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to base a judgment for fruits and revenues. ( asylum, must be passed upon by superintendHence, the case will have to be remanded to ent of State Colony and Training School ag the end that the accounting may be bad.

required by Act No. 133 of 1920, § 1, and su• Defendant, as we have also observed, filed perintendent cannot delegate his power to an an exceptiton of no cause of action. The

orphan asylum forming unit of the school. pleadings have not been enlarged by the evi

Appeal from Civil District Court, Parish dence introduced. In fact, the documents of Orleans; Percy Saint, Judge. upon which plaintiff relies are attached to and form part of his petition. Hence, in

Suit by the Milne Asylum for Destitute passing upon the merits we have necessarily Orphan Girls against Mrs. J. C. Reilly. passed upon the issue raised by the excep

Judgment for plaintiff, and defendant aption.

peals. Judgment set aside, and plaintiff's For the reasons assigned, it is ordered, ad

demand rejected. judged, and decreed that the judgment ap Woodville & Woodville, of New Orleans, pealed from be annulled and set aside in so for appellant. far as it condemns defendant for fruits and St. Clair Adams, of New Orleans, for aprevenues; that this case be remanded to the pellee. end that there may be an accounting for

By Division C, composed of OVERTON, said fruits and revenues; and that the judg. ST. PAUL, and THOMPSON, JJ. ment appealed from be afiirmed in all other respects, plaintiff to pay the costs of appeal. OVERTON, J. Act No. 141 of 1918 pro

vides for the establishment of an institution

for the care and custody of those of the (156 La.)

feeble-minded who cannot be classed as inNo. 25878.

sane, and yet who are so mentally defective MILNE ASYLUM FOR DESTITUTE OR-as to be incapable of caring for themselves PHAN GIRLS V. REILLY.

and of managing their affairs, and who re

quire supervision and control for their wel(Supreme Court of L

March 17, 1924. fare, or for the welfare of others, or of the Rehearing Denied by Division B

community. The institution is to be known , May 12, 1924.)

as the “State Colony and Training School." (Syllabus by Editorial Staff.)

The act of 1918, establishing it, bas been en1. Insane persons uw 2-Evidence insufficient

larged, supplemented, and modified in certo show that girl was feeble-minded within tain respects by Acts 133 and 139 of 1920, statute.

though not so as to alter the purpose of the In suit to have girl declared feeble-minded institution, but only in such respects as to and returned to asylum, evidence held to show make it possible to better accomplish that that she had sufficient mentality to place her purpose. The board of administrators of the beyond scope of Act No. 141 of 1918, defining institution was not in position to care for feeble-minded persons.

feeble-minded white girls, and therefore, up2. Insane persons C49—What may be urged on the advice of the legal department of the

in defense of action to have giri declared state, as to the legality of their action, des. feeble-minded within statute, stated.

iguated, temporarily, the Milne Asylum for In suit by orphan asylum to have girl taken Destitute Orphan Girls, a body corporate, from such asylum declared feeble-minded with- and the plaintiff herein, as a unit of the in Act No. 141 of 1918, and returned thereto, State Colony and Training School. Since mother could urge for her as defense that then the asylum has been caring for feeblewhich could be urged on application for her minded white girls. discharge had she been committed to asylum

In November, 1921, Mrs. J. C. Reilly, one by virtue of order of court.

of the defendants herein, who by her first 3. Insane persons Cw49-Home surroundings marriage was Mrs. Walker, made applica

of alleged feeble-minded girl held not to re- tion for the admission of her daughter, Be. quire her commitment to orphan asylum. atrice Violet Walker, then 19 years of age,

In suit by orphan asylum to have girl who to the Milne Asylum for, at least, one year was taken from asylum without its consent and for such further time as might appear declared feeble-minded within Act No. 141 of

necessary in the opinion of those in charge 1918, and returned to asylum, evidence held to show that girl's relatives were able and will- of the institution. The basis of the applicaing to support her, that their home surround- tion was that Miss Walker was feeble-mindings were good, and that it was not for her ed. Later, a formal application was made interest or that of the community that she be for her admission, and she was then examrecommitted.

ined, mentally and physically; and, as a re4. Insane persons ww49_Power of superin- sult of the mental and other examinations

tondent of state school to pass on applica- made, Miss Walker was admitted to the asytion of feeble-minded persons not delegable. lum, as a ward of the state.

