text:
    No. 2879
    Second Circuit
    GATLIN v. SPANGLER
    (May 13, 1927. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Automobiles—Par. 4.
    The driver who backs a truck on to a road without first looking to see if there is traffic approaching is guilty of negligence.
    2. Louisiana Digest — Automobiles—Par. 8.
    The burden of proof is on the driver of a truck who created a dangerous situation by backing his truck onto a road before looking to see if there was any traffic approaching, to prove that the driver of the automobile collided with could have avoided the collision with the exercise of ordinary care.
    3. Louisiana Digest — Automobiles—Par. 7.
    The driver of an automobile who is suddenly-confronted with a dangerous situation by the backing of a truck onto the road in front of him is not guilty of negligence in trying to drive around the truck where he could not have avoided hitting the truck had he attempted to stop his car.
    Appeal from the Third Judicial District Court of Louisiana, Parish of Jackson. Hon. S. D. Pearce, Judge.
    Action by H. M. Gatlin against B. Spangler.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed.
    William J. Hammon, of Jonesboro, attorney for plaintiff, appellant.
    E. L. Walker, of Jonesboro, attorney for defendant, appellee.
   WEBB, J.

The plaintiff filed this action to recover damages sustained by an automobile owned and being driven by him as the result of a collision with a truck owned and being operated by defendant, and plaintiff appeals from a judgment rejecting his demands.

OPINION

The evidence shows that plaintiff was driving along one of the streets in the town of Jonesboro at a lawful rate of speed and that defendant, who had parked his car next to the curb, without paying any attention to the traffic along the street backed his truck into the open space in front of plaintiff’s car and into collision with the car being driven by plaintiff, who saw the situation and attempted to pass around the truck.

The defendant was unquestionably guilty of negligence in backing his truck without paying any attention to the traffic, but it is contended that plaintiff, noting the situation created by the negligence of defendant, having failed to attempt to stop his car, but attempting to pass around the truck under the belief that he could thus avoid colliding with the truck, contributed to the collision.

The negligence of the defendant and the dangerous situation created by defendant’s negligence being established, the burden of proof was on defendant to show that plaintiff could have avoided the collision with the exercise of ordinary care, and we do not think the evidence establishes the defense.

• The dangerous situation with which plaintiff was confronted hy defendant backing his truck into the open space was created entirely by the negligence of defendant, and in order to avoid the collision plaintiff was presented with the alternative of attempting to stop his car or of attempting to pass around the truck, and in attempting the latter he cannot he said to have been guilty of negligence when the evidence indicates that the collision could not have been avoided had plaintiff attempted to stop his car.

We are therefore of the opinion that the plaintiff was without fault and that he is entitled to the damages sustained, which the evidence shows to have been one hundred and eight and 45-100 dollars.

It is therefore ordered, adjudged and decreed that the judgment appealed from he annulled, avoided and reversed, and that plaintiff, H. M. Gatlin, have and recover judgment against defendant, B. Spangler, in the sum of one hundred and eight and 45-100 dollars with legal interest, thereon from this date, and all costs of suit.


source: Caselaw Access Project

author: WEBB, J.

license: Public Domain

text:
    No. 2190
    Second Circuit
    PIERSON v. SHEPHERD
    (April 8, 1927. Opinion and Decree.)

      (Syllabus by the Editor)

    1.Louisiana Digest — Prescription—Par. 12, 22.
    The surveying of land is not sufficient to establish the possession necessary for prescription of thirty years as provided hy Articles 3499, et seq., of the Civil Code and defined by Article 3428 of the Civil Code.
    2. Louisiana Digest — Prescription—Par. 12 16, 22.
    The cutting of timber and the sale of timber on the land is not the possession necessary for prescription of thirty years as provided by Articles 3499, et seq., of the Civil Code and defined hy Article 3428 of the Civil Code.
    3. Louisiana Digest — Prescription—Par. 12, 15, 22.
    The paying of taxes is not the possession necessary for prescription of thirty years as provided hy Articles 3499, et seq., of the Civil Code and defined hy Article 3428 of the Civil Code.
    Appeal from the Third Judicial District Court of Louisiana, Parish of Bienville. Hon. J. E. Reynolds, Judge.
    Action by Mrs. Hattie Pierson against J. P. Shepherd, et al.
    There was judgment for defendants and plaintiff appealed.
    Judgment reversed.
    Goff & Barnette, of Arcadia, attorneys for plaintiff, appellant.
    Poster R. Taylor, of Arcadia, attorney for defendants, appellees.
   WEBB, J.

This is a petitory action involving forty acres of land and the plaintiff, who alleged and established record title through mesne conveyances from the United States appeals from a judgment sustaining a plea of prescription of thirty years and rejecting her demand.

The evidence does not show the exact nature of the land, that is,'whether or not it had ever been in cultivation or was susceptible of cultivation, nor does it show' whether the property was easily accessible, but it indicates that it was timber land located in a farming neighborhood and the possession under which defendants claim appears to have been initiated by their father who lived in the neighborhood and presumably had title to lands. contiguous to that in controversy.

The evidence establishes that defendants’ ancestor had constructed a mill of some character on land near the property in 1882 and that he had the land surveyed, together with contiguous lands, and had cut timber off of three or four .acres of the land in dispute for fuel for the mill, and that he and defendants had continued to cut wood from the land until the date of the suit in 1923.

Other acts established by the defendants consisted of an act of sale of date December 18, 1909, recorded December 27, 1909, under which defendants’ ancestor sold the timber on the land in question to the Globe Lumber Company (the evidence, however, not showing whether or not the timber had been cut by the vendee) and the payment of taxes.

The defendants claim ownership by virtue of possession under the prescription of thirty years, as provided by Articles 3499, et seq., of the Civil Code, in which it is declared that the possession necessary for such prescription must be commenced by corporeal possession (Ar-ticle 3501, C. C.), which is defined by Article 3428, C. C., as natural possession, which is declared to be “that by which a man detains a thing corporeally, as by occupying a house, cultivating ground,” etc., and the acts committed by defendants which evidence their possession, such as cutting timber from the .property and surveying the lines, are clearly not within the expressed illustrations of corporeal possession.

However, we do not think that the illustrations are limitative and that corporeal possession may be taken otherwise than by actual residence on the property or cultivation of the land, as by enclosing the land with fences or other acts which indicate ownership and leave visible signs of possession.

However, enclosure of a part of a tract of land by one without title is not possession of the whole, and even though continued for a period of thirty years is not sufficient for the basis of prescription as to the area not enclosed (Prevost’s Heirs vs. Johnson, 9 M. (O. S.) 123; Ellis vs. Prevost, 19 La. 251); and we are of the opinion that the mere cutting of timber from the land when it is not shown to have been taken from the entire area and when the evidence does not show from what part of the tract the timber had been cut, even though such cutting had been continuous, would not be sufficient basis for prescription either as to the whole or a part of the tract.

Neither do we think that surveying the lines of land where it does not appear the lines had been plainly and permanently marked would be sufficient to show possession (Jones vs. Goss, 115 La. 926, 40 South. 357; Albert Hansen Lumber Co. vs. Baldwin Lumber Co., 126 La. 347, 52 South. 537); nor is the payment of taxes evidence of possession (Chamberlain vs. Abadie, 48 La. Ann. 590, 19 South. 574) whatever may be its effect as showing continuity of possession.

The defendants, while they did not base their claim on title by deed, offered evidence showing a deed to an undivided interest in the property from their father and from their co-heirs to the other interest. Neither of the deeds, however, are of date fen years prior to the suit, and the sole defense is the prescription of thirty years, and we are of the opinion that they have failed to established such possession of the property as is required to sustain the plea.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and it is now ordered, adjudged and decreed that plaintiff, Mrs. Hattie Pierson, have and recover judgment agains defendants, B. N. Manning, S. L. Manning and J. F. Shepherd, decreeing and recognizing plaintiff’s ownership of the northeast quarter of the northeast quarter of Section 22, Township 15 north, Range 10 west, of Bienville parish, Louisiana, and that she be placed in possession thereof.

It is further ordered that defendants pay all costs of suit.

REYNOLDS, J., recused.


author: MOUTON, J.

text:
    No. -
    First Circuit
    KING v. JAMSTREMSKI
    (May 3, 1927. Opinion and Decree.)

      (Syllabus by the Editor)
    1. Louisiana Digest — Automobiles—Par. 4.
    One who drives an automobile on a foggy morning at a reckless speed is guilty of negligence.
    2. Louisiana Digest — Automobiles—Par. 7.
    One who drives an automobile on a foggy morning on the left side of the road ' and without lights 'is guilty of contributory ‘negligence for the resulting accident, barring his recovery of damages.
    (Editor’s note. — Civil Code, Article 2315.)
    Appeal from the Parish of Terrebonne. Hon. Robert B. Butler, District Judge.
    Action by Preston King, et ah, against Stanwood Jamstremski.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Chas. J. Mundy, E. V. Provensal, of New Orleans, attorneys for plaintiff, appellant.
    Ellender & Ellender, of Houma, attorneys for defendant, appellee.
   MOUTON, J.

