabilize with consistency our jurisprudence. Our decisions should not be merged with the infiltration of technicalities of the law of other states so as to make the jurisprudence petrified by common law precedents. “Our anchor should be on the rockbed of our Civil Code, the most profound philosophical depository of juristic science.”

Plaintiff has carried the 'burden of establishing his claim with legal certainty and, therefore

The judgment appealed from is annulled and set aside and it is now ordered that there be judgment in favor of plaintiff and against 'the defendant for total disability from January 7, 1939 to August 31, 1939, at $100.00 per month, together with legal interest thereon from date of judicial demand until paid; and for all costs of court.

HAWTHORNE and McCALEB, JJ., dissent with written reasons.

LE BLANC, J., dissents.

McCALEB, Justice

(dissenting).

The facts are fully set forth in the original opinion and. it would reserve no useful purpose for me to restate them. The question for decision is whether the policy clearly provides that the obligation of the insurance company for disability benefits and waiver of premiums is conditioned upon receipt of proof during the existence of the disability. The affirmative answer, which was given in the original opinion, is supported 'by the unanimous jurisprudence of the State and Federal courts, including the Supreme Court of the United States.

A reexamination of the case has served only to reassure me of the correctness of our previous views. The policy does not unqualifiedly provide for the payment of the monthly disability annuity during disability. On the contrary, the obligation to pay is conditioned upon receipt of due proof of disability and it thereafter continues during the existence of the disability. The specific language of the policy is “(I) Disability Benefits before: age 60 shall ’be effective upon receipt of due proof, * * * ” The word “effective” is synonymous with “operative” (Webster’s New International Dictionary) and, as used in the policy, denotes the beginning of the period for which benefits are to be allowed. See Rowan v. New York Life Ins. Co., Mo.App., 124 S.W.2d 577 and other cases of the same tenor cited in the original opinion.

Hence, there can be no doubt that the obligation of the company for the monthly disability benefits does not come into existence until it has received due proof of the disability. However, it is said that, even if this be so, the giving of notice subsequent to the existence of disability -restores the right of the insured to claim for such previous disability because clause 1(b) of the disability provisions is ambiguous.

But Clause 1(b) is not obscure. It provides that the insurer will “Pay To The Insured a Monthly Disability-Annuity as stated on the face here of;, the first payment to -be payable upon receipt of due proof of such Disability and subsequent payments monthly thereafter during the continuance of such total and permanent Disability.” Obviously, the payments provided for are conditioned upon a compliance by the assured with clause (I) which distinctly makes the disability benefits effective only upon receipt of due proof. The argument that the phrase in Clause 1(b) that “the first payment to -be payable upon receipt of due proof” is indefinite, being .subject to the interpretation that it may mean the payment of a sum larger than a $100 monthly payment, is not well founded as the obligation of the insurer is plainly stated throughout the policy to be a monthly -disability-annuity of $100. ' - .

After -all, the insurance contract is the law between the parties and the Court should give legal effect to it according to the true intent of the parties, which is to be determined by the words of the contract when they are clear and lead to no absurd consequences. Article 1945, Civil Code, And, in construing the words used by the parties, they “ * * * are to be understood, like those of a law, in the common and usual signification, without attending so much to grammatical rules, as to general and popular use.” Article 1946, Civil Code.

By applying these fundamental principles, I have no difficulty in resolving that the language used in the policy is free from ambiguity. Accordingly, there is no reason to adopt a liberal construction in favor of the insured.

For these and the reasons set forth in the original opinion, I respectfully dissent.

HAWTHORNE, Justice

(dissenting).

I adhere to the views expressed in the original opinion, and am unable to understand how- the cited articles of the Civil Code have any application to this case.

On Application for Second Rehearing

PER CURIAM.

The majority opinion on rehearing contained the observation that, “The company received all of the benefits and all of the profits but yet disavowed any responsibility whatsoever and refused to make any payment after admitting the permanent disability of the assured during the time from January 7, 1939, until August 31, 1939.”

Calling attention to the incorrectness of the asserted admission regarding permanent disability, counsel for defendant,' in an application for a second rehearing, say: “ * * * In our original brief, we admitted that Robbert was totally disabled from January to August, 1939; but stated that the fact that he had recovered from his illness conclusively showed that the disability was not permanent and that it had -ceased before he made claim for total and permanent disability .in July of 1940.” This statement, along with others in the application, implies that we failed to give consideration to the defense urged that the assured was not permanently disabled within the meaning of the policy.

Regarding this defense the contract recites: “* * * and such total disability shall be presumed to he permanent when it is present and has existed continuously for not less than three months; * *

Although the question of permanency was not discussed at length in the majority opinion on rehearing, it was considered in reaching the conclusion announced. In the opinion we said: “Considering the admissions in the above referred to stipulations as to assured’s total disability, it is not necessary to further discuss this point. The policy contract likewise provides that disability for a period of three months shall be regarded as total disability.” Obviously, in this last sentence, the word “total” was used inadvertently instead of the word “permanent”, for the policy itself provides that the disability shall be presumed to be permanent when it has existed continuously for not less than three months.

As to when the insured is permanently disabled within the intendment of the contractual provision there appear to be two recognized conflicting views (this court had not previously passed upon the point), as is shown by 110 A.L.R. pages 631, et seq. The view which we adopted in rendering the decision herein is well stated on page 631 of that authority as follows: “ * * * that the presumption created by the policy is conclusive, and that a disability which lias lasted for the requisite period of time to render it presumably permanent within the meaning of the policy is nonetheless permanent, although it has since terminated; and that consequently an insured who has suffered such disability may, even after the termination thereof, recover benefits therefor as for permanent disability, for the period during which it actually lasted.”

