author: John St. PAUL, Juago.

text:
    NO. 7525.
    EUREKA HOMESTEAD SOCIETY VS WM. L. CLARK, JR.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.

   OPIHIOH.

John St. PAUL, Juago.

Shis cobo involves the interpretation of Section 200 of the Act of Congress approved Harch 6th, 1918, entitled "An Aot to extend protection to the oivil rights of neuters of the Uilitary and Ifaval Establishments of the United states engaged in the present war," conaonly called the Uoratoxlna Act.

Por the purpose of this case It suffices to say (sinoe a judgment by default was taken herein without the filing ot affidavit) that the aot requires in substance that before a judgaent bjr default nay be taken against a defendant, the plaintiff shall by his affidavit show that suoh defendant is not in the uilitary service.

And the preoise question before us is whether a judgment rendered by default without the previous filing of suoh affidavit be abeolutely void in all oases or only voidalle if the defendant show that he was then in the military service and was prejudiced by such judgaent.

It sesos to us that a glance at the title of the act and a consideration of its purpose suffices to afford a solution of this question; sinos it is difficult to see how persona in the ailitary service would be protected against unjust oíalas if a plaintiff night by einply ignoring the aet and withholding the affidavit, take and execute his judgaent by default and thus relegate the soldier or sailor to an action to set it aside and an uncertain oíala for damages; long, expensive and doubtful in its prosecution; and difficult, perhaps impossible, of ezeeution.

Por on principle suoh would be the necessary consequence# If a judgaent so rendered were not void, but only voidable; wines that which is only voidable and not .void subsists as valid and produees its full oivil effects until sot aside. And the aet itself reeognises this when it deolaree at the verj end of the'seotion that "Taoatlns. settlnw aside, or reversing any judgment beoauae of any of the provisions of this act shall not impair any right or title acquired by any bona fide purchaser for value under such judgment."

Passing aside the very obvious faot that one oannot be considered strictly bona fide who fails to look for the required affidavit, it nay then be asked what is the meaning of the clause just quoted and the reason thereof, since It clearly provides for a case where the Judgment is only voidable but not void.

The answer is that it is only when the judgment has been taken bj£ default and no affidavit has been filed that' it is void; otherwise it is only voidable.

Por the act. provides that the plaintiff Shall file one of three affidavits; to-wit, that the defendant is not in the that military service, or that the defendant is in #$# servios,or that plaintiff is unable to determine whether the defendant be or be not in such servloe (either in faot or in law).

But in any case the court is allowed considerable discretion as to whether it will or will not proceed with the suit, and under what conditions, such as the appointing of an attorney to represent the defendant, requiring bond from the plaintiff, or the like. But in no case can judgment be rendered by default unless the affidavit Bhow affirmatively that the defendant la not in the service; otherwise there must be a hearing.

Or again the affidavit might be false in fact; or erroneous in law, whether Intentionally or otherwise, in spite of the severe penalty attaohed to the making of a false affidavit intentionally.

But in all such eases, although the defendant might yet be injured by the judgment, nevertheless the proceedings would be regular on their face and any irregularity therein would arise only from facts dehors the record. Hence such Judgments would be voidable only.

Bat where no affidavit whatever has been filed the irregularity of the Judgment is apparent on the face of the record, and the Judgment is then not only voidable, but void.

In so far as this applies to a person who at the tine was aotnally in the military service, it seems to us there can be ns doubt that a Judgment rendered as this one was is' a radieal nullity.

II.

But we think this is also true even as to a defendant who aotually was not in the military service at the time, for the reason;

Congress meant to' provide, and- ex industria did provide, that before any Judgment by default whatever be rendered, it should affirmatively appear from the record that the defendant was not in the military servioe.

That is to say, Congress meant ot protect those in the military servioe against the possibility of oppressive Judgments taken against them by default; but the mere right to set aside suoh Judgments and claim damages would not be adequate; henoe Congress must strike with nullity ab initio any Judgment by default whatever against them. But the only way to -do so effectively is to strike with nullity any Judgment by default against anyone whomsoever unless it were made to appear affirmatively that suoh person was not in the military servioe. Otherwise the burden of setting aside any suoh Judgment whioh might Inadvertently or otherwise be rendered against a person in the military servioe must fall upon suoh person, and in the meanwhile he might suffer irreparable damage; all of whioh was Just what the act meant to guard against.

In other words Congress in order to protect those in the military servioe meant to insist that no judgment be rendered by default against any person whomsoever without first ascertaining affirmatively that suoh para on was not in the Military serrloe. To that extent the la* la plainly prohibitory ami henoe what is done in oontrovention thereof is void.

May 1919.

III.

It is urged that taking this view of the Statute nay result In annulling a great nany judgments entered before the proTisiona of the law became known. It may be so. but with that we hare nothing to do sines we hare only to Interpret the- law as we understand It. At the same time we do not generally leap In the dark, and we feel satisfied that suoh fears are exagerated. It may be that judgments rendered by default and 7l& executed may hare to be Bet aside and rendered de noro, but In general where judgments rendered against persons not In the military serrloe, and working them no Injury, hare been soquiesoed in, or exeouted to the knowledge of and without objeotlon from suoh person, they will doubtless be allowed to stand as aocomplished facts whioh oan not be undone, upon principles of estoppel and public convenience.

IV.

the riew whioh we hare thus taken dispenses with our haring to oonsider either the admissibility of the affldsrit filed in this oourt by the appellee or the motion to expurge it from the reoord filed by the appellant.

The Judgment appealed from is therefore rerersed and set aside and the oaae is now remanded to the oourt a qua for further proceedings according to law.

Claiborne, J, recused.

Hew Orleans la,


source: Caselaw Access Project

author: CHARLES F. CLAIBORNE, JUDGE.

license: Public Domain

text:
    CHARLES F. CLAIBORNE, Judge.
    LOUIS F. SIRGO, SR. VS. BOARD OF TRUSTEES OF THE FIREMEN’S PENSION AND RELIEF FUND OF THE NEW ORLEANS FIRE DEPARTMENT.
    No. 7527.
    April 24th, 1919
   CHARLES F. CLAIBORNE, JUDGE.

This case presents a contest between the widow of a deceased fireman on the one hand, and the beneficiary consti-ti^ed by the deceased on the other hand, for a death benefit under Act 43 of 1902 p. 51 as amended by Act 27 of 1914 p. 85.

