author: WESTERFIELD, J. JONES, J.,

text:
    No. 11,788
    Orleans
    RICHARDSON v. TRUSTEES LOAN AND GUARANTY CO., INC., ET AL.
    (March 4, 1929. Opinion and Decree.)
    (March 18, 1929. Rehearing Refused.)
    Raymond H. Saal, of New Orleans, attorney for defendant, appellee.
    Lloyd J. Cobb, and Herman M. Baginsky, of New Orleans, attorneys for plaintiff, appellant.
   WESTERFIELD, J.

Plaintiff obtained judgment by default against Joseph B. Richardson, issued a fi. fa., and seized certain property belonging to John B. Richardson. John B. Richardson made the proper affidavit, gave bond, and caused the property to be released, whereupon plaintiff filed a motion setting up that Joseph Richardson and John Richardson were the same individual, _ and that John B. Richardson had been served at his residence No. 361 Broadway Street, though the citation and sheriff’s return were in the name of Joseph Richardson; that John Richardson was estopped from denying that he was the party served with citation and that the seizure of John Richardson’s property should be maintained and the property ultimately sold in satisfaction of a judgment obtained against Joseph Richardson; that, in view of the release of the property under bond, John Richardson and his surety should be condemned to pay the judgment rendered in the cause.

To this rule John B. Richardson answered that he had never been made a party in the suit; that the court was without jurisdiction; that the rule disclosed no cause oí action and that the procedure was unauthorized, being an attempt to alter a judgment by a method not recognized by law; and denied generally all the allegations of the rule.

On the trial of the rule the Judge ordered the constable to continue with the seizure and dismissed all exceptions, and overruled all objections made by defendant.

Prom this judgment John B. Richardson appealed to this court.

The transcript as filed did not contain any testimony taken on the trial of the rule, though it affirmatively appeared from the following certificate, signed by' the judge of the trial court, that there had been oral testimony administered:

“I hereby certify the foregoing to be a true and correct transcript of the docket of this Court in the above entitled and numbered cause, embracing all the proceedings had, and that attached hereto are all the papers on file, except the testimony taken on the trial of the rule herein filed which was not reduced to writing and except the Appeal Bond, a copy of which is herewith transmitted.”

In a decree handed down July 2, 1928, 9 La. App. 54, dismissing the appeal, this Court held that:

“Where it is evident that the transcript does not contain all the evidence upon which the case was tried, this court will not reverse the judgment, but will dismiss the appeal ex proprio motu.” 1 La. Dig., p. 489, S. 430; Lanfear vs. Duraind, 20 La. Ann. 161; Nugent vs. Stark, 34 La. Ann. 628; Harrison vs. Soulabere, 52 La. Ann. 710, 27 So. 111; Bank of Minden vs. Lake Bisteneau Lbr. Co., 47 La. Ann. 1432, 17 So. 832; Thibodeaux vs. Winder, 39 La. Ann. 226, 1 So. 451; State vs. Johnson, 37 La. Ann. 620; Morrison vs. Lynch, 36 La. Ann. 611.

Thereafter John B. Richardson brought an action in nullity against the Trustees Loan and Guaranty Co., Inc., the plaintiff in the former suit, upon the grounds alleged in defense of the rule to maintain the seizure under fi. fa. against his property in the former suit, and upon the further ground that plaintiff had not been made a party to the suit, because no citation had been served upon him, either in the name of Joseph Richardson or John Richardson, the purported domiciliary service made upon a servant in his employ, as is made to appear by the sheriff’s return, being invalid, because plaintiff employed no servant, and there was no one residing or living at his domicile.

To this petition defendant filed an exception of res judicata, based upon the judgment in the former suit. The exception was maintained and plaintiff has appealed to this court.

Considering the fact that a very small sum of money, $161.00, is involved in this case, which has already been protracted beyond all proportion, we are much inclined to maintain the exception, in order that there might be an end to the litigation. But our inclination is restrained within legal bounds.

Article No. 2286, Rev. Civil Code, reads as follows:

“The authority of the thing adjudged takes place only with respect to what was the object of the judgment. The thing demanded must be the same; the demand must be founded on the same cause of action; the demand must be between the same parties, and formed by them against each other in the same quality.”

Our courts have held that this article must be strictly construed and that under our system of law, unlike the common law, the authority of the thing adjudged is limited to and not extended beyond the statutory provisions of the code.

“The doctrine of the common law courts that res judicata includes not only everything pleaded in a cause, but even that which might have been pleaded, does not obtain generally under our system.
“Here in Louisiana the doctrine is much more restricted than in common law states. State of La. vs. The American Sugar Refining Co. (recently decided) 32 South. 965, 108 La. 603.
“It is with us of statutory declaration and its scope and extent is defined and limited by the codal provisions of the law. Thus, Civil Code, Art. 2286, declares that the authority of the thing adjudged takes place only with respect to what was the object of the demand. The thing demanded must be the same and the demand must be founded on the same cause of action.” Woodcock vs. Baldwin, 110 La. 270, 34 So. 440.

In Scovel vs. Levy’s Heirs, 118 La. 993, 43 So. 642, the court said:

“Whatever may be the view of the Supreme Court of the United States and of the other courts, this court has uniformly followed the language of the code and insisted that in order to constitute res adjudicata the thing demanded and the object of the judgment must be the same.”

The only test of a decree as res adjudicata is its finality and conformity to Article 2286 of the Revised Civil Code. Succession of Durnford, 1 La. Ann. 92; Kellam vs. Rippey, 3 La. Ann. 202. La. Dig., vol. IV, verbo, Judgment, page 375.

The issue raised by the former proceeding was the validity of the seizure of plaintiff’s property under the fi. fa. The issue in this case is the nullity vel non of the judgment under which the fi. fa. issued. No question of the nullity of the judgment could have been raised on the trial of the rule to subject plaintiff’s property to seizure, because the Code of Practice requires a separate action by petition and citation. C. P., 610; Woolfolk vs. Woolfolk, 30 La. Ann. 139. The thing demanded, the cause of action and the object of the suit were not the same in both suits, consequently the essential codal conditions do not obtain, and the exception of res judicata must be overruled.

For the reasons assigned the judgment appealed from is reversed,' the exception of res judicata overruled, and the case remanded for further proceedings according to law, and consistent with the views herein expressed.

JONES, J.,

dissenting:

In suit No. 151707, Section “C”, First City Court, plaintiff herein, John B.'Richardson, vainly sought to set aside seizure of his property by filing various exceptions to rule for maintenance of seizure, among which are the following two:

(1) “That the said John B. Richardson .has never been made a party defendant in this suit, having never been served with citation in accordance with law.”
(2) “That the defendant in said cause is Joseph B. Richardson and not the said John B. Richardson, and that the citation in said cause, (as will appear by the return of the Constable of . the First City Court), was addressed to the said Joseph B. Richardson and the return of the Constable shows service thereof was made upon him.”

In the present proceeding, John B. Richardson is attempting to set aside a judgment overruling those exceptions by again attacking the citation. In other words he is now attempting to litigate substantially the same issue by filing additional attacks on the citation. Having taken one grin in an exception and lost, he wishes to change and take another by a suit to annul.

Non constat he may return in ■ a few months with still another attack on the same citation and thus the proverbial “law’s delay” will be indefiniately prolonged.

In Harvin vs. Blackman et al., 121 La. 431, 46 So. 525, the Supreme Court said:

“A valid judgment for the plaintiff definitely and finally negatives every defense that might and should have been raised against the action in any subsequent proceeding between the parties, whatever the cause of action.”

See also:

William E. Sewell vs. John H. Scott, 35 La. Ann. 553.

Mrs. M. L. McNeely vs. Jas. H. Hyde, M. Ryan and J. T. Hickman et al., warrantors, 46 La. 1083, 15 So. 167.

Finley, Dicks & Co. vs. Whitney-Central Nat’l Bank, 12 Ct. of App. (Par. of Orleans) Reports, 335.

In the case of W. A. Shaffer vs. J. A. Scuddy, 14 La. Ann. 575, it is held that in a petitory action, the defendant is bound to plead all the titles under which he claims to be owner, and a final judgment rendered in favor of the plaintiff may be pleaded as res judicata against any title which the defendant was possessed of at the time, but omitted to plead, and in its reasoning to this conclusion, the Court said:

“If one of the parties neglects or does not wish to introduce a part of his evidence when it is known to him, the issue can not, after a final decision, be again opened to enable him to do so. If this were possible, litigation would be uselessly continued. If a party has four titles, he could institute in succession four different suits, instead of having the issue of ownership terminated in one suit.” Citing Williams vs. Close, 12 La. Ann. 878.

This same doctrine is followed in the following cases:

William H. Howcott vs. Geo. S. Petit, 106 La. 530, 31 So. 61.

Lindquist vs. Land & Lumber Co., 112 La. 1030, 36 So. 843.

This doctrine has also been very recently followed by this Court in the case of Norman vs. Woods, decided on January 2, 1928, and reported in 8 La. App. 184, and has been even more recently followed by the Supreme Court in Succession of Whitner, 165 La. 769, 116 So. 180, in which the Court held:

“A final judgment of the Court having jurisdiction over the parties on the subject matter puts an end, not only to every plea or defense made, but to every plea or defense which either of the parties might have successfully made.”

Practically all of the cases on the subject matter are accumulated and cited in this decision.