Considered in its entirety the instant policy indicates that the word “permanent”, as contained in the contract, is not used in the sense of “forever”. Thus, provision is made for the insurer, where disability payments have commenced, to investigate at stated intervals the health of the insured and to cease paying the benefits in the event the total disability ends. But should that event occur, thereby negativing an everlasting disability, the insured is not required to make restitution of the payments received.

A second -rehearing is denied.

HAWTHORNE, J., is of the opinion that a rehearing should be granted.

McCALEB, J., dissents from the refusal of a rehearing.

LE BLANC, J., dissents from refusal to grant a second rehearing.

      . I find it unnecessary to comment on appellant’s claim for a return of premiums. This question was fully disposed of in the original opinion and merits no further discussion.


source: Caselaw Access Project

author: McCALEB, Justice.

license: Public Domain

text:
    217 La. 362
    ARNOLD v. ARNOLD.
    No. 39121.
    Supreme Court of Louisiana.
    April 24, 1950.

      R. A. Dowling, New Orleans, for plaintiff-appellant.
    Max Zelden, New Orleans, for defendant.
   McCALEB, Justice.

Plaintiff, divorced wife of Owen Dale Arnold, brought this suit against her former husband for the custody oif the two children of the marriage, who are in his possession and are being -cared for by him. After 'hearing, there was judgment in defendant’s favor rejecting the demand and. awarding him the permanent care and custody of the children. Plaintiff is appealing from the adverse decision.

An examination of the' record reveals that the appeal must be dismissed for lack of jurisdiction. The judgment below was rendered and signed on June 6, 1947. More than one year thereafter, on June 8, 1948, counsel for plaintiff moved for and was granted an appeal to this Court.

Aside from the impropriety of the motion for the appeal, — since it was not made at the same term at which the judgment was rendered — -the order granting it was absolutely null as the appeal was not taken within the year allowed by Article 593 of the Code of Practice. It is now firmly established that the provision in Article 593 that “No appeal will lie, * * * after a year has expired” is prohibitory; that the appellate court does not acquire jurisdiction of appeals which have not been taken and perfected by the filing of bond within the prescribed time and that it is the duty of the -court to dismiss such appeals ex -proprio motu. Untereiner v. Miller, 29 La.Ann. 435; Lafayette v. Farr, 162 La. 385, 110 So. 624; Mount Olive Baptist Church v. New Zion Baptist Church, 198 La. 896, 5 So.2d 144, and Dickerson v. Hudson, 201 La. 915, 10 So.2d 700.

The appeal is dismissed.

      . See Articles 573 and 574 of the Code of Practice. When an appeal is ap-' plied for at a term subsequent to that at which the judgment was rendered, it should be taken by petition and citation. An appeal taken by motion at a subsequent term of court without prayer for, or service of, citation of appeal requires dismissal, as such omission is substantive. Jacobsen v. McGarry, 178 La. 79, 150 So. 838, and Officer v. American Ins. Co., 182 La. 1054, 162 So. 771.

      . In Lafayette v. Farr, supra, the Court undertook a review of all of the prior jurisprudence, which was at that time unsettled and in conflict, setting at rest the matter by espeeifieally approving the ruling in Untereiner v. Miller, supra, which was subsequently re-affirmed in Mount Olive Baptist Church v. New Zion Baptist Church.


author: HAMITER, Justice.

text:
    217 La. 365
    FELGER v. DOTY.
    No. 39307.
    Supreme Court of Louisiana.
    April 24, 1950.
    Maizza & Drury, New Orleans, for plaintiff-appellant.
    Dudley Yoedicke, New Orleans, for defendant-appellee.
   HAMITER, Justice.

Plaintiff instituted this divorce suit against his wife on April 26, 1948, praying for a judgment dissolving their marriage. As a ground therefor he alleged a continuous living separate and apart since July S, 1945.

Answering, the wife admitted the alleged separation and that there had been no reconciliation. Further, she averred that the continuous living separate and apart was caused entirely by the actions of plaintiff. She prayed for a judgment awarding her 'alimony and attorney’s fees.

After a trial the district judge, as shown by his assigned written reasons, concluded that the separation 'had endured for more than two years and that the defendant was without fault in causing it. Whereupon, he granted a divorce in favor of plaintiff, but condemned him to pay unto defendant alimony, pursuant to the provisions of Civil Code Article 160, of $140 per month and also .attorney’s fees of $150.

Plaintiff appealed suspensively and de-volutively from that part of the judgment which awarded alimony and attorney’s fees. Since appealing, however, he has abandoned his opposition to the award of attorney’s fees. Hence, there remains for our consideration only the question of whether the defendant is entitled to alimony (the amount allowed is not disputed).

Civil Code Article 160, which authorizes an allowance to a wife on divorce, recites in part: “If the wife who has obtained the divorce has not sufficient means for her maintenance, the court may allow her in its discretion, out of the property and earnings of her ’husband, alimony which shall not exceed one-third of his income; provided, however, that in cases where, under the laws of this state a divorce is granted solely on the ground that the married persons have been living separate and apart for a certain specified period of time, and the husband has obtained ■a divorce upon the ground of such living separate and apart, and the wife has not been at fault, then the court may allow the wife in its discretion, out oí the property and earnings of her husband, alimony which shall not exceed one-third of his income.”

