author: McGREGOR, J.

text:
    No. 4125
    Second Circuit
    PETER ANTOINE v. INTERURBAN TRANSPORTATION CO., INC.
    (March 16, 1932. Opinion and Decree.)
    Guión & Upton, of New Orleans, and Peterman, Dear & Peterman, of Alexandria, attorneys for plaintiff, appellant.
    Hawthorn, Stafford & Pitts, of Alexandria, attorneys for defendant, appellee.
   McGREGOR, J.

Plaintiff instituted this suit for damages for personal injuries received in a collision between a Ford roadster in which he was riding and a passenger bus owned and operated by the defendant. On Sunday, February 17, 1929, the plaintiff, in company with his two brothers, Milton and Clarence Antoine, was riding in a Ford roadster driven by his brother, Milton Antoine, on the Jefferson highway, returning from a visit in Alexandria to his home in Cottonport, in Avoyelles parish. While proceeding thus on their way home about an hour or more after dark, at a point between the towns of Meeker and Cheneyville, less than one hundred feet south of where another road leading in a southwesterly direction to Meridian and Eunice intersects the Jefferson highway, the automobile in which the three brothers were riding collided with one of the busses of the defendant. The result of this collision was that the Ford roadster was turned over on its side on the west edge of the road near the side ditch, and 'was practically demolished.. The plaintiff was thrown completely out of the car over into the ditch and his two brothers were pinned beneath it and had to be extricated therefrom. The Ford roadster was subsequently rolled into the ditch in order to clear the road for traffic. As soon as the bus could be straightened and made to run the three injured brothers were placed in it and carried back to Alexandria. Before leaving the scene of the collision the driver of the bus and some of his passengers found quite a large number of glass whiskey containers in and around the wrecked automobile. This caused the driver of the bus to conclude and think that the three brothers had been drinking and that that .was the cause of the collision. These containers ranged in size from a five-gallon demijohn to several pint bottles, and they were also loaded into the bus and when he reached the town of LeCompte, the driver telephoned to the office of the defendant at Alexandria and' told of the accident as well as the finding of the whiskey bottles. When they reached Alexandria they were met by three policemen who, seeing the condition of the injured men, took- them to the Baptist hospital, where they were given the necessary treatment. Milton Antoine died in the course of a few hours and Peter Antoine, the plaintiff herein, was kept at the hospital about thirty-six hours and dismissed. Clarence Antoine, who was more seriously injured, was placed in a cast and after the lapse of about two weeks’ time he was sent home with instructions to wear it three months or longer, according to his home conditions.

On January 9, 1930, the plaintiff filed this suit for $5,000 damages for the injuries alleged to have been received by him in the collision. In his petition he alleges that as he and his two brothers were proceeding south on the right side of the Jefferson highway, at a moderate rate of speed, they met the bus of the defendant, and that instead of keeping to his right side of the road, the driver of the bus suddenly turned toward the left in an attempt, apparently, to pass another automobile, and that in doing this he struck the Ford roadster in which the plaintiff and his two brothers were traveling, and overturned it into the ditch and demolished it. It is specially alleged that the driver of the roadster was free from all negligence and that the collision was due solely to the carelessness and gross negligence of defendant’s driver.

In answer to the plaintiff’s petition the defendant denied all allegations of negligence and specially alleged that just before the collision the driver- of the Ford car suddenly swerved from its right side of the road over to the 'left • side, which was the right side for the bus, and that as the automobile thus bore down upon the bus over on the bus’ right side, the driver of the bus realized that he was confronted with an inevitable collision. It is then alleged that in the emergency thus created by the driver of the automobile in suddenly swerving to the wrong side of the road, the driver of the bus, in an effort to avoid the collision, cut or steered it toward the left side, but that in spite of this movement on his part the collision occurred. It is further alleged that the occupants of the automobile were intoxicated at the time and that the collision was due solely to the negligence of the driver of the automobile and that the driver of the bus was guilty of no negligence whatever. In the alternative the defendant pleaded contributory negligence on the part of the plaintiff and the occupants of the automobile.

Upon trial in the lower court there was judgment in favor of the defendant, rejecting the plaintiff’s demand and dismissing his suit. Prom that judgment the plaintiff has appealed.

OPINION

Counsel for appellant very correctly state that the only question involved in this case is one of fact, subject, of course, to the construction that we place upon the testimony of the witnesses. They state in effect that the sole question of fact is: Did the driver of the automobile leave his side of the road and drive in front of the defendant’s bus, or did the driver of the bus leave his side of the road in a reckless attempt to pass an automobile ahead of it and knock the automobile in the ditch? As is often the case in automobile collision cases, the evidence of the plaintiff and defendant is diametrically opposed and almost impossible to be reconciled. Immediately after the collision, when the automobile and the bus had come to a state of rest, the automobile was on its side on the edge of the west side of the road. The bus had struck it on or about the left front door at about the point where the driver was sitting. The front of the bus was entangled with the automobile, and its left front fender, spring, bumper and light were all broken and the bus was in a position across the road at an angle of about 45 degrees, with its rear end at about the center of the road. It is the contention of the plaintiff that the automobile was at all times completely on the west or its right-hand side of the road, and that the bus ran over to that side and struck it. On the other hand, the defendant asserts that the automobile suddenly left its side of the road and ran over to the east or left side and apparently was headed directly toward the bus, with a head-on collision inevitable, and that in order to avert this collision the bus driver did the only thing that a prudent man would do and turned suddenly to the west or his left, but that just as he was thus turning, the automobile turned again quickly to its right and ran in front of the bus and was struck.

In support of the plaintiff’s theory there were a number of witnesses sworn. Peter Antoine, the plaintiff and one of the occupants of the wrecked automobile, gives his version of the accident as follows:

“On our way home from Alexandria we were driving along, we wasn’t going fast and some cars were proceeding towards Alexandria here and the bus was behind some cars coming towards Alexandria and the bus pulled off on the side of the road to pass those cars there where the collision come in, struck the door on our car, turned it over in the side of the ditch.”

Clarence Antoine, another occupant of the wrecked automobile and the plaintiff in another suit, gave about the same version in the following words:

“I remember seeing three cars ahead of the bus as far as I can remember, and the bus came around from the last car and collided into us, knocked the automobile in the ditch, and my brother, Peter, was unconscious. He fell in the ditch and as I formerly stated, I was under the car and my brother Milton under the car.
* * * * * * *
“Q. Now, were these three cars bunched very close together?
“A. As far as I can remember; yes, sir.
“Q. Then the bus was right behind the last one?
“A. Well, I first saw the bright lights of the bus. It was coming out from behind the third car.
“Q. Was that about the time you saw the other cars?
“A. Well, I saw the other cars’ lights first, and after they passed I saw a bright light run out and it crashed into us.
“Q. Had you got as far as the Meridian road when the bus turned out?
“A. We had got about 75 or 80 feet past that road.
“Q. Before the bus turned out?
“A. Yes, sir.
“Q. That is the first time you saw the bus, when it turned out?
“A. Yes, sir.
“Q. How far would you say you were from the bus then, when the bus turned out?
“A. I couldn’t estimate it, it was did so quick.
“Q. How far was the collision from the Meridian road?
“A. About 75 or 80 feet.
“Q. About that far when you first saw the bus?
“A. Well, we was.
“Q. You were where with reference to the Meridian road when you first saw the bus? Had you got to the Meridian road?
“A. Yes, sir.
“Q. Then you say you were 75 to 80 feet beyond the Meridian road when the bus turned out?
“A. Struck us about 70 feet below the Meridian road.
“Q. Then the first you saw of the bus was at the Meridian road?
“A. Yes, sir; somewhere along there.
“Q. And the bus was coming out from behind these cars?
“A. Yes, sir.”

It will be observed that it is the testimony of these two occupants of the wrecked automobile that there were three automobiles in front of the defendant’s bus, all traveling in the same direction — that is, towards Alexandria — -and that it was while the bus driver was undertaking to overtake and pass the car nearest to him the collision occurred. To corroborate this statement of these two witnesses on this point, there was produced and sworn a witness named Ned King. He testified that on the evening of the collision he was a short distance ahead of the bus, also traveling towards Alexandria, and that there were two other automobiles traveling in the same direction between him and the bus. It must be remembered in any discussion of the testimony that it is a proved fact that the scene of the accident was between 75 and 100 feet south of where the Meridian road branched off from the Jefferson highway in a southwesterly direction. Ned King says that he was traveling at a rate of speed not to exceed about twenty miles per hour; that he passed the Antoine car south of where the Meridian road branches off; that he heard the collision and stopped almost instantly, and that at that moment he was about three hundred yards ahead of the bus which, of course, had stopped at a point between 75 and 100 feet south of the Meridian road. He testified further that just as he stopped two other cars passed him, going towards Alexandria. He says he got out of his car to see what the trouble was and started back toward the wreck, but that because of the fact that lie was in a hurry he went only ten feet, waited about ten minutes and then got in his car and went on to Alexandria without making any further investigation of the matter. The time of the accident was about an hour - or more after dark and the witness never got closer than three hundred yards to the scene, yet he 'undertakes to tell of the people there. His testimony is so inconsistent and unreasonable it is unworthy of any consideration.

It is sought to corroborate the plaintiff’s theory by the physical situation existing at the moment when both ears had come to a standstill. It is clear from all the testimony of both plaintiff and defendant that the two vehicles were interlocked on the edge of the road. In other words, the bus did not knock the Ford car clear of the road. Furthermore, all the evidence and also the photograph of the wrecked automobile indicate that the bus struck practically a broadside blow and not a glancing one. If the car in which the plaintiff was riding had been traveling straight down the highway on the right-hand side as is contended by the plaintiff, and if the bus had turned toward its left in order to pass another car ahead of it going in the same direction, the blow would have been a glancing one, the entire left side of the car would have been stripped and more than likely it would have been hurled completely off the road. Take it on the other hand: If the Ford car suddenly crossed the road toward the defendant’s right and then quickly turned again toward its right after the bus had also turned toward its left side in order to avoid a collision on the east or defendant’s right side the position of tlie two cars at the moment of the collision would have been approximately perpendicular and the blow would be broadside and not glancing, and, as a matter of fact, it would be much harder to knock the car off the road.