Louis F. Sirgo, Sr. alleges that Joseph Escobedo, his uncle, was a member of the New Orleans Fire Department at the date of his death on February 9th, 1917; that -under the Acts above mentioned creating the Firemen*s Pension and Relief Fund each member of the Fire Department is authorized to designate a beneficiary to whom $1000.00 shall be paid upon the death of the member, as a death benefit; that the deceased member Joseph Escobedo filed on May 16th, 1916 with the Board of Trustees of the Fund, on a form furnished by said Board, his death benefit, by which he made petitioner his beneficiary; that the Board refuses to pay petitioner $1000.00 which he asks that the Board be condemned to pay to him.

The defendant Board admitted all the allegations of the petition, but denied that_petitioner was a nephew of Escobedo *r that Escobedo yras*»bnti tlyn to designate a beneficiary to whom $1000,00 is to be paid, at the timé of the death of the said member,' as a death benefit11; that under the acts above mentioned creating the Board it was its duty to appropriate from the funds of the Board the sum of $1000 to be paid to the beneficiary designated by the Section 21 of Act 43 of 1902 as amended by Act 27 of 1914;. that the Widow of Joseph Escobedo is also claiming from the Board the aforesaid sum of $1000.00, and has advised said Board that she will institute legal proceedings for the recovery of the same; therefore the Board deposited the sum of $1000.00 in the Registry of the Court for such disposition as the Court may deem legal, and prayed that Widow Escobedo he made a party to this suit.

Widow Escobedo filed her answer, and denied tfc* any designation of beneficiary other than the wife or minor children or dependent mother of the fireman could legally b® made; she, specially denied that the petitioner Sirgo, had any legal right to said death benefit, and averred that his designation as beneficiary was null and void, because he was neither the wife, nor the child, nor dependent mother of the deceased; she averred that Escobedo left no children and that therefore as his widow^she is entitled to the death benefit of $1000.00 arising from the death of her husband under section 22 of the Act of 1902 and section 21 of the Act of 1914; she further averred that in the event the Court was of opinion that under section 22 of the Act of 1914 a person other than a surviving widow, minor children or dependent mother could be made beneficiary, that according to the title of the Act of 1902 and according to the terms of the act and more particularly section 22 all benefits went to the fireman while alive, and after his death to his wife, children and mother; that the title of the Act of 1914 makes no reference to the fact that said benefits could be made payable to others and even to strangers in no wise dependent upon said fireman; and that if section 22 of the Act of 1914 can be construed so as to allow the deceased to designate as his beneficiary the plaintiff Sirgo, then said section 22 is unconstitutional, null and void, as violative of Article 31 of the Constitutions of 1898 and 1913, because no reference is made in said titles to the allowance of benefits to be made to such persons not dependant upon the fireman, either in the Act of 1902 or in the Act of 1914; she further avers that if the Court holds that the object is expressed in the Act of 1914, then the said act is unconstitutional because the title then embraces two objects^ namely: The creation of a mutual benefit association and a life insurance company, which is also in violation of Article 31 of the Constitutions of 1898 and 1913.

It was admitted that Sirgo was a nephew of Joseph Escobedo; that he Was duly designated on the regular font of the lire Department atr his beneficiar?; that lire. Escobedo is his widow, and that she is. still unmarried; that she and her husband did not live together for about twenty years although not legally Separated, and that she was á good woman; that Joseph Escobedo died without leaving any children or mother.

Ihere was judgment in favor of Widow Escobedo decreeing her entitled to the (1000.00, and against Sirgo, rejecting his demand. He has appealed.

The first question presented is whether the Act of 1902 or the Act of 1914 amendatory thereto designate and fix the beneficiaries, or whether the fireman has a right himself to designate the beneficiary.

The title of Act 43 of 1902 p. 51 reads;

"An act creating a Board of Trustees of the Firemen's Pension and Relief Fund for the City of Hew Orleans; providing for the pensioning of disabled firemen, and the widows or minor children or widowed mothers of deceased firemen; authorizing the retirement from service, and relieving and pensioning members of the fire department; providing for the raiding of funds". Section 1 provides:
"That the City of Hew Orleans having a paid fire department, one (1) per centum of all revenues collected or received by said city from licenses issued by said city, shall be set apart by the treasurer of said city $o whom the same Shall be paid, as a fund for the pensioning of disabled and superannuated members of the fire department, and of the widows and orphans of deceased members of the fire department, or of dependent mothers of deceased members of the fire department, and to relieve said members in case of temporary disablement)1.

Section 2 designates the persons who shall compose the ■Board of Trustees of the Firemen's Pension and Relief Fund".

Section 3:

"That the said board shall have exclusive control and management of the fund mentioned in the first section of this act, and of all money donated, paid or assesed for the relief, or pensioning of disabled superannuated and retired members of the fire department, their widows and minor children, or widowed mother" &c &c.

Section 4 prescribes the duties of the City Treasurer in relation to funds paid by Insurance companies.

Section 5 dedicates to this fund all forfeiture® and fines imposed by the Board of fire’ Commissioners.

Section 6 dedicates to this fund all proceeds of sale of the personal property of the said fire Department.

Section 7 dedicates to this fund all donations to the fire Department, - and provides-for the accumulation of $200flQ0.00.

Section 8 authorizes the Board to invest this fund.

Section 9 dedicates the interest of said fund "to the payment of pensions and relief under this act".

Section 10 directs the manner in which the money of the fund shall be paid out.

Section 11 provides for the payment of a sum of money to a disabled or retired fireman.

Section 12 provides for the payment, in case of death of the fireman, of a sum of money to his widow and minor children, and in default of these, to his widowed mother.

Section .13 provides for partial payments in case the fund is insufficient.

Section 14 provides for the payment to a retired firdman.

Section 15 directs the keeping of records of retired firemen and the action of the Board regarding then. It further provides:

"... When the widow or children or widowed mother or either of them shall be entitled to a pension as provided by this act, such widow or children or widowed mother shall make application to the Board of Trustees through the secretary of suoh board, on a form to be provided by the Board of Trustees. Accompanying suoh application shall be the proof of the marriage of the dsoeased to the widow claimant such proof to be estab'lished by the marriage certificate or other ooapetent evidence. Proofs of 'births of the children' shall be shown by the baptismal or the Board of Health certificates. The proof of a widowhood of a mother shall be shown by the affidavit of such mother or disinterested pdrsons". &c &c

Section 16 provides for the selection of a bank in which the money of the Fund shall be deposited.

Section 17 directs the Board to make an annual report to the City Council.

Section 18 exempts this fund from seizure under any writ or judgment

"... against any member, or his said widow, or the guardian of said minor child or children, of any deceased member, or any dependent mother of any deceased member; but the said fund shall be sacredly held, kept, secured and distributed for the purpose of -pensioning the persons named in this act, and for no other person whatsoever".