Thus, when the bonds of matrimony are dissolved by a judgment of divorce rendered on the ground that the parties have been living separate and apart for the statutory period, the wife will be denied alimony if she has been at fault. But the word “fault”, as employed in the quoted codal provision, does not mean merely the wife’s engaging in quarrels more or less of a trivial nature; for, as said in Armstrong v. Whalen, 161 La. 613, 109 So. 140, such experiences, which momentarily jar and disturb the peace and harmony of matrimony, are not unusual or exceptional as between a husband and his wife. Rather, the word “fault” as so used contemplates conduct or substantial acts of commission or omission on the part of the wife, violative of her marital duties and responsibilities, which constitute a contributing or a proximate cause of the separation and continuous living apart, the ground for the divorce.

With this interpretation in mind we have carefully examined the evidence in the record. It discloses that the litigants were married in Memphis, Tennessee, on October 14, 1924. Of the union two sons were bom, their ages at the time of the institution of this action in 1948 being 21 and 19 years, respectively. In 1925 plaintiff and defendant moved to Louisiana, establishing a domicile in Alexandria and living there until 1942. Since the latter year they have resided in New Orleans.

In November, 1943, the parties became separated; but they lived apart then only some three or four months, a reconciliation having been effected. The continuous separation upon which the instant action is predicated commenced July 5, 1945.

Plaintiff alleged in the petition, and he so testified, that he left the defendant because he could no longer withstand her cruelty toward him, it consisting of constant nagging, quarreling, 'and bickering, of innumerable false accusations of his paying attentions to other women, and of physical violence inflicted on him.

Defendant admitted having struck plain-tiff on one occasion, that being in 1943, preceding the first separation and subsequent reconciliation; but, according to her-testimony and that of her sister-in-law, she was acting then in self defense. They testified that plaintiff, after having been censured for his tardiness in arriving home from a dinner party (5:00 A.M. o’clock), became violently abusive and that defendant, to protect herself, hit him with a brass candlestick. The record discloses no other physical blows inflicted by defendant.

As to the remaining charges that defendant constantly nagged, quarreled with and made false accusations against him, plaintiff’s testimony is rather general and indefinite. Respecting it the following is an example:

“Q. Was there anything else in the last year and four or five months since the reconciliation of February 4, 1944, that made you or had anything to do with your leaving on July 5, 1945? A. Well, there were numerous arguments most every night when I would come home, about things that I knew nothing about, accusations I had done this, that or something else I knew nothing -about; and I don’t know as I can put my finger on exact dates.

“Q. Can you be specific about any of these accusations you are talking about, besides those already mentioned? A. Oh, I remember one night that I got home about 45- minutes late from the office, I was accused of meeting some woman at a honkeytonk joint, and so forth; and the facts of the case was we had had a flat tire coming 'home — just anything to start an argument.”

Defendant denied that she nagged plaintiff ; however, she admitted that occasionally she quarreled with him about his flirtations with other women, specific instances of which she recounted. Further, she described certain attacks made on 'her by plaintiff during the five years preceding the final separation. Plaintiff conceded his striking of defendant át times, but he sought to justify his acts as follows: “I • don’t deny maybe I had been pretty rough sometimes, but you know when a man gets his back up against' the wall and has to take this stuff year in and year out, day in an'd day out, you kind of get fed up on it; and at times I may not have acted the part of a gentleman; but that is only natural and one of those things that happen.”

Plaintiff did not complain that' his wife failed to provide a suitable home for the family or that she was a bad housekeeper. Nor does it appear that he could make such a complaint justifiably, for the evidence shows conclusively that she was an excellent housekeeper, and that both in Alexandria and New Orleans her homes were perfectly kept notwithstanding that on several occasions she was compelled to and did engage in outside work in order to assist with the family finances. Furthermore, the ‘homes were always open to and often availed of by plaintiff’s friends and business associates.

The factual situation here is very similar to that in Martin v. Martin, 191 La. 761, 186 So. 94, 97. There, with reference to the husband’s charges of constant nagging and in support of the holding that the wife was not at fault in causing the separation, this court commented: “The attempt of the husband, by going back over the eleven years of his married life, to show that his wife was at fault in ‘nagging and fussing’ with him to the extent of making his life unbearable, is unimpressive. At all times he used these general terms and could never give any idea of the time when ‘the nagging and fussing’ were' supposed to have happened. The two specific occasions referred to when she is said to have raised 'a disturbance about his drinking intoxicating liquors was fixed fey him about one year before the separation and by his two witnesses, probably three or four years before it occurred. These two incidents certainly would not justify him in abandoning his wife, after staying with her for such 'a long period of time after they happened, and especially is this true when he and his own witnesses admitted that for several weeks prior to the separation the parties lived together peacefully and quietly.”

In the instant case, after a close study of all of the evidence, we are unable to conclude that the district judge manifestly erred in his finding that defendant was free of fault within the contemplation and meaning of Civil Code Article 160.

For the reasons assigned the judgment appealed from is affirmed.

MOISE, J., absent.


author: FOURNET, Chief Justice.

text:
    217 La. 373
    STATE v. BROWN.
    No. 39824.
    Supreme Court of Louisiana.
    April 24, 1950.

      France W. Watts, Jr., Franldinton, 'for defendant-appellant.
    Bolivar E. Kemp, Jr., Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Jas. T. Burns, Dist. Atty., Covington, for plaintiff-appel-lee.
   FOURNET, Chief Justice.

Jelthor Brown, in prosecuting this appeal from his conviction and sentence on a charge of negligent homicide, contends that the trial judge erred in allowing Ray E. Pope, who was one-half mile from the scene of the accident, to testify over his objection that when the accused passed him the accused was driving at a “very noticeably high rate of speed”; and also when the trial judge refused to give the special charge to the jury that “Criminal negligence is the greatest type of negligence known to the law. It is more than a rashly negligent, careless, and heedless act”; and in refusing his motion for a new trial based on these two alleged errors.

