author: WESTERPIELD, J.

text:
    No. 10,832
    Orleans
    PEART v. THE ORLEANS-KENNER TRACTION CO.
    (March 12, 1928. Opinion and Decree.)
    (April 23, 1928. Rehearing Refused.)
    (June 15, 1928. Writ of Certiorari and Review Refused by Supreme Court.)
    A. V. Coco, of Marksville, Peterman, Dear ' and Peterman, of Alexandria, Guión and Upton and Wm. M. Ogden, of New Orleans, attorneys for plaintiff, appellant.
    Ben W. Kernan, of New Orleans, attorney for defendant, appellee.
   WESTERPIELD, J.

Plaintiff sues as natural tutrix of her minor son, Lewis Chase. She is joined in the petition by her husband, Leon W. Peart, co-tutor. The petition alleges the negligent killing of Lewis Chase, the father of her minor son and former husband of petitioner by the defendant’s employees on November 19, 1920, and prays for damages, as follows:

(1) Expense of last illness____________$ 650.00
(2) Value of automobile_______________ 3,000.00
(3) Physical pain and injury suffered by deceased from Nov. 19th, the day of his injury, to Nov. 24, the day of his death ,_________________________________________ 5,000.00
(4) For loss to the minor of his father’s care, rearing and general helpful companionship ____________________________________________ 25,000.00
Total__________________________________$33,650.00

The accident happened at 7 a. m., at a grade crossing on the line of the defendant’s interurban railroad at a point about 10 miles above New Orleans. One of the cars of the defendant collided with an automobile driven by deceased, injuring him severely and resulting in his death.

The negligence imputed to defendant consists in its alleged failure to give proper signals in approaching the crossing and reckless speed. Defendant denies all fault and pleads contributory negligence.

It is established by the testimony of the other occupants of the car he was driving that deceased stopped, looked and listened and that neither he nor they saw or heard the approaching car. The evidence as to signals given by the electric car is conflicting. The car was equipped with a bell and a whistle. The motorman claims that he blew the whistle three times within a distance of 300 feet of the crossing, the last time just before the impact. Another witness says he heard the whistle,. but it sounded as from a great distance. No attempt was made to sound the bell.

The speed of the electric car, about 16 miles per hour, was not excessive under normal conditions and in a different locality. The conductor testifies he was running on schedule time having maintained his schedule from New Orleans to the scene of the accident, Highland Farms crossing, a distance of 12 miles. But normal conditions did not obtain. There was a dense fog, which materially affected the sight and to a lesser degree the hearing. The motorman said: “It was so foggy I

couldn’t see over 10 or 15 feet away.” Other witnesses claim a greater degree of visibility than the motorman but it is conceded in the answer and otherwise that a thick fog enveloped the surroundings. Was it sufficient under the circumstances prevailing for the defendant to operate its cars with the usual care and at the usual speed, is the question presented for our determination.

In the first place a grade crossing, being more dangerous than other crossings, necessitates greater- care on the part of the carrier.

“Grade crossings are as a rule more dangerous than crossings above or below grade and the company (R R Company) is held to a greater degree of care in the operation of its trains at such crossings than at those where the highways are on a different level.” Elliott on Railways, 3rd Ed., Sec. 1576.
“At street intersections and crossings there is a special reason for keeping a lookout, giving signals or warnings, and having the ear under control.” Supra, Sec. 1533.

After striking the automobile, the car proceeded some 70 odd feet before coming to a stop. It is apparent that it was not under control and that its speed had not been materially checked before the accident.

This particular crossing was unusually dangerous because, just before the crossing there was a large bend or curve in defendant’s track, estimated by the witnesses from 500 to 100 feet long. Defendant’s conductor testified to both the maximum and minimum length of this curve at different points in his evidence. Whatever may be its dimensions it created an extra hazard and involved additional responsibility:

“If a railroad company, in the management of its traffic, causes unusual peril to travelers, it should meet such peril by corresponding precautions. So, where the crossing is especially dangerous on account of its locality or mode of construction, or because the view is restricted or the track i's curved, it is the duty of the company to exercise such care and take such precautions as the dangerous nature of the crossing requires.” Eichorn vs. N. O. & C. R., L. & P. Co., 112 La. 236, 38 So. 335.

The degree of care which the law exacts of carriers, differs with the circumstances prevailing, and increases as the conditions become more dangerous. What would be sufficient precaution in one situation may not suffice in another:

“The parties in charge of a railroad train do not perform their whole duty, under all circumstances, by pursuing the regulation method of giving notice by the ringing of a bell, or following out any prescribed mode of giving warning. The precautions to be adopted and the steps to be taken in aid of safety increase as the danger is increased, and their sufficiency is to be gauged by what is called for by the circumstances of each case.” Downing vs. M. L. & T. & S. Co., 104 La. 507, 29 So. 207.

A heavy fog prevailed. Fog constitutes the greatest menace of transportation whether upon land or sea and is the most feared of all perils that confront the traveler. The "pea soup” fogs of London are notorious for causing confusion and disaster in connection with pedestrian and vehicular traffic. Science, which in so many instances has relieved, or allayed, or mitigated the difficulties which beset, and ills, which afflict mankind, seems helpless and hopeless in this particular, and has contributed nothing with which to combat this terror of transportation. To one who has been at sea, as has the writer, during the prevalence of a dense fog for some forty-eight hours, and observed the anxious expression of the navigator, his ceaseless vigil upon the bridge of the ship, the constant blasts upon the primitive fog horn, the sole protection relied upon, and has witnessed the depression of the passengers and crew, no further demonstration of the danger of fog is necessary.

In the case of The Martello, 153 U. S. 64, it was held that a speed of six miles per hour is excessive for a steamer emerging from New York harbor in a dense fog.

In an English case it was held negligent for a boat to move at any speed in a dense fog. The Girolamo, 3 Hagg. Adm. 169.

Excessive speed by vessels in a fog will not be excused even though answering a cry of distress, and on a life saving errand. The Nacoochee, 137 U. S. 330.

In the last cited case the rule of the sea is stated to be, what has often been held with respect to the land:

"She, (the vessel) was bound therefore to observe unusual caution and to maintain only such a rate of speed as would enable her to come to a standstill, by reversing her engines at full speed, before she should collide with a vessel which she should see through the fog. This is the rule laid down by this Court in the case of The Colorado, 91 U. S. 692.”

In Clements vs. T. & P. R. R. Co., 148 La. 1050, 88 So. 394, the court held that the blowing of a whistle by a backing train more than eight car lengths from the crossing at night was not sufficient warning of danger at the crossing.

In running at the usual speed the motorman could not stop his car within the range of his vision, which he says was only 15 feet. He was approaching a grade crossing on a bend or curve in the track in a dense fog without ringing his gong. The curve, the grade crossing and above all, the fog were circumstances, which imposed the obligation of unusual care and caution, necessitating the use of every warning device. The whistle, if blown as claimed, was not sufficient, and the evidence creates serious doubt as to when and how it was blown. We are convinced that the speed of the electric car was immoderate under the circumstances and constituted negligence on defendant’s part.

Contributory negligence is pleaded. As we have observed the record establishes that the deceased stopped, looked and listened, before crossing the track. It is contended that he either saw or should have seen, heard or should have heard the electric car. To suppose that he saw or heard and continued on his way is to assume an intention to suicide or a state of imbecility. As to whether he should have seen or heard and therefore his failure to do so was equivalent to not looking or listening under familiar principles of law, we observe that this rule has no application when surrounding circumstances excuse or prevent his failure to see or hear. Huddy on Automobiles, 8th Ed. Sec. 716; Lofters vs. Pacific Electric Co., 156 Cal. 464.

“If the driver of the hearse stopped, looked and listened when he reached the crossing and before going upon the first track, and did not see and could not see any approaching train and did not hear and could not have heard any signal or noise of a moving train, we are unable to see how the driver could be legally charged with contributory negligence.” Betz vs. I. C. R. R., 161 La. 929, 109 So. 766. See also Townsend vs. Mo. Pac. R. Co., 163 La. 872, 113 So. 130.

In the case at bar the driver of the automobile was prevented from hearing or seeing the car because of the fog prevailing, or possibly the curve in the track, or more probably both. In any event we are convinced that he can not be legally charged with a fault which contributed to the accident.

As to the quantum. Deceased was 30 years old, and earning $60.00 per week. His life expectancy was 35 years. His automobile costing $2800.00 was demolished, though its value at the time of the accident is uncertain.

At the time of the trial in 1925 the minor, plaintiff, was ten years old. He had lived with and been supported by his mother, since he was two years old, at which time his parents were divorced. His mother and tutrix remarried in 1918 when he was three years old. These circumstances must be considered in abatement of the damages claimed.

Without particularizing we will allow for all items of damage to which plaintiff is entitled $9,000.00.

It is therefore ordered that the judgment appealed from be reversed and it is now ordered that there be judgment In plaintiff’s favor and against defendant, as prayed for, in the sum of $9000.00.


source: Caselaw Access Project

author: ODOM, J.

license: Public Domain

text:
    No. 3467
    Second Circuit
    ANTLEY v. LA. CENTRAL LUMBER CO.
    (May 8, 1929. Opinion and Decree.)

      A. Leonard Allen, of Winnfield, and Julius T. Long, of Shreveport, attorneys for plaintiff, appellee.
    Thornton, Gist and Richey, of Alexandria, attorneys for defendant, appellant.
   ODOM, J.

This suit is brought under the Workmen’s Compensation Act (Act No. 20 of 1914, as amended) plaintiff alleging that while at work for the defendant company he received an accidental injury which has totally and permanently disabled him from performing labor of a reasonable character, and he asks for compensation for 400 weeks. Specifically, he alleges that while at work a piece of iron piping struck him on the back near the region of the kidneys, knocking him unconscious, and causing his kidneys to pass blood; that he suffers constant pain as a result of the blow, which tore and injured the muscles of his back and hips.

