text:
    No. 3748
    Second Circuit
    WILKERSON v. FAGGARD
    (March 24, 1930. Opinion and Decree.)
    (June 2, 1930. Rehearing Refused.)
    H. W. Bethard, Jr., of Coushatta, and Rusca & Cunningham, of Natchitoches, attorneys for plaintiff, appellee.
    Lee & Williams, of Mansfield, attorneys for defendant, appellant.
   DREW, J.

Plaintiff, the mother-in-law of J. Solomon, together with Mrs. Louise Solomon, the wife of J. Solomon, and his two minor children, were on their way from their home, in Natchitoches, La., to Shreveport, La., in a Ford touring car, making the journey over what is known as the Louisiana Purchase Highway. A negro employee of J. Solomon, by the name of Martin Abram, was doing the driving, and all other occupants of the car were on the back seat. When the Solomon car was some four or five miles north of Harmon, the defendant, A. G. Faggard, on his way to Shreveport, in a Ford coupe, attempted to pass the Solomon car, and at that time saw approaching, from the opposite direction, a large car, traveling at a rapid rate of speed, and, in order to avoid a collision with the car coining from the opposite direction, defendant cut his car to the right side of the road. In crossing over to the right side of the road the rear right wheel hub cap of the Paggard car collided with the left front wheel hub cap of the Solomon car, and as a result thereof the Solomon car left the road and turned over in a ditch on the right side of the road. All the occupants of the Solomon car received injuries, and in this suit plaintiff, Mrs. Laura Wilkerson, asks for damages against the defendant, Paggard, in the amount of $2,000. The lower court rendered judgment in her favor for the sum of $500, and defendant took this appeal. Plaintiff has answered the appeal, praying that the judgment of the lower court be amended by increasing the amount of the judgment to the amount prayed for in her original petition.

The defendant claims that the accident was not caused by the collision, but when the driver of the Solomon car applied the brakes to the car after the accident, thereby causing the car to slide over in the ditch, and that, if the accident was not caused by the too sudden application of the brakes, the driver of the Solomon car was negligent in not pulling to the right to let defendant’s car pass, and in speeding up his car when he saw defendant’s car trying to pass.

It is admitted in the pleadings that the road at the point of the accident was not wide enough for three cars to pass each other at the same time.

There were no eyewitnesses to the accident other than the occupants of the Solomon ear and the defendant and his companion at the time, Mr. Calhoun, and, as usual in such cases, there is a wide difference in the testimony of the occupants of the different cars. There is no claim made by defendant, and the proof is conclusive that defendant did not blow his horn or give any signal whatsoever before attempting to pass the Solomon car. The evidence of the occupants of the Solomon car is that they were driving very slow, not over fifteen miles an hour, and it is explained that the reason for driving slow was in order to permit the little Solomon girl to finish eating some sardines; they testify that she was eating at the time and that their car was on the extreme right-hand side of the road; that they saw the car approaching from the opposite direction, and were watching it, due to the great speed it was making, and did not see defendant’s car or know that it was attempting to pass them until it struck the front wheel of their car; and that almost immediately thereafter they were turned over in the ditch.

Defendant and his companion in the car at the time, testify that they saw the Solomon car a half mile before they overtook it, and speeded up to pass it, when the negro driver of the Solomon car looked at them and speeded up his car also; that the two cars ran along, side by side, for nearly two hundred yards, and were forced to cut over to the right side of the road to avoid a collision with the large car coming from the opposite direction with great speed; that they did not know they had struck the Solomon car until after they had passed it and gone nearly two hundred yards down the road, when Mr. Calhoun looked back and saw the car in the ditch: that they saw the large oncoming car for a quarter or half mile before it passed them. Defendant testified that when his car collided with the Solomon car he was going as fast as a Ford car will travel, trying to get by before the large car reached that point to pass. Defendant complains that the driver of the Solomon car did not pull over to the right when he attempted to pass, and that when the accident occurred the left wheels of the Solomon ear were near the center of the road.

A road so narrow that only two cars can pass each other on it at the same time does not leave much space for either car to pull to its right, and the inside wheels of either car would necessarily have to be near the center of the road in order for the outside wheels to stay on the road at all. However, the testimony of all the occupants of the Solomon car is that they did not know defendant was trying to pass; that he did not give any signal of any kind; and that they did not know he was on the road until the second he struck their car.

When defendant came back to the overturned car, after the accident, he made the remark that he thought only negroes were in the car, and both he and Mr. Calhoun testified that, although they ran side'by side with the Solomon car for two hundred yards on a narrow road, they saw no one in the car but the negro driver. The Solomon car was an open touring car, and the positive testimony of the occupants of that car is that there were no curtains up at the time of the accident. Defendant and his companion, in attempting to explain why they did not see the other occupants of the car, say they think there were curtains up, but are not positive of the fact. The positive testimony is bound to prevail.

Where the testimony of witnesses is so wide apart, as that on the point of driving side by side for two hundred yards, the reasonableness of the testimony will have to be considered, and it is unreasonable to believe that defendant could hav.e driven by the side of the Solomon car for two hundred yards without seeing the occupants of the back seat in an open touring car with no curtains to hide them; which leads to the conclusion that defendant is mistaken about racing with the Solomon car and adds color to the testimony oi the plaintiff’s witnesses that they did not see defendant’s car until just about the time it collided with theif car.

Defendant gave no signal of his desire to pass, and does not contend that the driver of the Solomon car knew he was attempting to pass until he had run abreast of the Solomon car. The fastest that any witness, even defendant himself, says the Solomon car was traveling at that time, is twenty or twenty-five miles an hour. The defendant must have been running much faster to have overtaken plaintiff’s car, and it is inconceivable that the Solomon car had such a quick pick-up as to jump into the same speed as defendant’s car was making in an instant; if not, defendant’s car would have gone by, as contended by plaintiff, had defendant not cut to the right too quickly on seeing the approaching car.

Defendant urges section 16 of Act No. 296, of 1928 in support of his defense. However, the facts of the case do not justify its application. The law reads:

“The driver of a vehicle upon a highway about to be overtaken and passed by another vehicle approaching from the rear shall give way to the right in favor of the overtaking vehicle on suitable and audible signal being given by the driver of the overtaking vehicle, and shall not increase the speed of his vehicle until completely-passed by the overtaking vehicle.”

The remaining defense is that the accident was not caused by the collision, but was brought about by the too sudden application of the brakes to plaintiff’s car after the collision, and testimony was offered to show that the negro driver of the Solomon car made some such statement a short time after the accident, together with the testimony of witnesses who went to the scene of the accident an hour or so after it happened, who testified from what they thought to be the tracks of the Solomon car. All of this testimony is that the Solomon car wobbled a little and then straightened itself out and went down the road about one hundred and fifty feet before it went into the ditch. A number of cars stopped and turned in the road before thé occupants of plaintiff’s car were removed, and Mrs. Solomon says there were thirty or forty cars that stopped to see about them — all of which would make such testimony very uncertain, unless there was some peculiarity' about the tracks of the Solomon car, which is not shown. However, if it be true that the Solomon car traveled a hundred and fifty feet after the collision, it would have been only a space of time amounting to a few seconds, and not unreasonable. The driver of the Solomon car testified that he was thrown aloose from the steering wheel by the impact, and that by the time he straightened himself the car was going in the ditch. He denies putting on the brakes, but, if he had done so, it would not have been an unreasonable thing to do under the circumstances.

This case is before us almost entirely on facts. The judge of the lower court heard and saw the witnesses testify and knew them personally and was far better qualified than we to judge of their credibility. He found in favor of the plaintiff, and we see no error in his judgment as to defendant’s liability.

Plaintiff is an old lady, a widow without any means of support. The testimony shows that her neck and back were wrenched, and that there were bruises and lacerations on her face and hands and promiscuously over her body and legs, and that she was confined to her bed for two months. She also had two ribs broken and internal injuries which caused hemorrhages from the kidneys for several days after the accident. She was severely shocked and suffered to such an extent that she was not rational for twenty-four hours. Before the accident she did the washing and cooking and housekeeping for the Solomon family and was able to perform any kind of manual labor. Since the accident and up until the time of the trial, several months thereafter, she was not physically able to perform any of the duties she had ordinarily performed. At the time of the trial she was still suffering and not able to lift a bucket of water and had difficulty in getting up and down in a chair. Dr. Reed testified thai she sustained an injury to her back and hip from which she will never recuperate.