The first alleged error complained of is without merit. According to the per curiam of the trial judge, the defendant, who was in a hurry to get to Bogalusa to make a purchase before a certain store closed, was driving very 'fast, and Pope’s testimony was in corroboration of that of several other witnesses who had already testified to the same effect. This testimony was clearly admissible. The fact that the witness was approximately % mile from the scene goes to the effect and weight to be given to the evidence rather than to its incompetency, as claimed by the accused. Moreover, the defendant was not prejudiced by the admission of such evidence since he took the stand and admitted that he was driving SO miles an hour at the time.

The second alleged error complained of is equally without merit. The trial judge properly charged the jury on criminal negligence as defined in the Criminal Code.

The motion for a new trial based on these two alleged errors presents nothing for further consideration.

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


text:
    217 La. 876
    CANAL REALTY & IMPROVEMENT CO., Inc. v. PAILET.
    No. 39691.
    Supreme Court of Louisiana.
    April 24, 1950.

      Rosen, Eammer, Wolff, Hopkins & Burke, New Orleans, for plaintiff and ap-pellee.
    Joseph Rosenberg, New Orleans, for defendant and appellant.
   HAMITER, Justice.

Defendant, David J. Pailet, is appealing from a judgment which condemns him to vacate without delay the premises known as Nos. 1 IS, 117, 119 and 121 South Rampart Street, in the City of New Orleans, and to deliver possession thereof to the plaintiff, Canal Realty & Improvement Company, Inc.

By a written contract plaintiff, as owner, rented and leased unto the defendant the described commercial property for a term beginning March 1, 1948 and ending June 30, 1951, the stipulated rental ($4,200 per year) being payable in equal monthly installments in advance. Under the heading “Rules and Regulations” the lease provides, among other things, that:

“2. The doors, skylights, windows and sashes that reflect, or admit light, in the passages, or into any place in said building shall not be covered or obstructed in any way.

* * * * * *

“4. No sign, advertisement or notice shall be inscribed, painted or affixed on, in or upon any part of the demised premises or in the windows except those pertaining to the Lessee’s business, and except of such wording or lettering, color, size and style, and in such manner and places on or upon said building as shall be first designated or allowed in writing by the Lessor, and all lettering on doors and windows shall be done by the Lessor’s painter at the expense of the Lessee. * * * ”

On June 27, 1949, plaintiff instituted this summary eviction action, the procedure governing which is provided by Revised Statutes, § 2155, as last amended by Act No. 200 of 1936, Dart’s Statutes, § 6597, and it obtained the issuance of a rule ordering defendant to show, cause on July 1, 1949, why judgment should not be rendered condemning him to vacate the premises in question. The petition, after making reference to the execution of the lease and setting for.th some of the provisions thereof (including those above quoted), contains the following allegations:

“Defendant violated the terms of said lease by allowing the windows to be covered with wrapping paper or discarded signs, giving the premises a disreputable appearance, and by affixing advertising in the windows of the leased premises objectionable to lessor without obtaining lessor’s written consent therefor.

“Under date of May 19, 1949, petitioner, through its duly authorized attorneys, notified defendant that because of the above mentioned violations of the terms of said lease, it had exercised its option to cancel the same and accordingly demanded that defendant vacate the premises on May 31, 1949.

“In spite of the provisions contained in said lease, and in spite of said notice, the said defendant has failed to vacate said stores and is presently occupying the same contrary to the wishes of your petitioner, and your petitioner desires and is entitled to the summary process provided by law to dispossess defendant as its tenant.”

On the designated return day of the issued rule defendant tendered exceptions of prematurity, of vagueness, of no right and no cause of action, and of lack of proper citation. At the same time he answered denying that any of the conditions of the lease had been violated. Also, he pleaded in his answer as follows:

“Further answering, defendant shows that he has operated said business in a dignified manner; that upon objection being made by the plaintiff in rule as to certain appearances of said business, he has endeavored to correct same, and has corrected same; that the complaint herein arises purely from an aesthetic viewpoint, and not otherwise. That the plaintiff in rule objected to respondent having a sign in his window quoting price of baseball shoes, and that upon receiving said complaint, respondent went so far as to remove said sign.

“Respondent further shows that the plaintiff in rule is motivated by ulterior purposes in that he is seeking to obtain possession in order to rent said business at a higher price, and to derive greater profit.

“Respondent further shows that he has paid his rent for June, 1949 which has been received without protest, and that he further pleads estoppel.”

The district judge considered first defendant’s several exceptions and, after hearing arguments thereon, overruled them. Then the rule was tried on its merits, resulting in the eviction judgment from which the defendant is appealing.

In this court appellant reurges his plea of estoppel, his exceptions of prematurity and of no cause of action, and he assigns error to the' ruling on the, merits.

From the record we find that on numerous occasions since the execution of the lease plaintiff notified defendant, both verbally and in writing, of alleged violations of certain provisions of the lease, and it called upon him to comply with his agreement. For example, in a letter of date January 27, 1949, plaintiff stated:

“This will constitute formal notice that you have defaulted in carrying out the terms of your lease covering the premises, 115 — 117—119 and 121 South Rampart Street, in the following respects:

“1. You have failed to pay the rent for the month of January, 1949, although it became due on the first day of the month;

“2. For the past several months, you have discontinued the use of the premises for the purpose for which they were rented;

, “3. Some of the windows are still covered with wrapping paper, which gives the premises a disreputable appearance;

“4. You have affixed advertisements in the windows of the leased premises which are objectionable to us without obtaining our written consent therefor; all of which is in violation of the terms of the lease and the rules and regulations of the last page thereof.

“Please take notice that unless the above defaults are remedied within a period of ten days we shall exercise our legal rights under the lease.”