Defendant, in answer, admitted the employment, and further, that plaintiff was injured, but only slightly, from which injury he soon recovered; and it especially alleged that within three days after the injury he went back to work in the same capacity and continued to work for more than three months, when he was discharged, but not on account of his incapacity to labor. In other words, that such injuries as plaintiff received were superficial and caused no disability except for a period of about three days.

There was judgment for plaintiff awarding compensation for 30 weeks, at $7 per week. Both parties appealed.

OPINION.

Plaintiff was employed by the defendant company as track foreman on a tramroad, and on the morning of July 11th, while engaged in filling a water keg at the tank, a 'piece of iron piping fell on his back, slightly to the right side in the region of the kidneys. The blow knocked him down and caused considerable shock and pain, but, with the assistance of bystanders, he was enabled to walk to his home. When he reached home, he took to his bed, where he remained for three days. A physician treated him immediately and found a contused wound on his back at the place where the piping struck him. He treated plaintiff by applying mercurochrome with gauze, and strapped it with adhesive tape. He saw the patient on the following day and possibly once later. He did not consider the wound serious, although painful.

Plaintiff resumed his labors on July 15th, three days after the accident, and continued to work regularly in the same capacity, that of track foreman on the tram-road, until the latter part of October or first part of November following, or more than three months, at the same wage which he had received prior to the accident.

During the latter part of October, or first of November, defendant discharged him, but not on account of his disability to work, but because plaintiff’s family could not or did not get along with the families of other .employees. In December or January, after he was discharged, plaintiff hauled logs for seven days, and during the interim between the date on which he was discharged and the date of the trial, in September, 1928, he cleared two acres of land, with the assistance of his son one-half day, worked six weeks helping to unload and spread gravel, did some light work on a farm, and, on the day before the trial, picked 50 pounds of cotton. But plaintiff says that during all the time from the date of his injury his labor was accompanied by pain and that he worked under stress, and that he is not now able to do work of a reasonable character.

As against'the testimony of plaintiff that he was not able to work since the accident, it is proved beyond question that he did, on the third day after the injury, resume his work in the same capacity as before, and that he continued to work at the same wage until he was discharged some three months later. Plaintiff testified that during this period he complained, and that he was for some time under treatment of local physicians, Drs. Joyner and Mecom. But both of'these physicians testified that plaintiff asked for no treatment and was given none after he resumed his work, and that they heard no further complaints from him. Both of these physicians testified, however, that after he was discharged, plaintiff went back to them complaining that he was not well, and Dr. Mecom says that plaintiff told him that if the company did not reinstate him as track foreman he would get a lawyer and see what he could get for the injury. A. W. Johnson, assistant general manager of the defendant company, testified that plaintiff went to him after he was discharged and told him he would like to have his job back, and—

“I told him Mr. Cooper had charge of that and he would have to see him about it, and he went on to say that unless he got his job back or a similar job — he didn’t use those exact words, but words to that effect — he would have to take it up and get something for getting hurt.”

Fussell, Martin, and Estis, all laborers, were called. Fussell, plaintiff's son-in-law, who was discharged at the same time, testified that plaintiff was able to do no work and also said that he had not seen him at work since the accident. In view of the admitted fact that plaintiff did work for more than three months, we are led to discredit this witness’ testimony. Grady Martin testified that he worked on the same job and heard no complaint, and that plaintiff, after a few days, worked as well as he ever did. Estis says, and .other witnesses corroborate him, that plaintiff had for several years been lame, stiff in his legs and hips, and says he heard no complaint from him, except two or three days after the accident, and then a day or two either before or after he was discharged. Plaintiff testified that subsequent to the date on which he was discharged, he moved to Sikes, where he was treated by two physicians, Drs. Parker and Stovall; but they were not called as witnesses. Dr. Joyner and Dr.- Mecom both examined plaintiff about the time of the trial and said they saw no evidence of disability. Dr. Rand also testified for defendant. He examined plaintiff and also the X-rays made by Dr. Adair, and said he found evidence of arthritis, or inflammation of the bone, between two vertebrae three or four ■inches below the scar; that the spine is straight, that plaintiff stands “with a peculiar leaning forward”; that he “complains of tenderness over the right lumbar muscles, that may or may not be present. The X-ray shows the lumbar vertebrae to be in good condition, except the line between the fourth and fifth lumbar vertebrae is narrower than usual, and the fifth lumbar vertebra is apparently fused to the sacrum bone, on which it rests. This is apparently a congenital condition.” He said if the latter condition caused no trouble before the patient was grown, it would cause none later. Dr. Rand further testified that arthritis is usually brought about by some infection, either chronic or otherwise, such as tuberculosis or syphilis, and he could not say what caused it in this case.

On April 11, 1928, after the injury, plaintiff, at the suggestion of his attorney, was examined by Dr. Adair, who made radio-graphs of his body. His examination revealed that plaintiff had arthritis between the fourth and fifth lumbar vertebrae, sacralization of the fifth lumbar vertebra and a fracture of the right transverse process of the third vertebra. Dr. Adair said, however, that the sacralization was congenital, that is, that it had existed from birth, and that the fracture of the right transverse process which he found had healed.

As to the cause of the arthritis, he could not say. He said it might have been brought on by injury or by disease, but could not say which. His attention was called to the fact that plaintiff had for years previous to the injury had a peculiar walk or limp, such as he had at the time of the examination, and he said, if that were true, ‘T would think that he had had arthritis before the accident.”

Dr. E. L. Sanderson, of Shreveport, examined the plaintiff on January 30, 1928, and before the trial viewed the radiographs made by Dr. Adair. At the expense of brevity, we quote the following from his testimony:

“A. * * * i expect that the man has had some peculiarity of walk all of his life but if he had as much peculiarity of walk as he has now before the accident, I would think that the arthritis was probably induced before the accident. I should expect this man to have had some peculiarity in his gait all his life but if it was proven that he had the same gait before the accident as now then I would feel like — in other words I would feel like coinciding in opinion with Dr. Adair.”

And again:

“A. * * * I do not ever recall having seen an injured back that resulted in arthritis or that continued to get bad or to get worse but what you could find a focus of infection. It is the natural consequence that an injury to the back will get well just like any other injured part of the body if it were not for the fact that the muscles of the back are always on a strain, and if they are injured and you have this focus of infection anywhere in your body you develop this rheumatic tendency or arthritis or whatever you want to call it. And in this case I would certainly expect him to have bad teeth or a bad prostate or bad tonsils or something.
“Q. What are the probabilities of his getting better, having improved in his condition?
“A. If you could find the focus of infection that probably has aggravated the condition or made the thing possible and remove that the diseased process might be arrested. But the rigidity of the spine and pain on motion of the spine will continue unless the diseased process that is feeding toxins to this injury is removed. The chances are that the disease will spread. That is, the injured portion will spread to other points higher up the spine. That is the history of these cases.”

As the condition of the sacro-iliac joint was not caused by the injury, and as the fracture of the transverse process had healed before the trial, these conditions are eliminated from the case, so that whatever disability plaintiff now has is brought about by arthritis; and we agree with the district judge that the testimony does not warrant a holding that the arthritis was produced by the injury.

The district judge, in a written opinion which we find in the record, said:

“The sacralization of the fifth lumber vertebra — according to Dr. Ada'ir’s testimony, has existed since birth. The arthritis which the plaintiff suffers with to a large extent could be caused by infection or trauma and the lick the plaintiff suffered on the occasion of the accident was sufficient to cause the arthritis. He is borne out in this testimony by Dr. Sander-son, but these doctors admitted that if the plaintiff had an impediment in his walk prior to the accident that it was likely that he was suffering from arthritis before' the accident and that the accident had nothing to do with the arthritis. All the doctors for the defendant testified that the radiographs showed that the plaintiff is suffering from arthritis. The evidence in this case would clearly show that the plaintiff is suffering from the following troubles: Sacralization of the fifth lumbar vertebra, arthritis, and also a fracture of the right transverse process of the third lumbar vertebra, but the evidence is not sufficient to show that the arthritis and the sacralization was caused by the injury received by the plaintiff on July 11, 1927, but there is no reason to account for the fracture except from the injury received on the 11th.”

The district judge thought that the fracture of the transverse process which was caused by the injury had not healed at the time plaintiff was discharged, and for that reason he thought he was entitled to some compensation. There is no testimony indicating when the fracture' healed, and it will be conceded, we think, that if the said fracture produced disability, it was during the period immediately following the injury, and, as plaintiff registered no complaint during the three months immediately following the injury, but continued to work and draw wages as before, we do not think we are warranted in holding that he was entitled to compensation thereafter. Plaintiff, by working and drawing wages following the accident and by failing to claim compensation for that period, has waived his rights to any claim which he might have had for that period.

For the reasons assigned, it is ordered, adjudged, and decreed that the judgment appealed from be reversed, and that plaintiff’s demands be rejected and his suit dismissed, at his costs.


author: JANVIER, J.

text:
    No. 10,986
    Orleans
    JOSEPH CHALONA CO. v. AMERICAN RAILWAY EXPRESS CO.
    (April 29, 1929. Opinion and Decree.)
    (May 27, 1929. Rehearing Refused.)

      Weiss, Yarrut & Stich, of New Orleans, attorneys for plaintiff, appellee.
    Lemle, Moreno and Lemle, and A. M. Hartung and Hunter C. Leake, of New Orleans, attorneys for defendant, appellant.
   JANVIER, J.

Plaintiff sues defendant for $776.83, alleged to be the loss sustained as a result of deterioration in a carload of cantaloupes shipped from Brawley, California, to New Orleans, during the early part of June, 1922.

It is alleged that the amount of the loss is arrived at in the following manner:

Cost of cantaloupes, P. O. B. Brawley ----------------------------------------------$2,139.00
Express charges, including icing, etc..................................................... 1,020.09
Total cost to plaintiff___________$3,159.09
Net salvage from sale of cantaloupes ______________________________________$ 776.83

It is claimed that the deterioration resulted in general from improper handling and particularly from inadequate icing of the shipment by defendant express company.

Defendant admits that the shipment was made and that, upon delivery in New Orleans, the cantaloupes were found to be in a damaged condition, but contends that it has fully sustained the burden of proving that it was not negligent, and that the loss resulted from the inherent perishable nature of the articles shipped.