Section 19 prescribes the duties of the Treasurer of the Board.

Section 20 amalgamates the Relief Associations and funds of the old fire department with the Board created by this act. Section -21 reads -as follows:

"That whenever an active or retired fireman shall die o.r be killed the Board of Trustees shall appropriate from the funds the sum of five hundred dollars to be paid to the beneficiarjr upon a certificate signed by the Department Physician, Chief Engineer and Chairman of the Relief Committee who shall state thereon the name of the deceased, the beneficiary,- the cause of death and other necessary information.

Section 22 requires every fireman to

"... file with the Secretary the names (of those) to whom death benefits are to be paid and the relations of the donor to donee existing".

Seotion 23 provides for the merging of the old "Mutual Benefit and Relief Fund" into the Fireman's Pension and Relief iund" whenever the Fund shall have attained $90,000,00.

It is therefore made evident hy the title and body of this aot that the object and purpose of the Act 43 of 1902 was to create a "Pension and Relief Fund" ; and that'the persons to be bendfited by the Act were "Piremen", and, at their death, their widow and children, and in default of these their widowed mother.

Sections 1, and 3, and 18 fix and designate, exclusively of any other, the beneficiaries of this Pund, and restrict them to the firemen themselves, and to their widow and children or to their widowed mother.

Sections 11 and 14 fix the sum of money to be paid monthly or annually to the disabled or retired fireman, during his life.

Section 12 fixes the sum to be paid, monthly in case of death of the fireman, to his widow and children under 14, and in their default to his widowed mother.

These sums of money in favor of the fireman, or -their widow and children, or mother, 'payable to them monthly or annually, might be classed under the title and provisions of the act as a "pension".

Abbott's Law Dictionary describes a "pension" as "a periodical allowance of money, especially one made by government in consideration of past services". Also Century Dictionary.

But section 21 departs from the creation of a "pension" in its strict sense and directs the immediate payment, in bulk, of the sum of $500 to the beneficiary of the fireman. This gratuity comes more strictly and according to "most usual signification" under the title ofRelief", or "death benefit!'.

Section 22 reads thus:

"That every member of the department must file with the Secretary the name or names to whom death benefits are to^i.S> paid, and relations of the donor to donee exis ting".

Controlled by other sections of the act, this section 22 mu3t be interpreted as restricting the right of the fireman to "file with the Secretary of the Board the names of those to whom the death benefits are to be paid", only to such persons who are entitled,-by the letter of the law, to the benefits of the act, ■that is, the widow and children or mother of the deceased fireman, giving the relation which the fireman donor hears to the beneficiary donee, whether it he widow , child,or mother.

It would seem, however, that the revenues of'the Fund were not sufficient to meet the benevolent purposes of the Act of 1902. By Act 17 of 1904 p. 20, section 22 of the act of 1902 was amended. The last sentence of the ssction, as amended reads as follows:

". . .On the death of a member an assessment of one dollar ($1.00). shall he levied upon each member of the fire department, whenever payments are to he met for a death benefit".

This amendment emphasizes the fact that the object of the.Act of 1902 was not only to create a ".Pension" hut also a "Relief" or "death benefit".

The Act 152 of 1912 p. 218 amends section 2 of the Act of 1902 constituting the membership of the Board.

Act 27 of 1914 p. 85 makes further and material amendments to the Act of 1902.

Its title reads:

"An Act to amend and re-enact the title and Sections 1, 2, 3i 5> 7, 9. .14, 18, 21, and 22, and to repeal Section 4, of Act No. 43 of the General Assembly of the State of Louisiana, Session of 1902, entitled "An Act ’ creating a Board of Trustees of the Firemen's Pension and Relief Fund for the City of New Orleans; providing for the pensioning of disabled firemen, and the widow or minor children or widowed Bothers of deceased firemen, authorizing the retirement from service, and relieving and pensioning members of the fire department; providing for the raising of funds".

We. have seen that the Sections l,and 3, and 18 were those which fixed and designated the persons who might become beneficiaries under-the. Act of 1902. „

"That the Title of Act 43 of the General Assembly of the State of Louisiana,- Session of 1902, be and the same ia hereby amended and re-enaoted ao aa to read aa follows, to-wit:-
An act creating a Board of Trusteea of the Firemen'a * Pension and Belief Fund for the City of Hew Orleans; providing for the pensioning of disabled firemen, and of widow and minor children, and widowed mothers of deceased firemen; authorizing the retirement from service, and relieving and pensioning members of the fire department; and providing for the raising of funds and for the payment of death benefits" ,

Section 2:

"That Section 1 of Act Ho. 43 of the General Assembly of the State of Louisiana, Session of 1902, be and the same is hereby amended and re-enacted so as to read as follows, to-wit:
Section 1. Be it enacted by the General Assembly of the State of Louisiana, That the City of Hew Orleans having a paid fire department, and one (1) per centum of all revenuesaollected and received by said city from licenses issued by said city, shall be set apart by the treasurer of said city to whom the same shall be paid, as a fund for the pensioning of disabled and superannuated members of the fire department, for the relief of said members in case of temporary disablement, for the payment of death benefits to beneficiaries of deceased members of the fire department, and for the pensioning of widows and children and dependent mothers of members of the fire department who, while responding to an alarm of fire or while working at or returning from a fire, shall be killed or shall receive injuries which shall result' in the death of the injured fireman within six months from themtirae the said injuries are sustained".

The difference made by the amendment was adding to the Act of 1902 the words;.

"... for the payment of death benefits to the beneficiaries of deceased members of the fire department".

Section 2 amends the composition of the Board.

Section 3 reads:

"That the said Board shall have exclusive control and management of the fund mentioned in the first section of this act, and of all money donated, paid or assessed for the relief or pensioning of disabled superannuated and retired members of the fire department, their widows and minor children, or widowed mothers, and for the payment of death benefits, and shall assess.each member of the fire force"&c.

Section 3 of the Act of 1902 was thus amended by adding the words;

"... and for the payment of death benefits".

Section 12 was amended by adding the words:

"... provided, the combined pension shall not exceed one-half the monthly salary of the deceased member at the time of his death; and further, that the said pension shall not operate as a bar to the payment of any death benefits otherwise provided in this act".

Section 14 was amended by adding the words:

"... and provided, further, that after twenty-five years of continuous service a member shall not be deprived of his pension rights or death benefits".

Section 18 was amended by adding to the act of 1902, after the words:

"... for the purpose of pensioning the persons named in this act"

the following words:

"... and for the payment of death benefits".

Section 21 increases the death benefit from $500 to $1000.

Section 22 is made to read as follows:

"That every member of the department must file with the secretary the name or names of the person or persons to whom death benefits are to be paid, and the relation of the donor to the donee existing, if any".