Later, specifically on May 19, 1949, and at a time when the rent was not in arrears, plaintiff, through its attorneys, addressed to defendant the following communication:

“By letters dated October 22, 1948, November 15, 1948, January 27, 1949, February 2, 1949, February 9, 1949, February 22, 1949 and March 2, 1949, you were notified in writing of various defaults under your lease with Canal Realty & Improvement Co., Inc., and you have failed to cure all the defaults complained of, except that you have paid the rent, although always late.

“You have continued to violate the terms of the lease in the following respects: (1) some of the windows are still covered with wrapping paper or discarded signs, which gives the premises a disreputable appear-anceyand (2) you have affixed advertisements in the windows of the leased premises, which are objectionable to lessor, without obtaining lessor’s written consent therefor.

“On behalf of Canal Realty & Improvement Co., Inc., we hereby notify you that under the 37th clause of the lease it has exercised the option of cancelling the lease and, accordingly, demands that you vacate the premises on May 31, 1949.

“Please take notice that if you should fail to do so we will institute legal proceedings to obtain possession of the premises and hold you responsible for any damages suffered by lessor, together with attorneys’ fees provided for in the lease.”

The pertinent provisions' of clause No. 37, referred to in the last quoted letter^ read: “Should the Lessee at any time violate any of the conditions of this lease * * * and should * such violation continue for a period of ten days after written notice has been given Lessee, then the rent for the whole unexpired term of this lease shall, at Lessor’s option, without putting Lessee in default, at once become due and exigible; and in such event, Lessor shall have the option either at once to demand the entire rent for the whole term or to immediately cancel this lease, without putting Lessee in default, Lessee to remain responsible for all damages or losses suffered by Lessor, Lessee hereby assentirig thereto, and expressly waiving the legal notices to vacate the premises. * * * ”

Defendant did not vacate tKe premises on May 31, as the letter of May 19, demanded, or on any other date. Instead, on or about June 10, he paid to plaintiff, and it accepted, the rent due for the entire month of June.

No further written notice was given to defendant, either to vacate the premises or to remedy the asserted violations. Nevertheless, on June 27, after having accepted rent for the month of June and without tendering back any part of it, plaintiff resorted to this eviction action which defendant now contends was prematurely filed.

In passing upon this prematurity contention of defendant it is important and necessary to consider the effect of plaintiff’s acceptance of the June rent. Regarding it counsel for plaintiff state’in their original brief: “Defendant repeatedly promised to cure these defaults and, relying upon his promises, plaintiff accepted the June rent. This acceptance of the rent in no wise waived the other defaults. The rent for June is fully earned, as defendant occupied the premises for that entire month. The judgment dispossessing the defendant was rendered and signed on July 5, 1949, and defendant has paid no rent from July 1st to date, although he has occupied the premises continuously. It is quite true that the acceptance of the rent after its due date in June cured the default as to the non-payment of the rent, but certainly not the other defaults complained of, which were never cured. Even if it be contended that the acceptance of the June rent waived the cancellation of the lease on May 31st, certainly lessor had the right to cancel the lease at any time thereafter because of lessee’s continued violations of the terms of the lease.

Also, in a supplemental brief, plaintiff’s counsel say: “ * * * The record further shows that sometime during June, 1949, defendant tendered the June rent, which was payable in advance, and, at the same time, promised that he would cure the defaults complained of, and in order to give him another chance, plaintiff accepted the June rent, subject to the condition that the defaults would be cured. * * * ”

If, as counsel state, the June rent was accepted with the understanding that defend-

ant would cure the defaults, it would seem •that under no circumstances could plaintiff rightfully institute this action prior to July 1 (it was filed June 27), for such an agreement would imply that defendant had the entire month of June in which to adopt his promised'remedial measures.

But if such be not the correct import of the litigants’ understanding, it is- certain that the^acceptance of the June rent effectually vitiated the letter or notice of May 19. The acceptance, in other words, constituted a waiver of that notice and a forgiveness as to any and -all previously committed infractions, and it served to reinstate the lease as of that time.

Plaintiff’s counsel take the position, however, that even though the May 19 letter was vitiated it was unnecessary that defendant be given any further notice to vacate (a notice is required by the eviction procedural statute cited supra), because the lease contract executed by him contains a provision (above quoted) whereby he expressly waives the notice. Whether or not that statutory notice to vacate can be waived contractually, or was legally waived by this defendant, is a question which we need not and do not now determine. Conceding for the sake of argument that such a waiver by agreement is legal there is lacking here on other notice, required by the contract itself, the giving of which is a prerequisite to the cancellation or termination of the lease and, necessarily, to an eviction suit. In clause No. 37 of the contract,, as is shown by the part thereof quoted above, it is stipulated that should any violation of the conditions of the lease continue for a period of ten days after written notice Iws geen given lessee the lessor shall have the option either at once to demand the entire rent for the whole unexpired term or to immediately cancel the lease. Subsequent to the vitiation of the May 19 letter and to the reinstatement of the lease, which resulted from the payment of the June rent, plaintiff did not give to defendant this clearly contemplated ten days’ notice of its exercise of the option to cancel or terminate the contract. This being true it follows that the instant eviction action was prematurely instituted.

This conclusion makes unnecessary a determination of the question, presented by the merits of the case, of whether or,not the .defendant committed the alleged violations of the contractural provisions.

For the reasons assigned the judgment of the district court is reversed and set aside and this suit is dismissed at the costs of plaintiff.


text:
    217 La. 386
    KIRKWOOD et al. v. McFARLAND.
    No. 38947.
    Supreme Court of Louisiana.
    April 24, 1950.
    Joseph A. Gladney, Baton Rouge, for appellants.
    • George S. Womack and James D. Wo-mack, Baton Rouge, for appellee.
   FOURNET, Chief Justice.