The testimony of W. M. Dunn, the driver of the bus, is to the eiteet that just before the collision there were no cars in front of him on his siae of the road going toward Alexandria, but that three cars were coming toward him from the north; that two of them turned out to the west down the Meridian road and that the other one, in which the plaintiff was riding, continued on south on the Jefferson highway, meeting him; that as the Antoine car got even with the Meridian road, the driver seemed to have lost control of it and it dashed toward the left or east and a collision on that side of the road seemed imminent, and that as a consequence he, the bus driver, in order to avoid a collision, turned his bus to his left and that as soon as he did this the automobile also turned in the same direction. On this point he testified as follows:

“Q. Just before the collision took place did you have a clear view of the highway in front or was there any other cars traveling in the same direction you were, in front of you?
“A. There was not any cars traveling in front of the bus for half a mile.
“Q. Why do you say that?
“A. Because there is a turn in the road a half a mile.
“Q. Were there any cars traveling in sight going the same direction you were?
“A. No, sir.
“Q. Was the road where the accident took place — was it straight or was it curved?
“A. Straight.
“Q. About how far below the intersection is the road straight?
“A. It’s one mile at least.
“Q. In other words, you had come along a straight highway for a mile before the collision took place?
“A. Yes, sir.
“Q. During that period of time did you observe anywhere along that straight stretch of road in front of you any cars going in the same direction?
“A. No, sir; there was not.
“Q. Just before you arrived at this intersection did you see an automobile coming towards you?
“A. Yes, sir; there was three.
“Q. Three?
“A. Yes, sir.
“Q. Going which way?
“A. Going towards Bunkie.
“Q. Did any of them turn off the road going towards Meridian?
“A. Two.
•“Q. And what direction did the other take?
“A. He cut clean across the road after crossing the intersection of the Meridian road and on to my extreme right-hand side and whipped back and tried to get back on his side of the road.
"Q. At what point did he seem to leave his right-hand side of the road?
“A. Just as he got to the center of the Meridian road.
“Q. Did he apparently come straight on his left side of the road? Just describe it.
“A. The way it appeared to me on this road there where this Meridian road turns off is a big pile of loose gravel where the cars had been turning during the day and piled this gravel up at least a foot and a half, and it seemed that when he hit this loose gravel he lost control and whipped over in the ditch on his left and then whipped back to the right, too late to avoid the collision.
“Q. Now, when you saw the oncoming car in that position, what did you do?
“A. I tried the best I could to stop the bus.
“Q. About what rate of speed were you going?
“A. Between 30 and 40 miles an hour.
“Q. Was that the usual, customary speed?
“A. That is the usual speed. You have to run between 30 and 40 miles an hour to make schedule.
“Q. At what rate of speed was the oncoming car that collided with the bus traveling, as far as you could tell?
“A. He was going as fast as the Ford car would run. I can’t say how fast it would go, but as fast as it could run.
“Q. At what point on .the highway did the collision take place, on the right-hand side?
“A. Taken place on my extreme right-hand side.
“Q. When the collision took place about how far did you go before you could or did stop the bus?
“A. 25 or 30 feet.
“Q. Well, what direction did you go in attempting to stop the bus and why did you go in that particular direction?
“A. I went in a left direction for the reason that the left front spring broke, left front fender locking front wheels to the extreme left. Could not steer the bus at all after the collision occurred.”

W. H. Foret, an automobile salesman living in Eunice, was an eye-witness to the collision. He was driving one of the three cars that Dunn, the bus driver, said were meeting him just before the collision. He had been in Alexandria and was on his way to his home in Eunice. He trailed the Antoine car for some little distance and as he reached the Meridian road he turned down the same and saw the Antoine car proceed down the Jefferson highway. When he had traveled about twenty yards he heard the crash of the collision and saw the wreck. He stopped his car and ran to give what assistance he could. His testimony corroborates that of the bus driver in every particular, and in part is as follows:

“Q. Describe what happened and what you saw from the time when you first saw the Ford roadster in front of you.
“A. When I first saw the Ford I followed the roadster and when I turned off the roadster kept on straight south. It was then I heard the noise and stopped my car and saw there was a collision. I stopped my car and ran out there, I didn’t know who it. was.
“Q. You had turned off a short distance into the Meridian road when the accident took place?
“A. Yes, but I was very close.
“Q. Did you actually see the collision?
“A. Yes. I tell you it occurred to me the bus had run over the car and crashed it down, when it hooked on the roadster and when I got there there were two negroes in the ditch and one under the steering wheel on the side of the road.
“Q. You state you actually saw this collision from your automobile? I would like to have you state exactly the position of the bus on the highway at the time of the-collision with reference to the left or right side of the road, at the time it actually struck?
“A. At the time it collided the bus was on the right-hand side of the road going north.
“Q. I believe you stated the bus was on its own right-hand side of the road when the collision actually took place?
“A. Yes.
“Q. Then what happened when the collision occurred?
“A. When the collision occurred the bus, after it stopped, it wás sort of angle in the road from the time it hooked the roadster on the right-hand side, it seemed it hooked the roadster and it pulled it across the road, and the roadster was turned over on the left-hand side of the road with the bus hooked on to it.
“Q. You say the Ford came to a stop on the left-hand side of the road, do you mean facing north or south?
“A. Facing north. What caused the roadster to be there at the time is because it pulled the bus from the right-hand side to the left.
“Q. About how far would you say the 'bus traveled between the moment of the impact and the time it came to a complete stop?
“A. I might say about, I suppose twenty feet, something like that.”

Foret corroborates defendant’s driver in his testimony that the collision took place on the bus’ right side of the road and that the force of the impact carried the Ford car across the road with the bus hooked into it. He also corroborates the driver in his statement that there were no other cars going north in front of him as follows:

“Q. As you were driving down and before you reached the Meridian road, or at the time you reached the Meridian road and were about turning off the Jefferson highway, did you notice whether there were any other automobiles going toward Alexandria and driving ahead of the bus?
“A. No, sir; I noticed there was nothing in front of the bus. There were cars coming behind a good piece off, but there was none ahead of the bus.”

The testimony of several qf the passengers on the bus was taken by the defendant. Mrs. Mary M. Johnson, district supervisor in the extension department of the Louisiana State University, the only lady passenger on the bus, testified positively that the bus was on its right side and that the Antoine car was over on the same side. She says she looked up and saw the lights immediately in front and wondered what would happen. In describing the situation as she remembered seeing it, she said:

“I remember distinctly knowing that it was dark and looking up and seeing the car in front of the bus an.d knowing there was going to be a collision; the car came right into the bus. The bus was on its right side of the road and traveling at a moderate rate of speed. I know this — it flashed through my mind — 1 was the only one in the front seat — I noticed the fact that this car came right on our side of the road with the lights blazing. I don’t think the car was over ten feet from us.”

F. W. Bennett, a passenger, formerly with the Department of Conservation of this state, but at the time of giving his testimony a student at New Haven, Connecticut, gave his testimony by commission in part as follows:

“Q. On what side of the road, with reference to the bus, was the bus traveling?
“A. On right hand side of road.
*******
“Q. What, if anything, did you see of a car traveling in the opposite direction of the bus?
“A. I saw the lights of the approaching car, just before the collision.
“Q. If you answer that, just before the collision, you saw a car coming towards the bus, please describe fully its actions just before the accident occurred?
. “A. While bus was traveling on right side of road at 40 miles per hour I saw a car approaching the bus coming in opposite direction on its right side and when said Ford car arrived at a point a short distance (about 50 feet) of the bus, said car turned sharply to its left, in front of said bus. The driver of the bus immediately applied the brakes but could not stop to avoid the collision and consequently said bus collided with the Ford, hitting it broadside.
“Q. Please describe fully just what the bus driver did just before the collision took place.
“A. The bus driver applied both the foot brake and emergency brake shortly before collision took place.
“Q. Please describe as accurately as you can, just how long, and in what space, it took the bus driver to bring the bus to a complete stop.
“A. It took said bus driver several seconds to bring the bus to a complete stop and not until after it collided with said car — the space being about 50 feet.
*******
“Q. Did these two vehicles collide head-on? If you say yes, then state on which side of the road the collision took place.
“A. No. The Ford car had turned sharply to, its left and in front of the bus when the collision occurred.”