Application for admission of girl as feeble- In July, 1922, J. C. Reilly, the stepfather minded, within Act No. 141 of 1918, to orphan J of Miss Walker, while visiting her at the

For other cases see same topic and KEY-NUMBER In all Key-Numbered Digests and Indexes

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(100 So.) asylum, took her to his home, without the , of managing himself and his affairs, or being consent of the institution, and he and Mrs. taught to do so, and requires supervision, conReilly have refused to return her. As a re-trol and care for his own welfare, or for the sult, this suit followed.

welfare of others, or for the welfare of the Plaintiff alleges in its petition that Miss community, who is not classifiable as an insane Walker is feeble-minded, and although 20 person within the meaning and intent of the

laws of the state of Louisiana."
years of age, possesses the mentality of a
child of about 8 years; that due to her men-
tal infirmities, she is incapable of properly

The question is presented whether Miss caring for herself and of governing her ac

Walker is a feeble-minded person within the tions and conduct; and that her stepfather purview of the definition quoted, or of the and her mother are unable to properly su

act from which it is taken. The question is pervise, control, care for, and support her.

one largely of fact. After a careful considThe petition also sets forth the facts stated eration of the evidence in the record, the in the foregoing part of this opinion, and al- briefs filed, and the arguinents made, we leges that the court should appoint two phy. have reached the conclusion that, while the sicians, or one physician and a psychologist, young lady is below the average in mentalin conformity with section 14 of Act 141 of ity, she is not feeble-minded within the pur1918, to hear evidence and to examine into view of the foregoing definition, or the act Miss Walker's condition, and to make report from which it is quoted. Were we to conthereon. The petition then concludes with a

sider alone the opinions of the experts who prayer to the effect that there be judgment have testified in the case and who have decreeing that Miss Walker is feeble-minded, made reports on Miss Walker's mental conand as such subject to be dealt with under

dition, different conclusion would be the legislative acts heretofore mentioned, reached by us; but we are not to consider and directing that she be sent to the plain- those opinions and reports alone. While tiff institution; the decree prayed for to be they command our respect and most justly binding on all concerned until it is rescind- have received our consideration, yet it is our ed, superseded, or set aside.

duty to consider the evidence as a whole in After excepting to the suit, Miss Walker, deciding the issue. So considering it, we her stepfather, and her mother filed an an

have reached the conclusion stated above. swer, in which they aver that they, with

While no attempt will be made in this Miss Walker's brother, are living under the opinion to review and discuss the evidence same roof; that the parents and the brother fully, yet we feel that we should call attenof Miss Walker are devoted to her, and con- tion to some of it that bas influenced us in tribute to her well-being in every way. reaching a conclusion. In the first place, atThey further aver that Miss Walker's sur-tention may be called to the fact that Miss roundings are congenial and proper, and Walker, prior to the time of her admission should not be disturbed. In other respects, to the Milne Asylum, applied for and obsave as to a plea that Act 141 of 1918, under tained employment in business establishwhich the suit is brought, is unconstitution-ments. She worked as press feeder in a al, the answer is virtually a general denial. printing house, and held the position for The judge a quo, after overruling the ex

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over a year. At the expiration of that time, ception that was filed, appointed a physician she occupied the same position in another and a psychologist to examine the mental establishment, holding it for at least a year. capacity of Miss Walker, and to hear with She also worked at two other places for the court the evidence to be adduced on the short periods. At the time she quit, she was trial

, and to make their report as provided earning $15 a week, and quit because of ill by section 2 of Act 139 of 1920. The experts

health. appointed sat with the judge, made their ex

While the work performed by Miss Walkamination, and their report. The judge, aft- er, in holding these positions, may have been er considering the evidence and the report simple, yet the fact that she did hold them of the experts, rendered judgment decreeing for the periods stated, and was able to comMiss Walker to be feeble-minded within the mand, towards the close of her work, a salpurview of Act 141 of 1918, and ordering her ary of $15 a week, tends strongly to show sent to the Milne Asylum for Destitute Or- that she is not without sufficient capacity to phan Girls, an institution duly licensed to care for herself, and that the welfare of receive the feeble-minded.

others, or of the community, does not de

mand that she be subjected to the provisions Opinion.

