text:
    No. 11,907
    Orleans
    DASTUGUE v. COHEN
    (January 13, 1930. Opinion and Decree.)
    (January 27, 1930. Rehearing Refused.)
    (March 10, 1930. Writ of Certiorari and Review Refused by Supreme Court.)
    Edward Rightor, Thos. E. Furlow and P. E. Edrington, of New Orleans, attorneys for plaintiff, appellee.
    Guión & Upton and K. C. Barranger, of New Orleans, attorneys for defendant, appellant.
   HIGGINS, J.

There are eleven suits involved in this litigation and they were consolidated for the purpose of trial and decision. Plaintiff sought and obtained an injunction restraining defendant from interfering with him in the exercise of his duties as a member of the Republican State Central Committee and defendant has appealed.

The petition alleges that plaintiff was a de facto member of the Republican State Central Committee for the seventh ward of the parish of Orleans, having been elected at a meeting of the committee on January 31, 1928, for a full term of'four years; that he qualified as such and is exercising and performing the duties of such a committeeman; that the defendant is claiming he is entitled to be a member of the State committee and to exercise the ■ duties and functions thereof; and that plaintiff will suffer irreparable injury unless defendant is restrained and prohibited from interfering with him in the performance of his duties “until such time as the disputed right of said. office shall have been judicially determined in proper legal proceedings.” “That the Republican State Central Committee is, under the laws of the State, and particularly Act 97 of 1922, a part of the government and the members thereof are officers of the law; and the functions of the said Committee and members thereof are set forth in the said act and particularly Sections 25, 29, 30 and 31 thereof; and all of the said duties and functions are exercised by petitioner.”

Defendant filed an exception to the jurisdiction of the court ratione materiae and an exception of no cause of action. In his answer, defendant denies that plaintiff is a member of the committee and performing any of the duties and functions as a member thereof but alleges that he (defendant) is the duly elected member of the said committee. The exceptions were overruled and on the merits judgment was rendered in favor of plaintiff enjoining defendant from interfering with him in the performance of his duties and functions “until such time as the disputed right to the said office shall have been judicially determined in proper legal proceedings.”

Counsel for defendant has urged the exceptions before this court and argues in support of the exception to the jurisdiction, that courts have no jurisdiction over any controversy with respect to membership of such committee, being purely a political matter, and no pecuniary interest involved; and in support of the exception of no cause of action argues that a member of the Republican State Central Committee is not a public officer entitled to such injunctive relief.

We will first take up the question of jurisdiction.

Section 35, Article 7 of the Constitution of 1921 reads as follows:

“* * * The District Courts, except in the Parish of Orleans, shall have original jurisdiction in all civil matters regardless of the amount in dispute, or the fund to be distributed, concurrently, however, with justices of the peace in matters where the amount in dispute, or fund to be distributed, is less than one hundred dollars, exclusive of interest; and in all cases where the title to real estate, or the right to office or other public position, or civil or political rights are involved, and in all cases where no specific amount is in contest, except as may be otherwise provided in this Constitution. District Courts shall be courts of record, except in cases where they have concurrent jurisdiction with justices of the peace. * * * ”

And section 81 of Article 7 of the Constitution of 1921 reads as follows:

“The Civil District Court for the Parish of Orleans is hereby vested with the same exclusive original civil jurisdiction as that of District Courts throughout the State, as fixed by this Constitution at the time of its adoption, except such as may be vested by it in other courts in the City of New Orleans. * * * ”

Under Article 109 of the Constitution of 1879, the district courts had “original jurisdiction in all civil matters where the amount in dispute shall exceed $50.00, exclusive of interest.” Nothing was said about cases in which no pecuniary amount was involved. Many controversies in which no pecuniary amount was involved but in which rights of the litigants were important found their way into the district courts, and in some of them the defendants excepted to the jurisdiction ratione materiae. Jurisdiction was uniformly maintained, on the equitable principle that every right must have a remedy. This principle was incorporated into the Constitution of 1868 as Article X, into the Constitution of 1879 as Article XI, into the Constitutions of 1898 and 1913 as Article VI,- and into the Constitution of 1921 as Section 6 of Article I, as follows:

“All Courts shall be open, and every person for injury done him in his rights, lands, goods, person or reputation shall have adequate remedy by due process of law and justice administered without denial, partiality or unreasonable delay.’’

The same principle is expressed in Article 21 of the Civil Code:

“In all civil matters, where there is no express law, the Judge is bound to proceed and decide according to equity. To decide equitably, an appeal is to be made to natural law and reason, or received usages, where positive law is silent.”

In Crescent City Gas Light Company v. New Orleans Gas Light Company (1875) 27 La. Ann. 138, the plaintiff prayed for an injunction to prevent the defendant and its officers and directors from asserting any right or claim to make and vend illuminating gas in the city of New Orleans, from and after the date of expiration of the charter of the defendant. In overruling defendant’s exception of no cause of action, the court said:

“The authors of our laws have not seen fit to prescribe forms for every legal demand, and they have not catalogued in the Code of Practice all the actions that may be brought in our Courts; it is, perhaps, well that they have not done so, lest by the omission of a form, substantial relief in some case might be denied a person whose rights have been invaded.”

The syllabus reads:

“The plaintiff has shown an injury, and if there is no express law giving a remedy, it can appeal to the equity power of the Court for redress. Revised Code, Article 21.”

In State ex rel. Mayor v. Judge (1883) 55 La. Ann. 637, citizens and voters of the town of Donaldsonville, alleging that the law required an election to be held at a certain time, that the mayor and town council were required by law to issue a proclamation, give notice and perform other duties with respect thereto, that the mayor and council were neglecting to perform their duties, that petitioners were entitled to vote at said election and that, if the defendants were not required to perform said duties, petitioners would be deprived of their right, applied to the district court for a writ of mandamus. The defendants pleaded to the jurisdiction of the court ratione materiae, because there was no amount in dispute exceeding $50, exclusive of interest, as required by Article 109 of the Constitution of 1879. The exception was overruled, and the defendants applied to the Supreme Court for writs of certiorari and prohibition. In denying the application, the court said:

“If the District Court has not jurisdiction to enforce the rights claimed by the plaintiffs in the suit under consideration, no Court has such jurisdiction and we would have presented the case of a well recognized legal right without a remedy. Art. 11 of the Constitution provides that, ‘all Courts shall be open, and every person, for injury done him in his rights, lands, goods, person or reputation, shall have adequate remedy by due process of law and justice administered without denial or unreasonable delay.’ In construing the constitutional definitions of the original jurisdiction of Courts, we must be guided by this Article; and when we find that, under our system of law, there has existed an ancient and established remedy for the enforcement of a recognized legal right, which is the only adequate remedy, we will not construe the jurisdictional provisions of the Constitution as having effect to take away such remedy and to leave the right remedies, by any mere implication, however strong.”

In State ex rel. Garland v. Theard (1893) 45 Ann. 680, the plaintiff, as custodian of notarial records, sued for the possession of the notarial records of the deceased father of the defendant. In ruling adversely on defendant’s plea to the jurisdiction ratiene materiae, the court said:

“If the cause is not within the jurisdiction of the District Court, no Court has jurisdiction. The question presented would have to remain undetermined, though the Constitution ordains that all Courts shall be open and justice administered without unreasonable delay.”

and in the syllabus:

“The original jurisdiction of inferior Courts must be construed with reference to Article il of the Constitution, which ordains adequate remedy in the Courts for all legal rights.”

In State v. Rost (1895) 47 Ann. 53, the jurisdiction of the district court, in an injunction suit by one alleging himself to be the de facto police juror in actual occupancy of the office against another alleged to be attempting to intrude in to the office and usurp the functions thereof, was questioned. It was held:

“That under Article 11 of the Constitution of the State, any incumbent of a public office is entitled to appeal to the Courts to be maintained in the possession of his office pending the judicial determination of the right and title to said office.”

In State ex rel. Mouton et al. v. Read (1897) 49 Ann. 1535, it was held that the district court had jurisdiction of a contested election suit, the court saying:

“We have had in previous cases this question of the limitation of jurisdiction to controversies purely pecuniary in their character. Under the constitutional provision that the Courts shall be open for the assertion of the rights of the citizens, we are not able to reach the conclusion that the jurisdictional test of amount shall be so construed as to close the Courts to all suitors asserting rights of an important character, though not susceptible of pecuniary estimate.” Citing Constitution 1879, Article 11; State v. Judge, 35 Ann. 637; Rowley v. Rowley, 19 Ann. 557; State v. Theard, 45 Ann. 681; Scott v. President of Police Jury, 46 Ann. 278.

In Guillotte v. Poincy (1889) 41 Ann. 333, the leading case of the kind now before the court, the decision was founded on the equitable principle involved and the necessity for orderly administration of public affairs.