There is no dispute as to the law applicable. The shipment was made under a contract which relieved the deferidant from liability for loss under certain circumstances.

The pertinent part of the contract reads as follows:

“4. Unless caused in whole or in part by its own negligence or that of its agents, the Company shall not be liable for loss, damage, or delay caused by—
“(b) The nature of the property, or defect, or inherent vice therein. * * *”

Such a limitation of liability or exemption from liability has been held to be constitutional and valid:

J. D. Simms & Son vs. N. O. & N. E. R. Co., 122 La. 268, 47 So. 602.

McHenry Horse Exchange vs. Illinois Central R. Co., 148 La. 49, 86 So'. 649.

Adams Express Co. vs. Croninger, 226 U. S. 491.

Union Pac. R. Co. vs. Burke, 255 U. S. 317, 321.

American Railway Express Co. vs. Lindenburg, 260 U. S. 584.

This limitation, however, does not relieve the defendant of the obligation of proving that the cause of the loss was one of the things within the limitation.

It will be seen, then, that the carrier is called on to furnish affirmative proof showing all essential matters with reference to the handling of the car.

That the car was in good physical condition is conclusively shown and is not disputed.

That the time consumed in transporting the car from point of origin to destination was unusually short, is conceded. In fact the ear was moved from California to New Orleans in less than four days, or almost as fast as a passenger train.

The sole remaining question, and the most important one, is whether or not the car was kept properly iced throughout the journey. Defendant offers a mass of evidence from every point, between the two terminii, at which the car was stopped for icing to show that the ice bunkers were replenished ten times en route, after the initial icing, and twice more after arrival in New Orleans and before consignee accepted delivery.

A study of these icing records shows that at no time was the ice supply allowed to shrink to below four-fifths of the total capacity of the car and that in every case of replenishing the bunkers were refilled to their full capacity.

Plaintiff contends that these icing records show such inconsistencies as to warrant our disbelieving them. For instance, we are told that because, during one 24-hour trip, half of which was of eourse in the day time, only 2400 pounds of ice were required to refill the bunkers, we should brand as false the testimony that during a night trip of 4% hours 1800 pounds of ice melted and had to be replaced.

We cannot see such abnormalities or inconsistencies in this testimony as would warrant us in disregarding it. Weather conditions, wind conditions, conditions of humidity — all of these things might affect meltage; and to accept plaintiff’s theory that ice should always melt at a uniform rate, or that the carrier should be called upon for an explanation, would place an undue and unwarranted burden on the carrier. All that should be required of it is that it should keep accurate records and should be able to show by these records, or by other evidence, that the bunkers were kept in a well-iced condition throughout the journey. We are of the opinion that the defendant has shown this in this case.

The testimony of the shippers is to the effect that the cantaloupes, when loaded, were in an unusually good condition, and should have had no difficulty in withstanding the rigors of such a journey if the car had been properly iced. The only weakness which we find in this evidence is that, almost immediately after it was discovered that the cantaloupes had arrived in a deteriorated condition, the shippers agreed to reduce the price by the substantial sum of $438.00. It is true that when they received the first telegram, advising them of the loss, they denied all responsibility therefor and claimed that it was due to bad icing on the part of the defendant, but almost immediately thereafter they offered to stand a part of the loss, and did, in fact, reduce the price of the cantaloupes as we have stated. We cannot but attach significance to this fact. It may be true, as is contended, that this reduction was made purely as a matter of business friendship, but it entailed a very substantial loss to the shippers and we cannot eliminate it from our consideration.

Our attention is called to Bonura & Co. vs. Payne, Director General, etc., 7 La. App. 754, a case very similar to the one before us and in the syllabus of which we said:

“In an action against a carrier for damage to cantaloupes which were shipped in good order and arrived at destination overripe and soft, burden of proof is on carrier to show that loss occurred without his fault, and proof that car was iced at all the usual places and that it was as promptly handled as possible under the circumstances is not sufficient, where the carrier admits that ‘one crate had been 'robbed’ when car was opened at destination.”

We see nothing inconsistent therein with the views which we now express. On the contrary, we reiterate the doctrine which we therein announced. The weakness in the carrier’s defense there was the proof that the car had been broken into and that, as a result thereof, in all probability warm air had been admitted into the car. In that case, in the opinion, we said:

“In this case there is one outstanding fact which the defendant has entirely failed to explain, namely the ‘robbed crate.’ for the doors of the car must have been opened if robbers removed the crate and the evidence shows that the opening of the car doors and the admission of warm air inevitably tends to over-ripen the fruit. The natural and usual presumption from proof of prompt handling and the customary re-icing of such cars is rebutted in this instance by the unavoidable conclusion that somewhere en route the doors of the car were opened.”

It was the carrier’s duty to protect the car against pilferage and against the admission of warm air. Having failed in that duty, it was liable for the resulting loss.

Nor do we find our decision in Guidry vs. Texas & Pac. Ry. Co., 6 La. App. 169, irreconcilable with our present views.

There the icing records were affirmatively contradicted by the fact that, when the car was opened, it was found to be warm inside. In fact, as we said in that case:

“Their (defendant’s employes) testimony is confronted by the contradiction of witnesses who opened the car in Chicago and by the stern fact that when the car was opened at Chicago the bunkers were only partly filled with ice, the air within the car was warm, and the vegetables were heated and spoiled.”

No such contradiction exists here.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be and it is annulled, avoided and reversed, and that there now be judgment in favor of defendant, the American Railway Express Company and against plaintiff, Joseph Chalona Company, dismissing plaintiff’s suit at its costs.


text:
    No. 3539
    Second Circuit
    LEWIS v. BRUNSON
    (May 8, 1929. Opinion and Decree.)
    Barksdale, Warren and McBride, of Ruston, attorneys for plaintiff, appellee.

      Mclnnis and Campbell, of Minden, and Dhu Thompson, of Ruston, attorneys for defendant, appellant.
   ODOM, J.

This is a damage suit growing out of a collision between two automobiles, one owned by plaintiff, and the other owned and operated by the defendant. The suit was filed on August 21, 1928, and put at issue by answer filed on September 18th, following. On November 7th, the case was set down to be tried on December 6th, when it was tried in part and finished, and judgment rendered the following day for plaintiff.

Defendant appealed, not, however, from the judgment on its merits, but first, on the ground that the Court erred in refusing a continuance; and second, on the ground that the Court erred in refusing to grant a new trial. We shall dispose of these points in the order named.

ON MOTION FOR CONTINUANCE

Defendant resides in Webster Parish, but the suit was brought in the Parish of Lincoln because the collision between the two automobiles out of which the suit grows took place in that parish. Defendant employed Mclnnis & Campbell, attorneys, of Minden, Webster Parish, to represent him. They were his chief counsel. They, however, invited Mr. Dhu Thompson, of Ruston, Lincoln Parish, to become associated with them in the case and he accepted. He signed the necessary answer with them, filed it, and looked after preliminary matters such as preliminary motions, setting of the case, etc. The case was set for trial for December 6th, at the suggestion, as we understand it, of defendant’s counsel. Mclnnis & Campbell were employed in a. criminal case to be tried in Minden during the same week, but at the time the two cases were set there was no conflict in the dates. However, for some reason the criminal case in which counsel were interested at Min-den was carried over and finally set for trial for the same day on which this civil case was to be tried at Ruston.

On the morning of the 6th, Mr. Thompson, associate counsel, filed a motion for continuance on the ground that Mr. Mclnnis, senior member of the firm of Mclnnis & Campbell, could not be present for the trial of the case on account of being engaged in the trial of the criminal case at Minden, and that Mclnnis was the only attorney in the case who had any knowledge of the facts connected with it. The motion for continuance was tried and the above facts were testified to by defendant, Brunson, and by Mr. Thompson. It was shown on the trial of the motion that some of the witnesses for plaintiff had come from a distance and could not be easily gotten to court for another day. The Court overruled the motion, and ordered that the trial proceed.

The record discloses the following:

By Mr. Thompson:

“In view of the Court’s ruling on the motion for continuance, counsel for defendant asks for reasonable time to confer with the defendant, and see if he can get in touch with his witnesses and in order that he might attempt to handle the case.”

By the Court:

“It is now 11:45 A.M. and the Court grants you until 1:30 P.M., at which time we’ll proceed with the trial of the case.”

The record does not disclose that counsel for defendant excepted to the ruling of the Court or that he reserved a bill. This he should have done in order to bring the ruling up. C. P. art. 488. The record does not show that counsel objected to going to trial after the motion for continuance was overruled So, strictly speaking, there is nothing before this Court to be passed on. However, we shall dispose of the point as though it had been properly brought up.

ON THE MERITS

We do not think the Court erred in refusing to grant the continuance. It is not suggested that there is anything complicated about the case. It is an ordinary damage suit involving damage to plaintiff’s automobile on account of a collision with that of defendant, and the pleadings show that only questions of fact are involved. Mr. Thompson is a very able attorney with many years of experience at the bar. The defendant, who was driving his own car when the collision took place, was present, as well as all of his witnesses. It would have taken but a few moments for defendant to relate the facts in connection with the collision, as he was driving his own ear at the time it took place and all of his winesses being present, it would have taken but little longer for him to find out what they knew. Besides, the answer, with which he was familiar, set up in detail the defenses relied upon. Subsequent events indicated that Mr. Thompson did become familiar with the case. The Court granted him time in which to confer with the defendant and the witnesses and, when court reconvened, he asked for no further time, but proceeded with the trial without objection.