of Act 141 of 1918. Section 2 of Act 141 of 1918 defines the

In determining the intellectual capacity term “feeble-minded," as used in the act, as

of one alleged to be fceble-minded, the al. follows:

leged feeble-mindedness being caused by a

defect dating from birth or from an early "The words 'feeble minded in this act shall be construed to mean any person afliicted with age, as provided in the statute, it is impormental defectiveness from birth or from an

tant to consider the progress that such perearly age, so pronounced that he is incapable son made at school, when it appears that he

But

11

pr she has attended school. In this instance, On cross-examination Miss Walker was Miss Walker attended the public schools of interrogated with reference to what she had this city for approximately six years. At read; and the following question, among the time she quit she was in the fifth grade. others, was propounded to her, and was anWhile the progress made by her during that swered as follows: time does not reach the average, yet we

"Can you tell me what the story was you think it sufficient to tend strongly to show read? Take your time and tell the judge exactthat she has enough intellectual capacity to ly what that story was about. manage her own affairs within the purview "A. It tells how a young girl and a young man of Act 141 of 1918, and especially do we so met each other, and this young man asked this think, when it is considered that during the young lady would she be his wife, and she period of her attendance at school her health said she would. Then it tells how they got was not always good, which, doubtless, in- married, and tells how they lived with each terfered to some extent with her progress.

other, and how mean her husband was, and In determining whether one is feeble- arated, and then later on they wanted to go

how he treated her, and afterwards they sepminded, it is also important, we think, to back to each other, and she didn't want to go analyze the evidence of the person alleged to back to him, because he treated her so mean. be in that condition; this for the purpose of She said she didn't want to go back. So he ascertaining the degree of comprehension of didn't go back to her, or she didn't go back the witness, shown by her answers to the to him, rather, because he treated her so questions propounded, and of gauging her mean; and she had one little child. She said mentality, as far as possible, in other re- she was going back to him for the child's sake, spects. Miss Walker took the witness stand. but she felt if she would go back he would

abuse her and treat the child mean, so she It may be observed, at the outset, that the decided she would not go back. Then afterEnglish used by her was good, a grammatical wards, she met him on the street, and he error seldom occurring, and when one did, it tried to force her to go back, and she told was only a slight one. Her evidence occu- him no, because once he treated her mean he pies seven pages of the transcript. The an- would do it always. He promised her with swers given by her to the questions pro- his own two lips he would do better, and she pounded are clear and responsive. In no in- said no, she did not want to go back, because stance was it necessary to repeat a question right. So the young man got so desperate

it would be the same thing, and he said, 'All or to put it in different form. As a fair il- that she would not go back to him, that he lustration of the comprehension displayed said the only way he could do was to end by her in answering questions, we quote the his life. So he went and committed suicide following from her examination in chief: and took his own life because she would not

go back to him, and that was the last I can "Q. You have tried to help your mother by remember." working when she needed it, did you not, years ago?

A copy of the story narrated is not before A. Yes, sir; I did.

The witness, however, insists that she "Q. What kind of work did you do?

read such a story, names its author, and the “A. I fed the presses.

journal in which she says it was published. "Q. For whom?

While, therefore, because of the fact that the "A. For the James Buckley Company.

story is not in the record, we are unable to "Q. Anybody else?

say whether it has been correctly told, yet "A. Mr. Sendker.

it is not for that purpose that we quote it, "Q. Anybody else? "A. Mr. Thiberge.

but for the purpose of showing that the wit"Q. What school did you go to?

ness is capable of narrating a story clearly "A. McDonough No. 14.

and intelligently, and for the further pur"Q. On Peters avenue?

pose of showing the capacity of the witness "A. Yes, sir; on Peters avenue.

for sustained thought, and hence as a cir"Q. How long did you go there?

cumstance tending to show that the witness "A. I went there about six years.

has sufficient mental capacity to place her "Q. Are you able to read?

beyond the scope of Act 141 of 1918. "A. Yes, sir. "Q. Can you tell the judge of some of the

[1] Our conclusion is, in view of the forethings you read now?

going facts, and in view of the evidence as A. Well, magazines and Saturday Evening a whole, that Miss Walker has sufficient Post, and the Ladies' Home Journal, and lit- mentality to place her beyond the scope of tle story books, and everything like that. the act of 1918.

"Q. Why did you have to leave school? Assuming, however, that we have erred in

A. My father was in very bad health, and reaching the conclusion we have, it does not I had to help my mother.

follow necessarily that Miss Walker must be "Q. Has your mother ever neglected your sent to the State Colony and Training welfare in any manner? "A. No, sir.