The framers of the Constitution of 1898 made more specific in Article 109 the matters in which the district courts should have jurisdiction, and this provision was incorporated in substantially the same form in the Constitution of 1921, as section 35 of Article VII. It is there provided that the district courts “shall have jurisdiction in all civil matters regardless of the amount in dispute * * * and in all cases where * * * the right to office, or other public position, or civil or political rights are involved, and in all cases where no specific amount is in contest, except as may be otherwise provided in this Constitution.”

The number and variety of cases coming within the jurisdiction of the district courts are inconceivable. We shall refer to only a few of them.

The district court has jurisdiction of a suit against a sheriff by a citizen seeking to inspect and copy lists of persons who have paid their poll taxes, since Article 109 of the Constitution (1898) confers upon district courts jurisdiction over all matters, wherein civil and political rights are in controversy, regardless of the amount involved. Marsh v. Sanders, (1903) 110 La. 726, 34 So. 752.

In Bunkie Brick Works, Ltd., v. Police Jury, (1905) 113 La. 1062, 37 So. 970, and in other cases submitted with it on appeal, the plaintiffs sought to have declared illegal the assessment for taxation of certain improvement constructed after January 1st. The defendants excepted to the jurisdiction ratione materiae on the ground that the amount of taxes involved did not exceed the sum of $50. It appeared that the taxes involved in one case were in excess of $50 and in the other three cases less than $50. The court said:

“We think that the district court has jurisdiction, regardless of the amount of taxes in controversy, because civil rights were involved and, moreover, the defendants in the suit represented the state and the parish. See article 109, Constitution 1898.” .

In Reynolds v. Carroll (1905) 114 La. 610, 38 So. 470, the plaintiff sought to be declared elected alderman of the town of Zwolle. The district judge sustained a plea to the jurisdiction ratione materiae, because plaintiff’s petition did not set forth that the office was one of trust or emolument, or that it had any value, or that any fault had been committed. In granting mandamus to the district judge to reinstate and try the case, the court said:

“The District Court has jurisdiction in all eases where title to office is involved, ‘or other public position, even where no specific amount is in contest.” Citing Constitution, Article 109; McClenny v. Webb, (1905) 114 La. 779, 38 So. 558, decided same day as Reynolds case.

In City of Lake Charles v. Lake Charles Railway L. & W. Company (1918) 144 La. 217, 80 So. 260, the city sued for an injunction against the defendant to prevent it from charging a greater fare than five cents on its street ears in violation of an ordinance of the- city. The defendant pleaded to the jurisdiction ratione materiae, and in ruling upon the plea, the court said, at page 223:

“The plea to the jurisdiction of the Court is founded upon the fact that the plaintiff did not sue for a sum of money, nor for a revocation of the railway franchise. Our answer is that, by the terms of Article 109 of the Constitution, the District Courts have jurisdiction of ‘all other cases where no specific amount is in contest, except as otherwise provided in this Constitution’; and it does not appear to be otherwise provided for a suit for this character.”

It has been held that, because civil and political rights were involved, the district courts had jurisdiction of the following suits, under Article 109 of the Constitution of 1898 and section 35 of Article YII of the Constitution of 1921, quoted above: By a father against a parish school board to compel it to admit to a school for white children his child who has been excluded therefrom as having negro blood, Oberly v. School Board (1918) 142 La. 788, 77 So. 600; to strike from the registration rolls the name of á person alleged to be illegally registered, Aubert v. Burns (1918) 142 La. 895, 77 So. 782; to mandamus a city board of health to change the designation of plaintiff’s ancestors and other relatives in the records of vital statistics from “colored’’ to “white,” Allnet et al. v. Board of Health (1924) 155 La. 758, 99 So: 589; for injunction by a clerk of court against the police jury to prevent it from having the books of his office audited, Guillory v. The Police Jury (1924) 1 La. App. 195; to mandamus a parish school board to issue a permit for plaintiff’s son to attend a school in another parish, State ex rel. Eerroux v. School Board (1925) 3 La. App. 2.

In State ex rel. Trainor v. St. Paul (1903) 111 La. 713, 35 So. 838, relator, alleging that he was a candidate for member of the Democratic State Central Committee from one of the wards of the parish of Orleans, brought suit in the court a qua against the Democratic Committee of the parish of Orleans and the executive committee of the Democratic State Central Committee to set aside and avoid a rule of the parish committee, providing in certain contingencies for the appointment of additional commissioners to serve at the election of members of the Democratic State Central Committee. Expressing the view that the appointment and service of such additional commissioners might conceivably vitiate the election, the court ordered the judge of the district court to grant the injunction sought, and said:

"Relator, a candidate for election, as member of the central committee from his ward, has the right to an injunction to restrain the appointment of additional commissioners under said rule.”

If the courts have jurisdiction to protect by' injunction' a mere candidate for member of a state central committee, with no more at stake than the opportunity to be elected, on what possible theory can it be said that they have not jurisdiction to protect by injunction a de facto member of a state central committee, occupying the office and functioning under color of title?

Despite the specific and mandatory provisions of the Primary Election Law, Act No. 97 of 1922, with respect to the personnel of party committees and their election, the duties to be performed by the party committees and the interest of the public therein, defendant would have this court hold that the right to perform the duties of member of a party committee is entirely within the discretion of the committee — a purely private and political affair. If that be true, then any set of persons being or claiming to be members of a party committee can designate and recognize others as members of such committee and all of them together can go through the formalities of performing the duties legally appertaining to such committee, without interference on the part of persons legally and formally elected in strict conformity with the Primary Election Law. Thus the statute of the state which was enacted in the interest of orderly administration of elections to public office would be set as naught, and throw into chaos the matter of nominations for • public office.

We are of the opinion that the district court had jurisdiction and correctly overruled the exception to its jurisdiction ratione materiae.

We will next consider whether or not membership of the committee is a public office. Act 97 of 1922 is the Primary Election Law of this state. The title reads as follows:

“To provide for calling, holding, conducting and regulating primary elections by political parties and to define the term political party; to provide for defraying expense of said primary elections; and to prescribe what violation of the provisions of this act shall be offenses and to provide penalties for same; and to repeal all laws or parts of laws in conflict herewith.”

It is quite certain that members of a party committee are elected and perform their functions under the provisions of Act No. 97 of 1922, and that that act is public in its character and purpose and is not for the benefit of any political party or private interest. Without substantial observance of.its mandatory provisions, there can be, no legally constituted party committee and no legal primary election and no nomination of candidates for public office. Whether or not a member of a party committee is stricti juris, a public officer seems to us of no gredt importance. He does hold a public position and does perform public duties, and the orderly and legal performance of those duties is of paramount public concern. If there are two groups of persons claiming to be members of a party committee and having the right to function as a party committee and the members of neither group can be protected as the de facto and functioning members of the committee pending judicial decision of the right of one or the other to the position, chaos must ensue from the efforts of both groups to perform the functions of the committee. In such circumstances persons desiring to become candidates for party nomination for office would not know with whom they might safely file their notices of candidacy and make deposits for election expenses and under whose supervision or jurisdiction, their efforts to become nominees of the party should be directed. The Secretary of State would not know, and certainly cannot choose, which group to recognize as the party committee entitled to primary election ballots at the expense of the state. The officials of the city of New Orleans and the parishes would not know, and certainly cannot choose, which group to recognize as the party committee entitled to receive ballots, polling booths, railings and ballot boxes for holding a primary election, and entitled to have commissioners for holding the election under its call, who are to be paid by the city or the parish. The party nominees would not be determined in any way, with the result that the party holding the primary election may be without a candidate in the general election, because the successful candidate in the party primary is the party candidate in the general election. Such uncertainty and confusion might result in complete failure of the primary election system.

The duties of ,party committees and their members are public and the committees are the instrumentalities of the state. They are created by law which prescribed their duties and powers.

In State ex rel. Labauve v. Michel (1908) 121 La. 374, 46 So. 430, Labauve alleging that he had been nominated by a party convention, sought to mandamus the Secretary of State to place his name on the ballots at the general election; the Secretary of State rejoined that, insofar as it authorized political parties to make nominations by the convention method, Act 152 of 1898 had been repealed by the Primary Election Law, Act 49 of 1906, and that plaintiff had not been legally nominated at all and was not entitled to have his name on the ballots. Plaintiff claimed that Act 49 was unconstitutional, and that, therefore, Act 152, was still in force and effect.

At the beginning of the opinion, the court stressed the necessity for the orderly determination of what names should be printed on the ballots, and the public interest therein. Plaintiff claimed Act 49 was unconstitutional because of the provision of section 13 that the state bear a part of the expenses of primary elections. The court said:

“A sufficient answer to this ground is that, beyond all question, the primary is part of the election machinery of the State,, and that, therefore, for the State to pay a part of its expense, is not to apply public funds to a mere private purpose, but simply to defray a legitimate State expense.”