The provisions of the.Act of 1914 make it clear that the legislators intended that the two classes of benefits established by the Act of 1902 and accentuated by the Act of 1914,namely, .the pension and the relief or death benefit, should be controlled by different rules. The persons who alone could become entitled ^ to the pension or death benefit were designated by the Act of 1902; the fireman had no voice in their selction. But it waB otherwise under the act of 1914. While the persons entitled to a pension were still immutably designated and fixed by the Act of 1914, that act made it-optional with the fireman to designate his pensioner might be one person and the beneficiary another.

Section 2 of the Act of 1914 extends the purposes of this fund, from the widow and children or mother under the Act of 1902, and creates another class

". . . for the payment of death benefits to beneficiaries of deceased members of the fire department". Section 4 of the same act also speaks of the additional

class of beneficiaries

". . . and for the payment of death benefits".

While section 18 of the Act of 1902 provides that said fund should be sacredly kept for pensioning the persons named in said act, and for no other person whatsoever, the Act of 1914, section IS, amends the .Act of 1902 by saying:

". . . for the purpose of pensioning the persons named in this act, and .for the payment.of death benefits and for no other purpose whatsoever".

The Act of 1914 does not say to whom this death benefit shall go. But Section 22. clearly indicates that the choice of this beneficiary shall be left to the fireman himself, It says:

"Every member of the department must file with the secretary the name or names of the person, or persons to whom death benefits are to be paid, and the relation of the donor to the donee existing, if any".

Section 21 reads:

"That whenever an active or retired fireman shall die or be killed the Board of Trustees shall appropriate from the flund the sum of one thousand dollars ($1000.00),, to be paid to the beneficiary upon a certificate signed by the department physician, Chief Engineer and Chairman of the Relief Committee, which certificate shall state the name of the deceased, the name of the beneficiary, the cause of death, and other necessary information".

Under section 22 of the Act of 1902 the fireman on filing with the secretary the name of those to whom the death benefits were to be paid, was under obligation to state"the relation of the donor the the donee existing", whether wife, child, or mother; under the amendment of 1914, he is^&nly obliged to state the relation, "if any".

The fireman "must" file the name of the beneficiary and the Board shall appropriate $1000. to be paid to that beneficiary.

There is no restriction imposed upon the fireman, by the letter of the law, as to the person he must select as his beneficiary; and we can discover none in the spirit of the law.

If it had been the intention of the legislature that the party entitled to the pension should also receive the death benefit, it would have said so in so many words.

This act seems to have been so interpreted and understood by the Board administering the Fund, since they allowed the deceased Joseph Escobedo to filé with the secretary the name of his beneficiary Louis 3T. Sirgo, who was certainly neither his wife, nor his child, nor his mother. It has been stated in argument and not contradicted that there are several other cases similar to this one upon the books of the Board of the Firemen’s Fund. There is an Admission of record "that the plaintiff Sirgo, Sr. was duly designated on the regular form of the Fire Department as his beneficiary."

We are very, much impressed with the belief that one of the ¡cain causes of the amendment of 1914 was to permit the fire-gpwf*' man to dispose of the death benefit in favor of whom^he might please. It might well happen that he had neither wife, nor child, nor mother; and yet that some one was ministering to his intellectual and physical wants, whom he felt he had the right, in common with others^to designate as his beneficiary as a reward for services rendered.

The contention that the Acts of 1900 and 1914 contain two objects, one a Mutual Benefit Sooiety and the other a Life Insurance Company,' andtherefore void as violative of article 31 of the Constitution of .the State is without force, it is equivalent to saying that in order to carry out its purposes the Legislature should have passed two acts, one providing for the Pensions and Relief to the fireman during his life, and the, other estab-/¿iS-lishing Pensions and Relief^ after his death, to tats beneficiaries designated by law or by him. We do not think so. The act contains only one great and benevolent object, the creation of a "Firemen's Pension and Relief Fund"; all the details and ramifications of the act, how the fund shal] be created, who shall administer it, who shall be benefitted by it, and to what extent, and when,, are necessary and cognate elements of the single object.

The plea that the object of the act is not expressed in the title appears to us also -without merit. As far as .the Act of 1902 is concerned the object is fully and in detail expressed, under our construction of the act, that no part of it provides f.or a Pension or Relief in favor of any one except the widow and minor children and- widowed mother, of the fireman. 7 Ct. App., 306 and authorithies quoted; 136 La., 746 (749).

The Act of 1914, as construed by us, purported as one of its objects, to abolish the restriction of the Act of 1902, as far as the death benefit exclusively in favor of the widow and children and mother was concerned, and to permit the fireman to select and name any beneficiary he pleased whither related to him or not.

The object of that Act of 1914 is fully expressed in the title. It reads in part:

"An act, To amend and reenact the title-and sections . . 21 . . of Act 43 of the General Assembly of the State of Louisiana, Session of 1902, entitled "An act &c".

It was not necessary that the title of that amendatory act should state in what manner the act was amended; any amendment, germane to the act was permissible. 38 A., 626. We have already stated as our opinion that the exclusive death benefit provision under section 21 of the Act of 1902 in favor of the widow and children or mother was valid. It was only one step further, by amendment, to enlarge the purposes of that section and to extend it to-a beneficiary to be named by the fireman. 'it was not necessary to express that object in the titl'a* The declaration in the title that the object of the ac.t wa* to a*en4 section 21 was a sufficient expression of the object of the act to make any cognate and germane amendment valid.

In Lafon vs. Dufrocq, 9 A., 350, the Court said:

"The act of the Legislature entitled "an act to amend the several acts relative to the police and government o'f the Town of Baton Rouge" is a substantial comp pliance with the 118th. Article of the Constitution which declares that every law enacted by the Legislature shall embrace but one object, and that shall be embraced in the title". 11 A., 54.

The title of an act which states the object to be to amend and re-enact particular sections of the Revised Statutes^ or Articles of the Civil Code^or Code of Practice, or a designated act^ or specified section thereof, sufficiently expresses its object in the title within constitutional requirements, without stating the nature of the amendment when the amendment is germane to the subject covered in the original section. 29 A., 637; 30 A., 657; 41 A., 771; 49 A., 1535; 50 A., 21; 124 La., 420, 630; 131 La., 611; 813; 38 A., 626; 119 La., 189; 136 La., 509, 747; 135 La., 691, 1089; 106 La., 553; 43 L. R. A., N. S., 954; 104 S. W., 460.