School, or, in other words, to the Milne Asy"Q. Has your stepfather ever neglected your

lum as a unit of that colony, or as an insti. welfare in any manner ?

tution duly licensed to receive weak-minded "A. No, sir."

persons. In considering this phase of the

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(100 So.) case, it should be observed that plaintiff's [4] In a preceding paragraph we said that demand, properly speaking, is not that Miss plaintiff's demand, properly speaking, was Walker be returned to the asylum because not that Miss Walker be returned to the asyof the application made by her mother for lum because of the fact that she was taken her admission therein and accepted by it, al- away from there, after her mother had made though the application is set out in full in application for her admission, and the appliplaintiff's petition, but that she be decreed cation had been accepted by the asylum, but to be feeble-minded within the purview of that the demand is that Miss Walker be deAct 141 of 1918 and ordered sent to the in-creed to be feeble-minded within the purview stitution conducted by 'plaintiff. Section 4 of Act 141 of 1918, and sent to the asylum. of Act 139 of 1920 authorizes any person Let us assume, however, that plaintiff's decommitted by an order of court to the State mand includes a prayer that the young lady Colony and Training School to petition the be returned to the asylum under the applicourt that entered the order for his or her cation made by her mother and accepted by discharge. One of the grounds upon which that institution; still we should not feel the court is authorized to grant the dis- justified in ordering her return thereunder. charge is:

Aside from the fact that we feel that it was "Because the relatives or friends of the

an error to have placed her in an institution feeble-minded person are able and willing to

for the feeble-minded, it does not appear supervise, control, care for and support him that Miss Walker was admitted therein as and request his discharge.”

provided by law, and hence the admission

cannot be given the effect necessary to order [2] Miss Walker has not been admitted to her return. Section 1 of Act 133 of 1920 the State Colony and Training School or to provides for the admission of the feeblethe Milne Asylum, as a unit of that colony, minded to the State Colony and Training by virtue of an order of court. However, as School, without an order of court, upon the such an order has been requested, may her application of certain designated persons mother not urge for her, as a defense, that and officials. The section intrusts the powwhich could be urged on application for

er to determine whether the person, whose Miss Walker's discharge were she at present admission is applied for, is feeble-minded or committed by virtue of an order of court? not, within the purview of Act 141 of 1918, We conclude that she may.

to the superintendent of the State Colony The evidence, touching this phase of the and Training School, who is permitted to excase, discloses that Miss Walker's mother ercise the power only after certain examiowns the home in which the family resides, nations are made. If the person whose adthough the evidence shows that the proper- mission is applied for is received by the suty has not been paid for in full. Miss Walk- perintendent, then, in the words of the stater's stepfather and her brother are laboring ute, "the said person then and there by this men. They are able and willing to care for act of the superintendent becomes ward of and support her, and Miss Walker's mother the state," and, as provided by the section, is able, we think, and is willing, to control, may be discharged only in the manner preguard, and protect her daughter. The young scribed by the statute, which is by order of lady has a separate room in her mother's court. The application, in this instance, for home, and is contented and happy in the the admission of Miss Walker, is addressed family circle. The moral conditions sur

to the Alexander Milne Home School for rounding her are good. With reference to Girls. It does not appear to have been actthe bome, the experts appointed by the judge, ed on by the superintendent of the State after making an examination, reported as Colony and Training School. The evidence follows:

justifies the inference that it was not so ac"The home of Violet Walker's parents was cepted, but was passed upon and accepted visited and examined. The house and prem- only by the Milne Home. The power to pass ises were clean and well kept. All reasonable upon applications made under section 1 of comforts were provided. The neighborhood Act 133 of 1920, the section under considerais good. The whole ménage represents thrift tion, is not such a power as may be delegatand domestic activity.”

ed by the superintendent of the State Colony [3] Our conclusion is that, even if we have and Training School, or by the board of dierred by holding that Violet Walker has suf- rectors thereof, to another, but must be exficient mental capacity to place her beyond ercised by the superintendent, to whom it the scope of Act 141 of 1918, still she should is intrusted by the lawmaker. not be sent to an institution for the feeble For the reasons assigned, the judgment minded. The law does not require that she appealed from is annulled and set aside, and be sent to one, as her relatives are able and plaintiff's demand rejected, at its costs. willing to care for, support, and protect her, and her welfare and that of the community

Rehearing refused by Division B, composed do not demand such action.

of DAWKINS, LAND, and LECHE, JJ.