Plaintiffs, parents of Men-ville King, a minor, sue defendant in damages caused by a collision which occurred between a Lincoln auto defendant was driving and a Ford car Menville King, the minor, was driving. The accident occurred a few miles from the town of Houma, about 4 o’clock A. M., on December 25, 1923. Plaintiff’s son was going from Houma towards Thibodaux, and defendant was coming from Thibodaux towards Houma, in the opposite direction. One of the occupants of the car Menville was driving was killed, and Menville was severely injured. The morning was dark and foggy and the record shows defendant was driving at an excessive rate of speed. His lights were burning but he admits that their reflection in that foggy morning did not extend further than 100 feet in front of his car. He says when he first saw plaintiff’s car it was around 100 feet ahead of him, that he slammed his brakes but it was too late, and that he ran into plaintiff’s car. On this state of facts the lower court correctly held that it was clearly demonstrated that defendant had not retained such control of his car “as to ■ guarantee a safe stop within the circle of its illumination”, and was therefore not operating it with “due care and caution”. The proof shows that Menville, driver of the auto, and other occupant of his car, saw the lights of the Lincoln car defendant was driving at a distance of about 400 feet before the collision occurred. If the lights of plaintiff’s had been burning, it is but fair to infer that defendant would have seen its lights at an equal distance, and, seeing them, would have stopped his auto in time to avert the accident. No doubt, defendant was at fault in driving his car on a foggy morning at a reckless speed, but it is also true that the minor son of the plaintiff’s was equally at fault in traveling on a public highway at such an hour, and under the conditions then existing, without lights on his car.

Menville says, when he saw defendant’s car coming, his uncle, who was riding with him, told him to “drive out the road and I drove out and parked the car on the right-hand side”. This statement shows he was not then on the right-hand side of the road when he received this instruction from his uncle. Hfe is positive that, as he was directed, he gave all the road to defendant’s car, and parked his car close to the ditch on the right side of the road going in the direction of Thibodaux, and that if he had moved further that the right wheels of his car would have gone into the ditch or gutter. He is certain that he parked his car there, and that his rear wheels were as close to the ditch as the front wheels. He could not say with any degree of certainty how long his car stayed parked on the side of the ditch before it was struck by defendant’s car, but Collins, who was in the front seat with him, says 'it stood there at a standstill about five minute's before the other car ran into it. This witness says that defendant’s car was traveling in the middle of the road and that, when it got opposite of his car, it suddenly swerved to the left, ran into his car, killing one of its occupants, and crippling plaintiff’s 'minor son. The proof shows that the road where the accident happened is 23 feet wide; that a Lincoln car is about 6% feet in width, and a Ford about 5% feet. Defendant says, and there is no reason to doubt his statement, that when he first saw the Ford car it was about 100 feet ahead of him. If the plaintiff’s ear was parked in such close proximity to the ditch on the right side of the road towards Thibodaux, it is obvious that defendant, after he had seen the car, had ample leeway to pass to its left without the least danger of a collision. Even if defendant had been recklessly bent on social mischief, the promptings of self-preservation would have irresistibly deterred him from running into that car parked on the wayside, at the risk and peril of his own life. Defendant says that when he first saw plaintiff’s car he was turning from the left side of the road going towards Thibodaux and was trying to get on the right side; that before he could make the clearing he ran into the car, as it was impossible for him to stop his auto in time, as before explained. The record shows that the morning of the accident, and soon thereafter, the spot where the collision occurred was visited by two or three parties who testified in the case, and are shown to disinterested witnesses. These witnesses made a personal investigation of the physical conditions then existing there. They saw where the cars had skidded, and fixed that spot as the place where the collision occurred. From that spot they trained the wheel tracks of the Lincoln car which had left the imprint of its tires on the side of the road, which they say was damp at the time. One of these witnesses, Mr. Pellerin, explained that the Lincoln' had Firestone cord tires, which have a different thread from other cars, making, it would seem, imprints which could be distinguished from those of other cars. These tracks were followed by the witnesses for a distance of 100 feet from where the cars collided. These tracks, it was shown, followed close to the ditch on the right side of the road from Thibodaux, the direction from which defendant was traveling, up to the place of the accident, where they diverted a little beyond the center of the road. It was also shown by these witnesses that where the accident occurred they could discern the imprints of the wheels of the Ford car, which, at that spot, turned across the road to the right .side going from Houma. It is therefore apparent from these physical signs that Menville King, just before the accident, was driving on the left side of the road from Houma, instead of the right side, where he should have been traveling. The fact that the wheel tracks of the Ford appeared to be turning to the right side of the road where the accident took place has the effect of corroborating the evidence of the defendant, who testified that when he ran into the car it was in the act of making this turn from the left to the right side of the road.

The proof, therefore, shows that plaintiff’s son was on the wrong side of the road, and was also driving a car without lights, was guilty of contributory negligence, which is pleaded and was proved by defendant, and plaintiff can not recover. Buechner vs. New Orleans, 112 La. 599, 36 South. 603; Weiss vs. N. O. Ry. & Lt. Co., 133 La. 14, 62 South. 216. His demand was rejected and correctly.


author: ODOM, J.

text:
    No. 2161
    Second Circuit
    MONROE AUTOMOBILE & SUPPLY CO. v. COLE GAHAGAN, Intervenor WILKINSON, Intervenor
    (April 8, 1927. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Things — Par. 5; Sales — Par. 311.
    Movable property may, under some circumstances, become part of the realty in connection with which it is used, and by such use become itself immovable, so that the vendor’s lien and privilege thereon is lost, even though such movable is not so broken up as to lose its identity.

      2. Louisiana Digest — Things — Par. 5; Sales — Par. 311.
    A large gasoline tank used in the construction of a filling station, which is buried beneath the ground, attached to the soil by and partially encased in concrete to hold it in place, and the surface qf the soil under which • it is buried covered over with reinforced concrete, becomes part of the real' estate and loses its character as a chattel, and the vendor’s lien thereon is lost.
    3. Louisiana Digest — Things—Par. 4.
    A gasoline tank used in the construction of a filling station, buried in and attached to' the soil by concrete, is not. an immovable by destination.
    4. Louisiana Digest — Things—Par. 4, 5; Sales — Par. 311, 321.
    A chattel which the owner of real estate adds or attaches to it for its use is immovable by destination and remains subject to the vendor’s lien and may ■ be sold separately from the realty to enforce the lien.
    5. Louisiana Digest — Things—Par. 4, 5; Sales — Par. 311, 321.
    An immovable by destination is not subject to removal and sale separated from the realty to which it is attached to enforce the vendor’s lien if such removal will necessarily injure materially the immovable to which it is attached.
    Appeal from the Eleventh Judicial District Court of Louisiana, Parish of, Red River. Hon. J. W. Jones, Jr., Judge.
    Action by Monroe Automobile & Supply Comipany against I. C. Cole; W. W. Gahagan and W. T. Wilkinson, intervenors.
    There was judgment for intervenors and plaintiff appealed.
    Judgment amended and affirmed.
    Nettles & Bethard; McHenry, Montgomery, Lamkin & 'Lamkin, of Monroe, attorneys fqr plaintiff, appellant.
    S. R. Tilomas, of Coushatta, attorney for intervenors, appellees.
    John F. Stephens, of Coushatta, curator ad hoc for defendant.
   ODOM, J.

Plaintiff brought this suit against defendant, I. C. Cole, on promissory notes executed by him aggregating $846.33, representing the balance due on the purcháse price of two Milwaukee Gas Stations and one Steel Gasoline Tank sold to Cole to be used in the construction of a filling station and garage which Cole was building at Coushatta, Louisiana.

Under proper allegations plaintiff was granted writs of sequestration and attachment, ordering the sheriff to sequester the articles sold and to attach other property owned by Cole.

Plaintiff asked for judgment on the notes and for recognition of its vendor’s privilege on the chattels sold.

W. W. Gahagan and W. T. Wilkinson separately intervened in the suit, alleging that they were mortgage creditors of Cole to an amount far exceeding the amount of plaintiff’s claim, and opposed plaintiff’s privilege on the ground that the articles sold by plaintiff to Cole had become immovable by destination and by nature and that plaintiff’s privilege thereon had become extinguished.

Upon trial the District Court granted judgment for plaintiff against Cole in the full amount sued for, but denied its claim for recognition of its privilege on the articles sold, and recognized the intervenors’ privilege as mortgage creditors upon said property to be superior in rank to any rights held by plaintiff. :

The court also sustained the writs of attachment and sequestration.

Plaintiff alone appealed.

STATEMENT' OP THE PACTS

• In the early part of the year 1923 the defendant, Cole, erected a brick garage and in connection therewith and as a part thereof a filling station.

The garage building proper is back some thirty or forty feet from the street, the filling station occupying the space between it and the street.

Cole purchased from plaintiff a large' gasoline tank, about twenty-eight by thirty feet long and seven or eight feet in diameter, with a capacity of ten thousand five hundred gallons, together with two gas stations, all to be used as a part of the filling station outfit.

The gasoline tank was buried underneath the ground to the depth of about two feet under the surface and, in order to hold it in place, was set in concrete. It was not surrounded by concrete along its entire length but was sq encased for some four or five feet in two places.

The tank was sunk about six feet from the footing of the wall of the garage proper and is under what is called the driveway, which consists, as we understand the testimony, of all the space between the garage building proper and the street.

This entire space called the driveway, with dimensions of thirty by forty feet, underneath which the tank is buried, is covered over with reinforced concrete seven inches thick.

The gas stations are set in concrete in the driveway and are connected by pipes with air pumps which are buried along with the gasoline tank under the concrete surface.