This Court, being without appellate jurisdiction of the cause under Section 10 of Article 7, Louisiana Constitution of 1921,-suit for damages for physical injuries to one of the plaintiffs and for other damages sustained by both plaintiffs arising -out of the same circumstances; is authorized to transfer the appeal to the court having jurisdiction thereof. Act No. 19 of 1912; see Sibley et al. v. Petty Realty Co., 215 La. 597, 41 So.2d 230; Spearman v. Toye Bros. Auto & Taxicab Co., 164 La. 677, 114 So. 591.

For the reasons assigned, the appeal in this case is transferred to the Court of Appeal, First Circuit, the record to be transmitted there by the appellants within thirty days; otherwise the appeal will be dismissed at their -cost.


author: IIAMÍTER, Justice.

text:
    217 La. 388
    BEAUVAIS et al. v. D. C. HALL TRANSPORT, Inc., et al.
    No. 39355.
    Supreme Court of Louisiana.
    April 24, 1950.

      Garrett & Pleasant, Shreveport, and Robert A. Ainsworth, Jr., New Orleans, for defendants and appellant.
    Max M. Morelock, New Orleans and Melvin F. Johnson, Shreveport, for plaintiffs-appellees.
   IIAMÍTER, Justice.

Plaintiffs, Earnest O. Beauvais, Doris N. Beauvais, Royal V. Young and Margaret C. Young, brought this suit to recover damages allegedly resulting from certain nuisances created and maintained by defendants in close proximity to their residences located in Bossier City. According to the petition each was damaged to the extent of $1500 through “inconvenience, discomfort, humiliation, worry, mental anguish, pain and suffering, and injury to health.” Additionally, Earnest O. Beauvais and Royal V. Young claimed damages of $5000 to the residential property of each because of depreciation in its market value.

The district court, after trial, rejected the demands for property damage. But it rendered judgment in favor of each plaintiff in the sum of $750 for (to quote from the judge’s assigned written reasons) “the damages claimed for inconvenience, discomfort, etc., as alleged in the petition * $ * a

Defendants appealed. Plaintiffs have answered the appeal praying that the judgment be amended by increasing the personal injury awards to $1500 for each, as originally sought, -and also by allowing the property damage claims.

Since all of the damages asserted herein arose out of the same circumstances and a part thereof is for physical injuries to the several plaintiffs, we are unable to entertain jurisdiction of the appeal. Section 10 of Article 7 of the Louisiana Constitution provides that the Supreme Court “ * * * shall have appellate jurisdiction in civil suits where the amount in dispute * * * shall exceed two thousand dollars exclusive of interest, except in suits for damages for physical injuries to, or for the death of a person, or for other damages sustained by such person or his heirs or legal representatives, arising out of the same circumstances; * *

In the recent case of Sibley et al. v. Petty Realty Company, Inc., et al., 215 La. 597, 41 So.2d 230, 231, which presented a damage claim for physical and other injuries we considered the quoted constitutional provision and observed: “Inasmuch as a portion of plaintiffs’ claim is for damages for physical injuries, i. e., the illness of Mrs. Sibley and her children allegedly resulting from defendants’ act, it seems manifest that the Court of Appeal, Second Circuit, is vested with appellate jurisdiction under Section 29 of Article VII of the Constitution.”

For the same reason we are declining today jurisdiction of the appeal in the case of Kirkwood v. McFarland, - La. -, 46 So.2d 307.

For the reasons assigned it is ordered that this case be transferred to the Court of Appeal, Second Circuit, pursuant to the provisions of Act No. 19 of 1912, the record to be filed in such court by appellants within thirty days from the date on which this decree shall become final; otherwise, the appeal shall stand dismissed.

PONDER, J., absent.


text:
    217 La. 392
    ANGLIN et al. v. NASIF. In re NASIF.
    No. 39412.
    Supreme Court of Louisiana.
    April 24, 1950.
    Chandler & Edwards, Shreveport, for re-latrix.
    Booth, Lockard & Jack, Shreveport, for respondents.
   HAMITER, Justice.

Alleging that the defendant charged them and collected rentals for an apartment in excess of the maximum permitted by regu-< lations of the Office of Price Administration (hereinafter referred to as OPA), the three plaintiffs instituted this suit to recover the sum of $720, 'being triple the amount of the claimed excess during an eight months’ period. They prayed also for an award of attorney’s fees of $150.

Answering, defendant denied the asserted overcharge and affirmatively averred that her actions were lawful.

The district -court, after trial, rendered judgment in favor of plaintiffs for $360.

In the Court of Appeal, on the original hearing, the judgment was -reversed and set aside and the demands of plaintiffs were rejected at their costs. On a rehearing, however, that court (with a division among its members) amended the judgment of the district court, by reducing the overcharge award in favor of plaintiffs from $360 to $240 and by allowing $100 additional as attorney’s fees, and affirmed it as amended. See 39 So.2d 604.

. On defendant’s application we issued the writ oif certiorari, bringing the case here for review.

The living quarters in question, according to the record, are known as the lower left apartment of defendant’s premises located at Municipal No. 1022 Dalzell Street in Shreveport, and they consist of a bed room, a living room, a kitchen and a bath room. Prior to September 7, 1945, defendant had rented them for $75 per month to a Captain Nelson, but an OPA order of that date required a reduction of the monthly rental to $45.