The lower court found for plaintiff in the sum of $500, which amount, we think, is inadequate, and we also think a judgment for $1,000 is not too much for the injuries she received.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court be amended, by increasing the amount of the judgment in favor of the plaintiff, Mrs. Laura Wilkerson, and against the defendant, A. G-. Eaggard, from $500 to $1,000, and that, as thus amended, the judgment is affirmed. Defendant and appellant to pay the cost of the appeal.


source: Caselaw Access Project

author: DREW, J.

license: Public Domain

text:
    No. 3749
    Second Circuit
    SOLOMON v. FAGGARD
    (March 24, 1930. Opinion and Decree.)
    (June 2, 1930. Rehearing Refused.)
    Rusea & Cunningham, of Natchitoches, and H. W. Bethard, Jr., of Coushatta, attorneys for plaintiff, appellee.
    Lee & Williams, of Mansfield, attorneys for defendant, appellant.
   DREW, J.

This case was consolidated for trial with the case of Mrs. Laura Wilkerson vs. A. G. Faggard (No. 3748 La. App.) 127 So. 5. The issues and facts in both cases are the same, with the exception of the quantum of damages. See reasons in suit No. 3748, as to the liability of defendant.

The lower court found for plaintiff in the amount of $350, from which judgment defendant appealed. Plaintiff answered the appeal, praying that the judgment be increased to the amount sued for.

Plaintiff received bruises and cuts on the face and hands and limbs, and some gravel punctures in the skin of the body. She had undergone an abdominal operation a short time prior to the accident, and the wound was bruised to such an extent that it caused an abscess to form, which necessitated having the wound dressed daily for a period of two weeks. She suffered a great deal, both day and night, for several days, and to such an e.xtent as to necessitate the giving of opiates to relieve her. She was severely shocked and rendered extremely nervous for several days, and incapacitated for about six weeks. She suffered much mental anguish, due to the condition of her little girl, Louise, who was in a semi-conscious condition for some time after the accident, as well as over the condition of her mother, Mrs. Wilkerson, who was severely injured in the same accident.

We' think the amount awarded by tjie lower court should be increased from $350 to $500.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court be amended by increasing the amount awarded plaintiff, Mrs. Louise Solomon, against defendant, A. G. Faggard, from $350 to $500, and, as so amended, the judgment is affirmed. Defendant and appellant to pay the cost of the appeal.


author: JANVIER, J.

text:
    No. 11,766
    Orleans
    Levy v. McWilliams et al.
    (April 21, 1930. Opinion and Decree.)
    (June 2, 1930. Opinion and Decree on Rehearing.)
    Anna Judge Veters, of New Orleans, attorney for plaintiff, appellant.
    F. Rivers Richardson, of New Orleans, attorney for defendants, appellees.
   JANVIER, J.

Plaintiff, Levy, is the owner of a tract of land facing the Mississippi Sound at Waveland, Miss. Defendant Mrs. McWilliams is also the owner of a tract commencing 100 feet to the westward of Levy’s property, and separated from it by a 100-foot strip of land owned by one Weston.

Levy, desiring to improve his property, planted thereon trees and ornamental shrubbery of various kinds. Defendant McWilliams, in order to clear his wife’s property of stumps and to prepare it for use, made a written contract with C. B. Wells, under which Wells undertook to clear the stumps and to plow the ground.

Among other things, the contract provided for “blowing all the large stumps and grubbing out the small stumps.”

Instead of blowing up the large stumps, of which there were two, Wells, the contractor, piled around them all the young trees and underbrush which he had cut down, and then undertook to burn the whole.

These fires burned for several days and thereafter there resulted, either from them or from another fire started by one Bourgeois, a conflagration which did considerable damage to other trees and shrubbery, burned two houses, and finally destroyed trees and ornamental shrubbery of plaintiff, Levy.

It is for the recovery of the replacement value of the property destroyed that this suit is brought. Actual damage of $450 is claimed, and Levy also seeks to recover $150 as a penalty in accordance with section 4988 of the Mississippi Code of 1906, which, it is alleged, reads as follows:

“If any person shall set on fire any lands of another, or shall wantonly, negligently, or carelessly allow any fire to get into the lands of another, he shall be liable to the person injured thereby, not only for the injury to or destruction of buildings, fences,, and the like, but for the burning and injury of trees, timber, and grass, and damage to the range as well; and shall moreover be liable to a penalty of one hundred and fifty dollars in favor of the owner.”

The defenses are, first, that the fire which caused plaintiff’s damage was not the result or the outgrowth of that which was started by Wells, and, second, that Wells was an independent contractor and that, since defendants in no way controlled his method of operation and did not contemplate and had no reason to contemplate that he would use fire, they were not responsible.

We find the evidence as to whether the fire started by Wells was the source of the conflagration which destroyed Levy’s trees is rather conflicting, but as we believe that, regardless of where the destructive fire originated, defendants are not liable therefor, we find it unnecessary to come to a conclusion on this question of fact.

The record shows that all the parties lived in New Orleans, and that no one of them was present when the fire started, nor thereafter, until after the entire damage had been sustained.

The contract did not contemplate that fire would be resorted to, and therefore it cannot be said that defendants authorized its use, and the record convinces us that they did not • know that Wells intended to employ that means of removing the stumps and debris.

The opinion of the district judge on the question of the liability of Mrs. McWilliams, as the owner of the property, and on the liability of Mr. McWilliams, as the agent for his wife, is so well expressed that we have decided to adopt it:

“This contract made with Wells, required Wells to blow up those two large stumps, grub out the small stumps, clear the land of under-growth and plow it up. Therefore, when Wells went on that property and undertook to build a fire and burn up his trash and debris, it was the act of Wells, individually and as an independent contractor and in no way was he acting as the agent, servant or employee of the defendant. If a tort was committed, Wells committed it and the fact that he committed a tort on the defendant’s property, in no manner makes the defendants liable, any more than should some one set my house afire, causing the loss of my .neighbor’s house and they could not hold me whether that man was a trespasser or an independent contractor building the house for me and I am not responsible for hi's act.
“It is true the law of Louisiana makes every one responsible for the damage caused by the defects of his house or building or the inherent vices in a building whTeh cause damage to another. There is no such case here at all. There was no damage done by the defendant’s property and the best that can be made of if is, the damage was caused by a fire started on defendant’s property by an independent contractor, who was under no contract to build a fire. On the contrary, the contract called for another method of accomplishing the work.”

In Muldry vs. Fromherz, 142 La. 1087, 78 So. 126, we find in the syllabus written by the court the following:

“Where one enters into a contract whereby the other contracting party agrees to haul away the debris of a demolished building at a fixed price per load, and neither reserves nor exercises any right of direction or control as to the labor or means to be employed, or the manner in which the work is to be executed, the second party is an independent contractor, and it is he, and not the first party, who is liable in damages for an injury sustained by a third person, through the fault of one of his employees in the reckless driving of one of his wagons.”

See, also, La Groue et ux. vs. City of New Orleans et al., 114 La. 253, 38 So. 160, in which is found:

“Where the city of New Orleans, through a board of commissioners, made a contract' with an arboriculturist for the furnishing and planting of a large number of trees upon the neutral ground in St. Charles avenue, the city having no choice in the selection of workmen and no control over the manner of doing the work, and where the work of planting the trees did not necessarily constitute an obstruction or defect in the street, rendering it unsafe or dangerous for the purpose of public travel, held, that the city is not liable with the contractor for personal injuries occasioned by plaintiff falling at night into one of the holes carelessly left open by the contractor.”

We find that defendants did not retain the right to supervise the work of Wells, nor to direct him in carrying it out. No doubt they could have prevented him from using fire in the removal of the stumps had they known that he 'intended to do so, but they certainly had no knowledge of this, intention, and the contract provided for a different method of operation.

It would be to abolish entirely the defense of “independent contractors” to say that the contractee is liable for every negligent act of the contractor, because he could have remained on the work and could have objected to the use by the contractor of dangerous appliances or methods of operation. ■ In the absence of knowledge, the contractee may assume that a responsible, reputable contractor will employ only safe appliances and will follow only safe and approved methods of operation.