Richardson has had his day in court and in the Interest of justice the exception of res judicata should be maintained.


source: Caselaw Access Project

author: JONES, J.

license: Public Domain

text:
    No. 10,624
    Orleans
    KIRSCHMAN v. THOMAS CUSACK CO.
    (February 25, 1929. Opinion and Decree.)
    (March 19, 1929. Rehearing Refused.)

      Feitel and Feitel, and N. H. Polmer, of New Orleans, attorneys for plaintiff, appellee.
    Lemie, Moreno and Lemie, of New Orleans, attorneys for defendant, appellant.
   JONES, J.

Plaintiff sues for $1,235.00, amount claimed to be due for rental of the roof and wall of a building for signboards, at the rate of $65.00 per month from October 13, 1924, through May 13, 1926. Although the suit was brought in March, •1925, it was alleged that the rent for the succeeding months through May 13, 1926, had been matured by reason of the failure of lessee to pay rent for four months beginning November 13, 1924, and ending March 13, 1925.

Defendant answered, admitting the lease as alleged, but averring cancellation thereof after due notice as allowed by the contract.

bn the trial of the case the plaintiff admitted that the leased property had been sold by him on January 28, 1926, and .that he was not entitled to any rental after that date. The trial court rendered judgment for plaintiff for the rent due up to January 28, 1926.

The record shows the following facts:

“On May 13, 1921, the Thomas Cusack Company leased from the Misses Green, who later transferred their rights to the plaintiff in this case, the following described property:
“Entire roof and N. W. Wall of 1618 Canal St. between S. Clairbone & S. Robertson St., with the right of ingress to and egress from the same, for the purpose of erecting and maintaining advertising signs, sign boards, bulletin boards thereon, from the 13th day of May, 1921, to the 13th day of May, 1926.
“Paragraph 7 of the lease reads in part as follows:
“In case the view of the premises shall become obstructed the lessee may terminate this lease upon giving the lessor ten days’ notice in writing, and the lessor shall refund, pro rata, any rent paid in advance.”

The building, the roof and wall of which were thus leased, fronted on Canal Street, and was situated at some distance from the intersection of that street with Claiborne Avenue. There was a vacant lot between the building and the corner, so that the view of the building was entirely unobstructed.

Defendant erected a Wrigley chewing gum sign on the roof of the building which was leased to it, but it did not place any sign on the side wall, though it did place several ground signs across the vacant lot adjacent to the building. In the early fall of 1924, a one-story building, which clearly obstructed the view of a part of the northwestern wall, was erected upon the vacant lot. This obstruction is clearly shown by the photographs and is testified to by all parties in the suit, though there is a dispute as to the extent of the obstruction.

The defendant on September 15, wrote to the plaintiff, by registered mail, as follows:

“We regret very much that it will be necessary for us to cancel our lease on the building situated at 1618 Canal Street between South Claiborne and South Robertson Streets, purchased by you from Emily C. Green, Carrie F. Green and Mary E. Green, for which we have signed contract dated May 13th, 1921, signed by Emily C. Green, Carrie F. Green and Mary E. Green of this City, which states in paragraph 7th that we have the right in case the premises shall become obstructed, (which is being obstructed now by the building just recently erected at the corner of Claiborne and Canal Streets by B. G. Carbajal, Inc.), to cancel this lease by giving ten days notice.”

Defendant’s representative then called on the plaintiff and tried, to work out with him some agreement by which the Thomas Cusack Company would continue with the lease at a lower rental, because the value of the property as an advertising site had greatly diminished. Nothing came of this and the matter was then discussed by both sides, as will appear from copies of letters which were introduced.

As the parties could come to no agreement, defendant in March, 1925, took down the Wrigley sign, and this suit was filed.

Plaintiff argues that the Wrigley sign was the only sign placed on the wall and since it could be seen above the roof of the new building, defendant was not injured, and was not entitled to rescind the lease.

The parties had agreed that if the view of the premises should become obstructed, the lessee could terminate the lease. The “premises” clearly means the property leased, which is expressly described as the “entire roof and N. W. wall.” Therefore, if the view of any part of the leased premises was obstructed the defendant was clearly entitled to assert its privilege of rescinding the lease. The defendant had reserved the right to cancel if the view of either the roof or the wall was obstructed, and if it desired a cancellation because it felt that the obstruction of the view of the wall depreciated the value of the premises as an advertising site, it was entitled of right thereto.

When the parties have entered into a contract, the courts will enforce it as written, provided there is nothing contained thereincontrary to public policy or reprobated by law.

McWilliams vs. Flanagan, Orl. App. No. 7586.

Perkins vs. Meeker Sugar Refining Co., 163 La. 227, 111 So. 686.

Bank of Napoleonville vs. Knobloch & Rainold, 144 La. 100, 80 So. 214.

Fletcher vs. Boettner & Brauning, 2 Orl. App. 398.

Wambsgans vs. Cusimano, 11 Orl. App. 307.

Linehan Ry. Transfer Co. vs. N. O. & N. W. R. Co., 107 La. 645, 31 So. 1026.

For above reasons the judgment is reversed, and it is now ordered that this suit be dismissed.


author: ODOM, J.

text:
    No. 2943
    Second Circuit
    MEREDITH v. TUBRE
    (March 12, 1929. Opinion and Decree.)
    Carstarphen and Garland, of Shreveport, attorneys for plaintiff, appellee.
    Scheen and Blanchard, of Shreveport, attorneys for defendant, appellant.
    Wilkinson, Lewis and Wilkinson, of Shreveport, attorneys for warrantor.
   ODOM, J.

On May 8, 1908, the plaintiff, W. L. Meredith, purchased from A. S. Miller, lot 27 of block 12 of the Fairfield Heights Subdivision, of the Parish of Caddo. Some eight years later, the Village of South Highlands was incorporated, under Act 136 of 1898, and the lot above described was included within the corporate limits of said village.

On July 30, 1920, plaintiff’s property was sold at tax sale by the Tax Collector of the Village of South Highlands for taxes said to be due the village for the year 1919, at which tax sale U. C. Addison, E. M. Besse and ‘J. H. Anderson were the purchasers. On February 12, 1921, Addison, Besse and Anderson sold the property to J. V. Wilkinson who in turn sold it, on October 3, 1921, to L. C. Tubre, who on the date this suit was filed was in possession of it.

TJie present suit was filed by Meredith on March 23, 1923, less than three years from the date of the tax sale, against Tubre to set aside the purported tax sale on the following grounds, to-wit:

1. That no budget was adopted by the Village of South Highlands for the year 1919;

2. That no taxes were levied by the Village of South Highlands for the year 1919, against plaintiff’s property or any other property in said village;

3. That the property was advertised to pay an interest charge of two per cent per month during the year following the sale; and

4. That no notice was ever served on the plaintiff as to the creation of the Village of South Highlands and no notice was ever given him of the delinquency of taxes for the year 1919, due on his property.

The defendant, Tubre, in answer, denied all the above allegations and alleged that the sale of plaintiff’s property by the Tax-Collector was valid and that he owned said property under valid title and in good faith, and he called his vendor, Wilkinson, in warranty. ■ In the alternative, he asked that in case the Court should hold that said tax sale was void, he have judgment against Wilkinson for $1100.00, the price which he, had paid for the property, and for judgment against the plaintiff for the value of the improvements which he had placed upon the lot in good faith.

Wilkinson, the warrantor, in answer adopted the allegations set out in Tubre’s answer, insofar as he has asserted the validity of the tax sale, and asked that the sale be upheld. In addition, he alleged that he had purchased the property in good faith.and in case the Court should hold that the tax sale was void, that he have judgment against the plaintiff for the value of the improvements which he had placed upon the property.

There was judgment in the lower court for plaintiff decreeing the purported tax sale null and void, and recognizing him as owner of the property; and judgment for Tubre against plaintiff for $379.90, the value of improvements which he had placed on the lot, and permitting him to retain possession of said lot and improvements until that sum was paid; and judgment for Wilkinson against plaintiff for $800.00, the value of improvements which he had placed on the lot, and allowing him to retain possession of the lot and the improvements until -said sum is paid by plaintiff, the Court holding that Wilkinson was in good faith; and further judgment for Tubre against Wilkinson for $1100.00, the purchase price of the property.

Tubre did not appeal. Wilkinson appealed from the judgment only insofar as it declared the tax sale null and void. The plaintiff moved in this Court to amend the judgment by rejecting Wilkinson’s claim against him for improvements.

OPINION.

Plaintiff alleges that the purported sale of his property by the Tax Collector of the Village of South Highlands for taxes alleged to be due the village for the year 1919 was null and void for the reason, among others, that no taxes were levied by said village for that year. If, as a matter of fact, the municipal authorities omitted to levy any taxes for that year, such omission is fatal because without an assessment there were no taxes due the municipality, and, if none were due, the Tax Collector proceeded without any warrant for making the sale.

Guillory vs. Elms, 126 La. 560, 52 So. 767.

Erwin et al. vs. Town of Franklinton, 130 La. 827, 58 So. 587.

Counsel for Wilkinson, appellant, do not argue against this, but say in brief:

“We believe that the evidence shows that a resolution was adopted by the Village of South Highlands levying a five mill tax for the year 1919,”

but the record fails to support counsel’s conclusions.