Charles E. Naylor, another passenger, of St. Louis, Missouri, also testified by commission. Several points of his testimony are very inaccurate. For instance, he states that he was the only white man passenger on the bus when as a matter of fact there were several. He says there were positively nine negroes on the bus, when there was only one. However, his testimony as to how the collision occurred bears all the ear-marks of truth. It must be remembered that the time of the accident was about an hour after dark and it is difficult to tell from memory the exact movements of an oncoming automobile. The following excerpts from his testimony corroborate the driver of the bus to a large extent:

“Q. On what side of the road, with reference to the bus, was the bus traveling?
“A. The bus was traveling on the right-hand side of the road. It was a gravel road, going through a part of the Louisiana swamp, about eight o’clock in the evening, and it was raining.
*******
“Q. What, if anything, did you see of a car traveling in the opposite direction of the bus?
“A. I saw a car which was the car involved in this collision, traveling in the opposite direction of the bus, turning out from the line of traffic and cutting around cars in front of it. It cut in ahead of possibly four or five cars just before the accident. Just before the accident it cut out from behind a car directly into the path of the bus, headed for an intersecting road on the right side of the highway as we were traveling in the bus. After it had reached the far side of the highway, the Ford then again turned toward the left side of the highway, and crashed into the left side of the bus, damaging the front ■ left fender, breaking the light off, and throwing the car out of line.
“Q. If you answer that just before the collision you saw a car coming towards the bus, please describe fully its actions just before the accident occurred.
“A. As stated in answer to the preceding question, I saw the car which was involved in the accident turning out from the line of traffic, cutting around cars, pulling out the last time to the right side of the highway directly in front of the bus, then reversing its direction in ap attempt to return to the left side qf the highway and colliding into the bus. The last time it turned out when the accident occurred, it all happened in just a few seconds.
“Q. Please describe fully just what the bus driver did just before the collision took place.
“A. After the car in which the negroes were riding turned to the far right side of the road, the driver of the bus swerved to the left, bringing his bus to the middle of the road. Then when the negroes reversed their direction, he applied the brakes, both the foot and hand brakes, and did all possible to bring the bus to a stop to avoid the collision. The bus after the collision, was stopped «practically in the middle of the road.
* H: * * ¡¡¡ #
“Q. What part of the bus, if you recall, hit the Ford car, and where was the Ford car struck?
“A. The left front light and fender of the bus hit into the left side of the Ford car at about the engine and steering wheel, demolishing the car. It was a severe impact as the Ford was traveling at approximately forty-five miles an hour at the time of the crash.”

Arthur E. Young, a passenger, of Wood Haven, Long Island, New York, testified in part as follows:

“Q. If you answer that just before the collision you saw a car coming towards the bus, please describe fully its actions just before the accident occurred.
“A. Everything was apparently in order until the car approached within probably one hundred yards of the bus. The oncoming car swerved from one side of the road to the other.
“Q. Please describe fully just what the bus driver did just before the collision took place.
“A. The bus driver slowed his car and made a couple of efforts to miss the oncoming car and called back to the passengers to hold on to their seats.
“Q. Please describe as accurately as you can, just how long, and in what space, it took the bus driver to bring the bus to a complete stop?
“A. The driver had brought the bus practically to a stop when struck by the Ford.
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“Q. What part of the bus, if you recall, hit the Ford car, and where was the Ford car struck?
“A. The left front wheel, fender and bumper of the bus were struck by the forward part of the Ford car.”

J. H. Eteen, another passenger, of St. Louis, Missouri, strongly corroborates the bus driver. His testimony on the point of the relative positions of the bus and automobile before and after the collision is as follows:

“Q. What, if anything, did you see of a car traveling in the opposite direction of the bus?
“A. I saw headlights from the left flash across the road to the right of the bus, then suddenly swerve right back in front of the bus just in time to receive the full impact of the bus.
$ ‡ $ $ $
“Q. Please describe fully just what the bus driver did just before the collision took place.
“A. The bus driver did not have much chance to do anything but set his brakes. Distance was too short for them to have any effect.
“Q. Please describe as accurately as you can, just how long, and in what space, it took the bus driver to bring the bus to a complete stop.
“A. Within twenty feet. Stopped almost instantaneously on account of the impact.
* # * * * Sfc 3j«
“Q. If you say that before the collision you saw the Ford car approaching the bus, how far was it from the bus when you first saw it?
“A. First time I saw the lights they were to the left, then dashed across to the right and then dashed ■ right back in front of the bus.
“Q. Did these, two vehicles collide head-on? If you say yes, then state on which side of the road the collision took place.
“A. Did not collide head-on. Front of the bus hit the Ford car amidships. As best I can remember slightly towards the left-hand side of the road with reference to bus driver.”

In cases of this kind it is always with a great deal of reluctance that we ever find the facts contrary to the view of the trial judge, who has so much better opportunity to see and judge the witnesses, as well as the testimony given by them. In this case the judge of the lower court has found the facts to be in favor of the defendant and has rejected the plaintiff’s demand. After having read and fully considered all the testimony, we are fully convinced that, not only has the plaintiff failed to make out a case, but the defendant has shown by a preponderance of testimony that the bus driver was free of all charges of negligence and that the collision was due entirely to the fault and negligence of the driver of the Ford roadster. The testimony fully convinces us that there were no cars ahead of the bus which it was trying to pass. And if there were none, there was no possible excuse for the bus to have turned to its left as is claimed by the plaintiff. The testimony of the passengers is unanimous that it never turned to the left except in an effort to avoid the collision — the danger of which arose from the fact that the' Antoine car suddenly left its side of the road and went over to the side where the bus was and had a right to be. In this sudden emergency the driver was justified in resorting to whatever his best judgment dictated under the circumstances.

Counsel for plaintiff criticizes the defendant very severely for not having secured the testimony of more of the passengers than it did. We do not think the criticism is just or deserved. The witnesses who gave their testimony appear to have been people of the highest type. It is remarkable that this many responded to the request to give their versions of this affair. It is urged that no probative force can be given to the testimony of these strangers because they were inside a lighted bus. They certainly could tell what side of the road the bus was on. They could easily see whether an oncoming car was headed for the bus, was crossing the road, or was on its own right side. They could certainly see whether the bus was passing another car at the time of the accident. The testimony of Dunn, the driver of the bus, was straightforward and honest and we find that he was corroborated in every particular. Only one person was found to corroborate the two Antoine brothers as to there having been three cars in front of the bus, and that was Ned King, who claims to have • been the foremost of the three. His testimony is so unreasonable and improbable that it cannot be believed.

We have not considered the question of intoxication of the driver of the automobile, but we will say in passing that we do not attach any importance to this phase of the case. We do not think that any of the three brothers were drinking. But it is passing strange that neither of the survivors admitted knowing anything of the presence of the whiskey bottles and demijohns. Their denial of any knowledge whatever of these bottles is enough to destroy all confidence or belief in the rest of their testimony, particularly since it has all been so successfully contraverted by testimony of witnesses whose veracity has not been impeached.

For the reasons assigned, the judgment appealed from is affirmed; the plaintiff and appellant to pay all the costs of both courts.


source: Caselaw Access Project

author: 1 PER CURIAM.

license: Public Domain

text:
    No. 989
    First Circuit
    BURNETT ET AL. v. JOHNSTON ET AL.
    (March 8, 1932. Opinion and Decree.)
    William C. Carruth, of Baton Rouge, pro se, for respondent.
    Daspit & Huckabay, of Baton Rouge, attorneys for plaintiff.
    Johnson & Kantrow, of Baton Rouge; attorneys for defendant, applicant.
   1 PER CURIAM.

In this case, the plaintiff brought a personal injury suit claiming of the defendants, Francis L. Johnston and Hartford Indemnity Company, damages on account of personal injury.

The defendants appeared and attacked the constitutionality of Act No. 55 of 1930, under which the plaintiff had brought them into court. The lower court acting on the attack overruled the contention of the defendant and held that the act was constitutional. After the court had thus ruled, the defendant further appeared and prayed that the plaintiff be required to give bond for costs under Act No. Ill of 1926. The plaintiff resisted, and the court held that the request for such bond had come too late under the letter of the law in question.

The defendant then alleging that there was no appeal that they could take from the ruling that would give them adequate relief, and that they were irreparably injured by the ruling, applied to this court for writs of mandamus and certiorari to compel the court to require the plaintiff to give bond for costs under Act No. HI of 1926.

Alternative writs issued as prayed for. The respondent judge for return denies that this court has authority to issue the writs prayed for, and, further answering, returns that his ruling was correct and that the writs prayed for should be denied.

As the case, under the Constitution of this state, would be appealed to this court, in case an 'appeal is taken, it is our opinion that we have jurisdiction, but we agree with the respondent judge that his ruling was correct. The law, Act No. Ill of 1926, section 1, provides:

“That the defendant before pleading in all cases * * * may by motion demand and require the plaintiff * * * to give security for the cost in such case,” etc.

The defendant had, by pleading, attacked the constitutionality of the law under Which the plaintiff had brought them into court. This was a pleading within the sense and meaning of Act No. Ill of 1926. The lower court overruled their plea to the constitutionality, and defendants then applied to the court under Act No. Ill of 1926 to require bond for costs. The court properly held that this request came too late.

For these reasons the alternative writ heretofore issued is now recalled and set aside and the prayer for mandamus and certiorari is refused at relator’s cost.


text:
    No. 4075
    Second Circuit
    WOOD v. SOUTHERN LIFE & HEALTH INS. CO.
    (March 16, 1932. Opinion and Decree.)
    Dickson & Denny, of Shreveport, attorneys for plaintiff, appellant.
    Bryan E. Bush, of Shreveport, attorney for defendant, appellee.
   McGREGOR, J.

On or about August 5; 1930, the plaintiff entered the employ of the defendant as a solicitor and collector. On August 23, 1930, the plaintiff’s salary was garnisheed in the hands of the defendant under a writ of fieri facias, in a suit styled C. M. Anthony v. H. H. Wood. When the home office of the defendant, located in Birmingham, Ala., received notice of this garnishment, a telegram was sent to its manager in Shreveport apprising him of the fact and suggesting to him that it would be better to dispense with the services of the plaintiff. This telegram was received on Monday, August 25, and on the next day when plaintiff reported for work it was called to his attention. Plaintiff never worked any more after that date. He says that he was discharged, while the manager of the defendant’s office says he quit of his own volition.

On August 30, 1930,' the plaintiff addressed and delivered a letter to the defendant, in which he made demand for all wages due him, stating in the letter that he had been discharged without legal notice or cause, and that his wages were being withheld in violation of law. Because of the. garnishment process having been served on it, the defendant did not comply with the demands of this letter, but held all funds due in its. hands.