. In the case of ■ Reypaud v. Songy et al., 11 La. ApJ). —, plaintiff,* as a member of the finance committee of the police jury of the parish of St. John the Baptist sought an injunction against defendant from interfering with him in the performance and discharge of his duties. Plaintiff • was not required to take any oath or furnish bond. This court held “in our opinion the injunction should issue except for one fatal fact, and that is that it is manifest, that plaintiff is not in possession of the office.” In short this court was of the opinion that a member of the finance committee of the police jury was such a public officer entitled to an injunction to protect him in his office from interference until title to the office could be legally determined. The only reason the court was unable to grant the injunction was because plaintiff had permitted himself to be divested of the office before seeking the injunction.

We are, therefore, of the opinion that a member of the Republican State Central Committee is a public officer entitled to invoke an injunction to protect him in the occupancy of his office until the disputed title to the office can be determined by proper judicial proceedings. The exception of no cause of action was properly overruled.

On the merits of the case, we are of the opinion that the evidence shows that plaintiff is incumbent in office under color of title and is being interfered .with in the performance and discharge of his duties by the defendant.

The principle enunciated in the leading case of Guillotte v. Poincy (1880) 41 La. Ann. 333, and followed in the cases of Goldman v. Gillespie, 45 La. Ann. 680; State v. Grandjean, 51 La. Ann. 1099, 25 So. 940; Sanders v. Emmer, 115 La. 590, 39 So. 631; Jackson v. Powell, 119 La. 883, 44 So. 689; Gleason v. Wisdom, 120 La. 632, 45 So. 530; Gleason v. Wisdom, 5 Orl. App. 179; State v. Turner,152 La. 828, 94 So. 411; Saint v. Irion, 165 La. 1062, 116 So. 549, are applicable here. That principle is that a de facto official actually occupying the office and performing the functions thereof will be protected by injunction in the occupancy of his office until such time as the disputed right to the office shall have been determined in proper judicial proceedings. '

In Guillotte v. Poincy, supra, the leading case on this subject, the court said:

“This doctrine is in the interest of social peace and order, and conforms to the object and policy of the law in all remedial provisions for the settlement of disputed rights, which always respect and maintain the status quo until the controversy shall be settled in orderly course of judicial procedure.”

On the question of irreparable injury, we refer to Gleason v. Wisdom, 120 La. 632, 45 So. 530, and to City of Lake Charles v. Lake Charles Ry. L. & W. Company (1918) 144 La. 217, 221, 80 So. 260, where the definition of irreparable injury is stated as follows:

“An irreparable injury is one for which the party injured cannot be compensated adequately in damages, or for which the damages cannot be measured by a pecuniary standard.”

Considering the citation in defendant’s brief: Haup v. Schmidt, 70 Ind. App. 260, merely holds that in Indiana equity will not intervene to protect one in a public office, because only political rights are involved. The decision is inapplicable here, unless we ignore the Guillotte case and those that follow it, and also the provisions of our Constitution vesting in our courts jurisdiction “of all cases where * * * the right to office, or other public position, or civil or political rights are involved, and in all cases where no specific amount is in contest.” Constitution, art. VII, sections 35 and 81. 32 C. J. 41 (par. 20).

In Roussel v. Gornier, 129 La. 930, 57 So. 272, the court held only that the matter involved was within the discretion of the party committee, and the courts would not interfere.

People v. McWeeney, 259 Ill. 161, like the Haup ease, is opposed to our jurisprudence and the provisions of our Constitution vesting jurisdiction in the courts.

State v. Ardoin, 136 La. 1085, 68 So. 133, holds as shown by the first paragraph of the syllabus by the court:

“A democratic parish executive committeeman is not an officer, within the meaning of the provision in Section 3 of Act No. 135 of 1898, ‘that no person holding any office under the state or under any parish or municipality therein shall be competent to hold the office of jury commissioner’.”

Clearly the decision was limited to whether or not a member of a committee of a political party was an officer within the meaning of the statute cited.

Attorney General v. Drahan, 169 Mass. 534, merely construed the statutory law of Massachusetts. Again we are controlled by our own laws and the construction placed on them by our Supreme Court. The same is true of Brundage, Attorney General v. Brady, 302 Ill. 576, and of Heiskel v. Ledgerwood, 234 S. W. 1001.

In State ex rel. Burke et al. v. Foster, 111 La. 939, 36 So. 32, the court held that the statute then in effect placed with the board of contests full authority in matters of party nominations, but the decision has no application to the facts of the present case.

In Reid v. Brunot, 153 La. 490, 96 So. 43, the suit was brought by one not claiming to have been nominated and hence not coming within the provisions of the statute authorizing such suit, and for that reason plaintiff could not prevail.

Finally, in Dill v. Lowery, 166 La. 645, 117 So. 748, and Goff v. Barranco, 166 La. 647, 117 So. 749, the Supreme Court declined to- grant writs of mandamus to the district courts to try the case, because (p. 646):

“The case might have been disposed of with reasonable promptness by appeal to the Court of Appeal. The case presents no such extraordinary circumstances as would justify us in reviewing it in .the exercise of our extraordinary jurisdiction.”

The court observed, that there was no emoluments attached to the office of committeeman, and that such case was appeal-able to the Court of Appeal.

For the reasons assigned, we are of the opinion' that the injunction was properly issued, and the judgment appealed from is, therefore, affirmed.


source: Caselaw Access Project

author: WESTERFIELD, J.

license: Public Domain

text:
    No. 13,255
    Orleans
    UNITED REALTY & DEVELOPERS v. EDMONDS ET AL.
    (January 13, 1930. Opinion and Decree.)
    George J. Untereiner, of New Orleans, attorney for plaintiff, appellee.
    J. Olin Chamberlain, of New Orleans, attorney for defendants, appellants.
   WESTERFIELD, J.

In this matter, submitted to the court, without appearance, brief or argument on behalf of appellant, the judgment appealed from appears to be correct, and it is, therefore, affirmed.

JANVIER, J., takes no part.


author: LeBLANC, J.

text:
    No. 625
    First Circuit
    VIDRINE v. VIDRINE
    (October 8, 1930. Opinion and Decree.)

      O. E. Guillory, of Ville Platte, attorney for plaintiff, appellee.
    J. Hugo Dore, of Ville Platte, attorney for defendant, appellant.
   LeBLANC, J.

Plaintiff, Philip H. Vidrine, acquired a tract of land of 100 arpents, with improvements, from Sidney Fontenot, in April, 1916, and immediately took possession thereof. About 60 arpents were open, cultivable lands, and the balance, woodland. The open land constituted the western part and the woodland was on the eastern end of the tract. He prosecutes this possessory action, including a claim for damages, against Edmond Vidrine, for trespassing on that part of the tract referred to as woodland, driving his employees off and enclosing a portion thereof with a barbed wire fence. The lower court restored to him his possession of the strip trespassed upon, but rejected his claim for damages. The defendant appealed from the judgment and plaintiff answered, asking that his demand for damages be granted.

In the trial of the case, plaintiff offered his title in evidence merely for the purpose of showing the extent of his possession. He had lived on the property about three years and afterwards kept possession through a tenant. The evidence shows that a part of the woodland was under fence and was used as a pasture for cows.

Several title . deeds offered in evidence show that at the time of his purchase of the tract of land, the tract immediately adjoining it on the north belonged to one Samuel Haas and this tract was subsequently acquired by the defendant from Haas. There was a well-defined, blazed line between these two tracts of land which had long been generally recognized as the dividing line between them. After his purchase of the Haas tract, the defendant sold two tracts therefrom on the eastern end, one of 40 arpents to Adam Vidrine and the other of 35 arpents to Zenon Vidrine. In the sale to each, the tracts are respectively described as being bounded on the south by Philip Vidrine, the plaintiff herein. That part of his property given as the southern boundary of these two tracts includes the strip of land herein in dispute.

It appears from the evidence that the plaintiff neglected keeping the fence around the woodland in repair and it fell down. This was about two years before the institution of this suit in January, 1929.

In the latter part of 1928, plaintiff had entered into an agreement with one E. L. Pitkens under which he was to sell to the latter all the .crossties that could be manufactured from. the timber in this piece of woodland. It was during the latter part of December of that year, while some of Pitkens’ employees were engaged in their work on the strip of land. in dispute, that the defendant forcibly entered the same and drove them off. He then surrounded the strip with a barbed wire' fence. The plaintiff was away at the time, but on being informed of defendant’s actions returned at once and with the assistance of some' relatives, tore down the enclosure defendant had placed around the property and was proceeding to build a fencé himself when the defendant had them all arrested and put under bond. These are the undisputed facts in the case. The sole defense seems to be an attempt to show title in defendant to the strip of land in controversy through different surveys made in an effort to determine the exact location of the line. All of defendant’s efforts to introduce testimony relative to the title or to the different surveys were promptly met by objections on the ground that such testimony would tend to convert the action into a petitory one. The objections were properly sustained by the trial judge. The action could not be converted without the consent of the plaintiff. Code of Practice, art. 55, as amended by Act 202 of 1920. The case as presented therefore is one of possession, purely and simply.