On the trial of the case, plaintiff proved that the records of the proceedings of the Village Council of the Village of South Highlands do not disclose that any ordinance or resolution was ever passed levying a tax on the property of that Village for the year 1919; and further, that there is no minute record of the passage of such ordinance. It was admitted that Mrs. S. V. Rankin had been Secretary of the Town Council of that Village from the year 1917, down to the date of the trial, and that, if she were present, she would swear that she had searched her records and that there was not among them any written ordinance adopting a budget of. expenses for the Village of South Highlands for the year 1919; and no ordinance levying a tax for that year; and further, that she would swear, if present, that to the best of her recollection, the matter of levying the tax was discussed in a regular meeting of the Village Council, and that W. T. Simpson, Tax Collector, was instructed to have the Assessor of the Parish of Caddo extend on the rolls a tax of five mills on the dollar, and to make collection of the taxes. Mr. Elias Goldstein testified that he had been a member of the Village Council ever since its organization and that, as a lawyer, he knew it was necessary that the Village should pass a formal ordinance levying taxes, and that he was under the impression that the Village did so each year; however, he had no independent recollection of an ordinance having been passed levying the taxes for the year 1919. He said, furthermore, that he had had an investigation made of the minute book, and had received the information from Mrs. Rankin, the Village Secretary, that the minute book made no reference to the levying of any taxes for that year and made no reference to the adoption of a tax ordinance. We quote the following from Mr. Goldstein’s testimony:

“Q. Now, you state you can’t say positively that any budget or any ordinance, written ordinance or resolution, adopting a budget for levying taxes for the years 1918 and 1919 were ever adopted?
“A. No, sir, I don’t state that a formal resolution or ordinance was ever passed adopting either the budget or fixing the tax rate. I can state, however, that a budget was generally figured out each year and the tax rate figured out each year and the Treasurer instructed to levy, at that particular rate.”

On being asked if he thought in case an ordinance levying the taxes and adopting a budget had been passed, and Mrs. Rankin, the Secretary, had failed to include that in her minutes, her omission would have been detected at the next meeting, he replied:

“No, I don’t, and particularly at that time,. Mr. Garland. It would now, but at that time South Highlands was pretty much like a very large family; almost everybody worked together out there—in fact, Mr. Steere and I often used to finance the Village. It was always doing something beyond its financial ability and beyond its legal powers.”

He was asked:

“Sometimes it didn’t comply strictly with the legal requirements of law?”

And he said:

“No, sir. We just went ahead and financed it and let it go at that.”

He further said:

“In regard to a budget or an ordinance, as I say, I was distinctly under the impression, and would have so swofn today that we 'had done it, if I hadn’t examined the minutes and found that they were not there.
* * *
“Q. You would not undertake to tell the Court positively that an ordinance was passed levying taxes?
“A. No, sir, I just said I would not, but I can say it was discussed each and every year.”

Mr. Simpson testified that he had been secretary-treasurer and ex-officio tax collector for the Village of South Highlands ever since it was incorporated in 1916, and that he collected taxes for the Village for the year 1919 under authority of the council; that the council instructed him to go ahead and collect taxes at a five mill rate. On being asked if there was any ordinance adopted levying the tax, he said that the matter was taken up with Mrs. Rankin, the Clerk, and she was never able to locate any ordinance. On being asked if he was reasonably certain that a resolution was passed by the Village Council, he said:

“Yes, sir, otherwise I would not have made any collection of the taxes.”

Mr. Simpson further testified as follows:

“I • was present at a meeting when the ordinance was passed instructing me to collect the taxes on the five mill basis.”

Mr. Simpson’s attention was called to the fact that the plaintiff had brought suit to annul the tax sale made by him of Lot 27 of Block 12, and was asked under what authority he attempted to force collection of the taxes against that property, and he said:

“Well, I collected that under authority of the Council, the way they instructed me, to go ahead and collect them at five mill rate.”

There is no suggestion that the minutes of the various meetings of the Village Council, as kept by the Secretary, Mrs. Rankin, do not correctly state all the proceedings which transpired at the meetings of the Council. It is inconceivable that, if an ordinance had been introduced levying taxes and had been adopted on motion, the minutes as kept by the clerk would not show that fact. We have no doubt that the matter of collecting taxes for the Village was discussed, as stated by Mr. Gold-stein, at the meetings of the Council. But it is perfectly clear that the Village Council did not go through the formality of levying taxes by resolution or ordinance. This formality was indispensable to the validity of a tax levy.

It is necessary to discuss the other grounds of nullity. It may be well to state, however, that it was proved beyond question that Meredith, the alleged tax debtor, paid the parish and state taxes levied against his property and that he did not know that the Village of South Highlands had been incorporated and that his property was included therein; and further, that no delinquency notice was ever served upon him by the Village Tax Collector.

At the time the property was sold and for some time prior thereto, the plaintiff lived in Pineville, Rapides Parish. The collector of parish and state taxes notified him there and he remitted his taxes. It happened that there was a man named “W. L. Meredith” who lived in South Highlands. He testified that a delinquency notice was served on him through the mail that the taxes on Lot 27 of Block 12, had not been paid and that he informed the Village Tax Collector that he did not own said property. He testified, however, that that notice was served on him about three years previous to the date on which he was testifying—which was July 11, 1924. According to his testimony, that notice was received in 1921, a year after the property was sold. The Tax Collector had no records to show and could not recall when he mailed out 'notices. While the Tax Collector testified that he always mailed notices of delinquency previous to making the collections, he does not swear nor is there any testimony to show positively that a notice of delinquency was mailed prior to the sale of this property in August, 1920.

For the above stated reasons, the purported tax sale of plaintiff’s property was an absolute nullity. Counsel for appellee asks that the judgment be so amended as to reject Wilkinson’s demands for the improvements which he placed upon the property. Wilkinson, we think, was in good faith. He purchased the property on the faith of the tax title. The deed made by the Tax Collector seems to be complete and valid in form. It was duly recorded in the notarial records. While Wilkinson purchased the lot previous to the expiration of one year from the date on which the property was sold for taxes and under a deed reciting no warranty, it appears that he did not place the improvements 'on the property until aftqr the lapse of one year. He was guilty of no fraud. The record title was prima facie good. It has been repeatedly held that one who purchases on the faith of a tax title and who is guilty of no fraud is a good faith holder.

Foreman et al. vs. Thos. Hinchcliffe et al., 106 La. 225, 30 So. 762.

West vs. Negrotto, Jr., 52 La. Ann. 381, 27 So. 75.

Font et al. vs. Land & Improvement Co., 47 La. Ann. 275, 16 So. 828.

Davenport et al. vs. Knox et al., 35 La. Ann. 486.

Giddens vs. Mobley et al., 37 La. Ann. 417.

Stafford vs. Twitchell et al., 33 La. Ann. 520.

The improvements which Wilkinson placed upon the property consisted of a two-room house which is separable from the lot. Even if he had placed the house there in bad faith, he is entitled to recover the value thereof if the plaintiff elects to keep it.

Quaker Realty Company vs. Bradbury et al., 123 La. 20, 48 So. 570; and authorities there cited.

Plaintiff, by written stipulation placed in the record, has elected to keep Wilkinson’s improvements, so that if Wilkinson had been in bad faith, as contended by plaintiff, lie must “pay for the house, having elected to keep it.

For the reasons assigned, the judgment appealed from is affirmed.


author: ELLIOTT, J.

text:
    No. 14,622
    First Circuit
    SYBILLE v. KELLY-WEBER CO., INC.
    (December 4, 1928. Opinion and Decree.)
    Griffin T. Hawkins, of Lake Charles, attorney for plaintiff, appellee.
    Pujo, Bell and Hardin, of Lake Charles, attorneys for defendant, appellant.
   ELLIOTT, J.

The plaintiff, Chris Sybille, while in the employment of Kelly-Weber Company, Inc., had his left arm broken. The injury took place on January 29, 1928, and while the plaintiff, Sybille, was engaged in the performance of service arising out of and incidental to his employment and in the course of his employer’s business. He was receiving wages at the rate of four dollars a day at the time, and was working seven days a week, which made $28.00 dollars a week. He alleges the permanent total loss of the use of his arm and claims compensation on said account at the rate of 65 per cent of his weekly wages for two hundred weeks, under the .provisions of Section 8 (amending Act 85 of 1926) of the Employers’ Liability Act of this State.

Compensation to the extent of $218.40 has been paid.

The difference between the parties is as to the extent of plaintiff’s injury. Defendant contends that plaintiff’s arm can be almost entirely restored to normal use by an operation, the danger of which is negligible. That if performed, plaintiff’s arm will be thereby restored to normal use within twelve weeks. That plaintiff has been offered an operation at defendant’s expense, but he refuses to permit it to be performed.

Defendant prays that plaintiff be required to take the necessary medical and surgical treatment for the purpose, and if he refuses that, the Court then fix the period of time required for the necessary treatment, not to exceed twelve weeks and to render judgment for com-' pensation during that time. Judgment was rendered in favor of the ¡plaintiff as prayed for.

The judge of the lower court had plaintiff before him and examined his arm. As soon as plaintiff was injured, defendant sent him to the sanitarium at Lake Charles, where his injury was treated by a physician and surgeon, presumably in the employ of the defendant. The physician after six weeks of treatment informed plaintiff that he was well, able to resume work and discharged him from the hospital. As a matter of fact he was not able to resume work. It appeared on the trial of the case in the lower court, which took place on June 7, 1928, and some two months or more after his discharge that his arm was useless for the purpose of performing manual labor, the only kind that he was qualified to perform.