About such date also there came to the attention',of the defendant‘a pamphlet issued by OPA, Numbered D-301 and containing questions and answers designed to acquaint the public with rental regulations, Rule No. 76 of which recited:

“Q. I want to rent out individual rooms in my apartment as sleeping rooms only. Can I do this? A. Generally, if your apartment is vacant, you may rent out rooms for sleeping purposes only.. However, you must register under the Hotel and Roominghouse Regulation and you are subject t-o its provisions if you rent to more than two -paying tenants.’ ”

With this rule in mind defendant addressed to the OPA Rent Director in Shreveport a letter of date October 26, 1945, reading: “This is to officially notify you of my intention to discontinue the renting of my apts. known as, Lower Right, Lower Left, and Upper Apt. 1022 Dalzell St. and to register them, or rather convert them into bedrooms, and reregister them as such under your rent control rules and regulations, Form D-301, rule 76, page 14. This to take effect immediately, and upon the vacancy of each apartment. Please furnish me with the necessary blanks, by mail, so that I may conform with your rules. I shall need nine blanks, and 'shall register each room as per your rental value set on my rooms No. 1, No. 2, and No: 3, in the same dwelling.”

The Rent Director, in a letter dated October 30, 1945, replied that the registration should he made in his office if possible and it had to be executed within thirty days from the date of the accommodations’ first rental.

About December 1, 1945, Captain Nelson moved from the lower left apartment, thus creating a vacancy there, and on December 8, 1945, the three plaintiffs took possession of the accommodations at a rental of $75 per month, to the payment of which they had agreed two days previously.

On January 4, 1946 (within thirty days from the date oif the rental agreement)," defendant went to the office of the Shreveport Rent Director and then and there, with the assistance of the latter’s employee, registered on printed forms the bed room and living room of the lower left apartment as two -sleeping .rooms (Numbered' 104 and 105) that had been rented to the plaintiffs on December 6, 1945, at the rate of $30, per month each. The registration statements contained this further, information: “Kitchen privileges $5 per month per person. Limited to four people using kitchen. This charge to be separate from room rent as bed room.”

From December 8, 1945, until December 1, 1946 (when they moved at defendant’s request), the three plaintiffs occupied the living quarters, and they paid the agreed monthly'rental of $75 without any protest or complaint. At no time during that period did the Shreveport, Rent Director inspect such accommodations or order a rescission of or a change in the aforedescri'bed registration statements. Furthermore, it is undisputed that' throughout the period of occupancy defendant furnished the linens and other coverings necessary for the two beds used by plaintiffs, one being the -regular facility in the bed room -and the'-other a day 'bed in the .living room.

In this action plaintiffs contend that defendant rented the quarters to them as an apartment (and they so testified), for which they were obligated to pay the registered ceiling price as such of only $45 per month. Defendant testified, on the other hand, that the agreement provided for the three plaintiffs’ renting the accommodations as two sleeping rooms (at $30 each) with kitchen privileges for three persons (at $5 per person), -all in accordance with the registration statements timely filed b-y her with the Shreveport R-ent Director on January 4, 1946. Defendant’s further testimony, in •this connection, was that initially she informed plaintiffs that she could equip the living room with a regular bed, a chest, and •a vanity; but th-at they preferred it as a combination living room and bed room, the day bed to remain therein and for which she could provide the necessary linens and other coverings.

If defendant’s testimony -be correct unquestionably plaintiffs’ demands are without merit, for the Rent Director himself stated under oath:

“Q. In" other words, in thi-s case, Mrs. Nasif could rent the lower left apartment for Forty-five ($45.00) Dollars as an apart-’ ment, and she could also, if she chose, or found tenants who wanted rooms, she could r-ent the two rooms for Thirty ($30.00) Dollars apiece under the two separate registrations and she could do it under either one ?' A. That is correct.”

On the original hearing, in rejecting the demands of plaintiffs, the Court of Appeal resolved the dispute respecting the rental agreement in favor of defendant, it observing:

“ * * * Without detracting one whit from the credibility -of. the young ladies in question, we are impressed with the'fact that the testimony of the defendant is equally as positive, and, in the light of surrounding circumstances, more persuasive. It is inconceivable to our minds that this defendant, called to account for what was apparently at that time an. unintentional violation of price ceilings on the 'basis of an ‘apartment', would take the trouble to determine the means and methods of procuring a reclassification of the accommoda--tions as ‘sleeping rooms’ and then rent them to these plaintiffs as an ‘apartment’. The effect of this consideration is strengthened by the further' fact that the defendant registered the accommodations as sleeping rooms a little less than thirty days later, which registration was made in person on forms furnished by employees in the local Office of Price Administration in Shreveport.

* * * * * *

“ * * * To conclude that a landlord would go to all o'f this trouble and effort to comply with regulations which would permit the receipt of an advanced rental, only to forego such an advantage on the occasion of the first opportunity to profit therefrom, would be, in our opinion, a reductio ad absurdum.”

The quoted reasons, assigned for thus accepting as correct defendant’s version of the rental agreement, seem to us to be logically sound. And the accepted version, we might add, finds further support in an admission of one of the plaintiffs as follows:

“Q. Just one question. When you went in there, didn’t you ask ‘How are we going to arrange for linens for this third girl to sleep? A. Well, we asked her if she would furnish the linens, 'and she said, ‘Yes.’ She would .furnish the linens. And, after she told us we could sleep on the day bed — and she said at first she wasn’t going to furnish linens for that — and then she said she would.

“Q. And she did? A. Yes.”

The opinion rendered on the rehearing does not clearly show that the Court of Appeal repudiated its earlier factual finding. Rather, it appears that the later award in favor of plaintiffs (for the alleged over charge plus attorney’s fees) primarily was for the following assigned reason:

“Granting for the sake of argument, that defendant told plaintiffs at the time she •rented the apartment that she was renting the living room and bed room separately as sleeping rooms at the rate of $30 per month each and that the remaining $5 was for kitchen privileges at the rate of $5 per month, and, even granting the mutual consent of lessor and lessee, the fact remains that the whole arrangement was obviously a-n evasion, either directly or indirectly of the maximum rental ceiling of $45 placed on the apartment by the regional director, and the collection of rentals above the ceiling was in violation of Section 91 above quoted.”