There is also involved in this case the question of the liability of plaintiff for fees of certain experts, and for expense incurred by them in attending court. On a rule to tax these costs judgment was rendered against plaintiff, and he was condemned in the sum of $117.98, itemized as follows:

W. W. Stockstill, Miss. Attorney, charge for Testimony given ___________________________________________$50.00

Expense attending Court 2 days ______________________________________________ 7.52

-$ 57.52

George Tirado, expert photographer, charge for testimony given ___________________________________________ 10.00

Expense attending Court 2 days ---------------------------------------------- 9.76

- 19.76

B. S. Drake, surveyor and timber expert, his charge for Testimony given------------------------ 30.00

Expense attending Court 2 days ------------------------------ 7.40

-- 37.40

114.68

Court Docket Costs______________________ 3.30

$117.98

The question involved is whether or not one party has the right to employ experts without the authority of court, and to then contend that the costs and fees of these experts should be taxed against the other party. We have been cited many authorities, none of which appears to be applicable, since, in the instant case, as we have stated, the so-called experts were all selected by the defendant, without any order or appointment from the district judge, and the article of the Code of Practice which authorizes the taxing of the fees of experts does not, in our judgment, warrant the charging of these fees against the other party unless the experts have been appointed by the district judge for his benefit or assistance. Article 552 of the Code' of Practice states that the costs which may be taxed may also include “compensation allowed for their services to such experts, auditors, or judicial arbitrators, as may have been appointed in the suit.” We have been shown no authority to the effect that the appointment which is referred to in the article may be made by the parties themselves, or by their attorneys. We therefore think that the court was in error in taxing as costs the items referred to.

It is therefore ordered, adjudged, and decreed that the judgment rendered on June 28, 1928, be, and it is, affirmed, and

It is further ordered, adjudged, and decreed that the judgment rendered on November 2, 1928, taxing as costs items totaling $117.98 be, and it is, annulled, avoided, and reversed, and that the rule to tax as costs the items mentioned be, and it is, dismissed. All costs except those referred to be paid by plaintiff.

Judgment on main demand affirmed.

Judgment on rule to tax costs reversed.

ON REHEARING

In the original opinion rendered herein we expressed the view that, since the so-called expert witnesses had not been appointed by the court, but had been placed on the stand as witnesses for one of the parties, their fees and expenses should be paid by the party who summoned them and should not be taxed as costs of court. We find, however, that under Act 19 of 1884, as interpreted by the Supreme Court in Suthon vs. Laws, 132 La. 207, the fees and expenses of experts may be taxed as-costs even though the experts are not appointed by the court, but are summoned as witnesses by one of the parties. In that case the court said:'

“The contention made by the learned counsel of Laws is that these engineers do not come within the intendment of this act because they were not appointed by the court as experts and were not summoned as experts, but were summoned as ordinary witnesses.
“We do not think that, under this act, it is necessary that the witnesses should have been appointed by the court as experts, or should have been summoned as such. It suffices under the terms of the act that they should have been called to testify only to an opinion, or to the result of scientific or professional examination.”

It is very evident, however, that the right of a party to summon so-called experts and to tax as costs their fees and ex-penses should be supervised most carefully, and that such fees and expenses should be taxed as costs only where it is manifest that the testimony of the witnesses is in reality necessary as elucidating some technical or scientific subject, and that, where the witness is not in reality placed on the stand to give such information, but is, in fact, called to testify as to facts of the case, the fees and expenses of such witnesses should be paid by the party who summons them. The case relied upon by defendant, Suthon vs. Laws, supra, is authority for this view.

Of the so-called expert witnesses who appeared in this case, only one, W. W. Stock-still, seems to have been really, necessary for the assistance of the court. The others, as we view their testimony, were in reality placed on the stand primarily to prove facts and not to give expert evidence.

We are very hesitant to allow the taxing as costs even of the fees and expenses of Mr. Stockstill • because, though he gave expert testimony with reference to Mississippi jurisprudence and regarding certain Mississippi laws, he admitted that he had been “employed to furnish the Mississippi law and help prepare the case”; in other words, that he had been employed by the defendant as an attorney.

Nevertheless his testimony was limited to matters of Mississippi law. and he did not testify to facts, and we have concluded that his fees, amounting to $50.00, and his expenses, amounting to $7.52, should be taxed as costs. The docket charge of $3.30 should have been taxed as costs also.

It is therefore ordered, adjudged, and decreed that our original decree be and it is amended by allowing and taxing as costs the fees and expenses of W. W. Stockstill, amounting to $57.52, and the docket charge of $3.30. As thus amended our original decree is reinstated-


text:
    No. 13,073
    Orleans
    GOLDSMITH v. UNITY INDUSTRIAL LIFE INSURANCE & SICK BENEFIT ASSN.
    (May 5, 1930. Opinion and Decree.)
    Charles J. Mundy, of New Orleans, attorney for plaintiff, appellant.

      J. C. Henriques and Frank T. Doyle, of New Orleans, attorneys for defendant, appellee.
   JANVIER, J.

This is a suit for damages claimed by plaintiff, a colored woman, to have been sustained as the result of slanderous remarks alleged to have been made about her on three occasions by employees of defendant company. The defense is a denial that the remarks quoted in the petition were made, and, in the alternative, a plea to the effect that, even if any of the said slanderous statements were actually uttered by the employees in question,, nevertheless, no liability in defendant results, because it was no part of the duty of the particular employees to investigate or discuss the subject-matter concerning which the alleged remarks are said to have been made, and that, thus, if the remarks were in fact made by the employees, they, in making them, were acting without the scope of their respective employments.

The record shows that plaintiff’s husband had, on various occasions, drawn sick benefit payments from defendant, and that, since the rules of the defendant and the policy stipulations provided that sick benefit payments should be drawn only by claimants actually confined to bed, an inspector was sent to the residence of plaintiff and her husband to ascertain whether in reality he (the husband) was so confined.

It is alleged that, when the said inspector, Hardy by name, called at the domicile, he, in the presence of friends of plaintiff, said:

“I came from the Unity to tell you that if you people would read your policy you wouldn’t have to file claims against the Association. The Association will not pay this claim, because Nias Goldsmith has syphilis, a venereal disease, and under our policy, the Association don’t have to pay for such sickness in such a case.”

It is further alleged that, when Nias Goldsmith, the husband, denied that he was suffering from the said disease, Hardy replied:

“Well if you didn’t get it, then your wife must have it and she must have gone out and gotten it and gave it to you.”

Plaintiff also claims that at another time one Triche, also an employee of the company, in the presence of Lulu Sims, a friend of plaintiff’s said:

“The company will not pay his claim because you and your husband both have syphilis and you better get home you poor nigger.”

Further slanderous remarks are alleged to have been made by still another employee, Broussard, who, according to plaintiff, said in the hearing of several of her friends:

“Our association is absolutely not going to pay your husband’s claim because the company has proof that you and your husband have syphilis.”

Of course it is conceded, as it must be, that to untruthfully charge a person with having a loathsome disease is slander. Meteye vs. Times-Democrat Publishing Co., 47 La. Ann. 824, 17 So. 314. It is also slanderous to charge a person with having had immoral, adulterous relations with another. Jackson vs. Briede, 156 La. 573, 100 So. 722. Since such statements as are charged to have been made, if actually made, are slanderous per se, it is' not necessary that actual malice be shown. Jozsa vs. Moroney, 125 La. 813, 51 So. 908, 27 L. R. A. (N. S.) 1041, 19 Ann. Cas. 1193; Savoie vs. Scanlan, 43 La. Ann. 967, 9 So. 916, 26 Am. St. Rep. 200; McClure vs. McMartin, 104 La. 496, 29 So. 227; Buford Bros. vs. Sontheimer, 2 Orleans App. 296. But, of course, no matter how grossly slanderous such remarks may be, there can be no liability if they were not actually made, and we have reached the conclusion that the record fully sustains the finding of the, district judge, which seems to have been to the effect that the evidence does not preponderate towards plaintiff’s contention that the remarks were actually made. It is therefore unnecessary for us to consider the defense that the remarks, even if made, were not made within the scope of the employment of. the respective employees.