Plaintiff’s taking actual, corporeal possession of a part of the tract of land constituted his possession of the whole, and we are satisfied of his intention to possess it all.

Article 3437, Revised Civil Code, relating to the extent of possession, prescribes as follows:

“It is not necessary, however, that a person wishing to take possession of an estate should pass over every part of it; it is sufficient if he enters on and occupies a part of the land, provided it be with the intention of possessing all that it included within the boundaries.”

On the same subject also, the Civil Code provides under article 3498, that:

“When a person has a title and possession conformably to it, he is presumed to possess according to the title and to the full extent of its limits.”

It has been noted already, that the plaintiff in this case, offered his title deed in evidence, for the purpose, as stated in making the offer, of showing the extent of his possession. That offer formed the basis on which to apply the principle that possession of a part is possession of the whole according to the title of the possessor. Albert Hanson Lumber Co. v. Baldwin Lumber Co., 126 La. 347, 52 So. 537. His mere occupation and cultivation of the open land gave him legal possession of the woodland, as it was all within the limits of his title. His abandoning of the fence around the woodland did not operate as a forfeiture of his possession, as his original possession and corporeal detention, with his intention of possession, sufficed to preserve it. The law provides the presumption on his part of the intention to retain possession. R. C. C. arts. 3442 and 3443.

A significant fact in this case is the one which appears from the deeds of title to the two tracts of land sold by the defendant- to Adam and Zenon Yidrine, in which he gave as the southern boundary of each, the property of Philip Vidrine which included the very strip of land in dispute. His declaration in that notarial act to that effect, constituted an acknowledgment on his part that he was not the owner of it, and his forcible taking possession of it under pretense that th'ere was no certainty as to the correct location of the line was unwarranted and unjustified. His act in driving plaintiff’s men off of the property under such flimsy pretext was a flagrant violation of the latter’s (property rights, and, as his forcible taking possession occurred only a few weeks before the bringing of this suit by the plaintiff, the lower court correctly restored the latter to his possession.

We believe that because of defendant’s wanton, act in taking the law into his own hands and his utter disregard of plaintiff’s rights, a case is presented in which damages are recoverable. In the very early case of Kemper v. Armstrong, 12 Martin (O. S.) 296, the Supreme Court held that— “* * * nominal damages are due for any, the least wrongful entry.”

Here, there was a wrongful entry. In fact it was a trespass and the plaintiff has proven actual damages.

His claims are for the loss from the sale of crossties, for vexation and torment and the wanton violation of his property rights, and for attorney’s fees.

His loss from the sale of crossties from the strip of land in controversy is inconsiderable. It would be difficult to fix any amount with certainty, considering the evidence we have before us. He has, however, proven his claim for damages for torment and for invasion of (property rights. The testimony reveals that he is a deaf mute and that in stature, he is a small man compared to the defendant. The latter’s overlording manner and his unwarranted actions were enough to annoy and vex a man without infirmities, and certainly must have been a source of great worry to one afflicted as was this plaintiff. We learn from the testimony of several witnesses of his emotion when he returned to his home and found out what had taken place and later on again when he was arrested and placed under bond. The amount he asks for is $50. It is reasonable and will be allowed.

The demand made by plaintiff for attorney’s fees has given us greater concern because we are informed by the brief of counsel that the trial judge rejected the claims for damages on the authority of the opinion in the case of Portal v. Clause; decided by this court and recorded in 4 Louisiana Appeal 609. That decision could not have been used as authority for rejecting all claims for damages, however, for, as a matter of fact actual and compensatory damages were allowed, those rejected being the attorney’s fees demand: ed. With regard to this item, the court remarked:

“We know of no law or any precedent in jurisprudence, sanctioning the imposition of attorney’s fees against a defendant in a possessory action, where the action is not accompanied by the issuance of an ancillary injunction.”

Our attention is now called to the case of Williams v. Harmanson, 41 La. Ann.-702, 6 So. 604, 606, which is not very much unlike the present case. It is referred toas a possessory action only. There was no injunction asked for or issued, and no mention is made of a trespass, although the court holds that there was an unlawful eviction. The conclusions reached are announced in the following language:

“We are bound to hold that plaintiffs are entitled to judgment in their possessory action.
“It follows that they are also entitled to damages for their unlawful eviction, which is fully proved.
“Upon due consideration of all the facts and circumstances of the case, we shall without additional comment, fix these at the sum of $500, INCLUDING ATTORNEY’S PEES IN REINSTATING THE POSSESSION.” (Capitals and boldface ours.)

That language, it would seem, might be construed to mean that attorney’s fees are recoverable in a possessory action where there was no ancillary injunction issued. The language rather indicates that they were allowed for the very purpose and object of a possessory suit, namely, reinstating possession in one who has been dispossessed. Assuming that to be the true 'meaning of the decision, we, of course, are bound by it, and it follows that the case of Portal v. Clause is, perforce, overruled.

We have referred to these decisions, not because we think that they are particularly decisive of the issue of attorney’s fees in this case, but because of the conflict which may appear between them, and to make sure that we yield in our views in the matter if they are not in accord with those of the Supreme Court on the question. In the case under consideration, the element of a trespass appears and the damages asked for, including attorney’s fees are based on the alleged trespass and for violation of the' plaintiff’s property rights. We have found that there was in reality a trespass and a flagrant invasion of property rights, and in cases such as this the Supreme Court has held that the trouble and expense to which the plaintiff has been illegally put are to be considered in estimating the damage, and that attorney’s fees are part of such expense. Cooper v. Cappel, 29 La. Ann. 213.

We are of the opinion that the plaintiff has shown by sufficient proof, damages in this regard to the amount of $50, which will be allowed.

The judgment of the lower court was correct in that it restored plaintiff to the possession of the strip of land, but was erroneous in that it rejected his demands for damages entirely.

It is therefore ordered that the judgment appealed from be affirmed insofar as it maintained the plaintiff in possession of the strip of land of which he had been dispossessed by the defendant, and that insofar as it rejected his demanas for damages it be annulled, avoided and reversed, and it is now ordered that there be judgment in favor of the plaintiff Philip H. Vidrine and against the defendant, Edmond Vidrine, in the full and entire sum of $100, with legal interest from date of judicial demand, until paid, and for all costs.


text:
    No. 12,014
    Orleans
    WITTENBERG v. MASSEY
    (January 13, 1930. Opinion and Decree.)
    (January 27, 1930. Rehearing Refused.)

      Lemle, Moreno & Lemle, of New Orleans, attorneys for plaintiff, appellee.
    W. A. Porteous, Jr., of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

This suit grows out of an intersectional collision of automobiles. Plaintiff, the owner of a Packard car, which at the time of the accident was being driven by his son, brought this suit for damages sustained by his car as a result of the collision, and defendant, the owner of the Chrysler automobile, at the time of the accident driven by her son, reconvened and claimed damages for injury to her automobile. The trial court dismissed both the main and reconventional demands. The defendant alone has appealed.

The collision occurred at the intersec-' tion of Hurst street and Henry Clay avenue. The driver of the pláintiff’s car had the right of way under the traffic ordinance, because he was on Hurst street, a street with a double car track, at that time traversed by street cars, though presently not so used. He contends that his car, the Packard, entered the intersection at approximately the same time as the Chrysler, which was on Henry Clay avenue, and that, in view of the fact that he had the right of way, the driver of the Chrysler ear should have permitted him tp cross the intersection.. On behalf of the driver of the Chrysler car it is contended that he had arrived at the intersection an appreciable time before the Packard car and had. almost traversed the crossing, when the Packard car, proceeding at great speed, struck his car near the rear wheel.