Over this driveway and the gas station there is a shed or covering supported by brick columns, which shed extends from' the garage building proper to the edge of the sidewalk.

The building of the garage and shed, the placing of the gas tank and gas station and the covering of the driveway with concrete was all done at one and the same time and as a part of the same enterprise.

The plaintiff did not record its contract of sale in order to preserve its vendor’s privilege, nor did it record its claim as furnisher of supplies under the building contract laws of the state.

It is • admitted that the mortgage given by I. C. Cole, the defendant, to W. T. Wilkinson, one of the intervenors, covering the lot o.f ground on which the filling station and garage are situated, together with all the improvements and appurtenances thereunto belonging, was executed, filed and recorded prior to the time that the tank and gas stations were placed on the property and put in operation; and further admitted that the vendor of the' tank and gas stations knew at the time they were sold that they were to be placed in a new building, that was covered by the mortgages of both intervenors.

The mortgage held hy the intervenor, Gahagan, was executed and recorded subsequent to the sale by plaintiff to Cole and subsequent to the date on which the property was put into the building, but it is admitted that Gahagan acquired the note in good faith prior to the filing of the suit by plaintiff.

OPINION

The curator ad hoc appointed to represent Cole did not appeal from the judgment rendered against him. However, counsel for plaintiff concede that the court erred in granting a personal judgment against Cole. Cole was an absentee and was brought into court through attachment proceedings. The judgment against him is binding in rem only and will have to be amended in that respect.

The real contest is between the plaintiff and the intervening mortgage creditors, and involves the question whether the plaintiff, under the facts and .circumstances disclosed, has lost its privilege on the property which it sold to Cole.

Counsel for plaintiff, in brief, state:

“We dq not contend for a single moment that the gas stations and tank were not attached permanently, and did not become immovables by destination; but hardly anything is better settled than our jurisprudence that a vendor’s privilege upon movables is not lost by their becoming immovables by destination.”

And they cite a long list of authorities in support of that contention.

' 'The real question in this case, however, is not whether the movables have become immovables by destination, but whether they have become merged into the immovable and have become so far a part of it as to lose entirely the character of movables.

If so, the vendor has unqtiestionably lost its right to assert its privilege thereon as against creditors who hold claims secured by mortgage on the realty.

No principle of law is more firmly established in our jurisprudence than that movables may, under some circumstances, become part of the realty in connection with which they were used and become by such use immovable, insofar as the vendor’s right to assert a privilege thereon is concerned, even though such movables are not so broken up and are not so merged into the realty as to lose entirely their identity. •

Swoop vs. Martin (Sarpy, Intervenor, 110 La. 237, 34 South. 426.

Hibernia Bank & Trust Co. vs. C. F. Knoll Planting & Manufacturing Co. (Murphy, Intervenor), 133 La. 697 (714), 63 South. 288.

Same case, 133 La. 242, 62 South. 663.

In re: Receivership of Augusta Sugar Co., Ltd. (Payne & Joubert M. & P. Co., Intervenors), 134 La. 971, 64 South. 870.

The question, whether a movable has lost its identity as such as regards the vendor’s right to assert his privilege depends, of course, upon circumstances.

A chattel need not be so broken up or so merged into the realty that it cannot be identified, in order that it may lose its character as a movable and may become realty insofar as the vendor’s right to claim his privilege is concerned. Doors, window sash and blinds could easily be identified by the vendor, but he loses his privilege on them when used in the construction of a building, even though susceptible of identification.

In the case at bar, the tank and gas stations still exisi in the form they were when used, and the tank could be resurrected and identified; so could, the air pump and the pipes, which are part and parcel of the gas stations.

But the question, as to whether they may be identified, is not the point.

They are embedded in and physically annexed to the soil with concrete. They are immovable by their nature; as much so as are the wire screens, water pipes, storage pipes, radiators, bath tubs, lavatories, sinks, etc., attached to a building. They were intended to be attached to the soil forever.

Civil Code, Articles 467 and 469.

In Folger vs. Kenner, 24 Ann. 436, the court held that a double brick vault, lined with iron, attached with plaster or mortar to the walls of a house, and attached in the same way to the soil by a brick foundation running through the floor to the ground, could not be removed from the building by one claiming it.

The court said:

"The iron doors and linings could not be taken away without also removing the double brick vault which incloses them, and this in turn could not be removed without breaking the building to some extent.
“The whole affair might almost be considered an immovable by nature, having its foundation in the soil itself. Rev. C. C. 464. But it is at least immovable by destination under Rev. C. C. 468, 469, and the plaintiff has no more right to remove it than he has to remove a mantlepiece from the drawing-room.”

The tank and the gas stations in this case are firmly affixed to and into the ground by cement and were so attached to be used in connection with the filling station.

Things immovable by destination are such as have been placed upon lands or lots by the owner for its service and improvement and all such movables as the owner has attached permanently to the tenement or to the building, such as mills and machinery made use of in carrying on plantation works, utensils necessary for working cotton mills and saw mills, sugar refineries, and the like.

Civil Code, Article 468.

It is significant that the Co.de specifies those things which “the owner of a tract of land has placed upon it” and “such movables as the owner has attached permanently to the tenement or to the building”.

Immovables by destination are such as have been added to real estate. Such things are subject to the vendor’s lien and privilege and may be sold and removed to satisfy the creditor’s claim, provided, however, that they can be removed without injury to the immovable to which they are attached. But where a movable has been incorporated with and become a part of the realty, the vendor’s privilege cannot be enforced against it.

The chattels which the vendor sold to Cole, in the case at bar, were not placed upon or added to the realty. They were incorporated into it. The gasoline tank was buried beneath the surface of the ground and partially encased in concrete. The air pump and the pipes which form part of the gas stations were also embedded in the ground. The surface of the ground in which they are embedded was covered over with reinforced concrete seven inches thick. The exposed portions of the gas stations, that is, those parts above the surface, are attached to the realty by cement. The sinking of the tank, the encasing of it in cement, the placing of the air pumps in the ground, the covering of the ground with concrete, and the attaching of the stations to the realty with cement, were all done in the construction of the filling station. Under the circumstances, we think they have become a part of the realty and not merely immovable by destination, and that the vendor’s privilege cannot be enforced against them.

Even if it be true, as contended by counsel for plaintiff, that the chattels are immovable by destination only and subject to the vendor’s privilege, they cannot be sold separately from the real estate to enforce the privilege, for the reason that they cannot be removed without serious injury to the immovable.

To remove the tank and pumps would necessitate the tearing up and removal of three hundred square feet of reinforced concrete, and, when removed, there would be left a hole in the ground ten feet wide, ten feet deep, and thirty feet long. The filling station, as such, would not only be injured but in a large measure destroyed by the destruction of the driveway, which is a part of it. Not only that, but the contractor who built the station testified that the excavation necessary to remove the tank might endanger the garage building; that the tank is only five or six feet from the footing of the front wall of the garage and that in a wet season the ground would probably slough and the walls cave in, which, he said, could be averted only by the use of piling. He said, however, that in a dry season there would be little probability of caving. He estimated that the cost of removing the tank would be seven hundred dollars and much more if piling had to be used to save the wall.

In the case of Re: Receivership of Augusta Sugar Co., Ltd., 134 La. 971, 64 South. 870, it was held that a vacuum pan used in connection with a sugar refinery was subject to the vendor’s privilege, although its removal would necessitate the making of an opening in the wall of the corrugated iron structure enclosing it, which had been built over and around it for its protection. But the court said:

“The evidence shows that this could be done and the premises restored in their present condition at a comparatively trifling cost.”

On rehearing, the court said:

“That the tanks can be removed without any injury to the sugar house cannot be disputed.”

In that case the vacuum tank cost thousands of dollars and was placed in a cheap structure which formed no part of the sugar house. That decision was rendered by a divided court, two of the five justices dissenting.

In the case of Carlin, Administrator, vs. Gordy, Sheriff, 32 La. 1285, the privilege was claimed on a sugar mill and machinery. The court recognized the privilege and permitted the machinery to be removed and sold separately, but said:

“The evidence fully establishes that the mill and machinery in this case can be removed without damage to the sugar house.”

And the case of Lapene & Jacks vs. McCan, 28 La. Ann. 749, where the same question was involved, was reaffirmed.

In the latter case the court said:

“The evidence satisfies us that the boilers can be removed without damage to the sugar house, and, therefore, that it was not necessary that the whole property should be sold under a separate appraisement of the boilers.”

In Pratt E. & M. Co. vs. Cecelia Sugar Co., 135 La. 179, 65 South. 100, the vendor’s privilege on machinery was recognized, but the court observed that machinery usually forms no part of the building in which it is located, and said:

“The evidence shows that these articles of machinery may, be readily removed without injury to themselves or any material damage to the plant.”

In the case of Walburn-Swenson Co. vs. Darrell, 49 Ann. 1044, 22 South. 310, the court held that a judgment creditor whose vendor’s privilege had been recognized under a judgment of the court, could seize, remove and sell the movable on which the privilege rested, although it had been added to the real estate, and cited Lapene & Jacks vs. McCan, 28 La. Ann. 749, and Carlin vs. Gordy, 32 La. 1285, supra, but added:

“The decisions qualify the right to cases in which the removal can be effected without injury to the immovable.”