We note on the part of the witnesses for the plaintiff a remarkable accuracy in repeating the exact slanderous words said to have been uttered and an equally remarkable absence of recollection of other incidents and details. ,

A reading of the evidence given by these witnesses convinces us, as it no doubt did his honor below, that the testimony given on the witness stand was rather the result of consultation and discussion than of actual recollection of events.

At any rate only a question of fact is involved, and we cannot persuade ourselves that the record warrants a reversal of the finding of the trial court thereon. Item Co. vs. Hereford, 1 La. App. 288; Pitard Hardware Co. vs. Lala, 1 La. App. 534; Palmisano vs. Faust, 1 La. App. 756; Brugier vs. Todd Bros. Auto Co., 2 La. App. 741; Becker vs. I. C. R. R. Co., 2 La. App. 745.

Plaintiff, appellant, complains that the trial court should have granted a new trial, since the application therefor was supported by an affidavit with reference to new evidence which had been discovered. It is contended that this application for a new trial was refused after the death of the district judge who had heard the evidence, and before his successor had the opportunity of reading the testimony.

The right of the district court to grant or refuse a new trial will not he interfered with, except in a case of plain abuse of discretion, particularly where it is evident that the new evidence sought to be introduced is merely cumulative. Handy vs. N. O. Public Service, Inc., 13 La. App. 257, 127 So. 753; Teutonia Bank & Trust Co. vs. Heaslip, 138 La. 860, 70 So. 861; Muller vs. Hoth, 105 La. 246, 29 So. 709; Sorrel vs. Julien, 4 Mart. (O. S.) 508; Roberts vs. Rodes, 3 Mart. (N. S.) 100; Toulman vs. Elliott, 15 La. 226; Miles vs. Craig, 6 La. Ann. 753; Andre vs. Bienvenu, 1 Mart. (O. S.) 148; Linton vs. Stanton, 4 La. Ann. 401.

For these reasons, the judgment appealed from is affirmed.


author: WESTERFIELD, J.

text:
    No. 11,853
    Orleans
    DANZ1GER ET AL. v. TESSITORE
    (March 10, 1930. Opinion and Decree.)
    (April 7, 1930. Rehearing Refused.)
    (June 4, 1930. Writ of Certiorari and Review Refused by Supreme Court.)

      L. R. Wertheimer, of New Orleans, attorney for plaintiffs, appellees.
    Joseph Rosenberg, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

George Danziger and the partnership of Stulb & Stulb are real estate agents. As a result of their co-operative effort, an agreement was entered into whereby the defendant John P. Tessitore and W. G. Senseman agreed to buy from and sell to each other certain real estate mentioned in the contract. The agreement was not consummated; and this suit, which is one against Tessitore by the real estate agents, joined as plaintiffs, for a commission, resulted. There was judgment below in plaintiffs’ favor, as prayed for, in the sum of $1,340, and defendant has appealed.

The alleged liability of Tessitore is based upon a clause in the contract reading as follows:

“In the event either purchaser or vendor shall fail or refuse to comply. with the terms of this offer and agreement if accepted, and it shall become necessary for any parties hereto to employ an attorney to enforce compliance therewith, or to institute or maintain a suit for damages, the party failing or refusing to comply, shall pay, in addition to the real estate agent’s commission, the fee of the attorney so retained to be fixed by the Court — and any and all costs incurred by reason of such suit.”

The effect of this clause is to condemn the party through whose fault the contract fails of consummation for both commissions, the one due Stulb & Stulb and the one due Danziger.

The contract, which is dated December 7, 1927, obligates Senseman to sell a number of vacant lots on Scott street and State street drive for $15,000 and to purchase from Tessitore five double cottages on Green street for $18,000. It obligates Tessitore to buy the vacant lots of Senseman and to sell the cottages. Senseman’s offer to buy is made “subject to a homestead loan of $10,000.00,” and Tessitore’s offer to buy is made “subject to a homestead loan of $7,000.00.” Both parties agreed to perform their part of the contract by executing the necessary acts of sale within thirty days, and “in the event either purchaser does not comply with his agreement to purchase within the time above specified, the other vendor shall have the right, at his option, to declare the deposit ipso facto forfeited, without further formality and without the purchaser being put in default —time being of the essence of this contract —or said vendor may, at his option, demand specific performance; in the event, either vendor does not comply with his agreement to sell within the time above specified, the other purchaser shall have the right at his option to either demand the return of his deposit, plus a like sum, or specific performance; in case of forfeiture of deposits as provided above, thq total commission earned by the agent shall be paid out of said deposits, reserving to the party acting in good faith, the right to proceed against the defaulting party for the recovery of said commission.”

The suit is defended upon the grounds: First, that the contract contains the potestative condition in that the undertakings of both parties are made “subject to homestead loan,” citing Titus vs. Cunningham, 7 La. App. 37, and other authorities; second, that the term of the contract had expired without either party complying with his obligations thereunder.

Taking up the defenses in the inverse order, we find that neither Senseman nor Tessitore complied with their agreement in respect to the time of pérformance, which is stipulated to be of the essence of the contract. We cannot say that Tessitore was any more to blame than Senseman. Senseman did not own the property and did not acquire title to it until sixty days after the expiration of the time limit. It is said that Tessitore, by his failure to carry out his part of the agreement, influenced Senseman in delaying his acquisition of the property he had agreed to sell and vice versa. An attempt was made to show that Tessitore’s failure was due to complications in regard to a debt of $5,000, which he owed Mr. Manuel Weil, the notary public before whom the reciprocal acts of sale were to be passed, Mr. Weil, it is claimed, insisting upon a mortgage on the property to be conveyed, as security for the debt. Mr. Weil, when 'placed upon the stand, denied that he interfered in any way, and testified that the reason the transaction fell through was Senseman’s inability to complete arrangements with the owners to obtain title to the property he had agreed to sell, and, as a matter of fact, as has been stated, he did not acquire the property until sixty days after the expiration of the time in which he had agreed to convey it.

Our conclusion is that, whatever the reason may be for the failure of the execution of this contract, it cannot be said to have been entirely due to Téssitore, and it is certain that Senseman was at no time during the term of the contract in a position to comply with his undertaking. R. O. C. art. 1913.

It is said that the only consequence of the failure of either party to comply with the agreement within the term of the contract was, as stated in the contract, to give the other party the right, at his option, to either demand the return of his deposit, plus a like sum, or specific performance. If, the argument proceeds, there was a right of action for specific performance, the contract could not be said to have been at an end, since the conferring of a right of execution on one of the parties would imply its existence. However that may be, when both parties have failed to comply with the contract, neither is in any position to demand a penalty for its breach.

As to whether Tessitore is liable to his agent for a commission, that is a question we do not decide, it not being before us at this time, since this suit is brought by both agents joined as co-plaintiffs.

It is unnecessary to discuss the other defenses raised.

For the reasons assigned, the judgment appealed from is reversed, and it is now ordered that there be judgment in favor of defendant, John P. Tessitore, dismissing plaintiffs’ suit at their cost.


text:
    No. 13,297
    Orleans
    MARGO v. CAMBON BROTHERS ET AL.
    (March 10, 1930. Opinion and Decree.)
    (April 7, 1930. Rehearing Refused.)
    (June 4, 1930. Writ of Certiorari and Review Refused by Supreme Court.)
    Jos. Rosenberg, of New Orleans, attorney for plaintiff, appellee.
    Milner & Porteous and P. M. Milner, of New Orleans, attorneys for Fidelity & Deposit Co. of Maryland, defendant, appellant.
    E. M. Cahn and H. L. Hammet, of New Orleans, attorney for Cambon Bros, and Maurice C. Cambon, defendants, appellants.
   JANVIER, J.

Petitioner alleges that she intrusted to Cambon Brothers, a commercial partnership engaged in business as real estate agents and brokers, $500, to be deposited by them on account of the purchase price of certain real estate, but that the agents did not apply the deposit as directed and have failed and refused to return the said sum to petitioner.

She asks for judgment against the partnership, against Maurice Cambon, the sole surviving member thereof, and against the legal representatives of Ferdinand Cambon and Sylvester J. Cambon, the two deceased members of the firm, and against Fidelity & Deposit Company of Maryland, as surety on the real estate broker’s bond of the partnership and of those who formerly composed it.