Seven ¡physicians were called as witnesses and after examining his arm, testified concerning plaintiff’s condition. They all advised an operation, the readjustment of the broken bones and putting on a bone plate. The bone for this purpose was to be cut from plaintiffs’ thigh and screwed down to the bones on his arm so as to hold the ends in place until they could unite. They all agree that an operation of the kind is very serious, but that such an operation of that kind would help a great deal if it proved successful, and they believed that it could be successfully done. Some were more certain about it than others, and some were doubtful that the use of the arm for the purpose of manual labor would be restored, that the result would be a problem which could only be ascertained after it had been tried. All agreed, however, that an operation of the kind would require a general anaesthetic, and while reasonable safety to ¡plaintiff’s life could be expected, yet there was appreciable danger to life against which they could not guarantee. That there was also, in addition, a further risk to his life from infection as a result against which they could not guarantee. Some stressed the risk of infection in bone operations as greater than the others. In fact two of the physicians who had been specially trained in surgery of the kind while stressing the danger from infection, advised as did the others that the risk should be undertaken, as the operation was the only way of helping the situation. All agreed that plaintiff’s arm in its present condition is a total loss, but the physician who first treated the injury expressed the opinion that ¡plaintiff, without an operation, would recover the normal use of his arm within a year from the time of the trial. Two of the others called by defendant expressed the opinion that plaintiff would improve within a year and that the loss of use would not at the end of that time be greater than 25 or 30 per cent. As against this testimony the four others expressed the opinion that unless an operation was performed and the operation had the desired result, that no improvement would take place that would restore plaintiff’s arm to use for the purpose of manual labor. According to the evidence, plaintiff’s arm in its present condition is- a total loss in the matter of use, for the purpose of manual labor. An operation might restore it to use for that purpose, but the result cannot be ascertained in advance. If its use is not restored by an operation, the permanent total loss of the use of the arm for the purpose of manual labor may be looked for and expected with reasonable certainty according to the preponderance of opinion on that subject. Such is our conclusion from the evidence.

Defendant contends that plaintiff’s arm is only partially disabled and that the injury is rather to the wrist than the arm. We think otherwise. The plaintiff has sustained a total loss of the use of his arm and unless its use for the (purpose of manual labor is restored by an operation, the loss in our opinion, is permanent.

The defendant desires that a time be fixed in which plaintiff may submit to an' operation, and if he refuses, that compensation cease within twelve weeks. Defendant cites Smith vs. Butler, 7 La. App. 33S, as supporting this request. In that case the injured party had submitted to an operation and then refused to let it be finished by removing the bone plate. That is not the situation in the present case. In the case at hand, no operation has been performed nor consented to, hence there is none to complete. An order of the kind would therefore be uncalled for in this case.

Then again following the case of Bron-° son vs. Harris Ice Cream Co., 150 La. 455, 90 So. 759, we have held several times that we will not enter an order of that kind for the purpose of giving an employer merely a chance of lessening the compensation he may be called on to pay, at the risk of the life of the injured employee, and when the result after all is problematical.

The judgment appealed from condemns the defendant to pay compensation during the period of total disability for the performance of manual labor not to exceed two hundred weeks and gave credit for the amount received.

The judgment is in our opinion correct.

Judgment affirmed. The defendant to pay the costs in both courts.


author: REYNOLDS, J.

text:
    No. 3042
    Second Circuit
    MONDELLO v. RANEY
    (March 12, 1929. Opinion and Decree.)

      T. O. Brooks and B. E. Bush, of Shreveport, attorneys for plaintiff, appellant.
    Wilkinson, Lewis and Wilkinson, of Shreveport, attorneys for defendant, appellee.,
   REYNOLDS, J.

Plaintiff, Annie Mondello, by this action seeks to recover judgment against defendant R. R. Raney in the sum of $110.00 for her own use and benefit and in the sum of $1500.00 for the use and benefit of her minor son, Luke. Mondello. She alleges:

“That .on or about 7:30 on the evening of the 22nd of December, 1926, in the city of Shreveport, Caddo parish, Louisiana, Luke Mondello, minor son of petitioner, was riding on the left running board, holding to a hand-hold, on the back of the cab of the Ford truck belonging to Nick Firlito and being driven by his son, Joe Firlito; that the said Firlito truck was being driven westwardly on Kingshighway and that Joe Firlito was driving and proceeding very slowly, cautiously and properly, with due regard and care of others upon said street; that the Firlito truck, the one your petitioner’s son was riding on, slowed down at the intersection of Kingshighway and Highland street, and Joe Firlito, the driver, looked in both directions on Highland and, not seeing any cars coming, proceeded very slowly westwardly across Highland, keeping well on the right-hand side of Kingshighway. That when the Firlito truck crossed the street car tracks on Highland and (was) proceeding westwardly, the said defendant R. R. Raney, going in the direction of Shreveport, apparently at a very high rate of speed, carelessly, recklessly and negligently did drive his Essex automobile into the Firlito truck on which your petitioner’s son was riding, as above outlined, causing a serious injury to your petitioner’s son’s leg which caused him great pain and suffering and rendered him permanently and totally disabled to do work of any sort for at least sixty days from the date of the accident

She further alleges that the Ford truck was damaged to the extent of $30.00 in the collision and that the owner of the truck, Nick Firlito, had transferred his claim against defendant for the damage to her.

She further alleges that by reason of the injuries to her son she was compelled to incur an expense of $80.00 f-or medical attention.

The damages claimed on behalf of the boy are itemized as follows:

For mental pain and suffering____________ $400

For physical pain and suffering________ 1000

For loss of earning power____________________ 100

Total .......... $1500

The defendant denied the allegations, other than that the collision took place, and alleged that—

“plaintiff’s minor son was riding on the left running board of the car in question, and it was being driven by some one, whose name your defendant does not know, at a rapid rate of speed, and was overcrowded with boys, the plaintiff’s son standing on the running board, by the driver, and obstructing the driver’s view on that side, and that said driver and the said plaintiff’s son did not proceed cautiously or with due care upon the street, but, on the contrary, when your defendant saw that they were going to run into him, he steered his car to the left, in an effort to prevent being struck or striking them, and did all that he could to prevent said accident; and he denies that the driver of said car looked, and (alleges) had he done so. he would have seen the car of your defendant approaching said crossing, and that said accident was due wholly to the negligence of the driver of said- car and of said plaintiff’s son ‘in this, to wit: in having said car overloaded at the time of said accident, and in plaintiff’s son standing so as to obstruct the view of the driver thereof, and in not looking in the direction from which your defendant was coming, to see if some car had the right of way, and in proceeding in a reckless and careless -manner across said crossing, and in not permitting your defendant, who had the right of way by virtue of the fact that he had entered said crossing* ahead of them, from proceeding across said street, and in not stopping said car in time to prevent said accident.”

And further alleges that he was driving carefully at the time and not at a high rate of speed, and that but for the negligence of plaintiff’s son and his further negligence in riding on the running board of the Ford truck, the accident would not have happened.

On these issues the case was tried and there was judgment in favor of defendant rejecting plaintiff’s demands and dismissing her suit and she appealed.

OPINION

The testimony of the witnesses for plaintiff and that of the witnesses for defendant as to the facts and circumstances surrounding the collision is conflicting and irreconcilable. The judge of the trial court, because he saw and heard the witnesses testify, was in a better position than we are to judge of the weight to be given to the testimony of any particular witness or witnesses, and his findings of fact will not be disturbed where not manifestly erroneous.-

Pitard Hardware Co. vs. Lala, 1 La. App. 534.

It would serve no useful purpose to quote or discuss the testimony of any particular witness or witnesses. The testimony of the .plaintiff’s witnesses is positive that the truck on which her son was riding entered the intersection of the streets before the car in which defendant was riding did so, and the testimony of the defendant’s witnesses is directly to the contrary and equally positive. The physical facts of the collision indicated that the cars collided on the right-hand side, going west, of Kingshighwajl, and on the right-hand side, going north, of Highland avenue; and these physical facts corroborate, we think, the testimony of defendants’ witnesses that defendant’s car entered the intersection of the streets before the truck on which plaintiff’s son was riding did. Therefore defendant's car had the right of' way.

Fetter vs. Torre, 1 La. App. 766;

Belden vs. Roberts, 3 La. App. 338;

Johnston vs. Worley, 3 La. App. 675.

After carefully reading and considering the evidence we are of the opinion that the proximate cause of the collision was the failure of the driver of the truck on which plaintiff’s son was riding to see defendant’s automobile before driving the truck into the street intersection, and that this failure was attributable to the vision of the driver of the truck' being obstructed by the presence of plaintiff’s son on the running board of the truck.

The trial court wrote a lengthy opinion in the case and it is in the record and we have found his resume of the facts and reasons for judgment very helpful.

The judgment appealed from, in our opinion, accords with the facts and the ■law, and it is therefore affirmed.


text:
    No. 3231
    Second Circuit
    SPILLMAN v. TEXAS & PACIFIC RAILWAY COMPANY
    (March 12, 1929. Opinion and Decree.)
    Henry Breazeale, of Natchitoches, attorney for plaintiff, appellee.
    Peterman, Dear and Peterman, of Alexandria, attorneys for defendant, appellant.
   ODOM, J.

This suit was filed in Natchitoches, in the parish of Natchitoches, on December 2, 1927. Plaintiff alleged that the defendant is a Louisiana corporation, having its main Louisiana office and domicile in the city of New Orleans, La. Plaintiff prayed that defendant be cited through its proper officer, according to' law.