It was further . shown that on the day before the case was to be tried, Mclnnis, through Thompson, requested McBride, counsel for plaintiff, to postpone the trial, which request was refused, McBride giving as his reason that he had witnesses from Horner, Monroe and Shreveport, one a traveling man who probably could not be gotten before the court again. Both Mclnnis and Thompson, therefore, knew on the day before the trial that there would be objection to a continuance. McBride suggested to Mclnnis that his partner, Campbell, come to Ruston and try the case. Mclnnis stated that Campbell had not talked with the witnesses. That was no sufficient reason. Mclnnis had talked with them and he could have informed Campbell. Furthermore, there is no reason suggested why Campbell, himself, could not have seen defendant, who lived in Minden, and familiarized himself with the defense, as he had ample time in which to do so. It is not suggested that Campbell, the partner of Mclnnis, was personally engaged in the trial of the criminal case at Minden. With reference to the conversation which McBride had with Mclnnis on the day before the trial, Mr. McBride testified:

“Mr. Mclnnis then stated that he would send all the witnesses over here to Ruston today (the day set for the trial) and have an' application made for continuance and in case it was overruled, request Mr. Thompson to try the case for him.”

It is not now suggested that if Mclnnis, chief counsel, had been present additional evidence could have been adduced which would have changed the results.

The matter of granting or refusing continuances is one left within the sound discretion of the trial court and his ruling will not be interfered with, except in extreme cases. Article 468, Marr’s Revised Code of Practice (1927), and the many cases there cited.

“In cases of continuance, the Judge is vested with large discretion, and we will not disturb his ruling, unless it is manifestly a gross abuse of the discretion with vhich he is vested.”

Johnson vs. Dean et al., 48 La. Ann. 100, 18 So. 902.

The trial Judge did not abuse his discretion in this case.

ON MOTION POR NEW TRIAL

The trial of the case was taken up at 1:30 on Thursday, December 6th, and proceeded with until the hour of adjournment late in the afternoon, but was not concluded, only the witnesses for plaintiff having been heard. The following day, Friday, was the day set apart for the trial of misdemeanor cases, which trials, under the custom and the rules of the Court, had the right-of-way on the docket, even over civil cases already begun. Before court adjourned on Thursday, Mr. Thompson, counsel for defendant, stated to the Court that he disliked to have his client and witnesses come back to court on the following day and wait, when there was ao certainty when the misdemeanor docket would be clear in order to resume trial of the civil case and asked that the civil case be reset for Saturday. Whereupon a controversy arose between counsel as to whether the case should be reset for Saturday or whether it should go over according to custom and be taken up immediately following the completion of the. misdemeanor docket on the following day. Counsel for plaintiff suggested to Mr. Thompson that if he were permitted to ask one of his witnesses one question on a point which would probably not be admissible, except in rebuttal, he would be willing to reset the case for Saturday. To this, Thompson objected. Whereupon the Judge ordered court adjourned. The minutes of the Court do not show a resetting of the case nor when the trial should be resumed. Whereupon, Thompson told defendant and his witnesses to return home and that they would be notified when to return.

Cn the following day when the misdemeanor trials were concluded, which was about 11 o’clock, the Court ordered the trial of this case resumed and, upon inquiry, it was found that Mr. Thompson had left town. The Court permitted counsel for plaintiff to put in such additional testimony as he saw fit, and after hearing the evidence, judgment was rendered for plaintiff.

Counsel for defendant filed motion for a new trial on the ground that the Court resumed trial of the case on Friday during his absence and without giving any previous notice that such would be done.

The evidence introduced on the trial of the motion discloses that there is decided conflict between the testimony of the trial Judge and counsel for plaintiff, on the one side, and that of Mr. Thompson, counsel for defendant, on the other, as to what order the trial Judge made on Thursday with reference to further disposition of the trial.

Before beginning the trial of the motion, the Judge dictated from the bench a lengthy statement as to what had taken place and as to the order he gave, and we quote therefrom the following:

“* * * i especially stated in my remarks that the continuance of this ease would be taken up immediately after the completion of the misdemeanor docket next day, and that is what brought on the discussion about keeping the witnesses here on the part of defendant’s counsel until that time. As it was indefinite as to what time of the day the misdemeanor docket would be disposed of, it was stated by Mr. Thompson, that it might occupy the whole day and to keep his client and witnesses there all that time and then not be able to try the case, would work a hardship and to fix the case another day. There were several witnesses here, and out of town witnesses too, and I didn’t feel that the Court ought to carry the case over any longer than was absolutely necessary; I didn’t think that the matter of convenience, simply convenience, of parties should be sufficient reason for carrying the case over until some other time, or until some other term of Court, and so I let the matter stand right where my announcement was made, immediately after the misdemeanor docket was concluded, that the case would be resumed.”

On the trial of the motion, the Judge was sworn as a witness and testified emphatically that he recalled all that had transpired and that he had announced from the bench that the trial of the case would be resumed on the following day immediately after the misdemeanor cases were tried.

Mr. McBride, counsel for plaintiff, was also sworn, and testified in part as follows:

“The Court remarked that it was now adjournment time and stated that the case would go over and be taken up on the following day after the misdemeanor docket for the day had been disposed of.”

Mr. Thompson testified in effect that no such order was given by the Judge, or, at least, he had not so understood it. No other witnesses were called, although it appears that other persons were present. The recollection of the trial Judge being the same as that of Mr. McBride, we conclude that Mr. Thompson is mistaken.

The minutes as written by the Clerk do not show that the trial was to be resumed on the following day. But the Judge stated that he saw no reason to dictate his order into the minutes because all parties were present and heard his announcement, and, for the further reason that under the custom which had prevailed for many years, cases begun, but not finished, automatically came up the following day.

Mr. Thompson, after adjournment of the Court, went to the minute clerk and asked him what his minutes would show as to when the case would be resumed, and was told that they would show nothing except that court adjourned, and he then discharged his client and the witnesses and on the following day left town.

If there was any doubt and uncertainty in counsel’s mind as to when the case would be resumed, he should have satisfied himself by consulting the Judge and others who were present.

Counsel says that he relied upon the minutes which made no reference to this case, but showed merely that the court adjourned. Admittedly, all the discussion which took place related to the further disposition of the case. Counsel for defendant suggested that the case be reset for another day and not resume on Friday. To this suggestion, counsel for plaintiff was willing to assent, provided he be permitted to ask one of his witnesses a' f-uestion relating to a matter not admissible except in rebuttal. To this, counsel for defendant would not agree. The Judge had already stated that the trial would be resumed on the following day and this order provoked the discussion between the attorneys. As no agreement could be reached by them, the Judge ordered court adjourned without recalling or modifying his previous order.

The Court had no written rules as to the disposition or carrying over of cases once begun, but not finished. In the absence of such rules, an order by the Court Crom the bench was notice to and binding upon all parties.

Trial judges have the right and power to regulate and control proceedings in their courts and may issue such orders as they see fit for the dispatch of business before them and in the furtherance of justice. There was nothing in these proceedings calculated to mislead anyone.

The Judge says that when counsel failed to appear and was found to be out of town on Friday when the case was reached, and, in view of his order of the previous day, he considered that the case was abandoned.

The granting or refusal of new trials is largely within the discretion of trial courts and their rulings will not be disturbed, except in extreme cases or where manifest injustice has been done. See generally “New Trial,” Yol. 5, La. Digest.

Besides, counsel do not suggest or contend that the judgment on the merits is contrary to the law and the evidence or that any additional evidence could have been adduced warranting a different finding. There is no ground for our interference in this case.

Counsel for appellee moves that the judgment be amended by increasing the amount, his claim being that the Court should have allowed something for the loss of the use of his car. His testimony on that item is too vague. He also asks that defendant be penalized for prosecuting a frivolous appeal. The circumstances do not warrant such action by this Court.

It is therefore ordered, adjudged and decreed that the judgment appealed from be affirmed, with all costs.


author: MOUTON, J.

text:
    No. 439
    First Circuit
    KLUMPP v. FONTENOT ET AL.
    (May 7, 1929. Opinion and Decree.)

      See 119 So. 66.
    N. S. Hoffipauir, of Crowley, attorney for plaintiff, appellant.
    W. J. Carmouche, of Crowley, attorney for defendants, appellees.
   MOUTON, J.

This case was, for want of jurisdiction, transferred by the Supreme Court to this Court, the transfer to be made within thirty days after the judgment of the Supreme Court became final. The judgment transferring the case was rendered by the Supreme Court on November 26, 1928, and became final December 11, 1928. The record should have been transferred here' on January 10, 1929, thirty days after the finality of that judgment. It was filed on January 11, 1929, one day after the judgment of the Supreme Court became final.

Appellee moves to dismiss the appeal, contending that it was filed too late.

In Boudreaux v. Boudreaux, 122 La. 433, 47 So. 758, the Court said:

"Where a transcript was filed more than three days after the return day, it must under C. P. article 594 be dismissed on motion.”

In Whitney-Central Trust & Savings Bank vs. Greenwood Planting and Mfg. Co., 146 La. 572, 83 So. 834, the same rule was applied.

Under that ruling, it must therefore be held that if the record is filed within three days after the return day, it is filed in time.

It is true that in this case, the appeal was not filed here under the original order fixing the return day by the District Judge, but is transferred to us by judgment from the Supreme Court, wherein the time for its transfer is fixed.

Act No. 19 of 1912, amending Act 56 of 1904, says in reference to the transfer of cases, that the court to which it is transferred, will proceed with them in the same manner as when they have been originally appealed to the proper court.

Since they have to be proceeded with in the same manner, the three days of grace which is granted to appellant in which to file the transcript, dating from the return day originally fixed, must be taken into account in his favor in a case of this character, particularly in consideration of the well established rule which demands that the constitutional right of appeal be liberally construed.

The motion to dismiss is therefore denied.

ON THE MERITS

Plaintiff alleges that he bought a forty acre tract of land, at tax sale, June 21, 1924, and was placed in possession thereof, August 2, 1927. Two special mortgages, he avers, are on the land which were given by Mrs. Helena Klumpp to the Collins Investment Company, and which in his brief he states had both been recorded in April, 1923. He alleges that these mortgages were automatically can-celled by the adjudication of the land at tax sale; that it has not been redeemed and that more than three years have elapsed since the adjudication. He avers that these mortgages operate as a cloud on his title, and that the Clerk of Court of Acadia refuses to cancel them from the mortgage records of the parish. He accordingly prays that the Clerk of Court be compelled by rule to make the cancellation; that a curator be appointed to John Watts, a non-resident, the then transferee of the mortgage notes Mrs. Helena Klumpp had given on the land to the Collins Investment Company, and that the curator be ruled to show cause why the erasure of the mortgages should not be made.