The filling station in this case is real estate and is mortgaged to the intervenors. It is encumbered to. secure their debts. The breaking up and removal of the concrete and the excavation left after the removal of the tank would leave the filling station worthless and the security of the mortgage creditors thereby materially decreased.

It is true that the damage to the filling station caused by the removal of the tank and gas stations could be repaired, but who would bear the expense? The plaintiff, if allowed to remove them to satisfy his claim, would be under no obligation to repair the damage done.

Both of the intervenors are mortgage creditors in good faith. Their mortgages cover the realty and all appurtenances thereunto belonging. The plaintiff did not record its contract of sale nor did it in any way give notice of its claim. It knew that the chattels sold by it were to be used in the construction of the filling station. So far as the record shows,, neither of the intervenors had knowledge that the price of those chattels was not paid in full.

The testimony showing that the chattels sold by plaintiff to Cole have been incorporated into the realty on which the mortgages rest in such a way that the removal of them would seriously damage the said realty, the plaintiff is now without right to have them removed and sold in order to .collect its claim.

Cole, the defendant, was a,n absentee,, and the plaintiff, in order to serve and. bring him into court, attached certain '.realty owned by him. The lower court.' rendered a personal judgment against him, which was error. The judgment can be effective in rem only.

For the reasons ■ assigned, the judgment appealed from is amended so as to be effective in rem only, and, as thus amended, it is affirmed at appellant’s costs.


author: ODO'M, J.

text:
    No. 2229
    Second Circuit
    HENDERSON v. WHALEY
    (April 8, 1927. Opinion and Decree.)

      (Syllabus by Che Court)

    1. Louisiana Digest — Pleading — Par. 54, 63, 71; Prescription — Par. 225.
    The plea of prescription is one which may be filed in an appellate court, but an appellate court will not take notice of such plea unless the proof of it appears on the face of the proceedings in the lower court.
    2. Louisiana Digest — Pleading — Par. 63, 71; Prescription — Par. 224, 225.
    Where a plea of prescription is file.d in an appellate court and the proof of the plea appears on the face of the record as made up in the trial court, the plea will be sustained, unless the party against whom it is pleaded appear and ask that the case be remanded for hearing on that plea.
    Appeal from the Twelfth Judicial District Court of Louisiana, Parish of DeSoto. Hon. John H. Boone, Judge.
    Action by J.. T. Henderson against J. H. Whaley.
    There was judgment for plaintiff and defendant appealed.
    Plea of prescription overruled and judgment affirme.d.
    Pegues & Atkinson, of Mansfield, attorneys for plaintiff, appellee.
    Parsons & Colvin, of Mansfield, attorneys for defendant, appellant.
   ODO'M, J.

Plaintiff brought this suit to recover $234.75, as a balance due on an open account.

The suit was filed October 3, 1923, and domiciliary service was made on defendant on the same day.

On December 4, 1923, judgment by default was granted as prayed for.

Thereafter, on June 9, 1924, the defendant applied for and was granted a devolutive appeal to this court. The appeal' was lodged here on July 14, 1924.

The case was set for hearing on Tuesday, February 22, 1927. On that date appellant, through counsel, filed in this court a plea of proscription of three years in bar of the action.

Appellee has made no appearance in this court by filing brief or otherwise. ■

We cannot notice the plea of prescription for the reason that the proof of it does not appear on the face of the proceedings in the lower court.

The plea of prescription is one of those which may be filed in an appellate court under Article 902 of the Code of Practice; but. in the language of the Code and under repeated decisions of the Supreme Court the (plea will not be sustained unless the “proof of which appears by the mere examination of the record” or “on the face of the proceedings in the lower court”.

Code of Practice, 902.

In Turner vs. O’Neal, 24 Ann. 543, the court said:

“We have looked in vain in the record for any evidence showing when the old note matured. There is, therefore, no grounds for the plea filed in this court, as the proof of it does not appear on the face of the proceedings in the lower court.”

Citing Code of Practice, 902.

In Carpenter vs. Beatty, 12 Rob. 540, there was a plea of res judicata filed in the Supreme Court, and the court said:

“It is true, it (plea of res judicata) is one of those peremptory exceptions which may be pleaded at any period of a cause; but nothing has been shown to substantiate it, and the proof of it does not appear by the mere examination of the record.”

Where proof of the plea does appear on the face of the record, in the lower court or upon a mere examination of the record, the appellate court will sustain the plea, unless the party against whom it is pleaded appear and ask that the case be remanded for hearing on that plea.

Taylor vs. Woodward, 25 La. Ann. 212.

Dufossat vs. Laizer, 24 La. Ann. 618.

Roth vs. Hebert, 21 La. Ann. 238.

Bernstein vs. Ricks, 20 La. Ann. 409.

Louisiana State Bank vs. Cammack, 21 La. Ann. 133.

N. O. Can & Bkg. Co. vs. Martin, 23 La. Ann. 210.

Where such demand is made the appellate court must remand.

Joubert vs. Sampson, 49 La. Ann. 133, 21 South. 166.

An examination of the record presented to us discloses that the account sued on is not prescribed.

An itemized account filed in evidence in the lower court shows that the appellant purchased goods and merchandise from the appellee at intervals from January 1, 1911, down to and including May 16, 1919, aggregating $826.85.

During each of said years, concurrently with the purchase made by appellant, down to and including July 30, 1919, the account shows payments made by appellant aggregating $572.10. He made five cash payments in 1911, five in 1912, seven in 1913, five in 1914, five in 1915, four in 1916, three in 1917, six in 1918, and two in 1919, the last being on July 30. On that date he owed a balance, according to the account, of $254.75.

On November 15, 1921, less than three years from the date on which the account seems to have been closed and a balance brought down, appellant paid thereon $20.00.

The suit was filed and service made October- 3, 1923.

The payment on November 15, 1921, was made before prescription ran and interrupted prescription on that date.

It is not disputed that if a payment was in fact made on November 15, 1921, such payment interrupted prescription and that the account was alive when the suit, was brought.

But counsel in briefs suggests that there is no proof in the record that appellant made such payment and that the crediting of that item on the account was probably an afterthought and made solely for the purpose of keeping the account alive.

Counsel’s argument or suggestion is without merit.

He filed his plea for the first time in this court. In support thereof he has only the record to offer. This is a court of appellate jurisdiction only. We can consider no evidence not adduced in the lower court, and upon that record our decision must be based.

The record filed in the lower court shows the payment and shows that the account sued on is not prescribed, and appellant’s plea must be overruled.

For the reasons assigned it is therefore ordered, adjudged and decreed that the plea of prescription filed in this court is overruled; and further ordered that the judgment appealed from be affirmed with costs in both courts.


text:
    No. 2226
    Second Circuit
    LEARY v. LYONS LUMBER CO.
    (April 8, 1927. Opinion and Decree.)

      (Syllabus by the Court)

    1.Louisiana Digest — Partnership—Par. 61. A partnership is a legal entity entirely distinct from the members thereof and is not bound for the individual debts of the partners.
    2. Louisiana Digest — Partnership—Rar. 61, 90, 91, 93.
    The partnership may pay the individual debts of its members with the consent and acquiescence of all' the partners.
    3. Louisiana Digest — Partnership—Par. 91, 93.
    Where a partnership is composed of two persons, one of whom instructs his individual creditor to charge his debt to the partnership and said debt is paid with partnership funds with the knowledge and consent of the other partner, the payment is binding upon the partnership.
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo. Hon. T. F. Bell, Judge.
    Action by W. P. Leary, Trustee, against S. E. Lyons Lumber Company, Inc.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Cecil Morgan, of Shreveport, attorney for plaintiff, appellant.
    Cook & Cook, of Shreveport, attorneys for defendant appellee.
   ODOM, J.

W. P. Leary, trustee of the bankrupt estate of the Monroe Lumber Company, brings this suit against the S. E. Lyons Lumber Company, Inc., to recover the sum of $1309.28 for four cars of lumber shipped to defendant by the Monroe Lumber Company previous to the date on which said Monroe Lumber Company was adjudged a bankrupt.

The defendant admitted, in answer, that it had received the lumber, but alleged that it was not indebted therefor for the reason that the proceeds of the lumber had been credited by it on a certain promissory note given it by W. A. Brown,' one of the members of the partnership, and that said note, although signed by Brown individually was by agreement to be paid by shipments of lumber by said concern, and that H. H. Lunsford the other partner in the concern, had full knowledge of and acquiesced in the credits on the note.

There was judgment rejecting plaintiff’s demands and he has appealed.

OPINION

W. A. Brown owned and operated in his own name a small saw mill at Hall Summit. Oh April 19, 1923, he applied to the defendant, S. E. Lyons Lumber Company, Inc., for a loan of $2250.00 to be used to purchase timber and mules for his mill operations. The amount was loaned and Brown executed his note therefor. He represented to the defendant that he had- on hand at that time some lumber and that said lumber, along with that subsequently manufactured, would be shipped tó defendant, the proceeds to be applied on the note.

About that time, qr April 20, according to the recollection of H. H. Lunsford, Brown and said Lunsford formed a saw mill partnership and gave it the name of “Monroe Lumber Company”. The partnership agreement was reduced to writing and signed by both parties on May 15; 1923.

The written contract provides that Brown is to have charge of the administration and operation of said business, and that Lunsford is to assist, but under the direction of Brown; the only limitation upon Brown’s authority being that he should not sell, without the consent of Lunsford, the saw mill proper, the machinery therein, the uncut timber and the wagons and teams.