It was principally because of this reasoning that the writ of certiorari issued, we having entertained doubt that the suggested evasion (especially in view of the unrescinded registrations as bed rooms) had been committed by defendant.

Section 91 of the Federal regulations for housing, to which reference was made, provides in substance that the maximum rent and other stipulated requirements shall not be evaded, either directly or indirectly. 31 C.J.S., at page 471, defines “evasion”, distinguishing it from the word “avoidance”, as follows: “Act of eluding or avoiding, avoidance by artifice. In a particular connection, the term implies a wrongful act as distinguished from an avoidance permitted by law.”

In renting her quarters to these ’plaintiffs defendant performed no wrongful, fraudulent or illegal act. Her actions amounted only to -the legally permitted avoidance of an alternate and a lower rental .ceiling. That she might do this without subjecting herself to legal or criminal penalties is amply shown by the aforementioned testimony of the Rent Director and by the literature of the OPA.

For the reasons assigned the decision of the Court of Appeal on rehearing is set aside and that which was rendered 'by it on the original hearing is reinstated and now made the judgment of this court. Costs of the proceedings here are to be paid by plaintiffs.


text:
    217 La. 401
    KENNEDY v. PERRY TIMBER CO. et al.
    No. 39829.
    Supreme Court of Louisiana.
    April 24, 1950.
    . Ponder & Ponder, Amite, for defendant and appellant.
    Kemble K. Kennedy, Baton Rouge, in pro. per.
    Joseph A. Sims, Hammond, for plaintiff and appellee.
   HAMITER, Justice.

For consideration in this case presently is a motion of plaintiff to dismiss,the appeal of Walton B. Coney, one of the defendants, which was taken from a monetary judgment rendered against him.

In the action plaintiff prayed for a soli-dary award of damages of $17,759.24-against Perry Timber Company,. Luther F. Simmons, and Walter B. Coney, the basis of the demand being their alleged wrongful cutting and removing of certain pine timber from,a tract of land in Tangipahoa-Parish..

The district court, after trial, renderedi a judgment in solido against all defendants. As to Perry Timber Company and. Simmons it was for $3,416.35; however, as; to Coney it was limited to the principal, sum of $1,024.92. Also, the judgment directed payment of legal interest on the-respective amounts from date of judicial demand.

Orders of appeal to this court, suspensive- and devolutive, were requested and .obtained, by the several defendants.

In the motion to dismiss Coney’s appeal plaintiff complains first that the-bond of $1,600, which was timely furnished by that defendant, is inadequate for a suspensive appeal to the extent of $62.69. With respect to this complaint the law is. that the sufficiency of an appeal bond must. be tested primarily in the court of original jurisdiction. Act No. 112 of 1916, as amended by Act No. 284 of 1928; Durel v. Buchanan, 147 La. 804, 86 So. 189; Charvanel v. Esvard, 150 La. 305, 90 So. 658; Succession of Lissa, 194 La. 328, 193 So. 663; Blaize v. Cazezu, 208 La. 1081, 24 So.2d 147; Borgnemouth Realty Company, Limited, et al. v. Gulf Soap Corporation, 211 La. 255, 29 So.2d 841. And the record before us does not disclose that this legal requirement has been satisfied.

But it is said on behalf of plaintiff that defense counsel was notified by letter, prior to the return date of the appeal, that the bond was insufficient in amount. (To this the latter replies that after receipt of the letter he posted a supplemental bond of $100, but it is not in the record.) Clearly, the procedure outlined in the above-cited statute relating to the testing of appeal bonds in the court of original jurisdiction contemplates a notice through judicial process, not one by mail.

Moreover, Coney’s bond of $1,600, even if insufficient to suspend execution of the judgment (this we do not determine), certainly would sustain the devolutive appeal. This appears to be conceded by plaintiff, for in the brief it is stated: “Normally, the appeal bond posted by the appellant, Walton B. Coney, could be considered adequate for a devolutive appeal, if this Honorable Court were vested with monetary jurisdiction, but it cannot suspend the operation of the judgment rendered by the lower court. However, it is believed that the judgment is not sufficiently large to give the Supreme Court jurisdiction.”

In connection with the last sentence of the quoted extract from his brief, plaintiff contends secondly that the appeal should be dismissed for the reason that the judgment against Coney is for only $1,024.92, whereas in order for this court to review it the amount thereof would have to exceed $2,000. Appellate jurisdiction in a case of this kind is not determinable by the sum which a defendant is condemned in the judgment to pay; rather, it is tested by the amount in dispute at the time the litigation is submitted to the trial court for decision. Crowell & Spencer Lumber Company v. Lynch et al., 157 La. 21, 101 So. 797; Chickasaw Wood Products Company v. Vail-Donaldson Company, 173 La. 59, 136 So. 87; Opelousas St. Landry Bank & Trust Company v. Fontenot et al., 173 La. 430, 137 So. 339; Hanover Fire Insurance Company et al. v. Southern Amusement Company, Inc., et al., 176 La. 631, 146 So. 316; State v. Cook et al., 197 La. 1027, 3 So.2d 114; Walker et al. v. Fitzgerald et al., 214 La. 293, 37 So.2d 712. When the instant case was so submitted for decision the disputed amount, according to the record, was much in excess of this court’s jurisdictional minimum.

The motion to dismiss the appeal is denied.