John Watts, a resident of New York, appeared in the case through W. J. Carmouche, his personal counsel. His answer is substantially that the land was bought by plaintiff for Mrs. Helena Klumpp, his sister; and, that if the sale were otherwise valid, it was null because the bids were chilled at the tax adjudication.

The tract of land, it appears, was worth about $1500, a valuation which is supported by the fact that two mortgages amounting together to over $1100 had been taken on the property by the Collins Investment Company. It was sold for $46.22 at the tax sale, June 21, 1924, and was bought for that amount in the name of plaintiff, who says he purchased it because- his sister could not pay the taxes.

Plaintiff, it is shown, owns 200 acres of land. It is possible that he desired to take advantage of the unfortunate circumstances in which his sister was placed, and that his purpose was to acquire as an investment for future speculation. This happens sometimes, but fortunately not usually or frequently. His sister, the record shows, remained in possession after the ■ sale by which plaintiff claims he acquired the property. He says it was rented by him to Mrs. Klumpp for one-fourth of the crop she raised on the land. At first he could not remember how much rent she had paid each year, as he had not kept the exact account. It is rather singular, it seems to us, that a man who was willing to buy land belonging to his sister, worth about $1500 for the paltry sum of $46.22 because she could not pay her taxes, would not have kept an exact account of the yearly rents due by her. Pressed for an answer on this question of rent, he said, “Sne gave me for the first year sixty some odd dollars.” Again he was forgetful as to the exact amount. For the second year he could not remember, he could not say, but knew it was not much over $60. The third year he received, he says, a portion of the cotton she had made, but he could not say if it was over $25. Plaintiff was certainly indifferent and careless about his rent. He says, however, that he got 60 odd dollars the first year, and over that sum the second. These amounts so received for rent, as claimed by plaintiff, were for one-fourth of the crop. It appears again a little singular that Mrs. Helena Klumpp could pay over $60 for the two years succeeding the tax sale from crops realized on the land, but was entirely unable to pay the sum of $46.22 for the taxes of the year 1923, which preceded the sale.

It also appears that in June, 1925, two years after the tax sale to plaintiff, Mrs. Helena Klumpp while in possession, leased the land for oil drilling operations on a royalty basis of one-eighth of the oil produced . on the premises, with an additional cash payment of $25, and for a term of ten years.

Plaintiff says, in reference to this lease, that his sister had not asked him to lease it, and that he did not know she had leased it and that he knew nothing of the $25 she'had received. Plaintiff lived at the time a mile and a quarter from where his sister was living, and knew that there had been considerable leasing of lands in the vicinity for oil explorations. All of what he says may be true, but to us seems rather unbelievable. When questioned by his counsel as to whether he knew there were mortgages on the lands when he bought, plaintiff answered that he found out there were mortgages when he came to borrow money on it. On being cross-examined on this subject his answers to direct and clear questions were extremely evasive and he could not be pinned down to a categorical answer. Being pressed again, he finally admitted that he knew when he bought the land that it had been mortgaged to Collins by his sister.

The evidence shows that W. J. Carmouche, who was not then the attorney of John Watts, desired to buy the land at the tax sale. He testifies that Mr. Redlich, a friend, asked him to let him buy the land and to which he consented. He says as well as he could recall, Redlich came to him with plaintiff and told him he had changed his mind about bidding, but asked him not to bid it for himself, but to let plaintiff bid it in because of a mortgage mix-up on the property for which liis sister had not received the money and that was the only way to clear up the title. Considering the facts to which we have referred, and other circumstances to which it is not necessary to refer, we are convinced that what is stated by Mr. Carmouche in reference to this tax sale really occurred, and that the land was in reality bought for Mrs. Helena Klumpp, the tax debtor, but in the name of the plaintiff, so as to free it from the mortgages- which were resting upon it, such being the result of a tax adjudication (In re Douglas, 41 La. Ann. 765, 6 So. 675; Fitzpatrick vs. Leake, 49 La. Ann. 795, 21 So. 597) when the property is really acquired by the purchaser.

In the case of Austin vs. Citizens’ Bank, 30 La. Ann. 689, it appears that Mrs. jane Austin had bought a plantation from the Citizens’ Bank on which she owed a mortgage for part of the purchase price. She allowed the property to be sold for taxes. It was adjudicated at the tax sale to C. E. Moss, who after obtaining a confirmation of his title by the auditor, sold the plantation to Mrs. Austin’s son.

The Court found that the purchase by Moss was nothing more nor less than a purchase by Mrs. Austin, debtor and mortgagor, through her son, the plaintiff.

Here, we find likewise that the purchase by plaintiff was for his sister, Mrs. Helena Klumpp. The purpose of the purchase by Moss and the subsequent transfer to Mrs. Austin’s son was to defeat the mortgage rights of the bank. The object here of the purchase by plaintiff was to clear the title of its encumbrances by virtue of the tax sale and thus to defeat the mortgage rights of John Watts, transferee of the mortgages given by the tax debtor to the Collins Investment Company.

In that case, the court took occasion to say that:

“No government will permit its machinery constructed to enforce the payment of public dues to the fisc, to be used to manipulate a fraud and if a purchaser is a party to the fraud, he must share its punishment.”

It is true that fraud is never presumed, but it is equally true that it is almost altogether impossible to prove it by direct evidence. Hence, in such cases, it is only by reasonable inferences . or deductions as a general rule that it can be established.

The facts and circumstances to which we have hereinabove referred, convince us that the property was allowed to go to a tax' sale by the tax debtor to allow plaintiff to purchase it' so as to free it from its encumbrances.

Their conduct cannot be logically explained in any other way, and no direct action was necessary to set it aside, as there had been no real sale to plaintiff who was a mere nominal purchaser and was an interposed party. Austin vs. Citizens Bank, 30 La. Ann. 689.

Plaintiff urges the plea of prescription of three years. In his petition, he alleges that he was placed in possession by the Sheriff on August 2, 1927. The tax sale was recorded, according to his allegations, on June 26, 1924. The proof shows also that Mrs. Helena Klumpp, the tax debtor always remained in actual possession after the tax sale. From plaintiff’s own allegations, and the proof which shows the possession of the tax debtor, there is therefore no basis to support his plea of prescription. Carey vs. Cagney, 109 La. 77, 33 So. 89; Baldwin Lbr. Co. vs. Dalferes, 138 La. 507, 70 So. 493.

But if it can be considered that he had bought for himself, his acquisition was certainly in bad faith as his purpose in buying was to defeat the mortgage rights of a creditor. Such a fraudulent transaction cannot serve as a basis for prescription. Gidden vs. Mobley, 37 La. Ann. 417; Hirst vs. Xeter Realty, 138 La. 398, 70 So. 339.

No government, says the Court in Austin vs. Citizens Bank, 30 La. Ann. 689, will permit its machinery constructed to enforce the payment of public dues to the fisc, to be used to manipulate a fraud.

It is inconceivable that it would strike with nullity a transaction resulting from such manipulation, and then lend its aid by way of prescription to give legal life to sucli an act.

The demand of the plaintiff was properly rejected and the tax sale ordered cancelled from the public records.


author: ELLIOTT, J. LECHE, J. ELLIOTT, J.,

text:
    Nos. 330, 399
    First Circuit
    SUCCESSION OF TODD
    (June 12, 1928. Opinion and Decree.)
    (October 3, 1928. Rehearing Granted.)
    (March 6, 1929. Opinion and Decree on Rehearing.)
    (May 20, 1929. Writ of Certiorari and Review Refused by Supreme Court.)
    Hiddleston Kenner, of New Orleans, attorney for plaintiffs, appellants.
    Milner & Porteous, of New Orleans, Harvey E. Ellis and R. D. Jones, of Covington, attorneys for defendant, appellee.
   ELLIOTT, J.

Claude, Sarah, wife of Forest Fogg, Rebecca, wife of John Chabrech, Mary, Berry and Ora Todd, the children, sole and forced heirs of James Todd, brought a petitory action against Marrero Chanove to recover of him Eighty acres of land being the W. % of the N. W. *4 of Section 28 T. 8 S., R. 13 E., situated in the Parish of St. Tammany.

They allege the nullity of the legal proceedings conducted in the succession of James Todd, deceased, their father, which proceedings they claim are the authority for the title which said Chanove sets up to said land.

They pray that the order entered in the succession of their father, whereby Mrs. Sidonia Todd, their mother, was appointed administratrix of his succession, in so far as same affects the land claimed by said Chanove, and the order entered therein, whereby she was authorized to sell the real estate owned by their father at the time of his death, in so far as same affects said eighty acres, also the sale and adjudication made by the sheriff, based on said order to the extent that same concerns the land claimed by said Chanove, be annulled, avoided and set aside. That they be recognized as the children, sole and forced heirs of James Todd and as such, the owners, and entitled to the possession of said land, etc.

The defendant Chanove excepted to their petition on the ground that it disclosed a non-joinder of necessary parties defendant, res adjudicata as to the question of non-joinder, no cause of action, and prematurity of action until the plaintiffs comply with the mandate and final judgment of the Supreme Court, Succession of Todd, 165 La. 453, 115 So. 653. The exception of non-joinder and of no cause of action were sustained and the suit of the plaintiffs dismissed.

The plaintiffs have appealed.

Defendant and appellee filed in this court a plea of prescription against plaintiffs’ demand on the ground that their charges against the sale under which defendant claims, amounted to nothing more than informalities and as such were barred and prescribed by the prescription of five years under the Civil Code, art. 3543.

The plaintiffs allege in their petition that their father was the owner and possessor of said land at the time of his death and that they succeeded him as such by inheritance from him. That at the time of his death, they were all minors, the youngest being about 22 months, and the eldest about 11 years of age. That said land was his separate and individual property, acquired by him previous to his marriage with their mother. That their mother Mrs. Sidonia Todd, never assumed the duties of or qualified as their tutor and never had a tutor 'nor under tutor appointed or qualified to act for them, when their interest was in conflict with or opposed to her interest as his surviving widow.

