We granted the rehearing in this case in order to consider the following points:
(1) The request of the defendants to remand the case to the lower court in order that they might offer evidence to rebut the proof introduced by the plaintiff because of the alleged interference by the trial judge. *Page 500
(2) The request to remand the case for additional proof on the ground that the plaintiff's evidence was insufficient to establish with legal certainty the amount of the alleged claim.
(3) The statement that the judgment should be amended so as to dismiss the suit in so far as Mirandona Bros. are concerned, as there is no evidence to show that they were connected with the alleged trespass.
The suit was instituted by the lessee of certain property, adjoining the lands of defendants, for damages resulting from the alleged wrongful trespass by defendants, and also for the value of twenty-two dozen traps converted by the defendants and of one pirogue destroyed by them.
The defendants filed a joint answer, denying the allegations of plaintiff's petition and, in reconvention, averred that plaintiff trapped upon certain lands belonging to them, and that they are entitled to recover the sum of $2,638.70, being the amount of the profit they would have made on the catch of rats by plaintiff's trappers under a fair and customary trapping agreement.
On these issues the case went to trial. Plaintiff rested his case, after having offered in evidence his own testimony, together with that of fourteen witnesses, including W.Y. Kemper and Victor E. Hawkins, civil engineers. Defendants also rested their case, after having introduced the testimony of one witness, C.A. Robert, civil engineer and surveyor. Whereupon the trial judge rendered judgment *Page 501 in favor of defendants, dismissing the plaintiff's suit, and assigned as his reasons therefor the following:
"After hearing all the testimony, there are only two witnesses that I can believe. The Court feels that about ninety per cent of the testimony given by the other witnesses cannot be believed. I am well acquainted with the Godchaux land, and the trappers and with trapping life, and I know just about what a trapper could catch, and what he ought to catch. I know just about how long it takes to cure a pelt for the market, and I know that the testimony that those men gave as to their catch, and the manner of curing the pelt, and the number of pelts that they caught, could not be believed. It is the opinion of the Court that the plaintiff has not proved its case, and I am going to dismiss the suit."
He also dismissed the reconventional demand.
On appeal to this court, in our decree of December 2, 1935, we amended the judgment of the lower court by awarding plaintiff the sum of $4,294.30, and, with reference to the proof in support of plaintiff's claim, we said:
"Defendants do not attempt to account for how many pelts were taken by them, although this was a fact exclusively within their knowledge, and was susceptible of proof by them alone.
"Plaintiff has offered the only possible proof of his claim, under the circumstances of the case. Neither plaintiff nor any of his witnesses has been discredited, as *Page 502 to the extent of the catch sued for in this case; and, most assuredly, they cannot be presumed to be witnesses unworthy of belief. If the claim is excessive, it was within the power of defendants alone to have protected themselves, and they have failed to do so."
The defendants state that they are entitled to have the case remanded to the lower court, in order that they might introduce evidence to disprove the testimony of plaintiff's witnesses, since they offered no evidence on the trial of the case in the lower court because of the ruling of the trial judge that none was necessary, citing the following authorities: Code Practice, art. 906; Robertson v. Lucas, 11 Mart.(O.S.) 187; Bainbridge v. Clay, 3 Mart.(N.S.) 671; Noble v. Flower, 36 La.Ann. 737; Hammons v. Edwards, 6 La.App. 752; Archer v. Daniels, 42 La.Ann. 816, 8 So. 588; Dunn v. Springfield Fire Marine Ins. Co., 104 La. 31,28 So. 931; Paterno v. Kennedy The Cleaner, Inc., 18 La.App. 649,138 So. 531; Lukens Iron Steel Co. v. Gitzinger, 12 Orleans App. 202.
The record shows that the trial judge made the above-quoted ruling only after the defendants had rested their case. This is further shown by counsel's own version of what took place, for in their brief, filed October 14, 1935, they state:
"After the taking of plaintiff's testimony, consuming the best part of two days, counsel for defendant informed the Court that defendant's answer not only denied the trespass upon plaintiff's lands and that *Page 503 defendant's men trapped thereon, but contained also a reconventional demand based on the fact that the plaintiff's men had trapped on defendant's lands and purloined therefrom some $2500.00 of furs, but that plaintiff's endeavor to prove a trespass and the quantum of damages by the testimony of illiterate trappers had so signally failed, that defendant's counsel rightly feared that his proof of trespass and damages to defendant's land would meet with the same fate and not desiring to consume the Court's time in a useless effort, he would submit without evidence, confident that plaintiff had failed to prove acase.
"Thereupon, the Court made the following statement: "`After hearing all of the testimony * * *'" (Italics ours.)
The authorities cited by counsel for defendants are to the effect that, where the trial judge interferes with either party litigant introducing their evidence, which they were prepared to present in the event the appellate court reversed the judgment of the lower court, in the interest of justice, the party whose evidence had been excluded through the interference of the trial court should be afforded an opportunity to do so by having the case remanded.
In the instant case it is clearly shown that the trial judge in no way interposed himself in excluding any of the defendants' evidence. Their learned counsel elected to submit the case without evidence, because they had concluded that the plaintiff had not made out a case on the *Page 504 question of liability or the question of quantum. Both of these issues were clearly presented, and defendants had every opportunity to introduce any relevant proof that they might have had. When this case was originally presented here, counsel for defendants still maintained their original contention that the evidence was insufficient. It was only after we differed with them that they requested the court to remand the case. Their counsel was of the opinion that it was in the interest of their clients not to offer this evidence, and it is now too late, after the matter is here on rehearing, to ask the court for the first time to remand the case.
To send the case back to the lower court for further evidence under such circumstances would clearly lead to abuse, in that litigants would submit their cases upon what they believed to be the weakness of their opponent's evidence, knowing that, if they failed, they would be given another opportunity to introduce evidence to rebut it.
It is further contended by counsel for the defendants that the proof with reference to quantum is insufficient; in short, that this evidence does not prove the amount of the claim with that legal certainty which the law requires. In our original opinion we stated what this evidence consisted of. We now point out that the amount claimed in the reconventional demand, which is verified by the defendants, corroborates the testimony of the plaintiff and his witnesses in showing that the amount allowed is fair and reasonable. *Page 505
It is said that, in so far as Mirandona Bros. and the individual partners thereof are concerned, there is no evidence in the record to connect them with the alleged tort or damage of which plaintiff complains. Without reproducing in detail the evidence in the record touching on that point, suffice it to say, after reviewing the testimony, we are convinced that the record shows conclusively the contrary.
For the reasons assigned, we conclude that our original opinion is correct, and it is therefore reinstated and made the final judgment of this court.
ODOM, J., dissents.