The two partners were to share equally the profits of the concern.

While the agreement was signed on May 15, Lunsford said the partnership was formed about Afpril 20.

The defendant company was advised that the name qf the company which Brown represented had been changed to that of “Monroe Lumber Company”, and at Brown’s suggestion the debt represented by the note which he had given was charged on the books of the defendant to the Monroe Lumber Company.

The Monroe Lumber Company shipped to the defendant four cars qf lumber; one on May 1, one on May 3, one on May 18, and one on June 7, 1923; the proceeds of the lumber being credited on the books of the defendant to the account of the Monroe Lumber Company, which company, as stated, had been charged with the debt evidenced by the note of Brown.

Plaintiff’s suit is grounded upon the proposition that the note given by Brown was his individual debt and not that of the partnership and that the partnership was not bound therefor and that the defendant company, a creditor of Brown, had no right to use the proceeds of the lumber to pay Brown’s debt.

The defendant company got the lumber and owes plaintiff for it, unless the proceeds have been properly credited on the Brown note.

It cannot be disputed that as a legal proposition a partnership is not bound for the individual debts of the partners.

A partnership is a legal entity entirely distinct from the members thereof and is not bound for the individual debts of the partners.

Paradise & Bro. vs. Gerson, 32 La. Ann. 532.

Raymond vs. Palmer, 41 La. Ann. 432, 6 South. 692.

Newman vs. Eldridge, 107 La. 315, 31 South. 688.

Hamilton vs. Hodges, 30 La. Ann. 1290.

Allen, Nugent & Co. vs. Cary, 33 La. Ann. 1455.

There is no reason, however, why the partnership or the individual members thereof may not agree that the proceeds of the sale of its property may be applied to the payment of a debt of one of the partners. That is what happened in this case.

The debt due the defendant, Lyons Lumber Company, Inc., was the individual debt of Brown, as is evidenced by the note signed by him individually.

Brown, under the articles of partnership, was to manage the affairs of the partnership. He authorized the defendant, as creditor, to charge the amount of his debt to the partnership and agreed the debt should be paid out of the proceeds of lumber shipped by the partnership. His agreement could not and did not bind the partnership unless assented to and ratified and confirmed by Lunsford, the other member of the firm.

The rule is stated as follows in 30 Cyc. 501:

“A partnership is under no obligation for the individual debts of its members; and hence a partner cannot use the firm’s assets to pay his individual debts without their consent; nor can he pledge the firm credit for such debts. In order that such transactions may bind the firm, the assent or ratification of the other members must be shown, or a case of estoppel must be made out against them. When neither assent, ratification, nor estoppel is shown, a transfer of partnership assets by one partner in discharge of his individual obligation does not divest the firm title, whether ' the party receiving the property knew that it belonged to the firm or not.”

In the case of Carter Bros. & Co. vs. Galloway & Burns, 36 La. Ann. 730 (on rehearing, p. 733), the court said:

“There is no better settled principle of commercial law than that a partner cannot use partnership property for his individual purposes, without the consent or authority of his co-partner or partners, and that when he attempts to do so, parties dealing with him are, by the very fact or nature of the transaction, warned and put on their guard, and that if the same is consummated, the burden of proving the knowledge, consent or authority of the other members rests upon such parties, who, when sought to be made responsible, must, at their risk and peril, succeed or fail according as they may or may not prove such ratification.”

See, also, Hamilton, et al., vs. Hodges, et al., 30 La. Ann. 1290.

Mechanics & Traders Ins. Co. vs. Richardson & Gray, 33 La. Ann. 1308.

Allen, Nugent & Co. vs. Gray, et al., 33 Ann. 1455.

The Monroe Lumber Company was composed of Brown and Lunsford. No one else had any interest therein. Brown was general manager and authorized the defendant to apply the proceeds of lumber shipped by the partnership to the payment of the note. The testimony establishes to our entire satisfaction that Lunsford had knowledge of this arrangement and that he acquiesced in and ratified it.

S. E. Lyons, president of the defendant company, testified that Lunsford came into his office about May X and many times thereafter, and that each and every time i discussed with him this indebtedness; that he exhibited to Lunsford the ledger showing that the Brown debt had been charged to the partnership and that he had made and handed to him a statement showing the charge, and that Lunsford told him that whatever Brown did was all right.

H. A. Lyons, bookkeeper for the defendant, testified that he went over the books with Lunsford some' three or four times in the office, and he was asked (ipage 30 of the testimony):

“Do you know what you said to him and what the substance of the conversations with Mr. Lunsford was ?”

And he answered:

“Well, he came to the office' and was introduced to me by my brother, and brother said: ‘He wants to go over his account, the Monroe Lumber Company’s account,’ and I said: ‘All right, do you want to pay it?’ and he said: ‘No, just show me how the Monroe Lumber Company stands’; and I showed him the twenty-two hundred and fifty ($2250.00) dollars charge, and I showed him the credits to offset it, and he said it was all right.”

He testified, further, that the books showed that the charge of $2250.00 was a W. A. Brown debt.

On May 10 the defendant company wrote a letter to H. H. Lunsford personally in answer to one he had written to it in which the defendant said:

“Noting your request that we forward check as per agreement with Mr. Brown, beg to advise per our conversation when in our office that this invoice in the matter of $268.74, you making error in extension reducing to this amount, is being credited per agreement with Mr. Brown and yourself to Mr. Brown’s note.”

Lunsford made no reply to this letter. He testified on the trial that he had been in the office of the Lyons Lumber Company, Inc., but had not seen the books, did not know that Brown owed the debt and did not acquiesce in the charge nor the credits as made.

He further testified that if he received the letter above referred to he had no recollection of it.

The letter of May 10, written to Lunsford, corroborates the testimony of the Messrs. Lyons. In that letter the writer mentioned that the proceeds of the lumber shipped was credited to the Brown account—

“is being credited per agreement with Mr. Brown and yourself to Mr. Brown’s note.”

We think it hardly probable that the writer would have referred to a conversation with Lunsford to the effect that the proceeds of the lumber shipped were to be credited on the Brown note if, in fact, that conversation had not taken place.

The question here involved is ' not whether the Brown debt was assumed by the partnership, but whether, • as a matter of fact, all parties concerned agreed that the proceeds of the lumber shipped should be credited on that debt.

■ The testimony preponderates decidedly in favor of the defendant to the effect that the arrangement made by Brown with it that the proceeds of the shipment of lumber should be applied as a credit on the note was understood, ratified and confirmed by Lunsford, the only other' member of the firm. This is the conclusion reached by the' district judge. We shall not disturb his judgment.


text:
    No. 2192
    Second Circuit
    FORD v. CALHOUN
    (April 8, 1927. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Bastards and Natural Children — Par. 9.
    The method prescribed by Act 203 of the Civil Code for acknowledging illegitimate children by their parents is not exclusive.
    2. Louisiana Digest — Bastards and Natural Children — Par. 7, 9.
    The jurisprudence authorizing methods of acknowledging illegitimate children otherwise than by notarial passed before two witnesses, as laid down in Civil Code, Art. 203, is stare decisis.
    3. Louisiana Digest — Bastards and Natural Children — Par. 7, 8.
    The method of acknowledging illegitimate , children otherwise than as laid down in. Civil Code, Art. 203, applies to father as well as mother.
    4. Louisiana. Digest — Bastards and Natural , Children — Par. 7.
    Where ■ a father habitually and consistently claimed a child as his son from the day of his birth to the day of the father’s death, over a period of forty years, kept him in his house and reared him as his son, the child is “duly acknowledged”, and becomes a natural child and is called to the inheritance of the -natural father when he has left no descendants, ascendants, collateral relations or surviving wife.
    5. Louisiana Digest — Prescription — Par. 20', 35.
    To support the plea of prescription of ten years the proof must show possession under deed translative of property for ten years.
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo. Hon. E. P. Mills, Judge.
    Action by Norman Ford against Pauline Calhoun, et al.
    There was judgment for plaintiff and defendants appealed.
    Judgment affirmed.
    Melvin F. Johnson, Crain, Jackson & Johnson, of Shreveport, attorneys for plaintiff, appellee.
    A. J. Murff,' W. A. Mabry, of Shreveport, attorneys for defendants, appellants.
   ODOM, J.

This is a petitory action. Plaintiff claims to be the owner of certain real estate situated in Caddo parish, Louisiana. The property was acquired of plaintiff’s father, Simon Ford, and plaintiff claims by inheritance from him. The suit is against several parties who are in possession of and claim to own the land.

The district judge rendered a written opinion, found in the record, in which he has correctly stated the facts.

His holdings on the law points involved are, in our opinion, correct also.