That at the time of their father’s death, he did not owe any debts or have obligations of any kind. That at the time of his death he owned movable property worth $2000, immovables worth $6000, unencumbered and free of any obligations, and had in addition thereto, a sum of money in a solvent bank, more than sufficient in amount to pay the expenses of his last illness and funeral.

That their mother notwithstanding said fact and the fact that all the expenses of his last illness and funeral had been paid, presented a petition to the judge of the district court praying that she be appointed administratrix of his succession, falsely alleging that the same owed debts, making an administration necessary.

That the judge thereupon signed an order, directing that her application be filed and advertised in the official journal of the parish for ten days, with a notice of citation to all persons whose interest would be affected by granting the application, to appear in court and oppose the appointment if they so desired and to show cause why an administrator should not be appointed to administer said estate, which notice was published as ordered.

That petitioners had a vital interest in opposing the administration and the appointment of an administrator, for the' reasoh that their father left no debts, but all of them being minors, they weré" unable to receive notice and were powerless to oppose the appointment. That as a consequence, no opposition thereto was made and their mother was appointed and qualified.

That on the same day that their mother was appointed, she presented to the judge a petition in which she alleged it was necessary to sell the real estate left by' their father in order to realize funds for the purpose of paying debts left by him and charges against his succession. That the judge acting on her petition, signed the order on the same day that he had appointed her, directing that the real estate belonging to the succession be sold by the sheriff as prayed for.

That the sheriff acting under the order, sold and adjudicated the land described in their petition to John A. Todd on January 17th, 1914.

That at the time said Chanove took possession of said land he was not an innocent third party acting in good faith, because he could have ascertained by reference to the record of said succession that petitioners were minors at the time, without a tutor or under tutor, and that the succession owed no debts.

The law, Code Practice, art. 967, and Civil Code, art. 1115, require that before an administrator can be appointed, notice of the application for appointment, must be published in order that those who desire to do so and whose interest require it, may oppose the appointment. This notice is, in effect, a citation or summons and the purpose of the law in requiring it before an appointment is made, is not accomplished when all those interested in opposing the appointment are non sui juris and at the same time have no representative whose duty it is to appear for them in court for the protection of their rights.

The law provides that the rights of minors in such matters shall be protected by tutors and under tutors but when they have none, then the publication of notice, as concerns them, is of no more effect than if not done.

Jurisdiction means the power of him who has the right of judging; Code Practice, art. 76; but if minors have no tutor nor under tutor, the power of judging and protecting their rights does not exist.

A judgment against a minor who has no tutor nor under tutor is null and void, Code Practice, arts. 206, 606 and 612.

According to plaintiffs’ allegations, they were so situated at the time their mother applied to be appointed administratrix of their father’s estate, that the publication of notice of her application, served no purpose as to them. The appointment as to them, was as if made without the publication of notice. According to their allegations, their rights as heirs' of their father, required protection against the appointment of an administrator, but they were powerless to appear in court for their own protection and they had no tutor nor under tutor, whose duty it was to oppose the appointment in their behalf; therefore the appointment as to them produced no legal effect. That the appointment being the authority for the proceedings on which defendant’s title is based, his title is invalid, and that their ownership was not divested by said proceedings. Allegations of this kind state a cause of action.

Elkins vs. Canfield 5 N. S. 505;

Chew vs. Flint 7 La. 395;

Succession of Talbert, 16 La. Ann. 231;

Succession of Gusman, 35 La. Ann. 404;

Pfarr & Kullman vs. Belmont, 39 La. Ann. 294, 1 So. 681.

If a court has the power and authority to authorize a sale of succession property to pay debts, the third purchaser need not look beyond the order, but according to plaintiffs’ allegations, the court did not have jurisdiction nor the power to appoint an administrator of their father’s estate and there was none entitled to the legal status of such and with power to petition for the sale of the land in question, with the result that power in the court, to authorize the sale under which defendant claims, was wanting.

Such allegations state a cause of action against a third party claiming ownership, under an order which the court had no power to sign. Adle vs. Anty, 5 La. Ann. 631; Succession of Dumestre, 40 La. Ann. 571, 4 So. 328; Succession of Theze, 44 La. Ann. 46, 10 So. 412; Munday vs. Kaufman, 48 La. Ann. 591, 19 So. 619; McWilliams vs. Stair, 128 La. 757, 55 So. 343; Holland vs. Bryan, 148 La. 999, 88 So. 248; Jefferson vs. Gamm, 150 La. 373, 90 So. 682.

Louisiana Digest, vol. 3, Subject, Executors and Administrators, Sec. 264, 496.

The petition contains other grounds of attack, but they are not founded on the want of jurisdiction and power of the court in the matter of the appointment of the administratrix, nor to authorize the sale, consequently such grounds as against a third party, bound to ascertain if the court had power to appoint an administrator and to authorize the sale, but not bound to make any further inquiry, do not constitute a cause of action and as to same the exception was properly sustained.

Want of jurisdiction and power on the part of the court to appoint an administrator and to authorize a sale of succession property is not an informality, when such exists, therefore defendant’s plea of prescription against informalities must abide the finding of the court on that subject. If the power existed, the plea is good, if it did not, then the plea should be overruled.

Defendant’s plea of prescription, in so far as same is offered for the purpose of cutting off inquiry into alleged illegalities, due to the want of jurisdiction and power on'the part of the court, is overruled. As to all the other questions herein alleged, the same is sustained, and the action decreed barred by prescription.

As for the exception of no cause of action, the ruling of the lower court, sustaining same against grounds of attack, based on the want of jurisdiction and power in the court to appoint an administrator and to authorize the sale of the property in question, was erroneous and the judgment appealed from sustaining same is annulled, avoided and set aside and the exception is overruled, but as to ail other grounds of attack herein the ruling is affirmed. The exception of non-joinder requires us to consider the opinion and decree of the Supreme Court, rendered in the previous suit brought by the plaintiffs against the same defendant, on account of the same land and the other two-hundred and sixty acres sold to John A. Todd under the same order, at the same time and in the same sale.

The petition in the- present case alleges that all the land left by their father was sold, but it picks out the piece claimed by Chanove and attacks his title when it is plain that a decree annulling the "adjudication to John A. Todd, in order to permit plaintiffs to recover the eighty acres claimed by Chanove, would affect the rights and titles of the others claiming under the adjudication. The same reason exists for sustaining the exception of nonjoinder in the present suit, that existed in the suit appealed to the Supreme Court. We are bound to take cognizance of the facts stated by the Supreme Court, in acting on the appeal of the same parties from an adverse ruling on an exception of no cause of action in the previous suit. The ruling of the Supreme Court on the question of non-joinder is res adjudicata.

The judgment of the lower court on that exception was correct and the same is affirmed.

Plaintiffs and. appellants to pay the costs in both courts.

ON REHEARING.

LECHE, J.

Omitting numerous irrelevant details and conclusions of fact and of law, the pertinent facts alleged in plaintiffs’ petition are substantially as follows:

James Todd died in the Parish of St. Tammany in the year 1913, leaving several children, all of whom were then minors. He was married but individually owned at the time of his death, some lands situated in the parish where he died. The widow of Todd who was the mother of his children and only heirs, was regularly appointed and qualified as administratrix of the succession. She subsequently prayed for and obtained an order to sell the property of the succession for the purpose of paying debts. The property was accordingly sold and bought by John A. Todd on January 17, 1914. The defendant Marrero Chanove bought the property from John A. Todd and he is presently being sued for the recovery of the property by the plaintiffs who claim to be the forced heirs of James Todd. The title of Chanove is claimed to be null and void for the reasons: 1. That there were no debts due by Todd when he died, and therefore there was no necessity for the appointment of an administrator; 2. That there were no debts due by the succession and therefore no necessity for the sale of the property; 3. That no tutor had been appointed to the minors and therefore that the minors are not bound by any of the proceedings had in the settlement of the succession.

The petition contains numerous charges of fraud which the plaintiffs make against their mother, who was administratrix of the succession and against John A. Todd, their uncle. There is no fraud charged against Chanove, the defendant, though petitioners do say that he might have discovered these fraudulent acts by an examination of the record and proceedings had in the succession of James Todd, No. 2083 of the docket of the 26th Judicial District Court for the Parish of St. Tammany.

Defendant filed various exceptions to plaintiffs’ demand, only one of which, in our opinion, it is necessary to discuss as we believe that it finally disposes of the case. That exception is one of no cause of action for the reason that on the face of the petition, plaintiffs’ demand is prescribed by the prescription of five years as provided in Art. C. C. 3543.

The sale was made on January 17, 1914, and the present suit was brought on March 1, 1928, over fourteen years after the sale was made.

The cited article of the C. C. provides that “all informalities connected with or growing out of any public sale, made by any person authorized to sell at public auction, 'shall be prescribed against by those claiming under such sale, after the lapse of five years from the time of making it, whether against minors, married women or interdicted persons.”

The sale which plaintiffs attack, is a judicial sale. Succession of Blumberg, 148 La. 1030, 88 So. 297. The order authorizing and directing the sale, was issued by a Court of competent jurisdiction, in fact the only Court that could legally grant such an order. C. P. Art. 929.

The purchaser at a sale made at public auction under an order made by a judge having jurisdiction of the succession, is not bound to look beyond such decree in order to ascertain its necessity. Webb vs. Keller, 39 La. Ann. 56, 1 So. 423; Succession of Thomas, 114 La. 697, 38 So. 519.

Minor heirs alleging that the succession owed no debts, that an administration was unnecessary, that they were unrepresented and that the property was sold without the consent of a family meeting, will not authorize the annulment of a sale ordered by a Court of competent jurisdiction, in order to pay debts. Granger vs. Hebert, 121 La. 1046, 46 So. 1012; Thibodeaux vs. Barrow, 129 La. 395, 56 So. 339. An order of sale to pay debts is not invalid because obtained less than thirty days after the appointment of an administrator. Thibodeaux vs. Barrow, 129 La. 396, 56 So. 339.