As a consequence of this refusal, the plaintiff filed this suit on October 20, 1930, in which he set forth the fact and terms of his employment and alleged that he had been discharged without lawful cause. He alleged that the defendant was due him two full weeks’ wages at the time of the alleged discharge, and that he had then worked two days of another week. He claimed relief under Act No. 150 of 1920, and asked for judgment for the sum due up to and including August 26, and at the same rate per week from that date until he should be paid in full the amount due him.

In its answer the defendant admitted the fact and terms of the employment, and then alleged that it had been made garnishee in a suit against the plaintiff, and that as a consequence it had withheld all sums due the plaintiff. It then alleged that upon the advice of plaintiff’s attorneys it had paid to the plaintiff’s judgment creditor all sums due on plaintiff’s wages except $20 due for the week beginning August 18, and the two days of the following week. It expressed a willingness to pay for the entire week of August 25, and also admitted owing $2 in addition, which according to custom, had been deposited with it as a bond when plaintiff was employed. Defendant', therefore, made a judicial tender of and deposited in the registry of the court the sum of $42, plus $5.45, the cost of court accrued up to the time of the tender and deposit. It is denied by the defendant that it had discharged the plaintiff, but, on the contrary, it is alleged that' he had quit the service of the defendant voluntarily in order not to pay the" garnishing creditor any further sums on the judgment. At the trial in the district court judgment was rendered in favor of the plaintiff for the amount tendered, with costs up to the time of judicial tender, with the proviso that all costs after . that time be paid by the plaintiff. From that judgment the plaintiff has appealed.

There is no dispute concerning any of the facts of the case except as. to whether the plaintiff was discharged or whether he quit voluntarily. The trial judge, who saw all the witnesses and heard them testify, believed and held that the plaintiff quit of his own accord. We see nothing in the evidence which would justify us even to raise a question as to this, finding. As a matter of fact, a careful reading of the testimony convinces us that it is correct. That being true, it becomes unnecessary to discuss the testimony any further, for in their brief counsel for the plaintiff argue that the sole question for determination is whether the plaintiff was “fired” or “quit.” We agree with the trial judge in his finding, and therefore hold that the judgment is correct.

For these reasons the judgment appealed from is affirmed, the cost of appeal to be paid by the plaintiff.


text:
    No. 4125
    Second Circuit
    CLARENCE ANTOINE v. INTERURBAN TRANSPORTATION CO., INC.
    (March 16, 1932. Opinion and Decree.)
    Guión & Upton, of New Orleans, and Peterman, Dear & Peterman, of Alexandria, attorneys for plaintiff, appellant.
    Hawthorn, Stafford & Pitts, of Alexandria, attorneys for defendant, appellee.
   McGREGOR, J.

This case grows out of the same state of facts as those of Peter and Adeline Antoine against this same defendant. The three cases were consolidated for trial and were all' submitted on the same evidence. The lower court rejected the plaintiff’s demand and rendered judgment for the defendant, and the plaintiff has appealed.

For the reasons assigned in the case of Peter Antoine v. Interurban Transportation Company, Incorporated, 19 La. App. 203, 140 So. 151, the judgment appealed from is affirmed, with all the costs to be paid by the plaintiff, appellant.


text:
    No. 4125
    Second Circuit
    ADELINE ANTOINE v. INTERURBAN TRANSPORTATION CO., INC.
    (March 16, 1932. Opinion and Decree.)
    Guión & Upton, of New Orleans, and Peterman, Dear & Peterman, of Alexandria, attorneys for plaintiff, appellant.
    Hawthorn, Stafford & Pitts, of Alexandria, attorneys for defendant, appellee.
   McGREGOR, J.

The facts of this, case are the same as those in the case of Peter Antoine v. Interurban Transportation Company, Incorporated, 19 La. App. 203, 140 So. 151, this day decided. The plaintiff, Adeline Antoine, is the widow of Milton Antoine, who lost his life in the collision, and she has, brought suit for $15,000 damages for his, death. This case was tried and submitted on tbe same evidence as was tbe case of Peter Antoine, and the same judgment was rendered by the lower court, and the plaintiff has appealed.

For the reasons assigned in the case of Peter Antoine v. Interurban Transportation Company, Incorporated, the judgment appealed from is. affirmed, with all the costs of both courts to be paid by the plaintiff, appellant.


author: ELLIOTT, J.

text:
    No. 901
    First Circuit
    PRESLEY v. VERNON PARISH SCHOOL BOARD
    (February 8, 1932. Opinion and Decree.)
    (March 8, 1932. Rehearing Refused.)
    Pujo, Bell & Hardin, of Lake Charles, attorneys for plaintiff, appellant.
    A. B. Cavanaugh and P. L. Ferguson, of Leesville, attorneys for defendants, appellees.
   ELLIOTT, J.

Vernon parish school board acquired and owns, for school purposes a tract of land containing about 4 acres, less a strip on one side used for a public road. There stands on the ground, erected for school purposes, a two-story brick building known as Evans High School, in which is conducted said high school. The ground surrounding the building is used by the pupils as a playground.

On or about September 12, 1930, by ordinance duly adopted, the school board authorized R. L. Morgan, its president, to lease to T. W. Simmons a part of said school ground, in area 75 feet east and west by 100 feet north and south, situated in the northwest corner of said ground, for a period of ten years. Mr. Morgan, acting for the school board, executed the lease in favor of Simmons- on September 12, 1930, leasing him the property in question for ten years; the consideration of the lease being a rental of $10 per year.

T. W. Simmons was about to commence the erection of a building on the leased land, but was stopped by an injunction instituted against him and the school board By Elias Efanklin Presley, who alleged that the building about to be' erected was for mercantile purposes and. that the school board had no power nor authority to lease the school property for such a business while it was being used for school purposes.

That the ordinance and the act of lease was ultra vires, null, and void, without any effect, and therefore vested no right to said property in said Simmons.

An exception of no right or cause of action was filed by the defendants, but by the consent of the parties it was referred to the merits and became part of the answer.

The Vernon parish school board and T. W. Simmons appeared and for answer ad- j mitted the passage of the ordinance, admitted the execution of the lease, and that a building was about to be erected by Simmons, but alleged that it was not for mercantile purposes, but for the conducting therein of a cafeteria for the special benefit of the pupils and teachers of said school. That the cafeteria was to be run in connection with and for the convenience of said school, under the supervision of the school board.- That the cafeteria service looked to the health and convenience of the pupils and teachers; that a lease for such a purpose did not violate the law.

There was judgment dissolving the in- • junction and rejecting plaintiff’s demand. Plaintiff has appealed.

The school board and Simmons have not supported the lease by a brief; but the averments contained in their answer and the evidence introduced on the trial show the character of the defense.

The plaintiff contends that the school board has no power nor authority under the law to lease ground acquired for school purposes and on which a school building has been erected and in which a public school is. being conducted.

The plaintiff objected to the admissibility of evidence for the purpose of showing that the object of the lease was the erection and operation of a cafeteria, as set forth in the answer of the defendants, no restriction of the kind having been stipulated in the ordinance and lease, but the court overruled the objection and heard the evidence on the subject.

In plaintiff’s brief it is. not urged that the ruling was erroneous, and we are not requested to review it. We therefore do not consider the ruling, and act on the evidence, as was done in the lower court.

The power and authority of the school board to have opened and conducted a cafeteria on the school ground for the service and convenience of the pupils and teachers is not the question involved in the present case. The question is, whether the school board had the authority to lease the school property and divest themselves of control ■thereover, as was done.

Mr. Morgan, president of the school board, testified that it was not the' intention of the school board to give Mr. Simmons an open lease to put up anything he wanted to on the property, and that he was to be restricted to a cafeteria.

“Q. Mr. Morgan, at the time the school board let this lease to Mr. Simmons, was there any understanding between the school board and Simmons as to what the property was to be used for?

“A. No, it was generally understood that it was to be used for cafeteria purposes.

“Q. Did he state to you and to the board at the time the lease was granted, what he wanted it for, why he wanted the lease?

“A. Cafeteria purposes.”

Mr. J. J. McCann, member of the school board, testified that the operation of a cafeteria was the object of the lease, but does not claim that it was more than an understanding, which all understood. Mr. Stanley, parish superintendent, says the same. He stated that there were several cafeterias in the public schools, to his knowledge. He was, however, asked:

“Q. They are not run under the supervision of the schools or of the persons who have charge of the schools?
“A. Yes, they are inspected by the health inspector, same as any part of the school.”

Mr. Simmons testifies:

“Q. At the time that you secured the lease from the School Board, did you state to the School Board what you wanted the lease for?
“A. No, sir.
“Q. At the time you secured the lease you did not tell them what you wanted with the lease?
“A. Yes, I told them what I wanted it for-.”

He subsequently stated that he had no intention of running anything there but a sanitary cafeteria; that he expected to sell lunches, coffee, cold drinks, school supplies, drawing paper, notebook paper, and so on; but he does not allege iñ his answer nor say in his testimony that he would not sell anything else and does not commit himself to doing business with the teachers and pupils of the Evans High School only. It is a proper conclusion from the lease, answer, and his evidence on the subject that he does not promise to limit his business to pupils and teachers, nor his sales to the articles -stated in his testimony, but may sell other articles to anybody, at any hour of the day.

Though defendants aver in their answer and testify generally that the purpose of the lease was to have opened and conducted a cafeteria on the school ground for the service and convenience of the pupils and teachers, the lease does not say that such is its purpose, and there is no direct averment of error in the language of the lease and no prayer that it be reformed, consequently it may be assumed, notwithstanding the understanding of the parties, that the lease as written, sets forth the contract entered into.

The Constitution of 1921, art. 12, sec. 10, requires the Legislature to provide for the creation and election of parish school boards, etc. Article 4, sec. 12, provides:

‘‘The funds, credit, property or things of value of the State or of any political corporation thereof, shall not be loaned, pledged or granted to or for any person or persons, association or corporation, public or private,” etc.