His opinion, in full, is as follows:

“Simon Ford was an old slave-time negro. Before the war he took up with a 'woman named Lucy and had by her two children, Jim and Ary Ford. Simon’s owner moved away, separating the pair who never went back together; Lucy afterward having several other men and other children.
“During the war and just before emancipation, Simon took up with Charity, a slave woman, and had by her a son named Norman, the present plaintiff. He was born just before the surrender. Charity died a few weeks after his birth. Simon then lived with Jane Kennon, ¡presumably a sister of Charity, who already had a son, Miles, by a man named McMullen. There was born to Jane and Simon four children: Emma, Penny, Florence and Mitchell. The three girls died before Simon, leaving no heirs. Jane died about 1873.
“At this (time) Rachel Magee, a woman from Mississippi, came to live with Simon. She is claimed to have been married to a man named Boss Magee in Mississippi. At any rate, she had a child by him named Pauline, one of the defendants in this suit. Shortly after going to Simon, Rachel went back to her home and returned with Pauline. There is no evidence that Rachel was ever married to Magee, except that testimony of Pauline. ' She claims to have possessed their marriage license, but failed to produce it in court. A marriage certificate shows that Boss Magee married one Mary Cotton in 1873, which negatives the idea that he was then married to Rachel. Simon appears to have had other children ‘on the side’.
“From the mass of dubious testimony, we are satisfied that Simon was not married to Lucy, merely living with her as a slave union. The same is true of Charity. There is no satisfactory evidence that he ever .married Jane, though he appears to have acknowledged her as his wife.
“There is filed in evidence a copy of a marriage license issued to Rachel Magee and Simon Ford. While it is not returned, showing that the marriage was performed, one of the witnesses testified that his father attended the wedding of Rachel and Simon. Simon lived with Rachel until the time of her death on the property in question in 1901. He openly acknowledged her-as his wife. In October, 1893, he refers to her in an act of donation ¡passed before Mr. Fred Leonard, who knew the old negroes of the parish very well, as his wife, and makes the donation in consideration of the love and affection he bears her. After her death in her succession he makes affidavit that sh'e was his wife. Jim Ford, a reputed son of Lucy, says that he understood that his father married Rachel. Simon had no children by Rachel.
“Taking into consideration his long cohabitation with Rachel, the issuance of the marriage license, his acknowledging her as his wife both verbally arid in the solemn instruments referred to above, we conclude that Simon married Rachel in 1873.
“We think that if Rachel married Boss Magee, that he had obtained a divorce from her, else he would not have married Mary Cotton in the same vicinity in 1873, so soon after his separation from Rachel.
“Simon Ford acquired the property involved in this litigation, known as Lots 3 and 5 of Section 5, Township 17, Range 13, Caddo parish, containing 23.40 acres, from W. J. Sayers in October, 1893, paying $150.00 cash therefor. To be exact, on the 18th day of October. On the next day he executed an act of donation of the whole property to Rachel, designating her as his wife. There is only one witness to the act.
“Rachel Ford died in 1901. Pauline Calhoun was put into possession of the property in the succession of Rachel Ford, No. 7232 on the docket of this court. In the proceeding, Simon Ford makes affidavit that Rachel Ford was his wife.
“Thereafter, November 4, 1901, Pauline Calhoun donated, by authentic act, a one-half interest in the property to Simon.
“Simon Ford must have died very soon after the above act, as; his succession was opened December 16, 1901, being No. 729°, on the docket of this court. The original papers are lost, but a certified copy of the judicial record shows that F. A. Leonard was appointed administrator, the one-half interest in the property being valued at less than $500.00. There is no mention of any heirs.
“Concluding, then, that Simon and Rachel were married in 1873, the date of the issuance of the license, and that Rachel, if ever married to Magee, had divorced him, else the two parties would not have so soon remarried, the property in controversy, purchased in 1893, was community property, and that upon the death of Rachel her half was inherited by Pauline.
“There is no question that the donation from Simon to Rachel was a nullity for the reason that it conveyed all the property that he owned and left him destitute.
“The next question then is, to whom did the rest of the property, Simon’s half interest, go.
“It is clearly proven that Simon left no wife, legitimate descendants, ascendants or collaterals. Norman and Mitchell have always been publicly acknowledged by Simon as his children. They have never been acknowledged by notarial act, as required by Article 203 of the Civil Code. Does the habitual public acknowledgment permit them to inherit? This question seems finally settled in the affirmative in the case of Taylor vs. Allen, 151 La. 82, 91 South. 635.
“Therefore plaintiff would inherit half of his father’s interest in the property, or one-fourth of the whole property, unless he has lost that right by prescription or otherwise.
“His right to have the donation from Simon to Rachel set aside is not prescribed. Ackerman vs. Larner, 116 La. 101, 40 South. 581. This donation being annulled, that from Pauline to Simon falls for the same reason.
“Pauline Calhoun’s plea of ten years’ prescription is not good for the reasons that she was not in good faith and for the further reason that an act of partition cannot be the basis of a plea of prescription. Kernan vs. Baham, 45 Ann. 799, 13 South. 155.
“The same case applies to the plea of prescription of ten years filed by Luke and Cora Allen, as their first title translative of property is dated October 28, 1912, while this suit is filed October 10, 1922.
“As to the plea of prescription of J. S. Williams, no deeds are offered or evidence submitted to substantiate his plea.
“There is accordingly judgment for plaintiff as prayed for against defendants, Pauline Calhoun, Luke and Cora Allen, and J. S. Williams, as to a one-fourth interest in the property described in plainUff’s petition. The suit is not at issue as to the other defendants.”

Supplementing the court’s statement as to acknowledgment of Simon Ford, the father, of his son, Norman Ford, the plaintiff, it will be observed that the father did not by notarial act, passed in the presence of two witnesses, formally acknowledge his son; but a reading of the testimony discloses that he did habitually and consistently acknowledge and claim plaintiff as his son from early childhood down, to the date o'f the' father’s death in 1901, or over a period of forty years.

The record in this case is voluminous, a great many witnesses having been called to testify as to the various points raised in the case.

On the point as to whether, the father, Simon Ford, acknowledged his son, Norman, the plaintiff in this case, there were eleven witnesses who testified directly on that point. Among them were colored people ranging in ages all the way from fifty-three to seventy-seven years, each of whom having known plaintiff and his father from the early childhood of the plaintiff down to the time that the suit was tried.

■ Among these are, Jim Ford, seventy-five years old; Ara McCoy, seventy-seven years old, both illegitimate children of Simon Ford, but were not acknowledged by him, and who claim no interest in his succession; and Mitchell Ford, another son, who was acknowledged by him and who owns an undivided one-fourth interest in his succession. Also Pauline Calhoun, a stepdaughter of Simon Ford and one of the defendants in this case, and her husband, Charlie Calhoun.

These witnesses, together with others, testify that Simon Ford, the father, had repeatedly told them that Norman was his son; that he always referred to him as his son, and at times called him his favorite son.

A number of these witnesses testify 'that Simon had kept Norman in the house with him while a child and had reared him as. his son. It is in evidence that the child’s mother died when he was an infant and that his father carried him to a woman named Mariah to be cared for. That later-, when the father took up with another woman, he demanded custody of his child and probably had a lawsuit with Mariah in order to obtain his custody, but finally got him, took him' home and kept him.

Some of the witnesses swore that about 1874 (the boy was born in 1864) he acted as carriage boy for some white people and lived with the “white folks”, .but that during that time he visited his father constantly.

One of the witnesses testified that the father always claimed the child as his own but said he was hard to keep at home; that he would run away, and that the father had to go and get him and bring him back. This was when the boy had grown almost to manhood.

Each and every one of the witnesses who claimed to. know the family said that it was generally recognized and understood, in the community where they had lived that Norman was the son of Simon.

But counsel for defendants urge the point that a parent can acknowledge an illegitimate child in no other way. than that prescribed in Article 203 of the Civil Code.

That point was settled in -the case of Taylor vs. Allen, 151 La. 82, 91 South. 635; and in a later decision, Murdock vs. Potter, 155 La. 145, 99 South. 18, the court said that the jurisprudence to the effect that the' method of acknowledgment set out .in the Code is not exclusive is, stare decisis.- ' ’

Counsel urge the point, however, ’ that the rulé'"established in the jurisprudence applies to an acknowledgment by the mother and not by the father, and they state, in brief, that in all the eases where the court held that an illegitimate child might prove acknowledgment by the parent otherwise than by notarial act in the presence of two witnesses, as is prescribed in the Code, it was the mother who had made the acknowledgment and not the father.

We are not impressed by the argument that the law makes any distinction.

Article 203 of the Code reads:

“The acknowledgment of an illegitimate child shall be made by a declaration executed before a notary public, in the presence of two witnesses, by the father and mother or either of them, whenever it shall not have b'een made in the registering of the birth or baptism of such child.”

The Code makes no distinction between an acknowledgment by the mother and that of the father. The child may be acknowledged by notarial act by either.

The question which so long agitated the courts arid which has been settled, was whether an illegitimate child might prove acknowledgment in a mode other than as prescribed by Article 203 of the Code.

The Code specifically says that either the mother or father may acknowledge the child, and it points out a method of acknowledgment. The point which has been definitely settled is that the method of acknowledgment prescribed in the Code is not exclusive.

Therefore, if the mother may acknowledge her illegitimate child otherwise than by notarial act passed in the presence of two witnesses, why cannot the father do the same thing? Counsel point out no reason why there should be a distinction, and if the courts have made any we are not aware of it.

While it is true that in the majority of the cases where the question arose the child claimed acknowledgment by the mother, yet the point was not whether a mother may acknowledge an illegitimate child otherwise than by notarial act, but whether the method of acknowledgment prescribed by the Code is exclusive; and the courts have held that it was not.

In the case of Succession of Hebert, 33 Ann. 1103, the court said:

“This court has decided that the requirements of written recognition did not apply to white- or colored children descending from white or colored parents.”