Believing then, from the authorities here quoted, that the plea of no cause of action should be maintained on the ground that plaintiffs’ demand is prescribed on the face of their petition, it is now ordered that our former decree be set aside and that the judgment of the District Court be affirmed.

ELLIOTT, J.,

dissenting: Plaintiffs allege ownership by inheritance from their father under the law, of the property- described in the petition, and that their ownership of same purports to have been taken from them under the forms of the law at a time when they were non sui juris, and when nobody charged by the law with the authority and duty to appear in Court and speak in defense of their ownership, had been appointed. That the taking was unjust and wrong under the law, and they claim the right to be heard in defense of their ownership. That they have never been heard in defense of the same.

I think they are entitled to a hearing and the ruling cuts them off from it. The question to my mind involves an elementary principle which has never heretofore been put squarely before the Courts, but has been recognized and never directly denied. Windsor vs. McVeigh, 93 U. S. 274, 23 L. Ed. 914; Elkins vs. Canfield, 5 Mart. (N. S.) 505; Adle vs. Anty, 5 La. Ann. 631; Succession of Dumestre, 40 La. Ann. 46, 4 So. 328; Holland vs. Bryan, 148 La. 999, 88 So. 246; Jefferson vs. Gamm, 150 La. 372, 90 So. 682.

It is well settled that a party must look to the jurisdiction of the Court, and that the truth of the record concerning matters within its jurisdiction cannot be disputed. There is no doubt about that, but in the many cases examined on the subject it appears that in all of them there was somebody with authority under the law to appear and speak for the party non sui juris at the time the order for the sale of his property was granted. It is my conception of the law that in a case in which the Judge is called on to order the sale of property in such a situation, he should look to see if there are persons, owners, non sui juris who have nobody with authority under the law to protect their rights. And parties buying the property under the order are charged with the duty of looking into the situation far enough to ascertain if the facts existed, which gave the Court power and authority to sign the order.

If this be not true, ownership in such a case is not protected, and it is no use to say that heirs in such a situation are entitled to a mere residuum, because to so hold is to condemn them to pay debts without a hearing as to their existence.

For these reasons I think the exception should have been overruled and the case allowed to go to trial on the merits, as held in the original opinion.


author: LECHE, J.

text:
    No. 460
    First Circuit
    TAYLOR ET AL. v. STRENZKE
    (June 10, 1929. Opinion and Decree.)
    Shelby Taylor and A. B. Parker, of Baton Rouge, in person, attorney for plaintiffs, appellants.
    Benton and Benton, of Baton Rouge, attorneys for garnishee, appellee.
   LECHE, J.

Plaintiffs, as owners of a judgment against Mrs. E. G. Strenzke, caused a writ of fi. fa. to issue and under said writ, obtained in execution thereof, garnishment process against Mrs. J. F. Yaun. Mrs. Yaun answered the interrogatories and denied that she held any property, rights or credits for Mrs. Strenzke, and denied owing anything to her. Thereupon, plaintiffs took a rule upon Mrs. Yaun with a view of traversing her answers, and the rule thus taken, is the matter in contest in this proceeding before this Court.

Garnishment under execution of judgments, may issue in the same manner and with the same regulations as are provided in relation to garnishees in cases of attachment. C. P. Art. 642. There is no attack as to the regularity of the proceedings, which seem to be in conformity with C. P. Art. 246, and Act 27 of 1877 as amended by Act 73 of 1884. The answers of the garnishee disclaim that she holds any rights or credits for, or is in any manner indebted to Mrs. Strenzke, the defendant. On the trial of the rule to traverse, one of the plaintiffs testified that Mrs. Yaun had admitted to him that she was indebted to the defendant at the time of service of the garnishments, but this testimony is contradicted by Mrs. Yaun, and the indebtedness is denied by the defendant Mrs. Strenzke. According to C. P. Art. 264, in order to successfully traverse answers of a garnishee, either there must be positive written proof or the falsity of the answers must be shown by the oath of two witnesses worthy of belief. It is obvious that plaintiffs have failed to meet this situation, and therefore, that the garnishee must be discharged.

The judgment appealed from is affirmed.


author: ELLIOTT, J.

text:
    No. 461
    First Circuit
    WORTHY v. PATE
    (June 10, 1929. Opinion and Decree.)
    Chas. A. Holcombe, of Baton Rouge, attorney for plaintiff, appellee.
    Breazeale and Sachse, of Baton Rouge, attorneys for defendant, appellant.
   ELLIOTT, J.

Poster Worthy claims of Mrs. Johanna Pate, wife of Elvin Pate, $232.05 as damages caused in a collision-between his own automobile, while being driven by himself, and that of Mrs. Pate, while being driven by her.

The collision occurred about 7:30 A. M. on April 9, 1928, at the intersection of Adams and Nebraska Streets, in the City of Baton Rouge.

The intersection is not within the incorporated limits of the City.

The plaintiff was in Adams Street going east. The defendant in Nebraska Street, going north.

The plaintiff alleges and testifies that as he came within about 15 or 20 feet of the intersection, driving at a rate of 12 or 15 miles an hour, he slowed down, sounded his horn, and then proceeded to cross the intersection first. That defendant was, at the time, coming toward the intersection, and only 15 or 20 feet distant from it, at the rate of 25 or 30 miles an hour.

Plaintiff’s wife, in the car with him, supports her husband in his contention that he was the first to enter the intersection.

The defendant alleges and testifies that she entered the intersection first. That driving about 18 miles an hour she slowed down and sounded her horn as she came near the intersection, and then proceeded to cross. That an obstructing fence prevented her seeing west up Adams Street, the direction from which plaintiff was coming, until she got within about 2 feet of the intersection. But in another place she admits that she saw the plaintiff as he was coming down the hill.

We quote her testimony on cross-examination to show her contention as to why she did not stop:

“Q. You were too close to him to stop?
“A. He was too close to me to stop. It was his business to stop, because he hit me and I turned toward the Highland road, and he knocked me in the ditch, his car falling on top of mine.
“Q. Why couldn’t you see him before you got to the intersection?
“A. There is a fence there.
“Q. You knew the fence was there as you approached the intersection?
“A. I know I had blowed and I seen him coming down the hill there. I didn’t think he was coming down the hill that fast.”

The defendant called a witness to support her contention that she was first to enter the intersection. The witness saw the occurrence, but he admitted on cross-examination that the plaintiff and another party had called on him soon after the collision to ask him about the facts, and he admits telling them that he did not see it. He offers explanations for his conduct, and makes further statements, but after consideration, we think his testimony an unsafe guide for our action.

The evidence shows that the plaintiff saw the defendant about the same time the defendant saw him, and both were at the time very close to the intersection. Each places the responsibility on the other, for not slowing down or stopping in order to avoid a collision, but neither did what each should have done, and the result was what both must necessarily have expected.

It was a ease of mutual fault, and of disregard for precaution of their own safety, as well as that of the other. Each proceeded, voluntarily encountering a known, present and obvious danger, due to the oncoming course of the other, when there was no need of pursuing such a perilous course.

The collision was the direct result of the negligent fault and conduct of both. In such a case neither has a right to recover damages of the other.

The judgment for the plaintiff should have been rejected.

For the reasons stated the judgment appealed from herein is annulled, avoided and set aside, and the demand of the plaintiff rejected.

It is further ordered that each party, the appellant and the appellee pay half the cost in both Courts.


text:
    No. 463
    First Circuit
    HEATH v. BAUDIN
    (June 10, 1929. Opinion and Decree.)

      Taylor and Parker, of Baton Rouge, attorneys for plaintiff, appellant.
    Charles A. Holcombe, of Baton Rouge, attorney for defendant, appellee.
   ELLIOTT, J.

Marshall Heath claims $425.00 as damages, of J. H. Baudin, on account of an automobile collision in which both of their cars sustained injuries.

The plaintiff claims that the terrific speed of defendant was the cause of the collision.

The defendant avers that it was due to the reckless driving of the plaintiff.

Heath, driving south on Winona Street in suburb Istrouma in the City of Baton Rouge, about 4 o’clock P. M. on August 22, 1928, admits that on approaching the intersection of Huron Street, driving at the rate of 25 or 30 miles an hour and within 20 or 25 feet from its intersection with Winona Street, he saw Baudin coming on Huron Street about 50 feet distant from the intersection.

He was asked on cross-examination:

“Q. Why didn’t you stop?
“A. I did not think when I saw Mr. Baudin, that he was going as fast as he was. I thought I could get through the intersection before he arrived.
“Q. In other words, you thought you could beat it across?
“A. I was not trying to beat him across, I just didn’t think that he was driving as fast as he was, and I had plenty of time.”

He subsequently practically admitted that the collision was the result of his effort to get across Huron Street ahead of Baudin, who was approaching and about to cross Winona Street at a right angle. He did not put on his brakes, sound his horn or do anything to avoid a collision; and after seeing Baudin about to enter the intersection, he kept right on without lessening his speed.

In the excitement of the impact plaintiff asked Baudin: “Is the baby hurt?” Upon which Baudin asked him why he did not blow, and he replied, “I thought I could beat you across the street.”

The burden of proof is upon the plaintiff to show negligence on the part of the defendant, causing the injury.

The evidence shows that plaintiff caused it himself. Driving too fast, he entered the intersection recklessly, after Baudin had already entered it, and tried to cross it ahead of him by sheer speed and without regard for the safety of Baudin or of himself.

The lower court properly rejected his demand.

Baudin urged in the lower court a demand in reconvention against Heath and in answering Heath’s appeal he renews his demand in this court. Baudin has the burden of proving his demand in reconvention.

The ■ evidence shows that Baudin, driving at a moderate speed, slowed down and looked up Winona Street, with his car under control, before entering the intersection, and saw Heath coming on at a rapid speed about, say, 20 feet from the intersection. Heath was not far enough to make it safe for him to enter on the crossing. Baudin was in a place of safety at the time he saw the danger from Heath, and could and should have stopped where he was and let Heath pass, notwithstanding the fact that he reached the intersection first. He did not do that, but entered on the intersection and started across, in the face of a known danger, due to the near and apparently reckless approach of Heath.