Act No. 100 of 1922, sec. 20 (amended by Act No. 110 of 1928) provides:

“The school board may receive land by purchase or donation for the purpose of erecting school houses, provide for and secure the erection of same, construct such out-buildings and enclosures as shall be conducive to the protection of property, and make repairs and provide for the necessary furniture, equipment, and apparatus * * *; they may change -the location of a school house, sell or dispose of the old site, and use the proceeds -thereof procuring a new one. * * *”

School boards are by the act made political corporations and agencies of the state, in the matter of public schools.

We excerpt from Dillon on Municipal Corporations as follows:

“The school district * * * is usually invested by general enactments operating throughout the state with a corporate character, the better to perform within and for the locality its special function, which is indicated by its name. It is but an im strumentality of the state and the state incorporates it that it may the more effectually discharge its appointed duty. * * * They are purely auxiliaries of the state and to the general statutes of the state they owe their creation and the statutes confer upon them all the powers they possess, prescribe all the duties they owe and impose all liability to which they aré subject.” Dillon on Municipal Corporations, vol. 1, subject, Public and Municipal Corporations, p. 44, sec. 25.

Prom R. C. L., vol. 24, subject Schools, p. 585, sec. 34:

‘‘Unimproved school lands are subject to the same restrictions as school houses and the school board cannot permit them to be used for collateral purposes, even though profitable. This, on the ground that school boards have power only over educational matters and have no power to lease or grant school property for other , purposes.”

The plaintiff cites Henderson v. City of Shreveport, 160 La. 360, 107 So. 139; Dupuy v. Police Jury, 116 La. 783, 41 So. 91; Parish of West Carroll v. Gaddis, 34 La. Ann. 928. These cases have bearing on the question of the powers of political corporations. created by the Legislature, made agencies of the state and invested with certain enumerated powers. The question involved in the present case is whether or not the Vernon parish school board had authority under the law, by means of the lease executed in favor of Simmons, to divest itself of its authority over school property, for the period of time and for the private business purposes of said Simmons. Therefore the question is not the same.

The case Isadore, Samuel & Sugar v. City of Monroe, 108 La. 677, 32 So. 961, 59 L. R. A. 723, bears directly on the questions involved in the present case. In that case the city of Monroe had acquired a lot of ground for school purposes and had erected thereon a fine school building. The grounds had been purchased and the building erected with the proceeds of a tax which the citizens had voted for school purposes and was being used at the time for school purposes, but the municipal authorities, for valuable consideration, leased a part of the building to Tom Stewart & Company to be used for theatrical purposes for the private gain of the lessee. The lease was attacked by the plaintiffs, on the ground that the municipal authorities-could not lease any part of .the school building for theatrical purposes as a business for private gain, while it was being used for conducting a public school, even though the theatrical entertainments were not given, except when the building was not being used for school purposes. The Supreme Court held with the plaintiffs and set aside the lease. The case is in principle similar to the present. In this case Simmons proposes to enter into a private business, dealing with the pupils and teachers, but also with the public at any hour for his private gain.

The case of Ralph v. School Board, 158 La. 659, 104 So. 490, is also different from •the present case. In that case it does not appear that the property had been leased. Then again, it appears from the opinion that the school board merely permitted Elizabeth and Mary Barback, without any payment to the school board, to sell luncheons and comestibles to the pupils and teachers at or in the school during lunch hours only and “at a small profit to themselves; this, and no more.” The language used justifies the further conclusion that the business conducted by Elizabeth and Mary Barbaek was under a mere permission granted by the school board and looked after by its hygienic department. In the present case Simmons need not submit to any supervision on the part of the school board. His lease shows that they have digested themselves of all power, authority, and control over the ground leased for ten years, and the business he may do in his own building will be as free from their control as the ground leased.

The school board cannot resume their authority, if the lease stands, until the expiration of ten years; that is, if the lessee complies with the stipulations of the lease. During this period of time the school board guarantees to Simmons the peaceable and quiet possession of the ground leased, 75 feet east and west by 100 feet north and south, situated in the northwest corner of the school area.

Under th.e language of the Civil Code, art. 2692, it became the legal duty of a lessor to maintain the property leased in condition to serve the purpose for which it was leased and to maintain the lessee in the peaceable possession of the thing during the entire period of the lease.

It looks reasonable that while a cafeteria on the ground might be a convenience to the pupils and teachers, the business conducted by Simmons may become a nuisance, which, for the welfare of the pupils and teachers, should be suppressed. And such power must be preserved.

A school board does not have power, under the law, to lease ground acquired for school purposes, on which a school building has been erected and a public school is being therein conducted, unless as stated in 108 La. 677, 32 So. 961, 59 L. R. A. 723, it is for some casual use, not prejudicial to nor inconsistent with the main purpose for which the property was acquired. And such an exceptional situation does not exist in the present case.

If the school board can divest its authority over the school property in one case, it can do it in another, and make the term 20 instead of 10 years.

It is. our conclusion that the Vernon parish school board had no power to enter into a contract with T. W. Simmons, such as was done.

For the reasons stated the judgment appealed from is erroneous and contrary to the law and the evidence and must be annulled, avoided, and set aside and the plaintiff Presley maintained in his contentions.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be annulled, avoided, reversed, and set aside. It is further ordered that the injunction issued herein at the instance of Elias Franklin Presley against the Vernon parish school board and T. W. Simmons be now reinstated and same is maintained and perpetuated.

The ordinance adopted by the school board and the so-called lease entered into between the school board and T. W. Simmons of date September 12, 1930, is decreed to be ultra vires, null, and void and without force or effect, and it is ordered that same be canceled. The said school board and the said Simmons together to pay cost in both courts.


text:
    No. 898
    First Circuit
    HARMON v. DUFILHO
    (February 8, 1932. Opinion and Decree.)
    (March 8, 1932. Rehearing Refused.)
    , Lewis & Lewis, of Opelousas, attorneys for plaintiff, appellant.
    A. V. Pavy, of Opelousas, attorney for defendant, appellee.
   ELLIOTT, J.

This suit was brought by Edward E. Harmon against Roger Dufilho as an action of boundary for the alleged purpose of establishing the boundaries between the tract of land belonging to said Harmon, “containing 70 arpents situated on Church Prairie in the parish of St. Landry — bounded north by lands occupied by Frederick Hollier and Clement Hollier, south by lands of Richard Keough, west by Charles Hollier and on the east by lands of vendor,” acquired by said Harmon from Solomon B. Harmon in March, 1885.

And the tract containing 7y3 arpents belonging to said Dufilho, in the same parish, bounded north by Mrs. Faustin Hollier, east by vendor, south by Myers, and west by public road, acquired by Charles F. Hollier from Solomon B. Harmon in July, 1880.

Plaintiff’s land is contiguous to, and bounded on the west by, that of the defendant. The plaintiff alleges that the boundary limits between them has never been fixed, determined, or established; that there are no monuments, no visible signs of separation between their estates, etc. He maintains in his petition that a certain drainage canal recently excavated is not the boundary line between them, as claimed by the defendant, but is wholly and entirely on the land of the petitioner. The court was prayed to appoint a surveyor to make a boundary survey between them. M. J. Godeau, Jr., was appointed for the purpose. He made a survey and return, but did not establish any line.

Defendant appeared, and urged that the plaintiff’s petition disclosed no cause or right of action, urging at the same time that an existing visible line existed between their respective estates, and that he had possessed as owner up to this line for more’ than 30 years. These exceptions were by the court referred to the merits, upon which the defendant answered, admitting that plaintiff was the owner of the tract containing 70 arpents, more or less, and that he owned the adjoining tract containing 7% arpents, but alleged that the dividing line between them had been fixed and established by a survey made according to their respective titles more than 30 years ago, and pleaded the prescription of 10 and 20 years, in bar of plaintiff’s action. He alleges that the dividing line between them has been represented by an actual existing standing fence erected more than 40 years ago, and that he and his authors have possessed the land up to the fence and according thereto in the presence of the plaintiff and authors for more than 30 years; that the correct line between the plaintiff and the defendant is the east bank of the drainage ditch referred to in plaintiff’s petition. He denies that it is necessary to fix any boundary line between them, for the reason stated.

The lower court rendered judgment rejecting plaintiff’s demand.

The plaintiff has appealed. The plaintiff takes the position in argument that the action is one in boundary and as to which there is no prescription, while the defendant contends that the boundary limits between their respective estates was. established by a survey made for that purpose according to their respective titles more than 30 years ago; that the line then established is correct; but, if not so, then any action to rectify the error, if error exists, is barred by the prescription of 10 and 20 years.

He contends that plaintiff’s action is substantially a petitory action, the purpose of which is to recover a certain parcel of land on defendant’s side of the boundary line which defendant has acquired by the prescription of 30 years.

The judgment of the lower court dismissing plaintiff’s suit has the effect of sustaining defendant’s contention that the action is petitory and that the defendant is the owner of the land by the prescription urged in behalf of his ownership.

There is much conflicting evidence as to whether or not a certain fence has been moved, but to our mind there is no conflict as to the facts which we find should govern in the decision of the case.

The titles of the parties show that the plaintiff’s tract of land containing 70 arpents was acquired by the plaintiff from his father, Solomon B. Harmon, on the 15th of March, 1885, and that the title to defendant’s land also emanates from Solomon B. Harmon by title made to Charles F. Hollier, dated July 7, 1880, which was more than five years, anterior to that under which the plaintiff claims.

The title of the defendant being the older title, .the western boundary of the tract subsequently sold to Edward B. Harmon is the eastern limits of defendant’s tract. And, in a survey of defendant’s tract, the western limits should start at the road, not in the middle of it, as directed in a letter from the plaintiff to I. R. Guidry, which will be hereinafter mentioned.

The evidence shows that these two tracts of land were surveyed at the instance of the plaintiff while administrator of the estate of S. B. Harmon, his father, and the dividing line between them established.