In the case of Fortier, 51 La. Ann. 1584, 26 South. 554, the court held that the acknowledgment of illegitimate children by a declaration before a notary is not the only method of acknowledgment recognized by the Code. Citing Lange vs. Richoux, 6 La. 560.

In Bourriaque vs. Charles, 107 La. 217, 31 South. 757, the court said:

“The proof of acknowledgment has not been confined to Article 203, Civil Code, and does not exclude the provision of Articles 207, 208, Civil Code.”

Citing Lange vs. Richoux, supra.

In Briggs vs. McLaughlin, 134 La. 133, 63 South. 851, the court said (page 142):

“In Succession of Vance, 110 La. 760, 34 South. 767, though the court held that the proof was insufficient to establish the acknowledgment of a natural daughter, by a father, it distinctly declared its adherence ‘to the jurisprudence authorizing methods of acknowledgment of illegitimate children otherwise than as laid down in Civil Code, Article 203’.”

In Succession of Vance, 110 La. 760, 34 South. 767, an illegitimate child claimed rights under the succession of his father who, it was claimed, had acknowledged it. The child was excluded from the sue-, cession, not because a father could not acknowledge his child otherwise than by notarial act, but on other grounds. In that case the court, after discussing the difference between ¡proof of paternal descent and paternal acknowledgment, said:

“These are directions, it will be seen, for proving ¡paternal descent, which is not the same thing as acknowledgment by the. father, and it is acknowledgment by the father which converts the illegitimate child, or bastard, into the ‘natural’ child, and from which spring the rights with which the natural child is invested by law. But though we adhere to the jurisprudence authorizing the methods of acknowledgment of illegitimate children otherwise than as laid down in Civil Code, Article 203, it is impossible to hold that what Vance said to the witness, Lee, as hereinbefore set forth, suffices to invest her with the title of a legally acknowledged, or natural child.”

And the court said, further:

“If calling a child his offspring be relied on to establish legal acknowledgment, the proof should be that the father was in the habit of so calling the child when speaking of it, or did so in habitual conversation with others.”

The present Code provides that the acknowledgment of the illegitimate child shall be made by notarial act by the mother and father or either of them.

We conclude, therefore, that if that method is not exclusive then either the mother of father may acknowledge an illegitimate child otherwise than as therein pointed out.

As to the effect of acknowledgment, insofar as the right of inheritance is concerned, the Code makes a distinction, and there, we think, is where counsel have become confused.

“Natural children are called to the legal succession of their natural mother, when they have been duly acknowledged by her, if she has left no lawful children or descendants, to the exclusion of her father and mother' and other ascendants or col-laterals of lawful kindred.”

Civil Code, Article 918.

Whereas:

“Natural children are called to the inheritance of their natural father, who has duly acknowledged them, when he has left no descendants nor ascendants, nor collateral relations, nor surviving wife, and to the exclusion only of the state.”

Civil Code, Article 919.

Natural children inherit from their parents, either the father or mother. The difference between them being that natural children inherit from their natural mother, who has acknowledged them, to the exclusion of all, except legal children and descendants; whereas they inherit from their natural father, who has duly acknowledged them, to the exclusion of the state only.

Illegitimate children “duly acknowledged” by their father do inherit from him, and the fact that they are not entitled to the sdme rank as heirs in his succession as are children who are “duly acknowledged” by their mother in her succession, is not the point at issue. The question raised, is, whether a father may acknowledge his illegitimate child in any way other than that pointed out. by the Code; and we hold that he may.

No comment is necessary on’ the other points raised by appellant, as they have been correctly disposed of by the lower court.

The judgment is affirmed.


text:
    No. 2292
    Second Circuit
    GODFREY v. CITY OF SHREVEPORT
    (April 8, 1927. Opinion and Decree.)
    (May 13, 1927. Rehearing Refused.)
    (July 11, 1927. Writ Refused by Supreme Court.)

      (Syllabus by the Court)

    1. Louisiana Digest — Municipalities — Par. 19.
    T'he establishment by municipal corporations of public parks and playgrounds for recreation and to promote the health, education and general welfare of its citizens is a governmental function.
    2. Louisiana Digest — Municipalities — Par. 244, 246, 251.
    A municipality is not responsible for damages committed by its agents and appointees while such agents or appointees are exercising for it governmental functions.
    3.' Louisiana Digest — Municipalities— Par. 19, 244, 245.
    A municipality in maintaining a public park is engaged in a governmental activity and is therefore not liable for injuries caused through negligent conditions therein.
    Appeal from the First Judicial District Cqurt of Louisiana, Parish of Caddo. Hon. E. P. Mills, Judge.
    Action by W. P. Godfrey against City of Shreveport.
    There was judgment for defendant sustaining exception no cause of action and plaintiff appealed.
    Judgment affirmed.
    Barksdale, Bullock, Warren, Clark & Van Hook, of Shreveport, attorneys for plaintiff, appellant.
    B. F. Roberts, M. T. Monsour, of Shreveport, attorneys for defendant, appellee.
   ODOM, J.

This is a suit instituted by Tindy Godfrey, a minor, eleven years old, through his father, against the city of Shreveport, to recover damages for injuries received while playing in a municipal park established and maintained as a place qf public amusement and playground for children by the municipality.

According to the allegations of the petition, the city of Shreveport established on Anna street, within the city limits, a park or playground for the recreation of children and caused to be erected therein a “chute” or slide for the amusement of children, and' that it invited and encouraged children, including the said minor, to use the same; that in the construction, establishment and maintenance of said “chute” or slide the ■ city was guilty of negligence and carelessness in that the said “chute” or slide was approximately nine feet high and at an angle of forty-five degrees, making it too high and too steep; that the ground was very firm and hard at the bottom of said slide and that no mat or ©ad or other soft material was placed under the same for childreh using it to fall upon, and that no attendant was in charge of said “chute” or slide to receive, superintend, care for and protect children in the use thereof.

It is further alleged that said device was inadequate and insufficient for the protection of children and to them it was a dangerous and attractive nuisance.

It is further alleged that said child used said “chute” or slide by climbing to the top thereof and by sliding down to the other end to the ground, and in doing so fell with great force upon the ground and was permanently injured.

The city tendered an exception, of no cause of action, which was sustained by the lower court. Hence this appeal.

OPINION

The case hinges mainly on the question, whether the city of Shreveport, in establishing, maintaining and operating the public park and playground, was performing a governmental function.

Counsel for the city contend that it was, and defend on that ground.

Counsel for plaintiff, on the contrary, contend that* in establishing the park the city was acting in a private proprietary capacity and is liable to the same extent as a private corporation would be.

■ We quote the following from Supplement Volume 5, Ruling Case Law, page 1059, Section 407:

“On the question of the liability of a municipal corporation for injuries received in consequence of, negligent conditions existing in a public park maintained by the city, the authorities are divided, but a majority of the cases, taking into consideration that parks are established with the view and purpose of furnishing to the people at large a place for free recreation to promote the health and general welfare of the public, and as a means of adding to the beauty of a city, support the view that a municipality, in maintaining a public park, is engaged in a governmental activity, dischargng a public duty, and is therefore not liable for injuries caused through negligent conditions therein.”

The rule is stated in identically same language in a case-note following the leading case of Emmons vs. Virginia, (152 Minn. 295, 188 N. W. 561), reported in 29 A. L. R., page 860. (Case-note on page 863.)

The annotation is quite exhaustive; the leading cases, pro and con, are cited and reviewed.

Since that note was completed, in 1924, the Supreme Court of Utah, in the case of Alder vs. Salt Lake City, 64 Utah 568, 231 Pacific 1102, decided on December 30, 1924, said:

“While there are some cases to the contrary, the great weight of judicial opinion is that the maintenance of parks and playgrounds is a public and governmental function.”

And it was hel.d that the city was not liable for negligent conditions in the park.

In two other recent cases, decided in 1925, the appellate court of Georgia (Miller vs. Savannah, 33 Ga. App. 360, 126 S. E. 807; and Autrey vs. Augusta, 33 Ga. App. 757, 127 S. E. 796), it was held that under the ruling of the Supreme Court of that state in the case of Cornelisen vs. Atlanta (146 Ga. 416, 91 S. E. 315), a municipality maintaining a park intended primarily for the use and benefit of the public is not liable for negligent conditions existing therein.

In a recent Mississippi case, decided in 1925 (Byrnes vs. Jackson, 105 Southern 861), the court held, on the contrary, that a municipal corporation may be held liable for negligent conditions existing in a public park owned and operated by the city.

In that case the city maintained in the park a zoo in which there was a ferocious bear which had been taken out of its cage and chained to a stake in the park. A visitor to the park was injured by the bear, and the city was held liable.

But that decision was ©robably influenced by the well-established legal doctrine that one keeping a ferocious animal does so at his peril and is liable for whatever damages he may cause.

In the case of Ramirez vs. City of Cheyenne, decided December 15, 1925, 241 Pacific 710, the Supreme Court of Wyoming held that a municipal corporation may be held liable for injuries to children caused by the negligent condition of playground apparatus placed in the park by the city and allowed by it to become out of repair.

But the ruling was based upon the ground that in maintaining the playground the city must be regarded as acting as a substitute for a charitable or benevolent body performing a public service, and like such body liable for injuries caused by its own negligence.