It is therefore ordered that the ‘judgment herein be reversed and annulled; and that the plaintiff Louis'F. Sirgo, Sr. be recognized as the benéficiary of the late Joseph Escobedo and as such entitled to the one thousand dollars death benefit; and that Thomas Connell, Clerk, be authorized and directed to pay to him the aforesaid sum of one thousand dollars and all interest accrued thereon deposited with him in this case by the Board of Trustees of the Firemen’s Pension and Relief Fund for the City of Hew Orleans;

It is further ordered that Widow Joseph Escobedo pay all costs in both Courts,

April '24th, 1919.


author: Dax Dlnkelspiel. Judg»-

text:
    STATE OF LOUISIANA PARISH OF ORLEANS COURT OF APPEAL.
    JOHN EGLIN vs. HIPPOLITE or HYPOLITE RUFIN
    No. 7529
   OPXHION

Dax Dlnkelspiel. Judg»-

This suit presente the oase of a party purchasing at an auction sale advertised in the newspapers of thiB oity substantially as follows:

That defendant was retiring from the dairy business; 'that as fine a lot of cows for dairy purposes would be soid as ever put up at auction; that the auction would be conducted by Louis J. Sehiro, and the sale take place December 4, 1917, at defendant's dairy, and that Slhiro advertises only that which is so.

Ihe advertisement appeared in the Times-Pieayune, of this oity- Plaintiff attended the sale on the day in question and purchased 2-1 head of cows, for the price and sum of $1234.00. Each particular cow was sold, not in globo, but separately. Ihe following day, Deoember 6, 1917, a tuberculin test was made, and on December 6th 16 of the oows reacted to the test and were found to be tubereuler, ordered placed in quarantine on the premises of defendant, by authority of the Live Stock Sanitary Board, as created by Act 274 of the Qeneral Assembiy of 1908, and this board gave notice to defendant that the infected cattle oould not be moved from the premises except for the purpose of immediate slaughter.

In order to minimize damage, with reservation of the respective rights of their clients, the lawyers agreed to an immediate slaughter of the 16 tubereuler oows, and also to a sale by auction of the 6 oows that did not react - that is, that were found not to be infected. The 16 condemned oows were slaughtered and the 6 non-eondemned sold anew. Ihe price realized from the slaughter of the 16 infected sows was $315.53, and from the sale of the 5 non-lnfeeted cows $180.00.

Ibera Is, therefore, hut ose Issue raised. In the answer of the defendant, and that is whether or not the auatloneer did or did not announee from the block, at the time the eons were sold, that the sale would he without warranty, save as to title, and, If sueh an announsement was made, was warranty against redhibitory Tioes excluded thereby?

The oows were advertised and sold under the advertisement as dairy sows. Tuberculosis Is not such a vice as could have been discovered by a simple Inspection. The article of the Civil Code touching this question le Article 25E0, reading as follows:

"Redhibition Is the avoidanee of a sale on account Of some vice or defect in the thing sold, which renders it either absolutely useless, or its use sc inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice."

In the earlier decisions, under the old Article 2496 (now 2520), we find, in the case of Melancon v. Robichaux, 17 La. Reports, page 27 (quoting from the syllabus):

"Where the thing sold turns out to be so defeotiwe that had the defeats been made knwwn to the purchaser he would not have bought, the sale will be rescinded."

In the 18th La. Reports, the case of Turner and Renshaw v. Wheaton et al., reading from the syllabus, at page 37:

"The exclusion of warranty in a sale does not absolve the vendor from the obligation of disclosing redhibitory vices not apparent."

In the 10th La. An. Reports, J. E. Robertson et al. v. Sarah Wallace, Administratrix, at page 214, - again quoting from the syllabus:

"When a sale of slaves is made without any declaration on the subject of warranty, with the statement at the time that they had been burnt, but accompanied by the further, statement that they had recovered, the sale must be eonsi-dered as made subject to the usual warranties against redhibition."

In the 18th La. An. Reports, at page 133, - Widow A. Morphy v. P. C. Blanchiel, - we find:

"Redhibition ie called the avoidance of a sale on account of some vise or defeat la the thing sold, whloh readers It either absolutely useless, or Its use so Inconvenient and imperfect, that It must be' supposed that the buyer would not have purchased it, had he known of the tiee."

In the 121 La. Reports, at page 72, the case of Iberia Cypress Co. Ltd. v. Von Schoeler, which was a suit on a note of $2,000.00, payable at the First Rational Bank of Franklin, Leuisi-ana, with &f> interest, etc., the defense being reduetion of prl*e on account of redhibition, the syllabus reads;

"Where the purchaser, of a steam tag sued in reconver-tí on for reduotlon of the prlee to the extent of $1,000.00, on aoooont of concealed defects In the hull and aaohinery of the boat, REID, that having elected to keep the vessel, he cannot recover for repairs made thereon, or for damages, but is restrleted to his claim for reduotlon of the prlee.
"In a suit for reduotlon of prise, the responsibility of the bona fide vendor is measured by the difference in value between a sound and uhsound article." (Quoting authorities).

In the Case of William Parairque v. Jaetano Ortolano, to be found in the Court of Appeal Reports, Vol. 13, p. 165, the court says, quoting Civil Code, Art. 2532:

"If the thing affected with the vices has perished through the badness 'of its quality, the seller must sustain the loss."

Again:

"When the disease has manifested itself after three days the burden of proof is on the buyer". (Quoting authorities)

Under the artioles of the Civil Code, and particularly Article 2520, and the authorities, there can be no doubt but what the 16 head of eattle ordered slaughtered by the Board of Health under the law were infeoted with tuberculosis. Ihe 6 other head were free of the disease, and, being sold under an agreement between the parties, the-price of $180.00 wliioh thqp brought and about-which there is no aontaatienmust be deducted from the total amount plaintiff paid-for the oattle at the sale, tpwit, $1234.00, leaving a balance of $10tidfb0■whioh the plaintiff is entitled to he reimbursed, under the agreement made between the parties.

1919.

It is therefore ordered, adjudged and decreed that the judgment of the court ja quo be annulled, avoided and reversed; and, proeeeding to render such judgment as should have been rendered, it is further ordered that the plaintiff, John Eglln, recover

from?the defendant, Hippolite or Hjpolite Rufin, the full sum //• /Of£>o of $iOB4Í 0o7~wlth costs in both oourtB.

Hew Orleans,


text:
    Charles F. Claiborne, Judge.
    EDWIN VIRGIN vs EMILE PORKERT, Appellant.
    No. 7530.
    January 30th, 1919.
   CHARLES F. CLAIBORNE, JUDGE.

This is a suit under the Employer's Liability Act. jt was filed August 14th, 1S18.