On the day the suit was filed, citation was issued in words and figures as follows:

“Citation.
“State of Louisiana, Parish of Natchitoches. Tenth District Court.
“Mrs. Artemise Madine Spillman v. Texas & Pacific Railway Co. No. 19076.
“To Texas & Pacific Railway Company, thru J. L. Lancaster, President. Of the Parish of Orleans,
“You are hereby cited to appear in the office of the Clerk of said Court, in the town Natchitoches, of the Parish aforesaid, and comply with the demands contained in the Petition, of which a copy accompanies this citation, or deliver your answer thereto in writing, in said office in ten days after the service hereof, with one additional day for every ten miles between your residence and office of said Clerk.
“Witness the Honorable J. F. Stephens, Judge of said Court, this 12/2/27.
“A. H. O’Quinn, “Deputy Clerk 10th D. C., La.’’

This citation was served on defendant at its office in New Orleans on December 5th. The following are extracts from the minutes of the court as they appear in the record:

“December 21, 1927, default.
“December 24, 1927, fixed instanter, default proven, judgment rendered, read and signed for plaintiff, see decree.”

Defendant appealed from the judgment rendered, and asked that it be reversed, and the case remanded to the trial court for further proceedings.

The principal ground on which defendant relies for a reversal of the judgment, and the only one which we notice, is that the citation fails to express the number of days within which defendant might file its answer. The citation directs defendant to file its answer “in said office in ten days after service hereof, with one additional day for every ten miles between your residence and office of said Clerk.”

Such citation would be good if the domicile of defendant was within 50 miles of Natchitoches where the suit was filed. Sullivan vs. Maynor et al., 132 La. 598, 61 So. 682. But defendant’s domicile is in New Orleans, probably 250 miles from Natchitoches, so that, according to the citation as written, defendant had 25 days in which to answer. The citation was served on December 5th, the case defaulted on December 21st, and the default made final on December 24th. Therefore the default and the .judgment, according to the strict letter of the citation, were premature.

But counsel for plaintiff appellee says that defendant had only 15 days at most in which to answer. That is true, for Article 180 of the Code of Practice, as amended by Act No. 177 of 1904, p. 190, specifically provides that “the delay in no case shall exceed fifteen days in all.” But the citation failed to inform defendant that it had only 15, days in all in which to answer, and, in that respect, was misleading and therefore defective.

Paragraph 5, Art. 179, of the Code of Practice, provides that the citation “must express the number of days given to the defendant to file his answer,” and Article 180 that he is allowed 10 days, if he reside in the place where the court is held, and, if he reside at a greater distance, the delay shall be increased by one day for every 10 miles that his residence is distant from the place of holding the court, with the proviso that “the delay in no case shall exceed 15 days in all.”

In a case, as in the one at bar, where defendant resides more than 5() miles from the place where the court is held, it is sacramental that the citation specifically inform the defendant that his delays for answering shall in no event exceed 15 days.

That is the specific holding in the case of Sullivan vs. Maynor et al., supra. In that case the court said:

“The proviso of Act 77 of 1904 (that in no case shall the delay exceed fifteen days in all) applies only to cases where the defendants reside more than 50 miles from the place where the Court is held. In such cases the citations should inform the defendants that they must answer within 15 days.” (Boldface type ours.)

In a more recent case, that of Noyola vs. Norseke Lloyd Insurance Co., Limited, 163 La. 82, 111 So. 607, a suit was brought against the insurance company in New Orleans, and it was cited and ordered to file answer within 10 days. Service was made on the secretary of state in Baton Rouge, which is more than 50 miles from New Orleans. There was judgment against defendant by default. The insurance company sued to annul the judgment on the ground that the citation was defective, and the court sustained the contention. While that case is not on all fours with the case at bar, yet the court in commenting used the following language, which is pertinent to the issue here invloved. The court said:

“Inasmuch as that City (Baton Rouge) is more than 50 miles distant from the Parish of Orleans, where the suit was instituted, the defendant insurance Company was entitled to fifteen days within which to file its answer. Code Prac. Art. 180, as amended and re-enacted by Act 77 of 1904; Sullivan vs. Maynor, 132 La. 598, 61 So. 682. And this delay should have been expressed in the citation." (Boldface type ours.)

In tbe case of Texas & Pacific Railway Co. vs. Charles W. Smith et al., No. 445 (not officially reported), decided by this court in 1911, one of the issues involved was similar to the one involved here. The late Judge L. E. Hall, the organ of the court in that case, used the following pertinent language with reference to the necessity of informing a defendant specifically of the number of days within which an appearance or answer must be filed:

“The third and last ground of nullity referred to is, in our opinion, fatal to the judgment attacked. It is in substance that the citation did not definitely express the number of days within which the defendant was required to comply with the demand, or file its answer. The delay as stated in the citation was as follows;
“ ‘Ten days after service thereof, with one day additional for every ten miles between your residence and the office of said Clerk.’
“It is. provided by paragraph 5 of article 179 of the Code of Practice, that the citation must express the number' of days given the defendant from his residence to the place where the court is held, to be reckoned from the day on which the citation is served. That is to say that number of days must be expressed as computed according to the distance the defendant resides from the court. Article 180 provides how this computation must be made. It directs that where the defendant resides in or within ten miles of the place, the delay to be expressed is ten days from the service, and where he resides a greater distance, the aforesaid delay shall be increased one day for every ten miles additional that he may live from it, the delay, as provided by a comparatively recent amendment, not to exceed 15 days in any case.
“It seems clear, therefore, that the essential requirement is, that in order that the defendant may be definitely and unmistakably informed as to the delay allowed him, and to prevent uncertainty and confusion in future in view of the fact that residences of the defendants are often changed, the number of^ days given him shall be computed and expressed in the citation. But in this case, the number of days was not expressed but left to the computation of the defendant.”

Counsel for plaintiff appellee cites a long list of cases holding that a judgment by default should not be set aside in order to allow a defendant to file answer and introduce evidence. Such was the holding in the recent case of Stout vs. Henderson (In re Stout) 157 La. 169, 102 So. 193, and in many other cases. But the legality of the citation was not an issue in that case or in any of the others cited. What the court has consistently held is that a judgment by default will not be set aside in order to afford defendant an opportunity to make defense, provided the default has been confirmed in strict conformity with all the requirements of the law.

Citation is the very foundation of civil actions. There can be no valid judgment without a legal citation. To confirm a default in a case where there has been no legal citation of defendant is a departure from the requirements of the law, and the judgment is invalid.

The citation in this case was invalid, in that it did not inform defendant that it had only 15 days at most in which to fie answer, and it follows necessarily that a judgment by default, based on such citation, must be reversed.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be reversed, and further ordered that the 'case be remanded to the trial court and reinstated on the docket thereof for further proceedings as the law directs; appellee to pay costs of appeal, all other costs to await final results.


text:
    No. 3088
    Second Circuit
    MATTHEWS v. KANSAS CITY SOUTHERN RAILWAY COMPANY
    (March 12, 1929. Opinion and Decree.).
    Barksdale, Bullock, Warren, Clark and Van Hook, of Shreveport, attorneys for plaintiff, appellant.
    Wilkinson, Lewis and Wilkinson, of Shreveport, attorneys for defendant, appellee.
   STATEMENT OF THE CASE

REYNOLDS, J.

Mrs. Mary Eva Mat.thews, as mother and natural tutrix of her minor children, .Mary Louise Matthews, Alice Matthews, and Hayter Matthews, issue of her marriage with Clyde Matthews, deceased, on the 2lst day of March, 1927, brought this suit against the defendant, Kansas City Southern Railway Company, to recover $70,000 as damages for the death of her said husband and father of said minors, which occurred on February 12, 192,6, and was caused, she alleged, by the negligent operation, in the city of Shreveport, La., of a train of cars belonging to defendant by its servants.

She also alleged:

“That petitioner, Mary Eva Matthews, individually and in her capacity as mother and natural tutrix of her said minor children, filed this same suit against said defendant Kansas City Southern Railway Company, in the District Court of the United States for the Western District of Louisiana, Shreveport Division, on the 9th day of February, 1927, and that, upon exception to said suit filed by counsel for said defendant Kansas City Southern Railway Company, the said suit was dismissed by said United States District Court on the 19th day of March, 1927.”

To this petition the defendant filed the following plea:

' “Now comes the defendant in the above numbered and entitled cause, and, without answering the demands in the plaintiff’s petition contained, shows unto the court that if plaintiff ever had any right of action herein, which is denied, that the same has been barred and preempted by the failure of the plaintiff to assert said right within the space of one year, provided by article 2315 of the Civil ^Code of Louisiana; that, prior to the enactment of Act 71 of 1884 no right of action existed in this state for the death of a human being, and the granting of such right under article 2315 of the Civil Code must be strictly construed, and said right must be exercised within the time limit allowed by said article. That the petition herein shows that (plaintiff’s husband was killed more than a year prior to the institution of this suit. Wherefore defendant pleads in bar qf plaintiff’s cause or right of action the provisions of article 2315 of the Civil Code restricting the right to bring suit for the death of another to a period of one year, and prays that this plea be sustained, for all orders and decrees necessary, for cost, and for full and general relief.”

On trial of the plea it was sustained and plaintiff’s suit dismissed, and she appealed.