The plaintiff is positive that he had his present tract and that of the defendant surveyed at that time by a surveyor called for the purpose. And the evidence shows that it was. done more than 50 years before the present suit was filed. The competency of the surveyor and the correctness of the work then done is not questioned. It must have been satisfactory, because the plaintiff and Charles F. Hollier accepted it unquestionably, and each possessed as owner up to the line in the presence of each other for more than 20 years, without any dispute as to the limits which the line represented. Therefore, if any error was made in the location of this line as then fixed and located, it cannot he corrected, because the prescription of 10 years urged by defendant in his answer bars any action having that purpose in view.

We are satisfied that there never would have been any dispute if a question of drainage had not interrupted friendly relations between plaintiff and defendant some 10 or 12 years ago. This drainage question is the gravamen of the present controversy.

The evidence pertinent to the establishment of the contiguous limits of the two estates on the ground and the subsequent erection and maintenance of a fence, marking the boundary line, is so submerged in the more than 400 pages of testimony concerning things done long subsequent thereto that the establishment of the line and the erection and maintenance of the boundary fence is difficult to follow through the record. But there is no doubt about it; the fact is not questioned by evidential showing.

A part of the land over which the boundary line and fence ran was low land. Some of the witnesses speak of this low place as a marais. The evidence shows that this low place or marais required drainage, and that the plaintiff, while residing on his estate, and Charles Hollier, while owner and residing on that of the defendant, each dug a ditch on their side of the fence, but the main ditch, the one that served to carry off the water, was on defendant’s side, running parallel and close to the dividing fence line. There were low lands situated above the low land on plaintiff and defendant’s land, which naturally drained through their land, particularly from the estate of Leon Tujague. The drainage ditch which served to carry off the water becoming obstructed, the water on the land of said Tujague was thereby impounded, and his farm suffered from the impeded drainage. But George Harmon, son of the plaintiff, occupying plaintiff’s estate, acting in his behalf, took the position that the fence had been moved west, that the ditch was entirely on the land of his father, and forbade Tujague by threats of violence from opening the drain. Previous to the controversy between George Harmon and Tujague, we find no dispute between the plaintiff and Dufilho as to the location of the dividing line between them and that the boundary line between them had been definitely fixed.and established in the presence of the adjoining owners for 20 years or more before that time. So the question for determination is the location of the old line.

The impeded drainage suffered by 'the lands above the plaintiff and defendant due to the obstructed condition of the ditch in question must have become a matter of public interest, because the evidence shows that the police jury .interfered and employed and authorized Joseph Bordelon to go on the disputed premises and open up, widen, and deepen the ditch. Mr. Bordelon, acting on the authority of the police jury, entered on the premises without delay, and, without any active opposition from George Harmon, excavated what the witnesses say was a canal. The canal excavated by Bordelon followed the course of the old boundary line and fence as first constructed on the ground between the estates. After the excavation of the canal, the course and location of the old boundary line on the ground and the place where had stood the boundary fence first constructed was. marked by the canal; the ground on which same had stood was dug into the canal, but that did not destroy the boundary limits that had been marked on the ground and evidenced by the fence constructed on the line and maintained without dispute by the adjacent owners in the presence of each other for more than 10 years, before the commencement of any 'controversy on the subject.

About a year previous to the trial of this case in the lower court, the locality in which are comprised the estates of the plaintiff and defendant was organized into a drainage district. The officers of the drainage district determined to excavate a deeper and wider canal for drainage purposes 'on the line between the land of the plaintiff and that of the defendant, and caused their surveyor to make a survey of the two estates for the purpose. The survey was made, and it was found that, after the 70 arpents called for by plaintiff’s, title had been satisfied and the 7% called for by that under which defendant claims, under their common author, there remained a strip of land about 18 feet wide in excess of the areas called for, sufficient for the canal, and the canal was excavated accordingly.

The plaintiff is dissatisfied, and claims that the canal is on his. land. In a letter dated December 30, 1929, addressed to I. R. Guidry, plaintiff wrote, with reference to the location of the present drainage canal:

“And as to the ditch between me and Roger Dufilho, if any ditch is dug there, I want it understood that they will start in the middle of the public road and measure off Roger Dufilho’s land and then dig the ditch. I am willing to give half the land for that ditch and they can put the dirt from that ditch on my land.”

There is a large amount of evidence in the record as to the location of this road. It leads from the town of Washington to Opelousas, and is one of the oldest in the state. Some of the witnesses contend that, in the years ranging from ’30 to ’60, during which they have known and traveled it, it is not now in the same place that it was when they first knew it.

But we are satisfied that the general course of the road has not been substantially changed between the estate of the plaintiff and that of the defendant. It has been widened a little and straightened perhaps, but it remains substantially in the same place where it was on July 7, 1880, when the title from Solomon B. Harmon to Charles F. Hollier was passed. .

The drainage canal recently excavated by the . drainage district occupies ■ the place where the Bordelon canal was dug and the place where the original fence was erected and where the original boundary line between these two estates was located on the ground.

We agree with the lower court that, the boundary limits of these two estates having been fixed and established on the ground between the parties, and the location evidenced by a fence on the line which stood there for more than 10 years in the presence of the contiguous owners, the plaintiff cannot now disregard the old line and have a neyr one established.

For these reasons, the judgment appealed from is affirmed, but, availing ourselves of the provisions of Act No. 229 of 1910, sec. 2, it is ordered that all the costs in this case incurred in the lower court and on appeal be taxed half against the plaintiff and appellant, and the other half against the defendant and appellee.


author: LeBLANC, J.

text:
    No. 921
    First Circuit
    MARSLAND v. HUNDLEY ET AL.
    (March 8, 1932. Opinion and Decree.)
    Ped C. Kay, of De Ridder, attorney for plaintiff, appellee.
    Cline, Plauche & Girod, of Lake Charles, attorneys for defendants, appellants.
   LeBLANC, J.

Plaintiff, a negro, was arrested for violating the State Prohibition Law and incarcerated in the parish jail at Lake Charles, La. The defendants, E. L. Hundley and C. D. Wood, both white, signed his bond, which had been fixed at $300, as sureties, and he obtained his release from prison. The day following his release he executed and delivered to E. L. Hundley his note in the sum of $400, secured by mortgage on his property situated in the town of De Quincy. This note eventually was transferred to another party named Grover C. Brown, who foreclosed on the mortgage and had the property seized. To prevent the sale, plaintiff paid the amount demanded under the seizure, with costs, all of which amounted to the sum of $401.62.

Contending that the note of $400 given by him was without consideration, as it constituted a contract to indemnify the defendants as sureties on a bail bond in violation of a prohibitory law, plaintiff instituted this suit to recover from them the amount he was obliged to pay in order to save his property from seizure and sale, and, in addition thereto, he is claiming the sum of $150 as attorney’s fees incurred in the foreclosure suit. He also asks for other expenses and loss of time incidental thereto and further loss of time from his work on account of being laid up from injuries received in an automobile collision which occurred on one of the trips he made in connection with the case.

Of the $400 represented by the note, $100 was for attorney’s fees paid to the attorney employed to represent him in the criminal charge pending against him. This amount was paid by him, as admitted by defendants. The other $300, according to them, represented a sum of $75, which was to be paid to each for money expended by them and for their trouble in securing plaintiff’s release from jail. The balance, it is claimed, was for various amounts, due by plaintiff to Hundley on grocery bills, and to secure advances to his family during the time that he would be confined in prison. Subsequently it is alleged that the note was sold by Hundley to Wood for $127, and by the latter to Brown for $250. Plaintiff was never tried on the charge pending against him, as the same was nol prossed by the district attorney, and his bail bond was canceled.

The case was tried before a jury, which rendered a verdict in favor of plaintiff in ■the sum of $576.62. The verdict was made the judgment of the court, and' defendants appealed. Plaintiff answered, asking for an increase to the amount originally demanded by him.

We may say at the outset that we are not at all impressed by the testimony tendered in support of the allegations in the answer that these defendants had spent the amounts claimed in obtaining plaintiff’s release from prison, nor have they shown that there was any trouble incurred by either of them. Neither can we say that we place any reliance in Hundley’s testimony concerning the various amounts due him by plaintiff for grocery bills. The charge slips offered in evidence tend to show that plaintiff paid his accounts regularly. We believe, on the other hand, that the evidence clearly shows that the note was given to protect the defendant Wood as a surety on plaintiff’s bail bond. In fact, Wood in so many words admits that he would not have signed the bond without some security to indemnify him. The transfer of the note thereafter, first from Hundley to Wood and from Wood to Brown, appears to be nothing else than a well thought out plan to place the note in the hands of an apparently innocent holder for the purpose of collection. All of this being so, it is plain that the whole transaction was in violation of the provisions of the Criminal Code of Procedure; and was absolutely void. The provision invoked by plaintiff is article 90 of the Code of Criminal Procedure embodied in Act No. 2 of 1928. The article reads as follows

“Any contract made to indemnify any surety against loss on any bail-bond made or to be made by such surety shall be void and any security deposited in connection with such contract shall be forfeited to the State; provided, that this Article shall not apply to surety companies legally authorized to do business in the State.’’

In this court we do not find the defendants making any serious defense to the issue of nullity of the transaction; their principal effort being directed at a reduction of the amount of the judgment and limiting it to the $401.62 paid by plaintiff to save his property from sale under seizure in the foreclosure suit.

It appears, from the testimony, that the jury allowed plaintiff to recover, in addition to the $401.62, attorney’s fees in the sum of $150 and loss of five days from his work at $5 per day.