We are referred to the numerous decisions of the Supreme Court and of this court in which the statement is made that, upon questions of fact, the conclusion of the trial court will not be lightly disturbed, and it is pointed out that in this case the court below, in denying recovery to both plaintiff and defendant, must necessarily have resolved the conflicting testimony adversely to both and reached the conclusion that each driver was at fault. It seems to us, however, that in this case the court fell into manifest error, for, as we appreciate the testimony, the Chrysler car had entered the intersection before the Packard, and the accident was due entirely to the excessive speed at which the Packard was being driven. Marshall v. Freeman, 10 La. App. 12; Griffin v. Chalmette Laundry & Dry Cleaning Co., 8 La. App. 146; Wm. P. Ross, Inc., v. Corcoran, 10 La. App. 305. The Chrysler was traveling in a direction from the lake towards the river, on Henry Clay avenue, and the Packard from Canal street in .the direction of Audubon Park, on Hurst street. The point of contact was near the uptown river corner, the front of plaintiff’s ’car striking defendant’s car in the rear. The testimony of the driver of plaintiff’s car as to his speed is unconvincing. He says that he was traveling twenty miles an hour and that he had reduced his speed, prior to the collision, to ten miles. Several witnesses testified that the plaintiff’s car skidded along the pavement for a distance of 48 feet, which was stepped off after the collision. The presence of these skid-marks on the pavement would indicate that the Packard was traveling at a much greater speed than 10 miles an hour- at the time of the impact; but when it is considered that the Packard car came to rest on the lawn in front of Dr. Unsworth’s house, which is on the upper river corner of the intersection, after having surmounted a 10-inch curbing, the conclusion is irresistible that the Packard car had been traveling very fast, for, notwithstanding the efforts to check its speed, as indicated by the skid-marks, it had acquired sufficient momentum to jump the curbing before coming to rest on Dr. Unsworth’s lawn. The fact that the driver of the Packard had the right of way will not excuse his reckless speed. As we have heretofore observed, the city streets are not race courses. Vance v. Poree, 5 La. App. 109; Bagert v. Maestri et al., 11 La. App. 368, decided November 13, 1929; Schlesinger v. Foote, No. 13125 of the docket of this court, this day decided.

There is no dispute as to the amount of damages suffered by defendant’s car, which she places at the sum of $298.50. The claim of $150 for "the use of the car for 30 days at $5.00 a day” will not be allowed, as there is ho proof in the record to sustain it.

For the reasons assigned the judgment appealed from is reversed insofar as it dismisses the reconventional demand of defendant, and it is now ordered that there be judgment in favor of Augusta Elmer Massey, defendant, and plaintiff in reconvention, and against James Wittenberg, plaintiff herein, in the full sum of $298.50, with legal interest from judicial demand and all costs. In all other respects the judgment appealed from is affirmed.

JANVIER, J., takes no part.


author: HIGGINS, J.

text:
    No. 12,017
    Orleans
    LAUGHLIN v. SULLIVAN
    (January 13, 1930. Opinion and Decree.)

      H. W. Robinson and H. M. Robinson, of New Orleans, attorneys for plaintiff, appellant.
    A. R. Christovieh, of New Orleans, attorney for defendant, appellee.
   HIGGINS, J.

Plaintiff sued defendant for the sum of $233 damages, alleged to have been the result of an intersectional automobile collision. Defendant denied liability and pleaded contributory negligence. There was judgment in favor of defendant dismissing plaintiff’s suit as of non-suit and plaintiff has appealed.

The record shows that on February 15, 1928, at about 5:30 o’clock p. m., plaintiff’s wife was driving his Hudson sedan automobile on Third Street in the city of New Orleans, towards the lake. Third street runs from the river to the lake and Magazine street runs from uptown to downtown and there are double street car tracks on Magazine street. Plaintiff and his nephew were passengers in the car. As the automobile approached Magazine street, which intersects Third street at right angles, plaintiff’s car was brought to a complete stop. There were several automobiles going down Magazine street at the time. After these cars passed, plaintiff’s wife attempted to drive across the intersection and had reached a point in the intersection where the radiator of plaintiff’s car was about even with the lake sidewalk curbing and the rear wheels of the car had reached the last rail of the street car tracks nearest the lake. While in this position, the defendant’s Studebaker roadster automobile, driven by defendant in an uptown direction on Magazine street struck plaintiff’s car on the right side about in the middle, causing the damages for which plaintiff brings this suit.

Plaintiff contends that the defendant was guilty of negligence in the following respects: First, in operating his car at a rate of speed in excess of 20 miles an hour in violation of the traffic ordinance of the city of New Orleans; second, in not having his ear under proper control in order to be able to stop within a reasonable distance, taking into consideration that it was raining and that the street was wet which were extra hazards to safe driving; third, that the plaintiff had entered the intersection first and had the right to proceed; and fourth, that defendant could have avoided the accident by pulling to his left and passing to the rear of plaintiff's car where the street was unobstructed and he had a clear road.

Defendant contends that he had the right of way as the ordinance of the city of New Orleans makes a street on which there are double street car tracks, a right of way street and that he had the right of way as he was approaching plaintiff’s car from its right, and in the alternative that plaintiff was guilty of contributory negligence.

Plaintiff’s witnesses consisted of his wife, his nephew and himself. They testified that his car came to a complete stop; that his wife then ventured across while the defendant’s car was approximately a block away; that they had almost crossed the intersection when the defendant’s car came up at a great rate of speed; that when the defendant got within a short distance of plaintiff’s ear, he attempted to apply his brakes with the result that the rear part of his car skidded to the right causing the right rear portion of defendant’s car to strike the plaintiff’s car about midway on its right side. They further testified that defendant’s car was making 30 or 35 miles an hour at the time he attempted to put on his brakes; that it was raining and the pavement was wet; and that defendant could have safely passed to rear of plaintiff’s car as the road was clear.

The only witness in behalf of the defendant was himself. He testified that he had let a passenger off at Second street, one block below the scene of the accident, and was running about 18 or 20 miles an hour and that when within 50 feet of the totersection of Magazine and Third streets, he noticed plaintiff’s car coming from behind an automobile proceeding down Magazine street and, believing that plaintiff would stop in order to allow him to pass, he did not apply his brakes until within 30 feet of plaintiff’s car; that he then applied his brakes with the result that his car skidded to the right and the rear portion of it struck the plaintiff’s car.

We are of the opinion that the plaintiff has shown by a clear preponderance of the evidence that his car stopped before entering the intersection and had actually entered the intersection before defendant’s car and, therefore, had the right of way and was entitled to proceed.

The evidence also convinces us that defendant was operating his car at a rate of speed in excess of 20 miles per hour in violation of the ordinance of the city of New Orleans and that his excessive speed was the proximate cause of the accident. Defendant admits he saw plaintiff’s car proceeding across the intersection when he was about 50 feet away from it. If he had had his car under proper control he would have been able to have stopped in order to have avoided the accident. He failed to use due precaution and care commensurate to the danger with which he was confronted. Furthermore, there was nothing to prevent defendant from driving to the rear of plaintiff’s car, the road was clear and he would, therefore, have avoided striking plaintiff’s car.

The relevant section of the traffic ordinance No. 7490 C. C. S., is:

“Article 1, Section 7, Right-of-Way, Paragraph (g). ‘The right-of-way herein given shall not be construed to mean that vehicles may be driven through street intersections in a reckless manner or at a speed beyond control, nor that they may take advantage of such right-of-way to drive through intersections regardless of the rights of vehicles on intersecting streets. The right-of-way given applies only where two vehicles approaching intersecting streets arrive at the intersection at approximately the same time, and does not authorize the vehicle travelling on the right-of-way street to disregard the rights of vehicles which have already entered the intersection from an intersecting street.”

The courts have repeatedly upheld the right of way of the car that enters the intersection first:

“The automobile which first enters a street intersection is entitled to proceed. Other cars approaching on intersecting streets should delay their progress so as to allow the first arrival to pass in safety. Failure to do so is negligence.” Borrello v. Rohrer, 4 La. App. 510.
“The party driving an automobile who first reaches a street intersection, having the right-of-way, the other party must respect that right, and if he fails to do so he is guilty of negligence.” Spainhour v. Dulaney, 4 La. App. 552.
“Where two automobiles approach an intersection at a right angle, and one of them nearly completes the crossing before the other arrives at the intersection, the one which almost traverses the intersecting street is entitled to proceed notwithstanding the fact that the other car had the right-of-way.” Vance v. Poree, 5 La. App. 109.

Article II, section 1, paragraph (b), places Magazine street within the 20-mile zone.

The article on “Speed” contains the following proviso:

“RECKLESS DRIVING. Nothing in the foregoing sections shall be so construed as to mean that vehicles shall not at all times be driven with due regard to the rights and safety of others on the public streets, or that the speed may at any time be greater than is safe and proper under the conditions then obtaining.”

We are, therefore, of the opinion that defendant’s negligence was the sole and proximate cause of the accident.

As to the quantum of damages, the petition alleges in detail the damages which were the result of the accident. Plaintiff and his wife testified that the damages complained of were repaired at a cost of $233 by Messmer’s garage on St. Joseph’s street in the city of New Orleans. The testimony of plaintiff’s nephew corroborates them. Defendant’s ■ testimony also corroborates plaintiff’s in that plaintiff’s car was damaged as a result of the collision between the two automobiles. Defendant’s attorney had the opportunity of cross examining plaintiff’s witnesses and did cross examine the plaintiff and his wife,' but feeling that plaintiff had not proven by a preponderance of the evidence, the quantum of damages, was content not to put any rebuttal evidence before the court. The only testimony that we have before us as to the extent of the damage and the cost of repairing the car, is the plaintiff’s evidence. This evidence is uncontradicted and unrebutted.