The plaintiff alleges that on February 1st, 1918 while employed by the defendant as a mechanic it waB necessary for him in the course of his employment to crank an automobile; that while so cranking he suffered an injury to his spine and back which caused partial paralysis, necessitated two operations, and totally incapacitated him from performing any work at all; that at the time of his injury he was earning fifteen dollars a week; that under the statutes of the State he is entitled to recover from his employer fifty per cent-of his weekly wages from February 1st, 1918 until the date of the filing of this suit or twenty-eight weeks at $7.50 per week, making $210.00; that he was under the necessity of employing physicians, going to a hospital, and buying drugs at an expense exceeding $500; and that the fees of his attorney in this case will amount to $500. He prays for $210, with reservation bf his right to claim compensation for future disability to work; for $150 physicians’ fees allowed by the statute, and for- $500 attorney’s fees, making a total of $860.00.

The defendant admitted that plaintiff was in his employ as alleged at the salary stated, and that it was necessary for him in the performance of his duties to crank automobiles, but denied that while so engaged plaintiff suffered an injury to his spine and back ’which caused paralysis, and incapacity to work and necessitated operations, and denied that he was entitled to any part of his wages or to nhysician’s fees; he also denied that he had received the notice of the injury to plaintiff required by the statute; he "admitted that the compensation statutes of this State provide, for the payment of reasonable attorney's fees in contested cases, but denied that $500 was a reasonable amount".

There was judgment for the plaintiff as prayed for, s.nd the defendant has appealed.

The reasons for judgment were as follows:

"The plaintiff Bwaars that he sustained the injuries while in defendant's employ and while engaged in cranking an automobile. The facts are sustained only by his evidence, owing to the nature of the accident. Under the general law there might be some deficiency in the quantum of evidence; but I think it sufficient under the law sued on. Accidents may occur in such circumstances without the knowledge of any one except the injured party. This is no reason why the compensation should not be allowed. Judgnent for plaintiff".

Plaintiff's testimony was taken September 4th, 1918 at hjs residence .where hg was still confined by sickness. ^He testified that Me was 22 yeani ola; that he was five feet, six inches high,' and, at the time of the accident,weighed 150 pounds; he was strong and healthy and ha^-worked in shpps as a machinist for three years; that he had never suffered an ache or a pain since the age of 4 when he had an abscess on the lungs; on February 2nd, he was ordered to put a magneto on a car which was hard to crank, and in doing so, he received a severe pain in the back which made him stop; he straightened up with difficulty, and tried it again, but without success, so he left it alone; he suffered all day; the next day he returned to work while his back still ached; he walked home and went to bed; this was Saturday; he summoned Doctor Bar-iietrt who came only on Sunday; on Thursday fever set in and he was taken to the Touro Infirmary; he has been in bed ever since; he was operated on twice.

Dr. Barnett testified that plaintiff had made the same statement to him on his first visit on Sunday when he answered plaintiff's call.

Defendant's contention is that this testimony is not sufficient evidence to- fix with certainty the cause of plaintiff's suffering. His sole reliance is upon the fact that physicians have testified that it is possible that the injury might have had some other cause. We rest our conclusions that plaintiff has made out his case by his testimony which corroborates the statement he made to Dr. Barnett; by the fact that his veracity is not impeached in any manner, and that the trial judge who saw and heard him, believed him; by the additional fact that plaintiff was sound in body up to that time; that five physicians, witnesses for the plaintiff and for the defendant have testified that it was possible that his injury could have been.caused by cranking; and that no one of the three physicians who examined the plaintiff could attribute his injury to any other cause, although he was subjected to physical examinations by the XRay and otherwise. If the physicians could find no other cause for the injury, it would be manifestly unreasonable to .reject plaintiff's testimony merely because certain physicians testified hypothetically that the injury might have had sane other cause. It is evident that it might have had some other cause; and it did not require expert testimony to inf ran us of that fact. But no other cause is suggested or intimated. We must therefore in all justice believe the plaintiff.

"Evidence that an emnloyee was strong and healthy up to the time he complained of a hurt received while at work on heavy lifting, and that he died suddenly a few days thereafter for no other assignable cause, is sufficient to show that he had sustained some internal injury, although there was no external manifestations thereof". C. J. p 68 note c.

But is is argued that if the injury was caused by the cranking of the automobile that it was a part of his duty and done *n the ordinary course of his service, and that it was not an "accident"¿ but a strain or risk making part of, and incidental to, his employment and assumed by the employee, and for which he could not recover.

Two cases of rupture or hernia suffered by employees lifting heavy weights, without slipping or falling but resulting merely from tho effort, and one case of heart failure, from the same cause are relied on. 163 N. W., 933; 164 N. W., 537; and 167 N. W., 36. All three cases from the State of Michigan.

These opinions 3eem to be in directj previous case decided by the Court of the same State^and /&- ported in 157 N. W., 437.

It does not appear, however, by these decisidns^that the word "accident" was defined by the Michigan Statutes. The interpretation was made by the Court itself. Not so in this State.

Section 2 of Act 20 of 1914 provides;

"That if a workman employed as hereinabove set forth xxx receives personal injuries by accident arising out of and in the course of such employment his employer shall pay compensation &c". •

Sec. 38 of the same statute defines the word "accident" as follows:

"That the word "accident"as used in this act shall, ■unless a different meaning is clearly indicated by the context, be construed to mean an unexpected or unforeseen event hapoening suddenly or violently, with or without human fault and producing at the time objective symptoms of an injury".

This definition is the same as that contained in the Revised Statutes of Nebraska, 156 N. W., 511.

It is the usual signification of the word given by lexicographers. See Century Dictionary, Wright's Universal Pronouncing Dictionary (English): "Accident: An unforeseen or unexpected event".

In furtherance of the bendfits which this statute was intended to confer upon workmen, it should be interpreted liberally, and with a view of giving effect to the intention of the lawmaker. 2 Labatt M. and S. p 1948 § 663. C. J. p 40 34.

That a strain^jf such violence as to bring on sudden pains and paralysis should follow the cranking of an automobile is certainly an "unexpected and unforeseen event"; otherwise employees could not be found to undertake the job; there is no evidence that,as a rule the act is followed by such consequences; on the contrary, in the ordinary act of cranking no injury is expected. We must therefore presume that when it does happen it is"an unexpected or unforeseen event" or "an accident". In this case we must presume that the sprain was the result of an unusual twist of the wrist, or of a false position of the body, or in other words of an accident. What the law means to except are those injuries which are the necessary concomitants of the emoloyment, such as lead-poisoning by painters, loss of sight by printers, and other insiduous diseases brought about in the course of time, by the nature of continuous occupations which are termed industrial or occupational diseases. C. J. 63 § 54 . 54, note b.