As it was, Baudin, in a situation of safety, should have pursued a safe course. He voluntarily departed from it and encountered a known present and obvious danger. Having chosen a perilous course when there was no need of doing so, his demand in reconvention was also properly refused.

The judgment appealed from was correct.

Judgment affirmed. Plaintiff and appellant to pay the cost in both courts. i


text:
    No. 467
    First Circuit
    MAGEE v. RICHARDSON
    (June 10, 1929. Opinion and Decree.)
    Lindsay W. McDougall, of Covington, attorney for plaintiff, appellee.
    Ott and Johnson, of Eranklinton, attorneys for defendant, appellant.
   ELLIOTT, J.

A. G. Magee brought suit against W. J. Richardson for $131.61 on an obligation under private signature, called a “Gin ticket.”

Richardson did not appear and plaintiff took and confirmed a judgment against him by default.

The defendant appealed, and contends on appeal, that the judgment against him should be set aside on the ground that the plaintiff did not prove his demand.

The judgment appealed from says that the demand was proved, and it is presumptively correct. The note of testimony bears out the statement.

The gin ticket was annexed to the petition and declared upon, as part thereof. The defendant was called on to admit or deny his signature to the obligation. He admits his signature by his silence.

The ticket indicates a sale of cotton seed on its face; states the quantity, price per ton and $113.61 as due on account of same.

The fact that the words "payment stopped” appears on its back, not shown by whom written, nor for what reason, proves nothing against its unconditional acknowledgment in favor of Magee.

The defendant is presumably satisfied with plaintiff’s compliance with the customary regulations alleged.

Civil Code, Arts. 2242, 2244. Code Practice, Arts. 324 and 360.

Kearney vs. Fenner, 14 La. Ann. 870; Greenleaf, 12th E., vol. I, Section 18, p. 24.

The default was properly confirmed.

Judgment affirmed. Defendant and appellant to pay the cost in both courts.


text:
    No. 11,789
    Orleans
    STATE EX REL. BREAUX v. LONGSHOREMEN’S PROTECTIVE UNION BENEVOLENT ASSN. LOCAL No. 231
    (April 29, 1929. Opinion and Decree.)
    (May 27, 1929. Rehearing Refused.)

      J. J. Conners, of New Orleans, attorney for plaintiffs, appellees.
    L. H. Gosserand, of New Orleans, attorney for defendant, appellant.
   JANVIER, J.

Relators, alleging themselves to be members of the Longshoremen’s Protective Union Benevolent Association, Local No. 231, I. L. A., ask for alternative writs of mandamus against the said organization- and the officers thereof, to compel the issuance to relators of membership cards or certificates upon payment of dues.

Defendants contend that under the constitution of the organization relators ceased to be members thereof when they allowed the time limit fixed in the constitution for the payment of dues to pass without such payments and that, in order to again become members, they must present themselves before the general membership, just as though they had never been members.

Defendants, by exception of no cause of action, contend that the petition of relators shows on its face that the tender of dues made by them, was not made until after the time fixed in the constitution, and, that, therefore, this exception should have been sustained and the suit dismissed without a trial on the merits.

The constitution of the organization was not offered in evidence and we are, therefore, unable to determine whether the tender of dues, according to the allegations of the petition, was made in accordance with the provisions of and within the time fixed by the constitution. We believe, however, that there is a prima facie presumption in such a situation that the officers of the corporation were acting in accordance with the provisions of their internal rules and regulations, and that, as a result of such presumption, the burden of alleging and proving such facts as would overcome it was upon relators.

Likewise, if relators object to any of the provisions of the Constitution as being unreasonable, or if they are of the opinion that the provisions of the constitution, though not unreasonable in themselves, are unreasonable as interpreted by the officers, the burden of showing this would be on them, as it is a well-known principle of law that courts are reluctant to interfere with the internal rules and regulations of private corporations, particularly benevolent or fraternal associations and will only do so upon proper showing of unreasonable rules or unfair interpretation thereof.

Kaiser vs. United Brotherhood of Carpenters and Joiners of America, 7 La. 548.

Braden vs. Lewis, 148 La. 923, 88 So. 117.

Russell vs. Ice Co., 118 La. 446, 43 So. 44.

Dreifus vs. Colonial Bank, 123 La. 61, 48 So. 649.

However, when the exception filed by defendants was overruled, the case came on for trial on its merits and relators, and each of them, without any objection by defendants, and without any reservation by defendants of their rights under the exception, introduced evidence to show that each of them had made tender of his dues before the expiration of the time limit. To this extent the proof undoubtedly enlarged the pleadings and would have been inadmissible had proper and timely objection thereto been made.

Such proof raised for determination an issue of fact, i. e., was tender made within the time limit? The trial court heard all the witnesses and decided this question of fact in favor of relators. A reading of the evidence convinces us that there is no manifest error in his finding in this regard.

Defendants further contend that such proof as there is does not show that tender was made in cash as, it is alleged, the constitution requires, but that each of the relators claimed that the association owed him a certain amount of money, and that he had instructed the association to deduct his dues from this amount. It is thus argued that, even conceding that such instructions were given, and that such amounts were due, this did not constitute payment in cash, or tender in cash, as it is alleged the constitution requires.

We cannot say what is the constitutional requirement in this regard, because, as we have already stated, the constitution is not before us, but it seems to us that if such amounts were due and if, in each case, the amount owed by the association to the individual exceeded the membership dues owed by him, it would be a most unreasonable proceeding to dismiss from membership for non-payment of dues, one, to whom the same association owed an amount exceeding those same dues.

However, we find that in each case, evidence was introduced tending to show that when the offer to offset was refused, a timely tender in cash was made. Here again we find that the trial court believed this evidence and we cannot say that his conclusion was manifestly wrong.

For these reasons, we are of the opinion that the defendants should permit relators to pay their dues and that membership cards should be issued to them upon such payments being made.

It is therefore ordered, adjudged and decreed that the judgment appealed from be and it is affirmed, at the cost of defendants.


text:
    No. 469
    First Circuit
    SUCCESSION OF EDGAR BARR
    (June 10, 1929. Opinion and Decree.)

      Ott & Rich, of Bogalusa, attorney for opponent, appellant.
    Ott & Johnson, of Franklinton, attorneys testamentary executor, appellee.
   LECHE, J.

Edgar Barr owned property situated in the Parish of Washington. He died, leaving no forced heirs, and by his last will, disposed of all his property in favor of his four natural or acknowledged illegitimate children. His nearest other living relatives were his legitimate brothers and sisters and their descendants, who attack the validity of the will as a whole, and ask that the donation therein made, be reduced to one-fourth, in accordance with the terms of article 1486 of the Civil Code. The defense is that a suit for such reduction may only he instituted by his forced heirs under Art. 1504 of -the Civil Code.

There appears to be an apparent inconsistency between C. C. Arts. 1486 and 1504. We say apparent, because in fact there is no real inconsistency between these two articles. If, as in the present case, the deceased has left no forced heirs, Art. 1486 then becomes meaningless and should be expunged from the Code. No one, under the contention of counsel for the natural children, would have a standing in Court to enforce its provision, if enforcement can only be made in accordance with Art. 1504.

Art. 1486 provides:

“When the natural father has not left legitimate children, or descendants, the natural child or children acknowledged by him may receive from him, by donation inter vivos or mortis causa to the amount of the following proportions, to-wit: One fourth of his property if he leave legitimate ascendants or legitimate brothers and sisters or descendants from such brothers and sisters; and one third if he leave only more remote collateral relations.”

Art. 1504 says:

“On the death of the donor or testator, the reduction of the donation, whether inter vivos or mortis causa, can be sued for only by forced heirs, or by their heirs or assigns; neither the donees, legatees, nor creditors of the. deceased can require that reduction nor avail themselves of it.”

Art. 1486 is contained in the chapter of the Code treating of the capacity necessary for disposing and receiving by donation inter vivos or mortis causa, while Art. 1504 is in that chapter treating of the disposable portion and of its reduction in case of excess.

Observe that the chapter, in which occurs Art. 1486, is silent about the right to reduce, and places no limit as to who may exercise that right, if such right does exist. On the other hand, the chapter in which is contained Art. 1504, defines who are forced heirs, fixes the disposable portion where there are forced heirs, and provides in Art. 1504 for suits for reduction of donations which impinge upon the legitime of forced heirs and of course limits the right to bring suit only to forced heirs themselves, and to their heirs and assigns.

The chapter (3) of which Art. 1504 forms part, only restricts such donations as impinge upon the legitime of forced heirs, while the chapter (2), in which is found Art. 1486, also restricts or forbids donations made in favor of those whose capacity to receive is .limited or prohibited by law on moral grounds or grounds of public policy, and to say that tbe latter class of donations could neither be reduced nor annulled except by forced heirs, would render inoperative most of the articles in the latter chapter (2). Such a construction would be against the accepted rules of interpretation of statutes, all parts of which should be given effect.

It therefore clearly appears to us that it could not have been the intention Of the lawmaker to limit a donation to one-quarter or to one-third, or to prohibit it altogether, and at the same time to ' deprive all persons interested, of the right to have such limitation or prohibition declared and enforced. Such are our views and they seem to be sustained by the following decisions of the Supreme Court, viz: Carmena vs. Blaney, 16 La. Ann. 245; Lazare vs. Jacques, 15 La. Ann. 599. In the following cases, suits for reduction where there was no impingement on the legitime of forced heirs were entertained when brought by others than forced heirs, viz: Succession of Elmore, 124 La. 91, 49 So. 989; Succession of Vance, 110 La. 760, 34 So. 767.

For these reasons the judgment of the District Court is avoided and reversed and it is now ordered that the legacy made by Edgar Barr in his last will and testament in favor of his natural children, duly acknowledged, be reduced to one-fourth of his property, and that the remainder be distributed among his legal heirs in accordance with law, costs of the opposition in both Courts to be paid by said natural children.