Defendant contends that as plaintiff failed to produce the receipt showing the payment of the repairs or the mechanic who made the repairs he has not sufficiently made out his case.

In Fuhrmann et ux. v. Keenan, 122 Sou. 892, it was held that the finding of the Court of Appeal as to partial dependency, based on unrebutted testimony of claimant, was conclusive:

“Only one witness testified in the case, and that witness was the claimant. The Court of Appeal held that the testimony of the claimant ' which was unrebutted, could not be disregarded, and it therefore found, as a fact, that the claimant was a partial dependent, and entitled to compensation at the minimum rate fixed by the State Employers’ Liability Acts. This finding of fact is conclusive. * * * ”

Hardee v. Nevers, 120 Sou. 229, held:

“He said the value of his auto was $1,176.80, and that the Chambers people, from whom he bought another auto, allowed him $600.00 for the wrecked car. * * * We think the evidence is sufficiently certain to allow judgment for the plaintiff for the amount claimed.”

In Bianchi v. Mussachi, 1 La. App. 291, it was held:

“It is not necessary that plaintiff should have had the repairs made, or, being made, should have paid for them; the damage done to his auto constitutes his cause of action.”

We are of the opinion that plaintiff has sufficiently proven the quantum-of damages and is entitled to recover.

For the reasons assigned it is ordered, adjudged, and decreed that the judgment of the lower court be and it is annulled, avoided and reversed and it is now ordered, adjudged, and decreed that there be judgment in favor of Patrick' J. Laughlin and against the defendant, Ward B. Sullivan, in the full sum of $233, with legal interest from judicial demand until paid and all costs of both courts.

JANVIER, J., takes no part.


author: ELLIOTT, J.

text:
    No. 663
    First Circuit
    CAVIN v. HANAGAN
    '(October 8, 1930. Opinion and Decree.)
    C. A. Holcombe, of New Orleans, attorney for plaintiff, appellee.
    . Dudley L. Weber, of New Orleans, attorney for defendant, appellant.
   ELLIOTT, J.

George Cavin claims of Rivers B. Hanagan $92.91, the cost of repairing, and $50 as depreciation, a total of $142.91, on account of injuries to his automobile, which he alleges it sustained in a collision with another automobile belonging to and while being driven by said .Hanagan.

Plaintiff’s automobile was being - driven at the time by his son, Willie Cavin, about 15 years of age.

According to plaintiff his son was driving at the time on the right-hand side of the Prescott lane, going east, which was the south side, while defendant, going west, was also driving on the south side of the lane, which was the wrong side for defendant.

That his son, Willie Cavin, seeing defendant’s approach on the wrong side of the road, sounded his horn in ample time as a warning to defendant to get on the side on which he belonged, but defendant not looking in the direction he was driving nor giving attention to what he was doing, did not move over as he should have done. That - defendant’s fault in driving on the wrong side of the road and his negligence in not looking ahead in the direction he was going, nor giving attention to what - he was doing at the time, was the cause of ’ the collision and of • the damages to plaintiff’s car. That said Hanagan was responsible for the collision and should be required to pay for the damage - thereby done. That defendant- at first admitted his liability and promised to pay the amount, but afterwards declined to do so.

Defendant denies the fault and. negligence alleged against him by the plaintiff, and denied that he had admitted his liability for said collision. He alleges in turn that he was driving on the north side of the road. That the collision was due to the recklessness and excessive speed at which plaintiff’s son was driving, and urges a demand in reconvention against the plaintiff for $29.35 on account of damages which his automobile sustained in the collision.

There was judgment for $92.91 in favor of the plaintiff. Defendant has appealed.

According to the testimony of Willie Cavin and two other parties in the car with him at the time of the collision, the collision was due entirely' to the fault of defendant in driving on the wrong side of the road, combined with his further -negligence in not looking ahead and giving proper attention to his driving in the direction he was going.

According to Mr. Hanagan and two others who were in his car at the time, the collision was due to the fault of plaintiff’s son in driving at a reckless and excessive speed, with resulting inability to control his car.

It is not shown by a preponderance of the evidence that plaintiff’s son was driving recklessly and at excessive speed. But plaintiff’s claim that defendant was driving on the wrong side of the road, without looking ahead and giving attention to his driving, in the direction he was going, is supported by an equal number of witnesses and by various facts and circumstances. The marks made by the wheels of defendant’s car show that at the time of the collision he was on the wrong side of the road. The weight of the evidence also shows that defendant was not at the time looking in front of him, but looking away from the front on the side toward the Kuehnle residence, which he was passing, and waving at the family, who were in their automobile backing out toward the road, and that defendant, looking at and waving at the Kuehnle car and not giving attention to the approaching car in front of him, was the direct cause of the collision and of the damage done to plaintiff’s car.

Soon after the accident, a deputy sheriff, apparently disinterested, appealed on the scene, observed the marks on defendant’s car in the road and heard him say to Mr. Cavin that he would pay the damage done to his car.

Defendant pulled plaintiff’s car to a garage in Baton Rouge and stated to the plaintiff in the presence of the manager there, that he would pay for the damage done to his car, and asked for and obtained an estimate of the amount it would cost. This testimony supports the contentions of the plaintiff that defendant was at fault, and that his negligence caused the collision, and not the excessive speed and reckless driving of plaintiff’s son.

The plaintiff filed an answer to the appeal and prayed that the amount claimed for depreciation, which had been rejected in the lower court, be allowed on appeal.

The mechanic who fixed plaintiff’s car testifies that he placed it in good condition, putting in new parts in place of those that required replacing, but he estimated that all cars were depreciated in value between $50 and $100 as a result of a collision, but did not state any particular amount that plaintiff’s car had sustained.

The proper inference from the testimony in this case is that plaintiff’s ear has been made as good as it was at the time of the accident, or at least the depreciation cannot be definitely fixed under the evidence. Sherwood v. American Ry. Express Co., 158 La. 43, 103 So. 436.

We think that plaintiff’s demand for $50 on account of depreciation was properly refused in the lower court.

The judgment appealed from is correct.

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


text:
    No. 666
    First Circuit
    PLUMB ET AL. v. HAMMOND LANDS, INC.
    (October 8, 1930. Opinion and Decree.)
    Rownd & Warner, of Hammond, attorneys for plaintiffs, appellees.
    Reid & Blache, of Hammond, and B. & M. Purser, of Amite, attorneys for defendant, appellant.
   LeBLANC, J.

This controversy is over the ownership of a tract of land of 80 acres which formerly formed part of a larger body of approximately 2400 acres.

The plaintiffs make their claim for ownership through a chain of title dating as far back as the United States government. The defendant and its warrantors, Columbus Reid and J. Barney Arnold, both called on to defend the title, rely on the prescription of ten years.

All parties offered their title deeds in evidence, and we find in the note of testimony an agreement between counsel that, instead of filing certified copies of all the acts offered or to be offered in evidence, abstracts of the various acts may be substituted therefor. We fail to find any such abstracts in the record.

To acquire title to immovables by the form of prescription under which the defendant and his warrantors claim, a title must be shown ,which shall be legal, and sufficient to transfer the property.” Revised Civil Code, article 3479. Besides, it is necessary (1) that the title be valid in point or form; (2) that it be certain; and (3) that it be proved. Revised Civil Code, article 3486.

Without the titles before us, or their proof by abstracts, if the latter be sufficient, we would not undertake to determine the title and ownership of the land in controversy on the issue of possession, which is the sole defense here presented.

To the end that it may be properly considered, we deem it better to remand the case to the lower court for completion of the record, and

It is now ordered that it be remanded for that purpose.


text:
    No. 670
    First Circuit
    KINCHEN v. LIGAMARI
    (October 8, 1930. Opinion and Decree.)
    Mat J. Allen, of Amite, attorney for plaintiff, appellant.
    Rownd & Warner,,.of Hammond, attorneys for defendant, appellee.
   ELLIOTT, J.

Ben Kinchen is the plaintiff in a suit against Giovana Ligamari, the object of which is to recover judgment against- him confirming an alleged tax title which said Kinchen sets up for ■the property described in his petition.

Plaintiff’s demand was refused in the lower court and he has appealed. There is no certificate to the transcript. The clerk ,of, court has not certified that it is such, as required by the Code Practice, art. 585. Nor that-it contains all the evidence adduced, as required by the Code Practice, art. 896. The record contains no statement of facts, but contains a statement of fact not disputed, on -which we have concluded to act.