Thus it has been decided that a rupture caused by the effort of separating a plank from one to which it was stuck by ice may properly be found to have been caused by an"accident". So when a workman was in the act of lifting a beam upon his shoulder and finding that it was not evenly balanced, gave it an extra lift and in so doing ruptured several fibres of the muscles of his back, which incapacitated him for work, it was held that he had sustained injury by an"accident", 2 Labatt p 2135 767 and notes. 157 N. W., 437.

In the case of Mutual Accident Ass'n vs Barry, 101 U.S., 100 (121) the Court said;

"that the term "accidental" was used in the policy in its ordinary, popular sense, as meaning "happening by chance; unexpectedly taking place; net according to the usual course of things; or not as expected"; that, if a result ia such as follows from ordinary means, voluntarily employed, in a not unusual or unexpected way, it cannot be called a result effected by accidental means; but that if, in the act which precedes the injury, something unforeseen, unexpected, or unusual occurs which produces the injury, then the injury has resulted through accidental means".

The Court quoted Martin vs Travellers Ins. Co., 1 Foster & Fin, 505, where an injury resulting to the spine from lifting a heavy burden was attributed -as- an accident; and 69 Penn St., 43 where it was held that an accidental strain was an accident.

In C. J. p 68 57, we read:

"The term "accident" as employed in the compensation acts, is broad enough to include an injury from muscular strain or physical overexertion, such as hernia, or rupture, or bursting of blood vessels". 84 S. E., 242.

It is further contended that the accident, in order to serve as a cause of action must have "produced at the time objective symptoms of an injury". The statute gives no definition of the words "objective symptoms". In the 129 S. W., 953, the following definition is given:

"Objective symptoms are those which the surgeon discovers from a physical examination of his patient, while subjective symptoms are those he learns from what his patient tells him".

None of the physicians who testified seemed to understand what the words meant; counsel for defendant argues that it means symptoms apparent to the sense of sight.

We cannot give the words such a limited meaning^' such an interpretation would restrict the liability of employers to apparent cuts, bruises, and swellings, while latent injuries resulting from all other causes would not be protected; thus if a workman's limb was broken or pulled from its socket, or his body paralysed by an electric shock, or asphyxiated, by gas, ha could not recover. This was certainly not the intention of the legislator. We believe the statute covers any symptoms ascertained by the physician by any of his senses.

The Century Dictionary gives the following definitions

■Objective symptoms, in medicine, symptoms which can be observed by the physician, as distinct from subjective symptoms, such as pain, which can be directly observed only by the patient".

A symptom is "that which indicates the existence of something else". Century Dictionary.

In the case before us, we take it that the paralysis which overtook the plaintiff on Thursday, February 6th, was an "objective symptom" of seme latent cause which the physicians were endeavoring to ascertain, and satisfied the requirement of the law relative to the injury. Nor is it necessary that those symptoms be produced "at the time", that is, on the moment of the accident, provided they appear at a reasonable time thereafter and can be traced as the cause of the injury. The words "at the time" meanji rather at the time the injury is suffered than at the time the accident occurs. The accident may not produce injury until sime time after.

"When an accident to an eye which at first appears not serious results after a week or more in a. diseased condition of the eye which destroys the sight, the "injury occured" within the meaning of the statute, when the diseased condition culminated". 156 N. W., 511; Nebraska. — 12 Ct App 36

The last defense is that the plaintiff failed to notify the defendant of the accident within the time required by law.

Sec. 11 p 54 of the Act of 1914 provides:

"That no proceedings under this act for compensation shall be maintained unless a notice of the injury shall have been given to the employer within fifteen days after the accident, or in case of death within thirty days and unless either a claim for compensa» tion with respect to such injury or any payment under Section 8 of this act shall have been made within six months after the date of the injury or death. Such notice may be given or made by any person claiming to be entitled to compensation or by some one on his behalf".

By section 13 the notice of the accident must be made in writing and shall contain the name and address of the employee and shall state the time, place, and nature, and cause of the injury and shall be signed by the employee or by a person in his behalf.

Sec. 14 provides that the notice shall be given to the employer by delivering it or sending it by mail addressed to the employer at his place of business.

Sec. 15 reads:

"That a notice given under the provisions of Section 11 of this Act shall not be held invalid or insufficient by reason of any inaccuracy in stating the time, place, nature, or cauBS of the injury, or otherwise, unless it is shown that the employer was in fact misled to his injury thereby. Want of notice or delay in giving-notice shall not be a bar to proceedings under this act if it be shown that the employer, or his agent or representative had knowledge of the accident, or that the employer has not been prejudiced by such delay or want of notice".

By Act 343 of 1916.p 512 (517) Section 11 of the Act of 1914 quoted above was amended so as to' read as follows:

"That no proceeding under this act for compensation shall be maintained unless notice of the injury shall be given to the employer within six months after the day of injury or death. Such notice may be given or made by any person claiming to be entitled to compensation or by some one in his behalf".

It is evident that under this amendment the statute is satisfied if notice of the injury is given within six months after the injury and that it prevails over the terms of Sections 11 and 12 of the Act of 1914. The evidence in this case is that the accident happened upon February 2nd, 1918, and that this suit was filed on August 14th, 1918.

But plaintiff's father testified that on February 4th, he telephoned to the defendant and told him about the plaintiff's injury, and about four weeks afterwards he told defendant personally that the plaintiff had been taken to the Touro Infirmary to be operated on for an injury resulting from cranking an automobile while in his employ.

The defendant admits that plaintiff's father on two occasions, within a few weeks after the accident, informed him that plaintiff was sick, but he denies that he was told that plaintiff had been injured by cranking an automobile.

This witness is contradicted by the following letters.

"Southern Surety Company.
New Orleans,La., March 27th, 1918.
Mr. Edw. Virgin, Sr., City.
Dear Sir:
With regard to claim for compensation growing out of the alleged injury of your son, while in the employ of Emile Porkert, we are handing you herwith surgical reports upon which we would thank you to secure full information from the doctors in attendance, but with the express understanding that in furnishing these reports the Southern Surety Company and Emile Porkert reserve fully all their rights in the premises".
Yours very truly,
H. Bodenheimer & Sons.

Then follows the surgical report signed by Dr. Barnett giving all the details of the accident and injury to plaintiff as to date, cause, and consequende.