OPINION

Article 2315 of the Civil Code reads as follows:

“Every act whate.ver of man that causes damage to another, obliges him by whose ‘fault it happened to repair it; the right of this action shall survive in case of death in favor of the children or surviving spouse of the deceased; or either of them, and in default of those in favor of the surviving father and mother or either of them, and in default of any of the above persons, then in favor of the surviving brothers and sisters or either of them, for the space of one year from the death; provided that should the deceased leave a surviving spouse together with minor children the right of action shall accrue to both the surviving spouse and minor children; provided further, that the right of action shall accrue to the major children only in those cases where there is no surviving spouse or minor child r children.
“The survivors above mentioned may also recover the damages sustained by them by the death of the parent or child or husband or wife, or brothers or sisters as the case may be.”

Defendant, in brief, says:

“The authorities which we shall cite are all in accord to the effect that in this state no right of action existed for the death of a human being prior to the year 1884, and the statute passed in that year with amendments that have subsequently been made to the act should be strictly construed. These authorities furthermore hold that where any right or cause of action is granted by any statute and a time limit prescribed within which such right or cause of action might be exercised, time limit is considered as a period of preemption as contradistinguished from a period of prescription. If the period (prescribed, for the bringing of the action or the exercise of the right is a period of preemption, then no suit can be brought, nor can the right be exercised at any time following the expiration of the period, even though a suit may have been commenced within the period. In other words, the provisions of law relative to the interruption of prescription do not apply to statutes of preemption.” (Boldface type ours.) And cites many causes in support of its contention, including the following: Van Amburg vs. V. S. & P. Ry. Co., 37 La. Ann. 650, 55 Am. Rep. 517; Kerner vs. Trans-Mississippi, etc. Co., 158 La. 853, 104 So. 740. Ashbey vs. Ashbey, 41 La. Ann. 109, 5 So. 539; Guillory vs. Avoyelles Ry. Co., 104 La. 11, 28 So. 899; Partee vs. St. Louis & San F. Ry. Co. (C. C. A.), 204 F. 970, 51 L. R. A. (N. S.) 721; Western oal & Mining Co. vs. Hise (C. C. A. 216 F. 338; Rodman vs. Missouri Pacific R. Co., 65 Kan. 645, 70 P. 642, 59 L. R. A. 104; Boston & Maine R. R. vs. Hurd (C. C. A.) 108 F. 125, 56 L. R. A. 193; McCan vs. Conery (C. C. A.), 12 F. 318; Theroux v. Northern Pac. Ry. Co. (C. C. A.), 64 F. 86; Harrisburg vs. Rickards, 119 U. S. 199, 7 S. Ct. 140, 30 L. Ed. 358; and also the following authorities: Partee vs. St. Louis & S. F. R. Co. (C. C. A.), 204 F. 970, 51 L. R. A. (N. S.) 721; 37 C. J. 686.

Answering this argument plaintiff, in brief, says:

“Counsel for defendant cited ample authority for the proposition that where a cause of action is created and in the same statute a term designated within which the cause of action must be asserted, such term is to be construed as a preemption rather than prescription, and that the filing of a suit does not interrupt the preemption.
“We have no argument as to this rule of construction or these authorities. Our contention is that they are not applicable to this case. The argument and authorities cited by counsel would be applicable if this were a suit of the widow and children as survivors and successors to the right of action which the deceased had for his injuries at the time of his death; if the right of action asserted was the right of action which survives in case of death in favor of the children and surviving spouse of the deceased.
“As to the cause of action which the deceased had and which survived in favor of designated beneficiaries, it might properly be argued that the time within which the cause of action may be asserted is embodied in the act granting the cause of action; that the cause of action itself ceases at the termination of the period of prescription; or, in other words, that the cause of action which the deceased had, as stated in the Article, ‘shall survive in case of death * * * for the space of one year from the death’; that it survives for the space of one year and no longer and, therefore, at the end of the year from the death the cause of action is forfeited, prescribed and preempted.
“As above stated, however, this suit is on behalf of the widow and minor children under the second paragraph of article 2315, which provides ‘the survivors above mentioned may also recover the damages sustained by them by the death of .the parent or child,’ etc. This is a suit directly against the defendant for damages directly resulting to the plaintiffs by being deprived of the support, sustenance, love, affection, etc., of the deceased. There is nothing in the paragraph granting this cause of action, or within the period bounding the same, indicating to the slightest extent within what period of time this particular cause of action shall be asserted. There is nothing in article 2315 as amended indicating that his cause of atcion must be exercised within one year or within any other period of time. The suit is based on “'Quasi Offense’ as designated in the Civil Code. The article of the Code giving the cause of action is under the head of ‘Offenses and Quasi Offenses.’
“Under the head of ‘prescription’ article 3536 provides: ‘The following actions are also ¡prescribed by one year: That for injurious words, whether verbal or written, and that for damages caused by animals, or resulting from offenses or quasi offenses.’
“As to the cause of action asserted in this petition: Quasi offense, pure and simple is alleged. No term is designated in the article granting the cause of action as to how long the cause of action may subsist; and the only prescription applicable is the prescription of one year from the date of the death applicable to all offenses and quasi offenses. There is no occasion to invoke the distinction between prescription and preemption or forfeiture. There is no distinction or point of differentiation indicated in the article as between a direct cause of action resulting from death and a cause of action resulting from any other ‘act whatever of man that causes damage to another.’ ”

And she cites articles 3518 and 3551 of the Civil Code and Teutonia Loan & Building Co. vs. Connolly, 133 La. 401, 63 So. 63, and contends that, inasmuch as her action is based not on the first, but os the second ¡paragraph of article 2315, it is limited not by the one-year preemption period controlling actions founded on the first paragraph, but by the one-year prescription of article 3536, and that, having brought her action in the District Court of the United States within one year of the death and subsequently dismissed it and recommenced it in the state court within one year of the dismissal, though more than one year after the death, the running of prescription was, under article 3518, interrupted.

The right given by the second paragraph to certain persons “also to recover the damages sustained by them by the death” clearly is to be exercised by them in the same time and manner as the right given by the first paragraph on account of the death is to be exercised by those to whom it is given.

“Also” imports in like manner. State vs. Parler, 52 S. C. 207, 29 S. E. 651.

“Also,” as used in a will, means in the same manner; and where a negro woman was given by a testator to his wife for life, and “also” a choice of any one of the other negroes, the wife took a life estate only in the negro selected by her. Hyman vs. Williams, 34 N. C. 92.

In a will providing that the testator’s widow should have all his household goods and furniture, and “also” one-third of all the income of his estate during her widowhood, in lieu of dower, “also” means the same as “in like manner,” and hence the widow was entitled only to a life estate. Morgan vs. Morgan, 41 N. J. Eq. 235, 3 A. 63; Words and Phrases, First Series, vol. 1, p. 359 et seq.

The amendment of 1884 to article 2315 created two rights in favor of certain beneficiaries for death by wrongful act, one for injuries suffered by the deceased himself and one for injuries suffered directly by the beneficiaries in consequence of the death, and it would be unreasonable to suppose that the Legislature intended to permit an action for one of the rights to be maintained after a longer time or under different conditions than an action for the other.

“When the language of a statute fairly permits, a construction which will lead to an unreasonable result should be avoided.” R. C. L„ vol. 25, p. 1018.
“When the Legislature has clearly laid down a rule for one class of cases, it is not readily to be supposed that in its choice of words and phrases, or in the enactment of various provisions in the same act, it has prescribed a different rule for another class of cases within the same reason as the first; a construction which will avoid such senseless discriminations should be adopted where the meaning of the statute as evidenced by its language is, debatable.” Id. 1024.

The case of The Harrisburg, 119 U. S. 199, 7 S. Ct. 140, 30 L. Ed. 358, was a suit by a widow and child to recover damages for the death of the husband and father, under a statute of the state of Pennsylvania which provided that:

“ ‘The husband, widow, children, or parents of the deceased, and no other relative,’ * * * ‘may maintain an action for and recover damages for the death thus occasioned.’ ‘The action shall be brought within one year after the death, and not thereafter.’ ”

The action having been brought after a year from the death, the plaintiffs were non-suited, the court saying:

“The statutes create a new legal liability with the right to a suit for its enforcement, provided the suit is brought within twelve months, and not otherwise. The time within which the suit must be brought operates as a limitation of the liability itself as created, and not of the remedy alone. It is condition attached to the right to sue at all. * * * Time has been made of the essence of the right, and the right is lost if the time is disregarded. The liability and the remedy are created by the same statutes, and the limitations of the remedy are, therefore, to be treated as limitations of the right.”