There was no motion to dismiss nor request to supplement the record.

The note of testimony shows that defendant’s evidence in the case consisted of a title from Charles Lambis to Giovana Ligamari and Salvatore Ligamari with the ■record of the same in the conveyance book and a copy of the survey and plat of Cor-. bin, Lá., and his evidence was not brought up.

It is not clear whether the blame for the situation should be placed on the clerk of court or the appellant. The law does not intend that an appeal should be dismissed, except for the fault of the appellant, and favors the right of appeal. Code Practice, art. 898.

If we dismiss the appeal, then the judgment against the plaintiff will not be reviewed. It is useless to remand the case for the purpose of having the record supplemented and certified to, as the law requires, because it appears from the undisputed statement of defendant’s counsel in offering the title received in evidence, and which we therefore take to be true, that Giovana Ligamari and Salvatore Ligamari, together, purchased the property contemplated by plaintiff and defendant from Charles Lambis, and that Salvatore Ligamari has at the present time as much title and interest in the same and is a tax debtor, as to the delinquency resulting in ■ said tax sale, all to the same extent as the defendant before the court.. It therefore follows that Salvatore Ligamari is a necessary party to any proceedings looking to the confirmation of the tax title set up by the plaintiff. And he is not a party to the suit.

There was no exception of nonjoinder, still we could not act on the case, even if the record was complete and had attached to it a proper certificate, because necessary parties for the purpose are not before the court. The judgment appealed from could not, and none that we could render would, as between the present parties, accomplish the purpose of the suit brought by the plaintiff, because Salvatore Ligamari would not be bound by the decree.

A similar situation existed and was noticed by the Supreme Court ex officio in Succession of Todd, 165 La. 453, 115 So. 653. The Supreme Court found it best to annul the judgment and dismiss ■ the suit for want of proper parties. See, also, Willis v. Wasey, 42 La. Ann. 876, 8 So. 591, 879; S. Blum & Co. v. Wyly, 111 La. 1092, 36 So. 202; Theriot v. Daigle, 125 La. 363, 51 So. 292; and North Central Texas Oil Co. v. Gulf Refining Co., 159 La. 403, 105 So. 411.

The situation is such that it is best for all parties concerned in the present case that the judgment appealed from be annulled and set aside, reserving to plaintiff the right to bring another suit for the purpose of confirming his alleged tax title, if he so desires.

For these reasons, acting ex officio, the judgment appealed from is annulled, avoided, and set aside, and plaintiff’s suit is dismissed at his cost as in case of non-suit; the plaintiff, Ben Kinchen, to have the right to bring another suit for the purpose of confirming his alleged tax title if he so desires, making proper parties defendant.


text:
    No. 654
    First Circuit
    POHLMAN v. YAZOO & MISS. VALLEY R. R. CO.
    (October 8, 1930. Opinion and Decree.)

      E. S. Muse, of St. Francisville, attorney for plaintiff, appellee.
    James H. Kilbourne, of St. Francisville, attorney for defendant, appellant.
   ELLIOTT, J.

Charles B. Pohlman, .as consignor, shipped a carload of sweet potatoes to A. H. Hopkins & Co., as consignee, at Minneapolis, in the state of Minnesota. The consignment was received by the Mississippi Valley Railroad Company at St. Francisville, La. The initial carrier issued a through bill of lading by means of which it passed info tRe hands of the Minneapolis & St. Louis Railroad Company, and was by it conveyed to its destination.

The bill of lading provides for “Standard ventilation to heater district’” and “Carrier’s Protective Service in heater district.” And states that the potatoes were apparently in good condition when received. The shipment reached Minneapolis on December 25, 1925, but its arrival was not notified to the consignee until December 26, 1925, and at what hour the evidence does not show. The consignee opened the car and examined the potatoes on December 30th, but did not receive them until the next day, December 31, 1925. The car was unloaded immediately after delivery on the 31st. The potatoes had been found to be in bad condition when the car was opened on the 30th. The potatoes were sorted and sold in small packages to the best advantage, bringing a total of $536.65. But if the potatoes had been in as good condition on December 31, 1925, as they were when loaded at St. Francisville on December 19th, they would have brought a total of $828.

Expenses and freight deducted left $160.79, which was remitted to the plaintiff, causing a loss to him of $271.71, which is claimed of the defendant in the petition.

The plaintiff alleges that the damage to the potatoes was caused by being exposed to excessive cold weather, due entirely to the gross fault, carelessness and negligence of the defendant in transit.

Plaintiff’s averments of fault, carelessness and negligence are denied by the defendant. The defendant further alleges that the shipment left St. Francisville. on the 19th of December, 1925, was moved with reasonable dispatch and arrived at its destination without damage on December 25, 192'5. That the consignee was notified of its arrival on the morning of December 26, 1925, but the potatoes were not unloaded until December 31, 1925, when the consignee signed for them without exception. That any loss or damage which they sustained was due either to the failure of the consignee to promptly call for the delivery of said potatoes when notified and the delay in unloading, or the inherent nature of the potatoes and tfie way they were handled and loaded by the shipper and their condition when shipped, or both, and not to any negligence or failure of defendant in its duty and obligation as common carrier.

That • said car of potatoes was given proper handling, moved without delay, given the protection called for in the bill of lading, and defendant is not liable for any loss or damage to plaintiff, as alleged in his petition.

There was judgment in the lower court in favor of the plaintiff as prayed for and the defendant has appealed.

The defendant; objected to various offerings in evidence: The offerings objected to are not such as can influence the decision in any important matter. The evidence accepted or rejected did no harm, even had there been error in the ruling, as to which we express no opinion. Then again, the objections, although noted, were not ruled on by the court, and as there was no ruling in the lower court, there is none that we can review. We therefore do not act on any of the objections urged by the plaintiff in his brief.

The plaintiff Pohlman, J. A. Ard, Andrew Collins and W. R. Daniel, testify that the potatoes when loaded were dry and in good condition and of good quality.- ¡

■ D. D. Harris, clerk for defendant at St, Francisville, testified that the potatoes were wet when loaded, but the preponderance of the testimony on the subject supports the claim of the plaintiff that such was not the case.. We find that the potatoes were of good quality, dry and in good condition when loaded in the car át St. Francisville.

The parties agree 'that the stipulation in the bill of lading, “Standard' ventilation to heater district” means “that' on sweet potatoes all ventilating devices will be closed after the outside temperature falls to 40 degrees above zero, and that all ventilating devices will be opened after the outside temperature runs 40 degrees above zero.”

That the clause “Carriers Protective Service in heater district” means when it is against cold, that the “carrier will protect the shipment within heater territory against frost, freezing or artificial overheating, furnishing if .necessary artificial heat, or such other protective service as may be necessary to obtain that result.”

The evidence shows that the district which generally requires protection from cold, as to shipments going north, commences at St. Louis. The car arrived at Minneapolis on December 25, 1925, at 5:25 a. m. William Revack, witness for defendant, clerk and employee of Minneapolis & St. Louis Railroad Company, says in one place that the car was set out and delivered to consignee at 8:30 a. m. on December 25, 1925, but that is clearly a mistake on the part of the witness. The Minneapolis & ' St. Louis Railroad Company did not notify A. H. Hopkins & Company of its arrival until next day, December 26, 1925. The evidence shows that the car remained on the téam track, which was the track on which it was placed when it first arrived, until December 26th, when the Minneapolis & St. Louis Railroad Company took it- off -the team track and placed it in a building .called the paint shop, but which was evidently .its warehouse, in order to protect it against the cold. That two heaters burning- in the car when it arrived were turned, out by Revack. It appears that the car received no protection from the intense cold until next day, when it was placed in the paint shop, where it remained until December 31, 1925, at which time the weather had moderated sufficiently for it to be taken out and delivered to A. H. Hopkins & Company. It was by them immediately unloaded, the potatoes sorted and those not injured were sold out In small quantities.

Messrs. Hopkins and Johnson were asked to explain why the car was not opened and inspected when they received notice of its arrival and they say that it was too cold to open the door on December 26, 1925; that the car could not be opened with safety until the 30th, and on account of the extremely cold weather, could not be unloaded until December 31st.

Messrs. Hopkins and Johnson declare that the damage to the potatoes could not have occurred between the time of arrival and the time of delivery if the car had been properly handled by the carriers, and the potatoes had been in sound condition at the time of arrival. That when they first examined the car in the paint shop on December 30, 1925, the doors of the car were open. That the car had been frozen around the sides, ends, bottom and top. That there was a lot of mold on most of the sacks, no doubt due to too much heat, after the freezing injury. That the frost was drawing out of the potatoes and they were slimy, wet, full of mold and beginning to decay.