The only defense which we deem worthy of consideration is that presented by the surety company, which is based on the receipt which was given to plaintiff when she deposited the said $500 with' Cambon Brothers, and which receipt reads as follows:

“Received of Mrs. Annie Liuzza of 2330 Orleans Street, the sum of $500.00, same to be applied as her pro rata in the purchase of Mary Place in conjunction with the parties at present forming a company to take over said place. This money to be returned one year after date with interest at 7% if the property is not sold.”

The surety company contends that the receipt shows that the money was not turned over to Gambon Brothers as real estate agents as a deposit to bind a sale, but was given them to be invested by them in the purchase for plaintiff’s account of stock in a real estate company to be organized, and that since neither by custom, nor by Act 236 of 1920, is it among the duties of real estate agents to organize realty companies for their clients, nor to invest funds of clients therein, Cambon Brothers, in accepting the funds, were not acting as real estate agents, and that thus their surety is not liable for any breach of trust committed by them as individuals and not as real estate agents.

It is also contended on behalf of the surety that the concluding portion of the receipt constitutes a guaranty or agreement of indemnity against loss, and that it is not among the statutory duties of real estate brokers to agree to indemnify their clients, and that thus there is no liability in the surety; statutory sureties being liable only for such losses as result from the breach by their principals of obligations contemplated in the statute requiring the furnishing of the bond. Act No. 236 of 1920.

We see no merit in this latter defense, because the suit is not on the guaranty. No suit could have been maintained against the surety under this so-called guaranty, or agreement of indemnity; but we are unable to see why the inclusion by the broker in a contract to buy or to sell of a guaranty against loss should relieve the surety from liability if the broker misappropriates the funds deposited with him. In other words, if a broker, in order to induce a prospective purchaser to buy, agrees to indemnify the purchaser against loss, and if the deposit is made and the broker embezzles the deposit, his surety cannot escape liability under the bond on the plea that the broker should not have given the guaranty. The obligation imposed by the guaranty appears to us to be a matter separate and apart, so far as liability is concerned, from the obligation imposed by law upon the broker. If the broker violates the obligation imposed by law upon real estate agents, his surety is liable. If he violates the indemnity obligation imposed by contract, his statutory surety is not liable. Here it is contended that the broker violated the statutory obligation imposed by law upon real estate agents. If this is so, the surety is liable, regardless of whether or not there was included in the contract between the broker and the principal an indemnity agreement.

It is conceded that Cambon Brothers received the amount in question, and it is conceded that they have neither returned it nor invested it as directed. It is evident that the firm, the individual member, and the representatives of the deceased members are liable.

The surety, however, is not liable unless the principals, to-wit, Cambon Brothers and the individual members, received the money in their capacity as real estate agents or brokers and unless the statute to which we have referred, and in compliance with which the bond was given, contemplates such acts as being within the scope of the duties of real estate brokers.

As we said in Brodtmann vs. Cooper, 11 La. App. 101, 120 So. 727, 729:

“It will be noted that the title of Act 236 of 1920 provides for the business of real estate, and that a broker is defined as one who ‘offers to * * * negotiate the purchase or * * * exchange of real estate,’ and that the bond is required from all those ‘who deal in the business of real estate.’ The plain purpose of the act, therefore, seems to be to extend the business of real estate agents, to widen the scope of their duties, and to promote the confidence of the public by requiring financial responsibility of all persons engaged in this occupation.”

The receipt in question shows that the motive which actuated Mrs. Liuzza in handing the money to Cambon Brothers was her desire to purchase an interest in real estate. She no doubt did not know the distinction between purchasing an interest in real estate and buying stock in a company which, in turn, was to purchase the land.

There can be no doubt that she dealt with Cambon Brothers, because they were real estate agents and because they offered to assist her in buying an interest in the land in question.

The fact that the land was to be taken over by a company should not relieve the surety from liability, because the organization of the company was merely an incidental detail in the procedure of buying the land. In order to avoid individual liability persons often organize corporations and buy through them. Does this fact alter the status of the persons who negotiate the trade for the purchasers?

The object was the purchase of an interest in real estate. The agent who accepted the money for the purpose was acting within the scope of the usual duties of a real estate agent, and a breach of trust in such a matter renders the surety liable for the loss.

We believe that the judgment appealed from is correct.

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


author: ODOM, J.

text:
    No. 2863
    Second Circuit
    JEFF DE BLIEUX & COMPANY v. FREEMAN (FRANK FREEMAN, Intervener and Third Opponent) JEFF DE BLIEUX & COMPANY v. FREEMAN (JOHN BROWN ET AL., Interveners and Third Opponents)
    (April 10, 1930. Opinion and Decree.)

      Rusca & Cunningham, of Natchitoches, attorneys for plaintiff, appellant.
    S. R. Thomas, of Natchitoches, attorney for defendants, appellees.
   ODOM, J.

By virtue of a written stipulation filed in this court by counsel of record for all parties, it is hereby ordered, adjudged, and decreed that the judgments appealed from be amended as follows:

The judgment in the case of Jeff De Blieux & Co. vs. John Freeman (John Brown et al., Interveners and Third Opponents) is amended to the extent of disallowing the item of $50 awarded interveners as damages for the wrongful seizure and detention of the property; and further ordered and decreed that the judgment in the case of Jeff De Blieux & Co. vs. John Freeman (Frank Freeman, Intervener and Third Opponent), be so amended as to disallow the item of $75 awarded intervener and third opponent as damages caused by the wrongful seizure and detention of the property; and further ordered and decreed that as thus amended each of said judgments be affirmed.


text:
    No. 13,335
    Orleans
    BISTES v. CHECKER CAB CO.
    (March 10, 1930. Opinion and Decree.)
    (April 7, 1930. Rehearing Refused.)

      P. L. Fourchy, of New Orleans, attorney for Jos. M. Bistes, plaintiff, appellant.
    Elias Bowsky, of New Orleans, attorney for Mr. and Mrs. A. H. Landry, defendants in rule, appellees.
    Walter Smith, of New Orleans, attorney for Checker Cab Company, Inc., defendant, appellee.
   JANVIER, J.

In this controversy there is presented for our consideration one question only, and that of law.

We are asked to decide whether the privilege accorded by R. C. C. arts. 2705 and 3218, to the landlord on the movable effects in the leased premises continues to exist in favor of the former landlord, after he has sold the premises, and, if so, whether it continues to exist for seventeen days thereafter.

Joseph M. Bistes was the’ owner of the property No. 1112-14 Poydras Street. Checker Cab Company, Inc., was lessee of these premises, and used them as a garage.

Mr. and Mrs. A. H. Landry obtained a final judgment against the Checker Cab Company, Inc., and, in an attempt to .collect the judgment debt, caused a writ oi fieri facias to issue, and, under this writ, on July 10, 1929, seized certain movable property, consisting principally of taxicabs, located in the leased premises.

Shortly prior to the issuance of the writ of fieri facias, the -realty had, on June 24, 1929, been sold by Bistes to one Guy L. Deano, and, as appears from the record, on July 1, 1929, Deano became the landlord of the said premises. At that time, to-wit, on July 1, when Bistes sold the realty to Deano, there was rent due by the cab company to Bistes amounting to $1,500.

Bistes look no action looking to the collection of his overdue rent, until July 17, 1929, seven days after the seizure on behalf of Mr. and Mrs. Landry under the writ of fieri facias, and seventeen days after the delivery of the realty to Deano. He then caused a writ of provisional seizure to issue, and, under it, effected the seizure of the movables already held under the writ of fieri facias.

A considerable portion of the fund resulting from the sale of the movables was or must be applied to the payment of the taxes due, and the present contest involves the distribution of the balance of the proceeds, which balance is insufficient to pay in full either the claim of Bistes or the claim of Mr. and Mrs. Landry, so that the sole question presented, as we have stated is: Shall the former owner and landlord, Bistes, receive under his alleged privilege the balance of the proceeds, or shall it be paid to Mr. and Mrs. Landry under their writ of fieri facias.

It is conceded, as, of course, it must be, that, if the landlord’s lien still existed on July 17, 1929, notwithstanding the sale and delivery of the leased premises seventeen days prior thereto, that lien and privilege was superior in rank to the lien created in favor of Mr. and Mrs. Landry by the seizure on July 10, 1929, under the writ of fieri facias. But it is contended that, by the sale of the property, the former landlord and owner lost such privilege as may theretofore have existed by reason of his failure to exercise it while he was yet the owner and landlord.