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(156 La.)

which they claim the foregoing interest, in so Nos. 24416, 24417.

far as the lease affects that interest.

Both sides concede that the lease attacked WHITE et al. v. WHITE et al.

is no longer in force, and therefore that the SAME V. LOUISIANA OIL REFINING CO. suits now involve only the right of plainet al.

tiffs to recover their interest in said land.

They also agree that the only parties inter(Supreme Court of Louisiana. May 5, 1924.) ested in the phase of the litigation still re

maining are plaintiffs and the defendant, (Syllabus by Editorial Staff.}

Charles White. 1. Evidence Cmw 183(15)-Evidence held to

It is admitted that plaintiffs were at one sustain finding that proper search for alleged time the owners of the interest sued for by lost deed had been made. Where it was sought to introduce copy of father, Stephen White; but the defendant

them, having inherited it from their granddeed under which defendants claimed on the ground that the original had been lost, evi- Charles White contends that plaintiff's sold dence held to sustain the finding that proper that interest to him, in June, 1906, about 14 search had been made and that the original years before these suits were filed. The plain. was in fact lost.

tiffs concede that there is of record in the re2. Evidence Cow 178(3)-Statute authorizing

corder's office of Claiborne parish a deed which admission of copy of lost record not affected purports to have been signed by them, transby statutory requirement of advertising.

ferring to Charles White their interest in Civ. Code, art. 2270, authorizing introduc- the lands in question, but contend that they tion in evidence of copy of record on proof of did not sign the deed, that Robert White loss of original, field not affected by require- affixed their signatures to it, and that he, in ment of article 2280 that loss must be adver. so doing, acted without authority. Whethtised within reasonable time.

er or not plaintiffs executed such a deed is 3. Evidence 186(6)-Recorded copy

the main issue to be determined.

of lost deed though neither authentic nor private

After the examination of various witnessact duly acknowledged, held admissible.

es by both plaintiffs and the defendant White, Recorded copy of deed, original of which with reference to the deed in controversy and had been lost, held admissible, under Civ. its execution, White offered in evidence Code, art. 2270, though it was neither an au

the recorded copy of it, found in the convey. thentic act nor a private one duly acknowl- ance records of the parish. The copy was ofe edged.

fered instead of the original, because White 4. Deeds w207-Sales; finding that signa

claimed that the original was lost. Plaintiffs ture to deed was in fact made by parties objected to the offering on the grounds: sustained.

First, that it does not appear that a proper In suit to recover interest in land held search had been made for the original instruby defendant under deed, signatur to which ment; and, secondly, upon the ground that it plaintiffs denied, evidence held to support find is not shown that its loss had been advertised ing that they had in fact signed such instru- as required by law. ment.

The record discloses that, after a thorough

search for the original deed made by the Appeal from Third Judicial District Court, clerk of court and ex officio recorder of mortParish of Claiborne; J. E. Reynolds, Judge. gages, it could not be found among the archiv.

Separate suits by Mack White and others es of his office. Defendant testifies that against Charles White and others, and

after its recordation, the instrument was de against the Louisiana Oil Refining Company livered to him; that he took it to his home; and others. Judgment for defendants in each that he thinks his wife usually kept it there case, and plaintiffs appeal. Affirmed.

in her trunk; that he searched the trunk, and Scarborough & Carver, of Natchitoches, the deed might possibly be, but failed to

every place on his premises where he thought and David Blackshear, of Farmerville, for

find it. appellants. Scheen & Blanchard, of Shreveport, for ap- er search has been made, and that the deed

[1] The evidence satisfies us that the proppellees.

is, in fact, lost. By Division C, composed of OVERTON, [2] With respect to the second objection ST. PAUL, and THOMPSON, JJ.

urged, plaintiffs rely on article 2280 of the Civil Code to sustain it. That article pro

vides thatOVERTON, J. These suits were instituted by six of the heirs of Stephen White against In every case, where a lost instrument is their coheir, Charles White, to recover a 6/38 made the foundation of a suit or defense, it interest in certain land in the parish of must appear that the loss has been adver

tised, within a reasonable time, in a public Claiborne, and to avnul a mineral lease newspaper, and proper means taken to recover granted by Charles White on the property in the possession of the instrument.”

Cum For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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