In Kerner vs. Trans-Mississippi Terminal Railroad Co., 158 La. 853, 104 So. 740, the Supreme Court of Louisiana said:

“There is no right of action at common law, and there was none under the Roman or the Spanish law, for damages caused by the wrongful or negligent killing of a human being, for the loss of his support, or for mental suffering inflicted upon any one surviving him, by his death. Hermann v. N. O. & C. R. Co., 11 La. Ann. 5; Earhart v. N. O. & C. R. Co., 17 La. Ann. 243; McCubbin v. Hastings, 27 La. Ann. 713; Vredenburg v. Behan, 33 La. Ann. 627; Van Amburg v. V. S. & P. Ry. Co., 37 La. Ann. 650, 55 Am. Rep. 517; Delisle v. Bourriague, 105 La. 77, 29 So. 731, 54 L. R. A. 420. Therefore a statute that gives the right of action to survivors of the person injured, in case of his death, must be construed strictly .* * * and the rule applies as well to the right of action which the deceased person had for the injuries suffered by him as to the right of action for the damages suffered by the survivors mentioned in the statute. * * *”

Article 1987 of the Civil Code grants a revocatory action and provides it shall be brought within one year of the making of the contract sought to be annulled; and in Ashbey vs. Ashbey, 41 La. Ann. 102, 5 So. 539, which was an action under the article in behalf of a minor, to which a plea in bar that the act complained of had happened more than a year before the suit was interposed, it was contended that the delay qf one year prescribed by the article does not apply to minors, against whom, under the provisions of articles 3522 and 3554, prescription does not run, and the court said:

“That proposition naturally suggests the inquiry whether the delay prescribed by the article is technically a term of prescription as contemplated in civil law. * * *
“The essence of prescription is that the party who invokes it as a remedy, thereby acquires the ownership of property, or is thereby discharged from a debt or obligation. * * *
“It would, therefore, seem that the lapse of time thus prescribed by the law is more in the nature of a term of forfeiture than a term of prescription. Nothing is acquired by the lapse of time, but a right is destroyed by inaction during the prescribed time. * * *
“We, therefore, feel fully warranted to conclude and to hold that the lapse of time prescribed by the article, within which to institute the revocatory action, is not suspended as to minors. * * *”

In Goodwin vs. Bodcaw Lumber Co., 109 La. 1050, 34 So. 74, which was an action under article 2315 by a widow for herself and her minor children for the death of the husband and father, and to which a plea of delay of more than one year after the death before bringing the action was interposed in bar, it was contended on behalf of the minors that not the one-year prescription, but article 3536, was applicable and that prescription did not run against them, under the terms of article 3522. The Court said:

“More than a year had elapsed at that time (commencement of the action) since the death of Goodwin. The present action is based upon those provisions of article 2315 which give a right of action for damages to the minor children and widow of a deceased person where death has been caused by the fault of another. By that article the right of action is given ‘for the space of one year from the death.’ The action is one ex delicto. * * *
Article 3522 of the Code, which establishes as a rule that minors and interdicted persons cannot be prescribed, modifies the generality of the rule by adding, ‘except in the cases provided by law.’ In cases like the present the right of action itself is conditioned upon its being exercised within a year from the time of death. Ashbey v. Ashbey, 41 La. Ann. 142', 5 So. 546; Chivers v. Rogers, 50 La. Ann. 57, 23 So. 100; Huberwald v. Orleans Ry. Co., 50 La. Ann. 477, 23 So. 474; Cox v. Von Ahlefeldt, 105 La. 543, 30 So. 175.
“We are of the opinion that the demand * * * was barred by the prescription of one year.”

It would therefore- seem that, since the operation of the preemption period of artide 2315 is not limited by artide 3522, it is not limited by artide 3518 either.

The question whether the running of the preemption period of artide 2315 is tolled by the commencement of an action within the year and its subsequent dismissal and recommencement within a year of the dismissal, but more than a year after the death, in virtue of article 3518, seems to be res novo in this state, but in a footnote to the case of Partee vs. St. L. & S. P. R. Co., 123 C. C. A. 292, 204 P. 970, as published in 51 L. R. A. (N. S.) 721, the editor states:

“The rule is well settled in a majority of the jurisdictions where the question has arisen, that, as a statute which creates a cause of action not known to the common law, and fixes the time within which an action must be commenced thereunder, is not a statute of limitation, but the right given thereby is a conditional one, and the commencement of the action within the time fixed is a condition precedent to any liability under the statute, a general provision of the limitation statutes for additional time within which to bring a new suit after the failure of a previous action for the same cause, notwithstanding the new suit would otherwise be barred, has no application to a purely statutory cause of action upon which the statute creating it provides that action must be brought within a certain time.”

Partee vs. St. L. & S. P. R. Co., supra, was an action by an administrator to recover damages for the wrongful death of his intestate under a statute of the state of Oklahoma reading as follows:

“Section 5945. Action for Death—Limitation, etc.—When the death of one is caused by the wrongful act or omission of another, the personal representatives of the former may maintain an action therefor against the latter, if the former might have maintained an action had he lived, against the latter for an injury for the same act or omission. The action must be commenced within two years. The damages cannot exceed $10,000, and must inure to the exclusive benefit of the widow and children, if any, or next of kin, to be distributed in the same manner as personal property of the deceased.”

The action was not commenced within two years after the wrongful act or death; but the plaintiff had commenced a similar action within the two years, had failed in that action otherwise than upon the merits and had commenced the new action within one year after the failure.

The defendant pleaded the two-year preemption period of the statute in bar of the right to maintain the action.

The plaintiff contended that the commencement of the action within the two-year period and Its subsequent termination otherwise than on the merits and its recommencement within one year after the termination, though more than two years after the wrongful act or death, tolled the running of the preemption period, in virtue of other laws of the state reading as follows:

“Section 5547. Limitations.—Civil actions can only be commenced within the periods prescribed in this article, after the cause of action shall have accrued; but where, in special cases, a different limitation is prescribed by statute, the action shall be governed by such limitation.”
“Section 5555. New Action.—Limitation. —If any action be commenced within due time, and a judgment thereon for the plaintiff be reversed, or if the plaintiff fail in such action otherwise than upon the merits, and the time limited for the same shall have expired, the plaintiff, or, if he die, and the cause of action survive, his representatives, may commence a new action within one year after the reversal or failure.”

The trial court sustained the defendant’s plea.

The United States Circuit Court Of Appeals, considering the contention, said:

“The complaint in this court is that the court below held that section 5555 was inapplicable to this action, and that it could not be sustained because the plaintiff failed to comply with the condition of its maintenance fixed by section 4945, which created it, failed to commence his action within two years of the wrongful act or death. In support of this complaint counsel argue that section 5555 is general in its terms and without exception, and that it should be held to apply to this and every action which is commenced within due time, wherein a judgment is reversed or the plaintiff fails” otherwise than “on the merits after the time limited has expired, and he brings a new action within one year aftqr the reversal or failure.
“Because a special act and a general law must stand together, the one as the law of its particular subject and the other as the general rule, unless it clearly appears that it was the intention of the legislative body to modify or repeal one of them, because it does not appear that the legislature of Oklahoma intended by section 5555 to annul or to modify the specific conditions on which new actions were created or permitted by special statutes, but that body seems to have enacted this section to extend the time fixed by the general statutes of limitation of the state for the commencement of the ordinary actions governed by that statute, and because it is expressly provided by section 5547, which is found in the same article as section 5555, that where in special cases a different limitation from those fixed in that article is prescribed by statute, as there is in this case, the action shall be governed by such limitation, and not by those prescribed in that article, the provisions of section 5555 are inapplicable to actions for death by wrongful acts, and neither modify nor extend the condition of these liabilities and actions fixed by section 4945. that they must be commenced within two years after the respective injuries or deaths. Rodman v. Missouri Pacific Railroad Co., 65 Kan. 645, 649-653, 70 P. 642, 59 L. R. A. 704; Gerren v. Railroad Company, 60 Mo. 405, 411; Theroux v. Northern Pac. Ry. Co., 64 F. 84, 85, 12 C. C. A. 52, 53; Anglo-American, etc., Co. v. Lombard, 132 F. 721, 751, 68 C. C. A. 89, 119; Atchison, T. & S. F. Ry. Co. v. Sowers, 213 U. S. 55, 70, 29 S. Ct. 397, 53 L. Ed. 695; Boston & Maine R. R. Co. v. Hurd, 108 F. 116, 125, 47 C. C. A. 615, 624, 56 L. R. A. 193.”

And it was held that the action could not be maintained.

In Rodman vs. Missouri Pacific R. Co., supra, a similar contention was made by the plaintiff under statutes of the state of Kansas practically similar, if not identical, with those of the state of Oklahoma quoted, and the court held, we quote from the syllabus;

“Section 422 of the Civil Code creates a right of action for damages for death by wrongful act which did not exist at common law, and which does not obtain in the absence of such act. The limitation of two years prescribed in the act in which such action must be commenced is a condition imposed upon the exercise of the right of action granted, and this time is not extended by the pendency and dismissal of a former action, as provided in section 23 of the Civil Code.”

The section 23 referred to is identical with section 5555 of the Oklahoma Code copied above.

The same question arose in Western Coal & Mining Co. vs. Hise (C. C. A.), 216 F. 338, under statutes of the state of Arkansas similar to those of Oklahoma and Kansas, and there was a similar ruling. The syllabus of that case is as follows:

“Kirby’s Dig. Ark. section 5083, which is a part of the general statute of limitations and provides that if an action is brought within the time prescribed and the plaintiff shall suffer a nonsuit a new action may be brought within one year thereafter, does not apply to an action for wrongful death brought, under section 6290 of such digest, which makes the bringing of an action within two years an indispensable condition to the liability.”

Our conclusion is that the right of action granted by the second paragraph of article 2315 must be exercised within and is controlled by the one-year preemption period fixed in the first paragraph of the article, that article 3518 is inapplicable to periods of preemption, and that the recommencement by plaintiff of her action within one year after the dismissal of a former action by her for the same cause, but more than one year after the death, did not interrupt the running of the delay of one year allowed by the article in which to commence the action.

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


text:
    No. 3469
    Second Circuit
    AMERICAN DISINFECTING CO. v. POLICE JURY OF GRANT PARISH
    (January 21, 1929. Opinion and Decree.)
    (March 12, 1929. Rehearing Refused.)