We have been directed to no decisions of our courts which throw light on the question, but we find in the Civil Code itself certain provisions which we deem significant.

In the first place, under R. C. C., art. 3218, the landlord’s right is described as being “of a higher nature than mere privilege.” He, the lessor, under that article “may take the effects themselves and retain them until ' he is paid.” Since the landlord is given this extraordinary right, his failure to exercise it before delivering the property to his vendee would seem to deprive him of the power to retain that right after permitting the movables to pass from the physical possession which he formerly had by reason of his ownership of the realty and to be seized under a writ of fieri facias issued by a third person.

In the second place, it seems to us that the intention of the framers of the Civil Code, as expressed in articles 2705 to 2709 thereof, was that the essential requirement to the existence of the lessor’s privilege should be the presence on the leased premises of the movables to be seized. Article 2709 recognizes an exception, and permits a seizure under the lessor’s privilege for fifteen days after the removal of the movables. This article was inserted for the protection of the lessor, so that the lessee, without the knowledge of the lessor, could not remove the articles and thus deprive the lessor of his privilege. But, even in such case, the privilege exists for only fifteen days, and it would seem to us illogical to hold that, where, by the act of the lessor himself, the movables sought to be seized are no longer in his possession because of his voluntary alienation of the realty, the privilege should exist for more than fifteen days, if at all.

We can see no distinction between removing the movables from the lessor and removing the lessor from the movables.

We believe, also, thát to permit the former owner of the premises to seize for rent, after he has sold his realty to another, might bring about controversies be tween the former owner and his vendee. Suppose, for instance, in the case now before us, the rent had been payable in advance, and had not been paid on July 1. The new owner, Deano, would have been entitled to exercise his privilege on the movables. If the contention of Bistes is sound, he too could have seized the same movables for the rent theretofore due him.

As we view the various codal provisions, it was not intended that an owner of realty, who leases to a tenant, can sell his realty to a third person, and thereafter exercise his theretofore existing right to a landlord’s privilege; at least if such action would deprive some third party 'of rights which, in the meantime, had come into existence.

In oral argument, counsel for Bistes contended that the landlord’s privilege has not been lost, notwithstanding the sale of the premises, because, when Bistes sold to Deano, he immediately entered into a lease contract under which he became Deano’s lessee, and that he then, in turn, sublet to the Checker Cab Company, and that thus, though his status as owner terminated, his status as landlord continued without interruption. Even conceding the soundness of this argument, we are unable to find in the record any facts to substantiate the claim that he (Bistes) became Deano’s tenant.

For the reasons given, we feel that the fund, or so much as may remain after paying prior liens for taxes and after paying costs, should be applied to the satisfaction of the writ of fieri facias issued on behalf of Mr. and Mrs. Landry.

It is therefore ordered that the judgment appealed from rendered on November 8, 1929, and signed on November 15, 1929, be, and it is, affirmed.


author: MOUTON, J. ELLIOTT, J. MOUTON, J.

text:
    No. 627
    First Circuit
    LOUISIANA HIGHWAY COMMISSION v. CORMIER ET AL.
    (April 14, 1930. Opinion and Decree.)
    (May 6, 1930. Rehearing Refused.)
    (July 2, 1930. Writ of Certiorari and Review Refused by Supreme Court.)

      Lewis L. Morgan, of Covington, attorney for plaintiff, appellant.
    Dubuisson, Perrault & Burleigh, of Opelousas, attorneys for defendant, appellee.
   MOUTON, J.

The defendants are the owners of a tract of land of 150 acres situated in the parish of St. Landry.

Plaintiff is now constructing a hard-surface state highway, being route No. 7, as designated under section 7 of Act 95, Ex. Sess. of 1921, and the amendatory Acts No. 236 of 1924, No. 330 of 1926 and No. 294 of 1928.

The tracks of the Missouri Pacific Railroad run westward from Krotz Springs in the parish of St. Landry to a railroad station called Port Barre station on the line of that railroad. The proposed highway in route No. 7, which plaintiff is building, runs north of and parallels the railroad tracks from Krotz Springs to the Port Barre Railroad Station. The tract of land of the defendants is located between Krotz Springs and the Port Barre Station. Plaintiff alleges that it must have a right of way 80 feet wide across the land of the defendants for the construction of the highway to the Port Barre Station.

The village of Port Barre is situated north of the Port Barre Station and of the line of the proposed highway which is adjacent to, and north of, the tracks of the Missouri Pacfiic Railroad. The southern corporate limits of' the Port Barre village are at a distance of half a mile north of the Port Barre Station.

The Legislature, under the Constitution of 1921, was directed to provide for the establishment and maintenance of a system of hard-surface state highways. The Legislature, acting in obedience to the constitutional mandate (art. 6, sec. 19), by Act 95 of 1921, extra session, created a system of ihard-surface state highways for the state, and at the same time a highway commission to carry out the provisions of the act which was subsequently amended but without modification of section 7 of Act 95, Ex. Sess. of 1921, with which we are presently concerned.

The part of that statute pertinent to the issue presented for solution reads as follows:

“The said Highways shall extend, as nearly as possible, along the following described routes, the more specific and detailed locations shall be determined by the Louisiana Highway Commission, and in such manner as shall be prescribed by law, but in fixing such definite and detailed routes, said Highways shall touch the various cities, towns and villages named herein as points through which such routes are to pass. Provided the location and designated routing of State Highways as herein made may he altered and amended by the Louisiana Highway Commission to such an extent and in such manner as may be necessary to meet any requirements that may be made by the Federal Government in granting aid in road construction.”

Route No. 7 is designated in the act as follows:

“Beginning on the Mississippi State line north of Angie through Bogalusa, Covington, Hammond, Albany, Holden, Livingston, Walker, Denham Springs, Baton Rouge, Port Allen, Rosedale, Livonia, Krotz Springs, Port Barre, Opelousas, Eunice, Elton, Kinder, Fulton, De Quincy, thence to Texas line.”

There is no aid granted in the instant case by the federal government for the construction of the projected highway through the land of the defendants, and the proviso in the last paragraph of the first above quotation has therefore no application.

The vital question presented for decision is as to whether or not the plaintiff highway commission has the power to expropriate defendants’ property for the construction of the proposed highway.

It may be stated here that the plaintiff commission derives its power of expropriation from the provisions of Act 95, Ex. Sess. of 1921.

In connection with the foregoing statement, it is not amiss to say that, as was said in Orleans-Kenner E. Ry. Co. vs. Metairie Ridge Nursery Co., 136 La. 968, 68 So. 93, this power of expropriation is in derogation of common right, and must be strictly construed.

When this power is granted, as is well said, in Ruling Case Law, vol 10, sec. 168, the extent to which it may be exercised is limited to the express terms or clear implication of the statute conferring the authority.

With these preliminary remarks in reference to the power of eminent domain, we shall proceed to the interpretation or construction of the provisions of section 7 of said act, hereinabove reproduced, the proviso excepted.

That section begins by saying that:

“The said Highways shall extend, as nearly as possible, along the following described routes.”

In this expression of the statute it is obvious that the Legislature did not intend that the highway commission was required to scrupulously follow the designated routes. The language used implies that some discretionary authority was vested in the commission in extending these highways, along the routes marked out in the act, “as nearly as possible.”

Following the above excerpt from section 7, a change of thought seems to appear in the act wherein it is stated that, in fixing the definite and detailed routes, the highways “shall touch the various cities, towns and villages named herein * * * through which such routes are to pass.” Here again it must be observed that, after saying these highways shall “touch” the cities, towns, and villages, the act says, “through which such routes are to pass.” The fixing of the “more specific and detailed locations” which obviously refers to the highways is, under the provisions of that section of the act, left to the determination of the highway commission. These highways, as thus fixed, are required to “touch” these various cities, towns, and villages.