Speaking of the temperature at Minneapolis, they say that on December 25, 1925, which was the day previous to the receipt of notice by them of the arrival of the shipment, the temperature went from 11 above to 4 degrees below zero. On the 26th, from 3 below to 13 below. On the 27th it went from 7 above to 11 below. On the 28th from 7 above to 5 below. On the 29th from 15 above to 4 below. On the 30th from 16 abo^e to 5 above, and on the 31st from 33 above to 8 above.

The car, therefore, required protection from cold when it arrived. As the car containing the potatoes was out on the team track of the Minneapolis & St. Louis Railroad Company during the night of the 25th and part of the 26th without heat, we readily agree, that if it was not frozen before it reached Minneapolis, it was frozen on the night of the 25th, and remained frozen the next day, until it was taken off the team track and placed in the paint shop.

Sweet potatoes cannot stand a temperature below zero, and to permit them to freeze, is to permit them to perish, as far as their value as human food is concerned. The condition in which they were found on the 30th was the inherent result of freezing, followed by warmth.

The defendant argues that the potatoes arrived at their destination in good condition and were delivered to and injured, while in the (possession of .the consignee.

We find that the acceptance of delivery of a vegetable product so susceptible to freezing as sweet potatoes cannot be forced on a consignee under such weather conditions as prevailed in the city ' of Minneapolis on December 26th. If the consignee is unwilling to receive the consign-, ment it is the duty of the carrier in such a situation to protect it from temperature below zero, until a delivery can be made without the product being destroyed and rendered worthless as a result of delivery.

In Gibbons v. Y. & M. V. R. R. Co., 130 La. 671, 58 So. 505, and Wood v. La. & Ark. R. R., 158 La. 504, 104 So. 306, the court in effect held:

“Liability of a railroad as a carrier in this State continues until consignee .has been notified and given a reasonable time thereafter to remove goods transported in the absence of any valid stipulation in bill of lading, or agreement between parties to the contrary.”

See also Sleade v. Payne, 14 La. Ann. 453:

“In this state the rule is that the consignee must take possession of his goods within a reasonable time after notification by the carrier on their arrival, and where he fails to do so, the carrier, after the lapse of a reasonable time becomes liable only as a warehouseman.”

Same authorities.

The subject of what constitutes a reasonable time in which to accept goods after notice, is considered in Ruling Case Law, vol. 4, subject: Carrier, secs. 223 and 224, pp. 756 to 758.

The Interstate Commerce Act, sec. 20, par. II, as amended, known as the Car-mack amendment (49 U. S. C. A., sec. 20, par. 11), provides with reference to a through bill of lading for an interstate shipment, that:

“Any common carrier, railroad or transportation company subject to the provisions of this chapter, receiving property for transportation from a point in one state * *, to a point in another state * *, shall issue a receipt or bill of lading therefor and shall be liable to the lawful holder thereof for any loss, damage or injury to such property caused by it, or by any common carrier, railroad or transportation company to which such property may be delivered, or over whose line or lines such property may pass, within the United States * *, when transported on a through bill of lading, and no contract, receipt, rule, regulation or other limitation of any character whatsoever shall exempt such common carrier, railroad or transportation company from the liability hereby imposed. And any such common carrier, railroad or transportation company so receiving property for transportation from ’ a point in one state * *, to a point in another state * *, shall be liable to the lawful holder of said receipt or bill of lading or to any party entitled to recover thereon, whether such receipt or bill of lading has been issued or not, for the full actual loss, damage or injury to such property caused by it, or by any such common carrier, railroad or transportation company, to which such property may be delivered, or over whose line or lines such property may pass * * when transported on a through bill of lading, notwithstanding any limitation of liability or limitation of the amount of recovery, or representation or agreement as to value in any such receipt or bill of lading, or in any contract, rule, regulation ,or in any tariff filed with the Interstate Commerce Commission and any such limitation, without respect to the manner or form in which' it is sought to be made, is declared to be unlawful and void.”

The Supreme Court of the United States has held in many cases that this Act is, as to interstate shipments on a through bill of lading as in the present case, the supreme law of the land and has also considered, the effect of notice of arrival and as to what constitutes necessary delays.

Atlantic Coast Line v. Riverside Mills, 219 U. S. 186, 31 S. Ct. 164, 55 L. Ed. 167, 31 L. R. A. (N. S.) 7; Norfolk & Western R. Co. v. Dixie Tobacco Co., 228 U. S. 593, 33 S. Ct. 609, 57 L. Ed. 980; Michigan Central R. R. Co. v. Mark Owen & Co., 256 U. S. 427, 41 S. Ct. 554, 65 L. Ed. 1032. See, also, American Trading Co. of N. O. v. N. O. & N. E. R. R. Co., 159 La. 9, 105 So. 82, and Ruling Case Law, vol. 4, subject, “Carriers,” as to necessary delays for delivery.

Defendant contends that these potatoes perished as a result of the inherent quality of sweet ¡potatoes and their tendency to decay when disturbed. In this connection the testimony of Mr. Harvey, a farmer of more than 40 years’ experience, has been considered. He states that sweet potatoes are very perishable, and that it has been his experience that, after they have been stored for a while and then moved, they begin to decay, four or five days after they have been moved, but such does not happen every time. We understand from Mr. Harvey that sweet potatoes, after having been banked and then taken up and moved as in shipment, often decay within four or five days thereafter, some, of them. We are satisfied that Mr. Harvey did not mean that there would set in such a general wholesale decay,, all at one and the same time, of potatoes that were dry and of good quality, as took ¿lace in this instance.

Under ordinary conditions it would have been necessary to throw out a few after their arrival in Minneapolis, but not enough to impair the value or integrity of the shipment in such a short time. We are satisfied that the condition in which this shipment was found to be on December 30, 1925, was due to freezing followed by overheating, as stated by Messrs. Hopkins and Johnson.

Mr. J. C. Weber, witness for defendant and inspector for the Moorhead Inspection Bureau at Minneapolis, testified that he had personally inspected these potatoes on December 25, 1925, ac 10:30 a. m., which was soon after the car had reached Minneapolis. He declared that he saw no signs of the injury having been due to freezing followed by overheating, but gave it as his opinion that the condition the potatoes were in, at the time he examined them on the 25th, was due to their quality. Some, he says, were wet and moldy; some had been cut in digging; some showed growth cracks; some were worm-eaten; and some showed other faults; that from 75 to 90 per cent had loose feathery skins, due, he' thought, to immaturity. This witness examined the potatoes again on the 30th and found them in pretty much the same condition they were when he first looked at them on the 25th. This witness was asked,, if sweet' potatoes shipped from St. Drancisville on December 19, 1925, should have been delivered to the consignee in Minneapolis in good condition on December 31st, if given the proper care provided for' under the standard ventilation and heating district agreement contained in the bill of lading, and he declared that he could not answer directly, that too many elements entered into the matter; for instance, the climatic condition, field condition, diseased soil, etc.; that sweet potatoes were often apparently sound when shipped, but were in reality infected at the time with disease, not noticeable at the time of harvesting.

We do not agree with the defendant, that the condition in which these potatoes were found to be on December 30, 1925, was due to inherent quality, as explained by Mr. Harvey, nor to the particular conditions stated by Mr. Weber, but we find that their condition was due to freezing followed by overheating while in the hands of a connecting carrier.

Under the stipulations of the bill of lading, it was the duty of each of the carriers into whose hands the car ¡passed to give the shipment proper protection from cold as well as from excessive heat until delivery, and it is our conclusion that it was not done.

A. H. Hopkins & Co., by accepting the potatoes in the condition they were in on December 31, 1925, did not, under the Car-mack Amendment to the Interstate Commerce Act, relieve the initial carrier oí the loss and- damage occasioned to the shipment resulting from the connecting carrier’s fault and neglect to give the shipment proper protection from freezing and overheating until delivery. The shipment could noc be. delivered under the existing and prevailing weather conditions against the wish and without the consent of the consignee, at the time notice of the arrival of the (potatoes was received on December 26th. A delivery at that time, would have been, from a carriage and practical standpoint, as if no delivery was made, because a delivery with the weather below zero would have meant frozen potatoes, then, if they had not been previously frozen with resulting loss of the shipment.

The evidence does not enable us to determine whether the potatoes were frozen before or after the car arrived at Minneapolis, but it does satisfactorily appear that it occurred after the car left St. Louis, and while in the hands and possession of Minneapolis & St. Louis Railroad Company, a connecting carrier, and before the arrival of the car in Minneapolis had been notified to the consignee, and before delivery to the consignee, which fact, under the law governing the shipment, (placed responsibility for the loss and damage, insofar as concerns the shipper, on the initial carrier, and justified this suit against it.

The evidence shows that plaintiff has sustained the loss claimed in his petition.

The judgment appealed from is correct.

Judgment affirmed; defendant and appellant to pay the costs in both courts.