      Williams and Williams, of Colfax, attorneys for plaintiff, appellee.
    Cleveland Dear, of Alexandria, attorney for defendant, appellant.
   ODOM, J.

In June, 1926, the sheriff of Grant Parish purchased 120 gallons of Dyo Concentrated Disinfectant and other materials from the plaintiff company to be used in disinfecting the courthouse and jail, and had the same charged to the police jury. The bill was presented to the police jury, and it refused to pay it. This suit followed.

The police jury resists the action on the ground that the sheriff purchased the disinfectants without its sanction or authority, and that the sheriff had no authority to bind the parish. Elaborating its answer, the police jury averred that in April, prior to the purchase of the goods by the sheriff in June, it adopted a resolution and had it published in the official journal, notifying all officials of the parish not to purchase anything for the parish without the approval of the police jury, and further, notifying all persons who had theretofore sold supplies to such officers that it would not be responsible for such bills unless approved. There was judgment in the lower court for plaintiff and defendant appealed.

OPINION.

The testimony shows that the sheriff purchased these disinfectants in the name of the parish and had the bill charged to it. The goods were promptly shipped to the parish, and received by the sheriff, and used by him in disinfecting the courthouse and jail. It is shown that the police jury had given the sheriff no specific authority to purchase the goods. However, it is clear that, in making the purchase, the sheriff followed the custom which had prevailed in the parish for many years, that is, of purchasing what supplies he needed to keep 'the jail and courthouse in a sanitary condition and having the bills charged to the police jury. Not only had this custom prevailed as to the sheriff, but other officers had always purchased what they needed for their departments and had the bills charged to the parish. So far as the record discloses, the police jury had never required any officer to obtain specific authority to purchase what supplies he needed.

With reference to the supplies purchased by the sheriff, the testimony shows that the police jury had sanctioned and ratified his actions in making, such purchases by paying the bills without question. It had adopted and made the sheriff’s acts its own in such matters, and this was recognized by the commercial world. Up to the time this bill was presented to the police jury, it had never repudiated any account made by the sheriff for supplies for the jail, or for anything else purchased for the parish. From 1915 to 1926, the sheriff had purchased from the plaintiff in this case more than $2,000 worth of disinfectants for the jail and courthouse, without any specific authority from the police jury, and each bill was approved and paid by the police jury without question.

But, in April, 1926, the police jury decided that some of the officers of the parish, including the sheriff, were rather extravagant in their purchases, and that, in the interest of economy, it was advisable to have each order presented to and approved by the police jury, or its representative! Accordingly, on April 6, 1926, the jury adopted a resolution notifying all the officers of the parish that all orders for supplies must thereafter be approved by that body, and further notifying all persons who had theretofore made sales to the parish upon orders given by the officers, that such orders must first be approved by the jury, otherwise, they would not be paid. This resolution was published once in the official journal of the parish. At the time of the publication, the sheriff was out of town in a sanitarium and did not see the' published notice, and knew nothing of it. He purchased the goods in question in June following. The plaintiff had no actual notice of the change in the method of dealing adopted by the police jury, and knew nothing of the resolution until November following, when the clerk of the police jury sent to it a certified copy of the resolutions. But the disinfectants had long since been shipped to, and received by, the sheriff, and were then being used by him.

In addition to the point that the sheriff had no authority to purchase the goods for the parish, counsel for the police jury argues that the publication of the resolution in the official journal of the parish was sufficient notice to plaintiff, under the law which provides that the publication of laws in the official journal is notice of their passage.

But we do not think the publication of the resolution in this instance was sufficient notice to the plaintiff, which is a foreign corporation domiciled in the state of Missouri, nor do we think the police jury considered it sufficient notice, because we find that, four months after the adoption and publication of said resolution and notice, the clerk of the police jury, presumably at the suggestion of that body, sent’ to the plaintiff a certified copy of said resolution, accompanied by a check in payment of a previous bill, and a letter specifically reciting that “hereafter” no bill against the police jury would be paid, unless previously approved by that body. Besides this, the resolution referred to is not in any sense a law or an ordinance. In its preamble it is recited that, “whereas it appears that numerous purchases have and are being made by various parties without authority, * * * therefore be it resolved that we, Police Jury of Grant Parish, * * * go on record disfavoring such a practice, and that all persons selling anything whatever to any parties without the approval of said Police Jury as a body be, and they are hereby notified that their accounts and invoices will not be paid by the said Police Jury, * * It is therefore plain that said resolution was never intended as anything more than a mere notice of a change in the system which had theretofore prevailed. Mr. Warner, secretary-treasurer of the police jury, was asked whether or not the plaintiff company had specific notice of said resolution, and he said:

“A. I sent them a check I think it was in October or November 1926, and notified them at that time that hereafter before making any sales or shipment of any stuff purchased by anyone not having authority from the Police Jury, they would have to look to the party or parties making the purchase, for the payment as the Police Jury was in no way responsible for purchases made after that time, and at the same time sent them a certified copy of the resolution.”

From this, we infer that the police jury-recognized that foreign creditors should have specific notice of the change of method. But this was about four months after these goods were shipped and delivered, and after they had been partially consumed.

The police jury understood that the sheriff was responsible for sanitary conditions in the jail and courthouse, and had always left it to him to purchase what he needed, and had paid for what he purchased. Mr. Pope, president of - the jury, was asked:

“Q. Mr. Pope, is it not a fact that the Police Jury trust the management—control and the sanitary condition of the Court House and Jail to the Sheriff?
“A. Well, it has been my understanding tha the Sheriff was supposed to look those matters.
“Q. The Police Jury recognizes that the Sheriff was the man to keep the condition in a sanitary manner around that Court house and Jail, is that a fact?
“A.. Yes, sir.”

Act 251 of 1918 prescribes sanitary regulations for jails, and section 7 thereof makes it the duty of the sheriff to enforce these regulations.

It is not denied that it is the duty of the parish to provide and pay for disinfectants for the jail. Supplies for that purpose are almost as necessary as food and clothing for the prisoners. The sheriff testified that, for some time during his tenure of office, the toilets in the jail were not connected with sewers, and that it was difficult to keep the place fit for human habitation, even with the use of disinfectants. The police jury had never at any time delegated to any special, individual authority to make purchases of supplies for the jail, but always left that matter to the sheriff, and had approved and sanctioned his acts by paying the bills without question.

Under such conditions, the police jury cannot escape the payment of the bill in question on the technical ground that the sheriff had no authority to bind the parish. It had constituted the sheriff its agent for making purchases of such necessary supplies by sanctioning and ratifying his conduct in that respect. It would be wholly unfair and inequitable to permit the parish to repudiate this debt on the technical ground that the sheriff had no authority to make the purchase, and as a matter of law, it cannot do so. It is equitably estopped from denying the agency.

“The doctrine of estoppel involves apparent or ostensible agency, which exists where the principal intentionally, or by want of ordinary care, induces third persons to believe another to be his agent, although he did not in fact employ him.” 31 Cyc. 1236.
“Ratification of the acts of an agent need not in most cases be express, but may be implied from the acts and conduct of the principal, and generally speaking a ratification may be implied from any acts or conduct on the part of the principal reasonably tending to show such an intention on the part of the principal to ratify the acts or transactions of the alleged agent, particularly where his conduct is inconsistent with any other intention, or where it appears that he has repeatedly recognized and approved similar acts done by the agent.” 31 Cyc. 1263.

This estoppel applies to • parochial and municipal corporations, as well as to private individuals, where the acts of the agent are not ultra vires the powers and duties of such corporations. 28 Cyc. 465. See Volume 3, La. Digest, p. 92, Sec. 29.

In the case of Moore vs. New Orleans, 32 La. Ann. 726, Judge Fenner, the organ of the Court, said on page 744:

“The doctrine of estoppel is unquestionably subject to some important restraints and qualifications in its application to public corporations; but such juridical persons are not emancipated from those great duties imposed by the law of nature, recognized in every system of morals and religion, and consecrated in universal jurisprudence among which those most elementary are the injunctions, honeste vivere, swum, ewique tribuere, and that no one shall be permitted to enrich himself at the expense of his neighbor.”

In Booth vs. City of Shreveport, 29 La. Ann. 581, the court held, to quote the syllabus:

“The consent of a municipal corporation to a contract may be as effectually given by the action or inaction of the common council, as by a formal resolution of the council.”

. In a case note found in L. R. A. 1915A, p. 1006, it is stated:

“A public corporation m'ay likewise estop itself to deny the validity of a contract within the general scope of its powers, but not regularly entered into, by having in the same manner entered into other similar contracts and recognized the validity thereof.”

In support of this general rule, there is cited the case of Barnard vs. Sangamon County, 190 Ill. 116, 60 N. E. 109, holding that:

“Where a contract was within the charter powers of a municipal corporation, it is estopped to deny the authority of its clerk to enter into it in its behalf, where it has previously permitted its clerk to enter into similar contracts and has recognized the validity thereof.”

While counsel have filed written statements, setting forth in a general way their respective contentions, neither has cited a single authority in support of those contentions. Pressed for time as we are, confronted constantly with a heavy and badly congested docket, it is quite a burden, upon the members of this court to have to brief the authorities without assistance from the members of the bar. However, “Hope sprjngs eternal!” May we yet be blest!

Eor the reasons assigned, it is ordered, adjudged, and decreed that the judgment appealed from be affirmed, with costs in both courts.