In another recent case, that of Warden vs. City of Grafton, decided May 26, 1925, (128 S. E. 375), the Supreme Court of West Virginia held that it is the duty of a municipality operating a public place to exercise ordinary care in the construction and maintenance of mechanical devices erected therein for the amusement and recreation of the public frequenting such places, and for a breach of such duty the city will be held liable in damages for injuries to one using such appliances.

The court did not hold, however, that municipalities, in establishing and maintaining public parks and playgrounds, were not discharging a governmental function; but the holding seems to be based upon the theory that the duty and responsibility of a city, with reference to parks and playgrounds, is analogous to its duty and responsibility with reference to streets and highways.

That is the point stressed by counsel for plaintiff in the case at bar in an able and exhaustive brief.

The maintenance of public streets and avenues by municipal corporations is a governmental function, and it is generally held that municipalities are liable for negligence in failing to keep them in safe condition and repair.

■But the liability of cities with respect to streets and highways . is a well-recognized exception to the general rule of immunity granted to municipalities in their exercise of governmental functions.

It is argued by counsel that a similar exception should be made in the case of maintenance of public parks and playgrounds.

T'he exception in the case of streets and highways is founded upon public policy and expediency and is recognized by all the courts and some legislatures. It is held that the nature of the use of streets and avenues is dissimilar from the nature of the use of public parks and playgrounds. The public may use the parks but must use the streets. The reasons for imposing liability in the case of the streets are not applicable with referencé to public parks and playgrounds. Courts have generally held, with some notable exceptions, that the establishment and maintenance of parks and playgrounds by municipalities is a public governmental function, and that seems to us the correct view.

So holding, we must further hold, under the decisions of our own Supreme Court, accepting as true, as we must, the allegations of plaintiff’s petition, the defendant is not liable in this case.

In the case of City of Trenton vs. State of New Jersey (262 U. S. 182, 67 Law. Ed. 937), the Supreme Court of the United States said:

“The distinction between the municipality as an agent of the state for governmental purposes and as an organization to care for local needs in a private or proprietary capacity has been applied in various branches of the law of municipal corporation. * * * Recovery is denied where the act or omission occurs in the exercise of what are deemed to be governmental powers and is permitted if it occurs in a proprietary capacity.”

In the case of Bolster vs. City of Lawrence, (225 Mass. 387, 114 N. E. 722, L. R. A. 1917B 1285), the court said, with reference to the liability of municipal corporations for negligence, etc.:

“The underlying test is whether the act is for the common good of all without the element of special corporate benefit or pecuniary profit. If it is, there is no liability; if it is not, there may be liability.”

Our own courts have recognized this distinction in many cases.

In the case of West Monroe Mfg. Co. vs. Town of West Monroe, 146 La. 641, 83 South. 881, the court said:

“Municipalities exercise two-fold func tions — the one governmental or public, and the other municipal or private. For damages occasioned while in the performance of the first they are exempt from liability; for acts done while in the performance of the second the majority of cases hold that they stand on the same footing as individuals.”

And the court cites and quotes from 28 of New Orleans, 159 La. 443, 105 South. 443, the court said:

In the recent case of Howard vs. City of New Orleans, 159. La. 443, the court said:

“This court has recognized for some years that a municipality is not responsible for damages committed by its agents and appointees, while such agents and appointees are exercising for it governmental functions.”

In that case it reviewed the former jurisprudence on the subject.

Public parks and playgrounds are established by municipalities to promote the general welfare of the public at large. As places of recreation and amusement such parks promote the health and education. of the citizens. In establishing and maintaining them the municipality exercises that sovereignty delegated to it for the welfare qf its inhabitants. It derives no corporate gain therefrom and has no proprietary or corporate interest therein. Electric light and waterworks plants, street railways, and the like, are in the nature of private corporate enterprises established for the purpose of municipal gain. In the establishment of such governmental agencies the municipality acts in a proprietary capacity and as to them under the law the same duty and responsibility is imposed as is imposed upon private corporations.

But not so with reference to public parks. They are established to promote public health and education. It is almost universally held that the establishment of departments of police, schools, health and fire by cities is a governmental function.

4 Dillon on Municipal Corporations, 5th ed., Sections 1656 to 1661.

' Wigal vs. Parkersburg, 74 W. Va. 25, 81 S. E. 554.

Our holding is, that when the city of Shreveport established the park and playground it performed a purely governmental function and cannot be held liable under the allegations of plaintiff’s petition.

For the reasons assigned, the judgment appealed from is affirmed with costs in both, courts.


text:
    No. 2181
    Second Circuit
    LECOUR v. LECOUR
    (April 8, 1927. Opinion and Decree.)
    (May 13, 1927. Rehearing Refused.)

      (Syllabus by the Court)

    1. Louisiana Digest — Dedication to Public Use — Par. 16.
    A change of the location of a public road by the Police Jury upon the application of freeholders and with the consent of the adjacent proprietors operates as an abandonment of the old road, and it, in law, is no longer a public road.
    2. Louisiana Digest — Dedication to Public Use — Par. 16.
    The owner of the soil on which a public road shall pass may resume and take possession of the same whenever said road shall have been abandoned by the public o.r shall have been transferred elsewhere with the consent of the owner and with that of the competent authority.
    Appeal from the Eleventh Judicial District Court of Louisiana, Parish of Natchitoches. Hon. J. W. Jones, Jr.; Judge.
    Action by Lewis Lecour against John Lecour.
    There was judgment for plaintiff and defendant appealed.
    Judgment reversed, injunction dissolved, and suit dismissed.
    E. St. A. Prudhomme, of Natchitoches, attorney for plaintiff, appellee.

      '■Rusca & Cunningham, of Natchitoches, attorneys for defendant, appellant.
   ODOM, J.

Plaintiff brought this suit to restrain the defendant from obstructing what is alleged to be a public road in the parish of Natchitoches.

He alleges, in substance, that he and the defendant own adjoining properties fronting on Little River and that there is a public road on the bank of the river, which public road is his only outlet, and that defendant closed said public road by erecting fences across the same, and that the closing of said public road has caused him great inconvenience and damage.

The defense is:

First, that plaintiff is not entitled to the relief which he asks for the reason that, according to the allegations of his petition, the road was closed already; and.

Second, that there is- no public road on the bank of the river, and that defendant had a right to erect his fences where he did.

The district judge ’found for plaintiff and rendered -judgment as ■ follows:

“That the mandatory .injunction sued out by plaintiff be and is hereby maintained, sustained and perpetuated, and that it is decreed that the road on the banks of Little River on the front of plaintiff’s and defendant’s farms is decreed a public road to be used as such, in accordance with Ordinance No. - of the Police Jury of the Parish of Natchitoches, passed at Natchitoches, Louisiana, on the - day of -.”

Defendant appealed.

OPINION

- It is not worth while to discuss the technical- defenses urged by defendant, for the reason that plaintiff is entitled to no relief on the merits.

Plaintiff and defendant are adjoining proprietors. Their lands front on Little River. The public road running from Cloutierville on Cane River to Planters Landing on Red River originally ran along the bank of Little River in front of these properties, but some thirty years ago that road was changed by the Police Jury of Natchitoches (parish so as to leave the bank of the river on the west edge of defendant’s property and run east across defendant’s land, thence on to Planters Landing on Red River; that is, instead of following the river around the bend it cut across and shortened the distance something over two miles.

The old road around the bend of the river was abandoned and the property owners, including the plaintiff, extended their fences across the old road down to the banks of the river. . There was no objection on the part of the Police Jury or any of the property owners to the erection of these fences across the old road until about the time this suit was filed.

Plaintiff alleged in his petition that defendant had obstructed a public road; Defendant did. erect a fence across the old public road; plaintiff did the same thing, as did all the other property owners. But the road was not a public- road at that time. At the time this suit was filed’ the road had been abandoned for about twenty-five years. It had in the meantime become practically impassable on account of washouts, and no bridges had been built. When the Police Jury and the public abandoned the old road and opened a new one upon the petition of the property owners, there was no reason why. the owners of the properties adjacent to the old road and the river bank should not have built their fences as they did.

Section 3368 of the Revised Statutes provides specifically that the owner of the soil on which a public road shall pass may resume and take possession of the same—

“whenever the said road shall have been abandoned by the public, or shall have been transferred elsewhere with the consent of the owner and with that of the competent authority.”

Little River is not a navigable stream.

The Police Jury transferred the road from the river bank in 1896 not only with the consent but uipon the petition of the freeholders. When the new road was established the old road was abandoned by the Police Jury and the public. However, the record shows that on occasions when the water was extremely high the old road was used to some extent by the land owners in getting to the new road, as the land on the bank of the river is higher than that where the new road is located.

The record further shows that plaintiff has an outlet to the new road. His land adjoins that of defendant and is about three-fourths of a mile from the new road. When the new road was established defendant opened on his land a lane extending all the way from plaintiff’s property to the new road. This lane is adjacent to plaintiff’s property.

Plaintiff complains that the road through this lane is on low land and gets bad in the rainy season. That fact may and probably does cause plaintiff some inconvenience, but it does not change conditions from a legal standpoint. He brought this suit to enjoin defendant from obstructing the public road. His suit falls because the road which plaintiff obstructed is not a (public road.

For the reasons assigned, it is therefore ordered, adjudged and decreed that the judgment appealed from be reversed and avoided, that the injunction issued be dissolved, and that plaintiff’s suit be dismissed at his cost.