We are of the opinion that attorney’s fees paid for asserting one’s, right in a court of justice are not recoverable as an item of damages except in certain cases provided for under special statutes or by contract, or on the dissolution by motion of conservatory writs improvidently granted. In the recent case, M. M. Ullman & Co. v. Levy, 172 La. 79, 133 So. 369, 370, the Supreme Court had under consideration a reconventional demand of the defendant for attorney’s fees for defending a suit alleged to have been wantonly instituted for the purpose of annoying and harassing him. After holding that there had been no wantonness or maliciousness shown, the court stated:

“But at any rate, there is neither law nor jurisprudence in this, state which allows a defendant to recover attorney’s fees for defending a civil suit.”

In Meraux & Nunez v. Gaidry et al., 171 La. 852, 132 So. 401, 405, the court said:

“As to plaintiff’s demand for $1,000 attorneys’ fees, as damages, we also think that it should be rejected. Attorney’s fees,' as damages, are not ordinarily allowed.”

In Davis-Wood Lumber Co. v. Canulette Shipbuilding Co., Inc., 164 La. 301, 113 So. 855, 856, it is stated:

“This court has frequently held that the fee of counsel in prosecuting a claim for damages is not a proper subject of recovery.”

Several cases are therein cited.

We see no material difference between the claim for attorney’s fees and that for other expenses claimed incidental to the foreclosure suit. In our opinion, the one is no more recoverable than the other. As for those damages claimed resulting from loss of time on account of the automobile accident which occurred on a trip made in connection with the case, we think, besides, that they are entirely too remote to be considered.

All claims, therefore, except the one for $401.62, the amount actually paid by plaintiff to protect his property from sale in the foreclosure suit, will be rejected, and the judgment appealed from will accordingly have to be amended.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court be amended by decreasing the amount allowed plaintiff from the sum of $576.62 to the sum of $401.62, and that, as thus amended, it be affirmed.


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    No. 925
    First Circuit
    ISAAC v. CALCASIEU BLDG. & LOAN ASSN.
    (February 8, 1932. Opinion and Decree.)
    (March 8, 1932. Rehearing Refused.)
    Robert R. Stone, of Lake Charles, attorney for plaintiff, appellant.
    Cline, Plauche & Girod, of Lake Charles, attorneys for defendant, appellee.
   LeBLANC, J.

Plaintiff appeals from a judgment rejecting his demand for $125, being a 5 per cent commission he claims on the sale of certain real estate in the city of Lake Charles at the price of $2,500.

He declares on a verbal contract entered into with Mr. W. É. Patterson, manager of the defendant company, under which he was given the right to offer the property for sale at $3,000. He alleges that he made an effort to sell the property to one Pierre E. Coco, but that the latter was unwilling to pay more than $2,500 for it. He avers further that he advised the defendant, through its manager Patterson, that Coco would buy at $2,500, but was instructed to make further efforts to sell at $3,000, and that he persisted in such efforts without success. He alleges finally that he later was. advised by Coco that he had been approached by Patterson, representing his company, and that he had purchased the property from him for $2,500. His demand is predicated principally on the contention that he was the procuring cause that led to the final consummation of the sale of the property, and even though it was purchased at a lower price than he was authorized to sell it for, he is entitled to his commission.

The defense is, first, a denial of the alleged verbal contract as set out in plaintiff’s petition, and, second, a denial that plaintiff was the procuring cause that led to the sale, as it is averred that defendant had no knowledge of his negotiations with the purchaser until after the sale had been completed.

It may be that plaintiff has shown by sufficient evidence that there was such an agreement between himself and the defendant under which he could have recovered a commission had he succeeded in selling the property for $3,000. As a general rule, we find no particular form of contract is necessary to create the relation of broker and principal. It may be either express, or it may be implied from the conduct of the parties. See 9 C. J. p. 517, sec. 18. Indeed, defendant’s manager seems to concede that point in favor of the plaintiff, when, in answer to a question if it could be reasonably inferred, from what dealings he had had with him in other matters, that a commission would be paid, he says he thinks that would go without any explicit agreement, and he adds, that if the property were sold at .the price given, undoubtedly they would pay a commission.

But whether or not there was an agreement to pay a commission on a sale at $3,000 is not the important issue in this case, as the sale was made for less, than that amount and the commission claimed is based on the price at which it was sold.

The determining question therefore now arises: Was the plaintiff the moving cause which brought his principal and the purchaser of the property together, and finally procured its sale?

Plaintiff is very positive in his assertion that after Coco had told him he would pay $2,500 for the property, he went to Patterson to communicate this information to him, but found him busy, so went back to his office from where he called him over the telephone and imparted all the facts to him, expressly telling him that the offer came from Coco. Patteréon, on the other hand, maintains that he never knew, until plaintiff called him over the telephone and demanded his commission, who his client was: He states that he had, at least six weeks before plaintiff asked him for a price on the property, spoken to Coco with a view of interesting him in buying it. There is, nothing to suggest in the least that one of these parties is- less worthy of belief than the other, so, as between them, the evidence is evenly balanced on this important question. We have then to look to w,hat supporting testimony there may be on either side, and when we proceed to do that, we find there is only one other witness. Coco, the purchaser, who unfortunately is so vague and indefinite in his recollection concerning the transaction, except that he knew positively that he would not pay more than $2,500 for the property, that he affords no assistance in solving the issue. He states, that he is unable to answer whether or not Patterson called him and offered him the property before he saw Isaac. It appears certain, however, that Patterson had been trying to sell him a piece of property before he ever talked to Isaac, and when asked the direct question if he might not have offered the one herein involved in connection with others, he answers that it might be possible. Counsel for plaintiff lays stress on a letter of Patterson addressed to him in answer to a demand made for the commission claimed by plaintiff, but we are unable to find any-think of a compromising nature in it. On the contrary, it strikes ■ us as containing a statement of the position Patterson assumed throughout the whole transaction, that his company had been on a deal with Coco before Isaac spoke to him over the telephone about it and that he so informed him.

We agree with the trial judge that plaintiff has failed to show by a preponderance of the testimony that he was the procuring cause which led to the sale of the property to Coco, and as he carried that burden in order to recover, his demand was properly rejected.


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    No. 929
    First Circuit
    TODD v. MULE ET AL.
    (March 8, 1932. Opinion and Decree.)
    Borah, Himel & Bloch, of' New Orleans, attorneys for plaintiff, appellant.

      Walter T. Gilmore, of Morgan City, attorney for defendants, appellees.
   ELLIOTT, J.

Robert B. Todd, judgment creditor of Billie Mule, Jr., caused a writ of fieri facias to issue, on his judgment, placed same in the hands of the sheriff, and the sheriff was about to execute the same by seizing an automobile pointed out to him by plaintiff as the property of Billie Mule, Jr., when he was stayed by Miss Marie Mule, sister of Billie Mule, who made and placed before him her affidavit that the automobile in question belonged to her.

The plaintiff, Todd, thereupon proceeded against her, Billie Mule, the sheriff, and Lirette Chevrolet Sales by rule, calling on them to show cause why her affidavit should not be canceled on the ground that it was false, and that the automobile in question did not belong to her but to Billie Mule.

Miss Marie filed an answer to plaintiff’s mile, in which she denied his averments and defended her claim to the automobile in question. Judgment was rendered in her favor, and the plaintiff has appealed.

The automobile about to be seized was bought in the name of Marie Mule, by Billie Mule, Jr. The authentic act of purchase states that it was bought by her through him as her agent. This new automobile which the plaintiff desired to have seized cost $722.60. The evidence shows that Miss Marie Mule purchased from Mrs. Billie Mule, Jr., an old car, which was traded in to Lirette Chevrolet Sales as payment to the extent of $225 on the new car.

Miss Marie Mule and Billie Mule, Jr., both reside at Morgan City. Miss Mule is ^5 years old, and we gather from her testimony that she is the principal manager of a mercantile business conducted by her father.

In regard to the purchase of the new car from Lirette Chevrolet Sales, of Houma, she testifies that her brother knows more about automobiles than she does, and is better qualified than herself to attend to the details of buying one; that she intrusted to her brother the business of buying a new car and trading in her old one; that she turned over to him her old car and $300 for the purpose; and that he had authority as her agent to trade in the old one and give a note for the balance of the purchase price, all as was done, that she was not a party to any arrangement to defeat the plaintiff.

Billie Mule, Jr., testified that he received from his sister the old car for the purpose of being traded in on a new one; that he made inquiry among the dealers at Morgan City, but, learning that he could obtain from Lirette Chevrolet Sales a better trade-in value for the old car than he could from the Morgan City dealers, he went to Houma and bought from them; that his sister gave him $300 cash to pay on her new car; that he had the money with him when he arrived at Houma, but, after getting there, he got into a card game before he had seen the agent of Lirette Chevrolet Sales whom he desired to trade with, and lost $200 of her money; that Lirette Chevrolet Sales agreed to accept $100 cash and a check drawn by Marie Mule, per Billie Mule, Jr., for $200 on a bank in Morgan City, and that a notary public advised him that he could sign the act of sale and note for his sister, as was done; that he signed accordingly, acting in the matter throughout as agent for his sister; that he returned to Morgan City next day and borrowed $300 on his note from a Morgan City bank, with which he paid the check for $200 given to Lirette Chevrolet Sales on the automobile, thus returning to his sister the amount he had lost gambling and keeping the balance of the sum he had borrowed.

The philosophy of our Civil Code is to the effect that a creditor has a moral and legal right to be paid out of his debtor’s property. Civil Code, art. 1968.

“Prom the principle established by the last preceding article, it results that every act done by a debtor with the intent of depriving his creditor of the eventual right he has upon the property of such debtor, is illegal, and ought, as respects such creditor, to be avoided. This can be done in the mode and under the circumstances set forth in the following rules.” Civil Code, art. 1969.

The articles 1848, 1849, and 2288 are guides for the court in considering the acts of debtors alleged to have been done with the intent stated, but, when the acts attacked by a creditor are dependent for their validity on the veracity of the parties and facts and circumstances attending same and bearing thereon before and after the doing of the thing, are not inconsistent with honesty of intent and purpose, and there is no evidence to the contrary, the conclusion of honesty, generally speaking, should prevail.