The object of the Legislature in enacting Act 95, Ex. Sess. of 1921, was for the establishment of a system of hard-surface state highways. Evidently, these highways were projected principally for the benefit of the traveling public. They were certainly not intended for the development of the various cities, towns, and villages along the designated routes. The incidental benefits that might accrue to them was, no doubt, a secondary consideration with the Legislature. As the interest of the general traveling public, as we appreciate the act, was the primary consideration involved, it may be entirely safe to say that the most important factor to be taken into account was the one of speed for the convenience or interest of the traveler over these highways. To attain that purpose, it cannot be denied that these highways, if possible, should be built on straight lines. It is manifestly the evident purpose of the commission to build on a direct line, as it is proceeding straight westward immediately north of the railroad tracks to the Port Barre Station, which is located one-half mile south of the corporate limits of the village of Port Barre. The fact is that the station is so near the village that it bears the same name, and it is extremely doubtful that the Legislature knew it was outside the village.

The real issue revolves around the proper interpretation of the word “touch” used in the statute. There can be no doubt that the commission, under the “express terms” of the statute, would have the power of expropriating the defendants’ property if it deviated from a straight course, curved slightly to the northwestward, “touched” or went “through” with the highway along the southern corporate limits of the village of Port Barre.

The question then arises, What did the Legislature mean by using the word “touch”? Did it intend that its literal meaning should be applied, and that the Highway should have actual “contact” with the corporate limits of the village?

We do not believe that it had such an abortive purpose in view by thus forcing a curved highway at the expense of speed in traffic or transportation, increase in expenditure of funds, and safety in traveling. It is doubtful if the towns and villages referred to are incorporated or not. It may be that some are mere settlements. If such be the case, which is very likely, the word “touch” employed in the act becomes somewhat of a puzzle in ascertaining the legislative intent. We make this observation because if any of these villages have no corporate limits it would be rather difficult to say with any degree of certitude how they could be “touched” by the highway. This view gives additional elasticity to the application of that word, and authorized a broader meaning in the interpretation of the legislative purpose. We think that its proper application would be to say that the building of the highway in touch or in close proximity to these towns and villages so that it would be easily accessible falls within the purview of the statute.

Counsel for defendants seems to contend that the contemplated highway should follow the old road along the banks of Bayou Courtableau northwestward through the village of Port Barre, and then southwestward back to the railroad tracks which run westward to Opelousas. There is certainly nothing in the express terms of the statute nor deducible by “implication” from its provisions that could compel the commission to follow the circuitous route suggested by counsel. The power conferred on the commission to determine the “more specific and detailed locations” unquestionably carries with it the discretionary right in the commission to. build the highway on such a line as it might think proper between the points designated in the act. The privilege of so constructing a highway involves a question of mere administration with which the courts will not interfere, unless there be a gross abuse of authority. Claiborne vs. Louisiana Highway Commission, 154 La. 743, 93 So. 172.

There is also a practical view to be taken of this case from the facts which have developed during the trial.

As it appears that the commission in going to the Port Barre Station was looking to the straightest route, it is therefore apparent that, if it should be forced to a deflection of the highway, it would swerve it only a little in a northwesterly direction so as to skirt along within the corporate boundaries of the village in order to “touch” it, as provided for by the express terms of the statute.

We say the consideration of the case from that angle presents a practical question because it is not disputed that, if the roadway would be thus deviated from its present course, the highway would, however, go through the lands of the defendants. It is therefore plain that, whether the highway is built on the line now contemplated, or be made to swerve as above indicated, it would be of the same consequence to the material interests of defendants, who therefore appear in this litigation as being prompted by capricious, whimsical, or captious objections, and, in reality have no appreciable interest at stake.

It may be said that as a general proposition judges deal with questions affecting tbe rights of the litigants in their courts, and should not look to the consequences which may result from their adjudications. This is not, however, universally true. In a case of this character involving the construction of a statute affecting the general interest of the traveling public, we think the palpable results of a judgment can legitimately be taken into account as an essential element in properly determining the controversy.

Counsel for plaintiff commission contends that in expropriation proceedings of a railroad company defendant cannot urge that it has forfeited its charter for failure to observe a city ordinance under which it holds its authority, referring in support of that contention to Louisiana & N. W. R. Co. v. Nelson, 128 La. 390, 54 So. 917. Such a defense, the court held there, belonged to the city. The franchise evidently had been granted by the city, and its forfeiture, as was held by the court, could not be claimed by defendant for the non-observance of a city ordinance. The court, however, in that case said that the railroad company had the right of expropriation.

Here the power of expropriation is in dispute as the sole issue, and we are of the opinion that the 128 La. case has no application. The contention boiled down to its real issue is as to whether the commission has exceeded its powers of expropriation.

In Corpus Juris, 20, sec. 121, p. 641, it is there stated, and we think correctly, that the owner of property may raise the objection that in exercising its powers of eminent domain the condemning corporation has exceeded its authority.

We trust that our reasonings in the foregoing consideration of the question at issue make it quite clear that our views are that the right to construct the highway through the Port Barre Station is not granted to the commission by the express terms of the statute. Our discussion has been directed altogether to the language employed in section 7 of the act, which has invested the commission with the right to expropriate. In considering that section, we have not failed, at the same time, to bear in mind the rule recognized in Orleans-Kenner E. Ry. Co. vs. Metairie Ridge Nursery Co., 136 La. 968, 68 So. 93, to which we have referred, in which it is said that the power of expropriation must be strictly construed. The rule does not mean, however, that this right must be expressly conferred. If it appears to be conferred by “clear implication,” as is stated in Ruling Case Law, above referred to, the right may be inferred without doing violence to the doctrine requiring strict construction.

In reaching our conclusions, we have not overlooked the provisions of article 13, Civil Code, which says:

“When a law is clear and free from all ambiguity, the letter of it is not to be disregarded, under the pretext of pursuing its spirit.”

The letter of the law as it is expressed in section 7 of the statute conferring on the commission the power to expropriate is certainly not clear and far from being free of all ambiguity. On the contrary, it is rather hazy, and seems to intend to confer on the commission some discretionary authority as to the location where these highways should be established to which reference is hereinabove made. Hence, in our endeavor to ascertain the Legislative purpose in the enactment of the statute, we cannot be charged with disregarding the letter of the law, “under the pretext of pursuing its spirit.” We think, as before stated, that in the construction of these roads, highways built on direct or straight lines were intended in the interest of economy, convenience, and safety, and that the Legislature was not looking primarily to the benefit of the cities, towns and villages along the proposed routes; that, if constructed in close proximity, touching and within easily accessible distances from these various towns and villages, the purpose of the law would be fulfilled. We therefore hold that plaintiff commission had the power “by clear implication” to expropriate the land of the defendants, and that the judgment below dismissing its suit is erroneous.

It is therefore ordered, .adjudged, and decreed that the judgment be annulled, avoided, and reversed; that this case be and is hereby remanded to be proceeded with according to law; cost of appeal to be paid by defendants, those of the lower court to abide the decision of the case.

ELLIOTT, J.

(dissenting). The main facts of the case will appear by reference to the opinion of the majority of - the court.

The statute provides:

“The said Highways shall extend, as nearly as possible, along the following described routes, the more specific and detailed locations shall be determined by the Louisiana Highway Commission, and in such manner as shall be prescribed by law, but in fixing such definite and detailed routes, said Highways shall touch the various cities, towns and' villages named herein as points through which such routes are to pass. Provided the location and designated routing of State Highways as herein made may be altered and amended by the Louisiana Highway Commission to quch an extent and in such manner as may be necessary to meet any requirements that may be made by the Federal Government in granting aid in road construction.” (Act No. 95, Ex. Sess. 1921, sec. 7.)

Then follows an enumeration of the cities, towns, and villages which the created and designated highways shall touch, and through which they are to pass, by directtion of the act, the one in question: “Beginning on the Mississippi State Line north of Angie, through Bogalusa, Covington, Hammond, Albany, Holden, Livingston, Walker, Denham Springs, Baton Rouge, Port Allen, Rosedale, Livonia, Krotz Springs, Port Barre, Opelousas, Eunice, Elton, Kinder, Fulton, De Quincy; thence to Texas line.”

In view of this precise legislative direction, I take the position that the highway commission has no discretion as to Port Barre. The federal government is not granting any aid in the construction of this road. There are no engineering difficulties in the way. See the provision which concludes the Act 294 of 1928, on page 622.

The act is clear and free from all ambiguity as to Port Barre. And, “when a law is clear and free from all ambiguity, the letter of it is not to be disregarded, under the pretext of pursuing its spirit.” Civil Code, art. 13.

I am not aware of any legal writer who has handled the subject of interpreting statutes with more learning than Dwarris. The author has in mind, of course, the acts of Parliament, but the principles taught are as applicable here as in England. For the purpose of a dissenting opinion, a few words from a large subject-matter is believed to be sufficient:

“In interpreting the law, judges are to explore the intentions of the Legislature; yet the construction to be put upon an act of Parliament must be such as is warranted by, or at least not repugnant to, the words of the Act.” Potters Dwarris, Subject: Construction of Words, c. 7, p. 203, et seq.

The subject of construction is continued at length, in the work last cited, both before and after the quotation cited, but it may be all summed up with what has been quoted from our Civil Code. There is some difference in effect. An act of Parliament as I understand, may not be set aside on constitutional grounds, but the rule of interpretation, when it comes to giving effect to what is plainly stated in an act, is the same in this country.

I think the opinion of the majority of the court fails to give effect to a legislative provision, the meaning of which is plain, that this highway is to pass through Port Barre.

The power to expropriate, except for the purpose of passing through Port Barre, is not conferred on the plaintiff.

It is an elementary principle that the power to expropriate, as stated in OrleansKenner E. Ry. Co. vs. Metairie Ridge Nursery Co., 136 La. 968, 68 So. 93, is special and exceptional in character and in derogation of common right. The lawmakers are supposed not to give the right, except when it is found necessary for the public good. Civil Code, arts. 2626, 2627.

In Ruling Case Law, 10, sec. 168, we find the following statement on this subject:

“A grant of the power of eminent domain, which is one of the attributes of sovereignty most fraught with the possibility of abuse and injustice, will never pass by implication, and when the power is granted, the extent to which it may he exercised is limited to the express terms or clear implication of the statute in which the grant is contained.”

It appears to be the established fact that the settled purpose of the highway commission in claiming this expropriation is to not “touch” nor “pass through” Port Barre.

If the plaintiff commission had followed the course designated under section 7 as amended by section 1 of Act 294 of 1928, it would have the right to expropriate for that ¡purpose, but, as such is not the case, the power does not exist.

Counsel for plaintiff refers to Louisiana & N. W. R. Co. v. Nelson, 128 La. 390, 54 So. 917. In that case the right to urge the forfeiture of the franchise granted the railroad company rested with the city which had the power to compel obedience to the ordinance, and not with the defendant. I do not think this situation the same; therefore the case, in my opinion, is not controlling.

In Corpus Juris, 20, sec. 121, p. 641, it is said:

“The owner of property to be taken or affected by the exercise of the power of eminent domain may raise the objection that the condemning corporation or body is exceeding its powers.”

In Hennen’s Digest, vol. 2, ¡p. 1578, No. II, the right of a citizen to his property is referred to:

“As the highest of all public rights, and one which all men have the deepest interest in vindicating and maintaining.”

It is a fundamental right which cannot be taken from him, except under a delegation of authority from the sovereign power.

' In this case, if the commission had never been invested with the power of expropriation, it certainly could not expropriate defendants’ property, and defendants would unquestionably have had the right to urge this total want of authority. Here the Commission has authority, but only for the purpose' óf the route specially desig;-nated by' the' statute'. Evidently the duty which was imposed on the commission to build the highway so that it might “touch” or “go through” the cities, towns, or villages cannot be classified as “detailed locations,” referred to in the act.

I think the judgment appealed from correct, and that it should be affirmed.

I therefore respectfully dissent.

ON APPLICATION FOR REHEARING

MOUTON, J.

In their application for a rehearing, counsel for defendants say that the language of the statute conferring the power of expropriation on the highway commission is plain and unambiguous. In our original opinion we referred to that part of section 7 of the statute which says, the “highways shall extend, as nearly as possible, along the following described routes” which are thereafter designated. In discussing our opinion in reference to that clause of the statute, counsel say we ought to interpret it under the familiar rule of statutory construction and that we should give effect to the specific provision of the statute which requires that the highways should pass through the cities, villages, and towns named. The trouble with the argument of counsel on this proposition is that the statute nowhere says that the highways shall “pass through” these cities, etc., but only says in one part that they shall touch them and in the other that they shall be laid “as nearly as possible along” the routes.

The word “route” may be used in a different and more general sense than the word “highway.” It is sometimes used to mean a course, a line of travel or transit. It may be that the members of the Legislature knew that an old line of travel ran from the Mississippi boundary to the Mississippi river and across from there -towards Opelousas and further on westward. In a broad and general sense they probably merely intended, to outline the route through the towns and villages mentioned in the act. When the statute refers, however, to the highways proper, it is more specific, and says they shall “extend along these routes, as nearly as possible,” and “shall touch” these various villages, cities, but not that the highways shall go through them, as it is provided for in reference to the routes. Evidently, the words “route” and “highway” are not used in the statute as meaning the same thing; otherwise the statutes would not say that the highways should be laid nearly as possible along these routes. If they were used in that way, we would have the Legislature saying that the highways should run along the highways, “as near as possible.” It is therefore not said in the statute that the highways should go through these towns. Counsel are therefore not supported by the statute in their contention that we should apply the familiar rule of statutory construction, and give effect to the specific provision of the statute, which they say requires that the highways should pass through these cities and villages. As the statute does not so provide, this rule of interpretation is inapplicable.

To counsel it seems from their argument that the language of the statute is entirely clear and free from all ambiguity, but we must confess that it is rather perplexing to us for the reasons above expressed, and those given in our original opinion. We therefore think that we cannot be justly charged with disregarding the letter of the law in our endeavors to ascertain what was the real purpose of the Legislature .in conferring the authority on the commission to build a system of hard-surfaced state highways, all of which was discussed in our first opinion.

Counsel refer to several authorities in support of their contention that by our construction of the statute we are departing from our judicial functions, and usurping the authority of the lawmaking power. Among these citations counsel copy section 218 in 25 R. C. L., p. 963. In that quotation from that section, we find the following:

“There is a marked distinction between liberal construction of statutes, by which courts, from the language used, the subject-matter, and the purposes of those framing them, find out their true meaning, and the act of a court in ingrafting upon a law something that has been omitted, which the court believes ought to have been embraced.”

In our original opinion, our sole purpose, as may be seen by reading it, was to ascertain as best we could, the meaning of the statute from the language used therein, the subject-matter, and what appeared to us to have been the purpose of the Legislature in the enactment of that measure for the establishment of a system of highways for the benefit of the people of the state. It is in this sense that our decision must be taken, and not at all with the idea that our purpose was to substitute our will for that of the Legislature. It is safe to say that a court of our limited jurisdiction would not attempt to indulge in such usurpation.

In our first opinion we referred to Ruling Case Law where it says that the extent of the power of expropriation is limited to the express terms or the clear implication of the statute conferring the authority. We state now, as we there stated, that there was no express power conferred by the statute, but that it had been given the commission by sufficiently clear implication to authorize the expropriation in the instant case.

If it were held that the commission' had no power to expropriate on the straight line, now established, it is manifest and certain that it would make a curve in the highway so as to technically comply with the statute by touching the southern corporate limit of the village of Port Barre, and then return to the line westward along the railroad track towards Opelou.sas. To believe otherwise would paralyze credulity. We make this statement because it will not be supposed for -one instant that the commission would make almost a semicircle along the meandering bank of Bayou Courtableau, on through Port Barre village, and southwestward again to the resumption of the straight line, westward.

It is not and has not been disputed that the proposed highway, whether it goes as now laid out, or is curved' northward so as to touch the corporate limit of that town, that it will inevitably go through ■the land of the defendants, and as far as the record discloses, would not make any material difference to them whether the road be built on one line or the other. If the road is built on the line now projected, it is obvious that defendants will not suffer any injury in either their personal or (property rights. Their position is this, you may pass through our land, providing you deviate your course by curving northward and touch the corporate limit of the village of Port Barre. Such a position is really fanciful. If the commission is, however, forced to deviate from the proposed (straight line and touch the corporate boundary of that town, the result will be detrimental in entailing an increase in the expenditure of public funds and in the way of speed and safety to the traveling public.

For the foregoing reasons and those given in our former opinion, the rehearing ¡is refused.