It has been well said by an author who seems to have studied the subject closely that, while “fraud may be inferred from facts and circumstances, if these facts and circumstances are susceptible of a natural and probable explanation, consistently with the good faith and honesty of the parties, they do not prove fraud and the legal conclusion is in favor of innocence.” Moore on Pacts, vol. 1, p. 82, sec. 52.

This same author says in another place:

“In suits to set aside fraudulent conveyances. it some times happens that the defendants attempt to prove the payment of a large amount of currency as consideration for a sale or mortgage of the debtor’s property and the evidence consists of testimony that the party paying the money, had not only acquired or accumulated it in a singular manner, but had kept it, perhaps several thousand dollars, for years in a trunk or a box or a cupboard, etc. Occasionally in various, other cases the same sort of a tale is told to account for the possession of a large sum of cash. It is often impossible directly to contradict the testimony,” etc.

The dissertation continues, at length, but to quote all that is said would carry too much that is not pertinent to the question immediately at hand. The author takes up the other side in the next section, saying:

“On the other hand it has been well said, if evidence is to be always disbelieved because the story told seems remarkable or impossible, then a party whose rights depend on the proof of some fact out of the usual course of events, will always be denied justice simply because his story is improbable.” Moore on Pacts, sec. 172, p. 214, and section 173, p. 220.

It may be in place to say that imprisonment for debt was abolished in this state in 1840. Chapter 7, sec. 4, of the Code of Practice (art. 726 et seq.), and Revised Statutes of 1870, sec. 1782, still deal with the subject, but only in cases where the debtor refuses to make a surrender of his property in bankruptcy. The law abolishing imprisonment, as a means of enforcing the payment of debts, was a step forward, in regard to which all reasonable men are agreed that it was a humane provision for the best interest of society. Nobody now desires or would have it otherwise; but since then, more often perhaps than before, the right of the creditor is not effective until the property -of his debtor has been uncovered by a judgment of the court.

The difficulties encountered by merchants and business men became a matter of public interest, to the extent that Act No. 94 of 1896 was adopted providing for the criminal punishment of debtors for certain enumerated acts, and since then various other enactments, having the same end in view, have been made into law, but it no doubt often happens that debtors successfully evade the intendment of the article quoted, and the creditor, in his effort to enforce his rights, merely adds to the sum he is already out.

In the present case, the facts and - circumstances attending the purchase from Lirette Chevrolet Sales of the automobile in question are so suspicious that we are justified by the established jurisprudence of this state in holding that the burden of proof has been thereby shifted from the plaintiff and placed on the defendant to show that she really purchased the automobile in question and is the owner thereof, as she claims to be.

Looking to Miss Marie Mule to show the honesty and bona fide character of her claim to the automobile in question, we find that she has shown herself to be the bona fide owner of the old automobile that was traded in as part of the purchase price of the new one. She purchased it from Mrs. Billie Mule, Jr., wife of her brother, on October 29, 1929: At this time Miss Mule could not have intended to defraud the plaintiff or anybody else, because at the time she purchased the old car it does not appear that Billie Mule, Jr., owed anybody. As for the debt due the plaintiff, the evidence shows that it was not created until January 9, 1930. At first it only existed in a contingent form, but it became a real debt soon afterwards. The fact that it had no existence, however, at the time Miss Mule purchased the old car, lends some, but not much, support to her claim that she is the owner of the new ear purchased from Lirette Chevrolet Sales, because Billie Mule, Jr., could have been the owner of the old car at the time the new one was bought. The situation was one in which plaintiff could not be expected to produce testimony to the contrary; still an ownership shown to exist at one time is supposed to continue until the contrary appears.

The debt which Billie Mule owed the plaintiff, in amount $600, with interest, was reduced to judgment on October 20, 1980. The automobile which the plaintiff desires to have seized was acquired from Lirette Chevrolet Sales on January 22, 1931. At that time the evidence inferentially establishes that Billie Mule had no property that he claimed to own; hence plaintiff’s effort to have this new automobile decreed liable thereto. Miss Marie Mule and Billie Mule, Jr., have testified to all the facts and circumstances concerning the purchase of the new automobile, explaining how it came to be bought from Lirette Chevrolet Sales and paid for in the way it was done. The question of ownership depends on their testimony entirely. There is nothing inconsistent about what they have to say; nothing improbable or unreasonable. Their relation has to do with matters as to which contradicting testimony could not well be looked for. The district court found favorable to their veracity, believed their explanations, and decided the case accordingly. It is not a case in which the facts justify us in holding that his judgment is erroneous.

Judgment affirmed; plaintiff-appellant to pay the cost in both courts.


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    No. 934
    First Circuit
    SONNIER v. SONNIER
    (March 8, 1932. Opinion and Decree.)
    See also 14 La. App. 588, 130 So. 133.
    Yoorhies & Labbe, of Lafayette, attorneys for plaintiff, appellee.
    Xavier Mouton, of Lafayette, attorney for defendant, appellant.
   LeBLANC, J.

Elie Sonnier, who is plaintiff in the present proceeding, appeals fropt a judgment dismissing his suit on an exception of no cause of action.

This litigation dates back to the year 1916, and has been before this court on at least two previous occasions. In the original suit, Amedee Sonnier obtained a judgment against Elie Sonnier and Marcel Sonnier, ordering them to remove certain levees and other obstructions placed by them on their respective lands, which interfered with the natural drainage of his land. An injunction restraining them from placing other obstructions was made perpetual. Upon the judgment having become final, the sheriff executed its provisions by removing the obstructions complained of.

During the year 1927, Elie Sonnier who in the meantime had become the owner of Marcel Sonnier’s land, was ruled into court for an alleged violation of the injunction, and, for the purpose of passing on the rule, the court appointed E. J. Lacour, civil engineer and surveyor, in his capacity as such, and ordered that he take the levels and make a survey of the properties, with a view of ascertaining whether or not the obstructions impeded the natural drainage of Amedee Sonnier’s land.

On June 15, 1929, as shown by the record, a compromise judgment was rendered on the rule under the terms of which the defendant, Elie Sonnier, was ordered to remove the obstructions he had erected, the work of removing them having to be done under the supervision of Lacour, the engineer who had been already appointed by the court.

The purpose of the present proceeding is to have this compromise or consent judgment annulled, on the grounds (1) that the complainant, Elie Sonnier, was led into error and mistake in entering into said compromise under which the judgment was rendered, by the report of E. J. Lacour, civil engineer and surveyor, and (2) that the enforcement of said judgment would be unconscionable and inequitable.

The contention made is that, the judgment attacked being a consent judgment, it amounts to no more than a contract between the parties, and should be construed in the same manner as any other contract, and, as contracts can be set aside on the grounds complained of, the judgment likewise can be annulled.

In support of his contention, counsel for Elie Sonnier refers to 34 C. J. p. 133, sec. 337, on the subject of the Construction and Operation of Consent Judgments. But, whilst the paragraph of the section from which he quotes is to the effect contended for by him, the heading of the section indicates clearly that this is only a general statement. This is fully borne out by the paragraph which follows, and which deals with the construction of such judgments, “As a judgment,” and there we read:

“But at the same time, as it has the sanction of the Court, and is entered as its determination of the controversy, it has the same force and effect as any other judgment, and in the absence of fraud or mistake, is valid and binding, as such, as between the parties thereo * * * unless it is. vacated or set aside in that manner provided for by law. * * *”

Further on, in the same volume, page 419, sec. 670, on the same subject of consent judgments, under the heading “Grounds for opening and vacating” it is stated:

“A judgment by consent will not be opened or vacated in the absence of adequate grounds therefor and generally not unless a meritorious defense is shown, in accordance with the rules governing the opening and vacating of judgments generally.”

Among the cases cited is Dunn v. Pipes, 20 La. Ann. 276, which is in point.

The provisions of our law dealing with the annulment or vacating of judgments are to be found in articles 605, 606, and 607 of the Code of Practice. The causes, which give rise to an action for nullity are twofold; those pertaining to the form of the proceeding (with which we are not here concerned) and those which go to the merits of the question tried. With regard to the latter, with which this action deals, we have to be guided by article 607, which provides as follows:

“A definitive judgment may be annulled in all eases where it appears that it has been obtained through fraud or other ill practices, on the part of the party in whose favor it was. rendered; as if he had obtained the same by bribing the judge or the witnesses, or by producing forged documents or by denying having received the payment of a sum, the receipt of which the defendant had lost or could not find at the time, but has found since the rendering of the judgment.”

Whilst the causes enumerated are not exclusive or restrictive, as. has frequently-been held by the Supreme Court, we think that they fairly represent a type of cases in which more is demanded than the mere error or mistake complained of in the proceeding before us. Before enumerating those causes as examples, the article specifically provides that it must be in cases where it appears that the judgment was obtained “through fraud or other ill-practices on the part of the party in whose favor it was rendered.”

Aside from the complaint here being only one of having been led into error or mistake, which, of itself, certainly does not constitute “fraud or other ill-practices,” the petition seems to be further fatally defective in that the charge made is not levelled against “the party in whose favor the judgment was rendered” as seems necessary under the article of the Code, but against the civil engineer appointed by the court, and who, by virtue of that appointment, was an officer of the court, acting under its orders, and not under the orders of the party in whose favor the judgment was rendered.

The second ground on which the nullity is sought is easily disposed of. It is alleged that the enforcement of the judgment would be unconscionable and inequitable, but no facts are stated, on which it could be so shown. Standing as it does, the allegation presents merely a legal conclusion on the part of the pleader, which, of itself, is not sufficient to support a cause of action.

The judgment below correctly sustained the exception and dismissed the proceeding, and it is accordingly affirmed.