"Southern Surety Company.
New Orleans, La., June 1918»
In Re Claim Nó. 106750.
Assured,:. Emile Por kart's Machine Works.
Injured: Edwin Virgin, Jr.
Mr. Edwin Virgin, S¡r.
Gentlemen,
Your letter of recent date, with regard to claim which you are presenting against Emile-Porkert's Machine Works, was received and by us referred to the home office of our company. We have not heard from them in reply and are agiin writing them to-day and this is to advise you that the matter has been given our attention. As soon as we hear from them, stating their position on this case, we will promptly communicate with you.
Yours very truly,
H. Bodenheimer & Sons".

This, and other evidence, shows that the defendant had knowledge of the accident and referred it to his insurers, and that he was not prejudiced by the want of the detailed written notices described in the Statute. It is evident that the defendant when informed of the alleged accident and injury to plaintiff turned the matter over to his insurers against accidents and did not seek himself otherwise to protect himself. He did not go himself to the Touro Infirmary, nor did he send any physician to investigate. His conduct shows that he was not prejudiced by the want of a technical statutory notice. There is no necessity of notifying one who is already possessed of the information, 152 N. W., 839. We need not light candles when the sun shines. C. J. p 104 § 102.

But the plaintiff has prayed for and has been allowed attorney's fees against the defendant. It is an elementary and universal rule of law that plaintiff must prove his claim; that he is not entitled to recover unless some law or some contract authorizes him so to do. Attorney's fees, as a rule, are not allowed unless granted by statute or jurisprudence. There is no jurisprudence in this State giving Attorney’s fees in Employer's Liability Acts in addition to the weekly awards; no such claim was made in our Courts before; nor is there any law to that effect; neither is there law or jurisprudence in any other State imposing the payment of the employee's attorneys fees upon the employer. They were specifically denied in 152 N. W., 838 (840) and in 130 Pac., 371. In 96 Atl., 660; 88 N. J., 513, they were allowed, but payable out of the award in favor of plaintiff. The Court said that the statute contemplated payment of attorney's fees from the weekly award commuted to a lump sum.

Our Supreme Court has repeatedly held that a plaintiff could not recover his attorney's fees for prosecuting a suit in damages. 36 A., 132, 377; 39 A., 929; 15 A., 517; 14 A., 311; 13 A., 342; 10 A., 564, 19 L., 357; 17 La., 266; 28 A., 878; 34 A., 61; 35 A., 694, 466; 40 A., 25.

There is no provision in our Emplayer's Liability Act entitling the plaintiff to recover for his attorney's fees against the defendant. Section 8 of the Act defines the amount of compensation^ a paragraph entitles the-workman to expenses of last sickness and burial, and another to medical services and medicines, in no unmistakable terms and fixes the amount thereof.

p 517: (14).

"In case of death, the employer shall pay or cause to be paid, the reasonable expenses of the last sickness and burial of the employee, not exceeding $100".

(4)

"The employer shall in every case furnish the employee reasonable medical, surgical, and hospital service and medicines not to exceed $150 in value unless the employee refuses to allow them to be furnished by the employer".

But there is not a line in the act making it the duty of the employer to pay the fees of the attorney engaged by the employee to prosecute his claim in damages. The liability of the defendant to pay for plaintiff's attorney's foes oust therefore be governed by the jurisprudence applicable to other damage suits.

But plaintiff relies upon the last sentence of 8ection 22 of the Act of 1914 p 58 which reads as follows:.

"Fees of attorneys and physioians for services under this act shall be reasonable and measured according to the workman's station and shall be approved by the Court".

This provision evidently is copied from a statute similar to the New Jersey Statute where a periodical payment was commuted to a lump sum from which were paid the physicians and attorneys. If the Statute had intended these attorney's fees as an additional burden upon the "employer", why should the legislator have shown so much solicitude that these fees should be reasonable and measured accodring to the "workman's" station? If the employer and not the workman was to pay the fees, why should the workman's station be the measure of the fees? It seems to us that the employer's Station or ability to pay would have been a better measure. But it suffices that the act does not make it the duty of the employer to pay, to destroy plaintiff's claim for attorney's fees. Even doubt is sufficient to defeat him, because he must make his claim certain.

It is therefore ordered, adjudged and decreed that so much of the judgnent appealed from which allows the plaintiff $150 for medical aid and $210 for compensation be affirmed and so much of the judgnent which allows the plaintiff $500 for attorney's fees be reversed; and accordingly the judgnent appealed from in favor of plaintiff is reduced from Eight Hundred and sixty dollars to Three Hundred and sixty dollars, the plaintiff and appellee to pay the costs of this apoeal.

January 30bh, 1919.


author: By his Honor John st. Paul,

text:
    NO. 7531
    DAYTON RUBBER MANFG CO VS JOSEPH P. MARTINEZ.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
   O P I N I O N.

By his Honor John st. Paul,

This is a suit upon an open account contracted during the years 1916 and 1917. The defense set up is that the sane is not due ty defendant hut by his son Joseph P. Martinez, Junior,^who has since gone into bankruptcy.^)

It is not disputed that in 1915 the defendant beoame a "selling agent" for plaintiff and that the business of the agenoy was attended to wholly by defendant's son. In Maroh 1916 the agency fell behind in its payments, and defendant settled with plaintiff by giving his notes payable from month to month.

It is olaimed that at the time of this settlement, defendant notified plaintiffs that he was withdrawing from the business; and that thereafter the credit was given to the son.

But there ife not one iota of evidence in the record tending to show that any such notice was ever given plaintiffs, who on their part deny that any such was ever received. And on the other hand it abundantly appears that plaintiffs had no faith oltheg in the son's ability to pay; that they inquired very particularly into the financial responsibility of the father, who has ample means, and made it very distinct that they looked to him for payment.

As defendant affirmed a change in the existing business relations, the burden of proof was upon him to show it; and in this he has very clearly failed.

The correctness of this account is not to be doubted. It is established with a fair degree of certainty by plaintiffs themselves, but defendant's son, who knew all about it, does not deny it and has even attested its absolute correctness by putting it down on his bankruptcy sohedule.

May 22 1919

The Judgment appealed from is therefore reversed, and it is now prdered that plaintiffs the Dayton Rubber Manfg Co, have Judgment against defendant Joseph P. Martinez, Senior, for the full sum of Fifteen hundred and forty seven & ZO/ffiO ($1547.20) with legal interest from October 6th, 1917 until paid and costs of both courts.

New Orleans La,


author: John St. Paul Judge.

text:
    7533
    Dr. JOSEPH E. PSAYLA. VS FREDERICK LEMIEUX, SR.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
   OPINION

John St. Paul Judge.

Counsel aay in their briefs this ease involves only questions of fact, but we think the facts are practically undisputed and we have only to apply to them a well settled principle of law, to-wit, that if a speoial agreement has- been performed in part by the plaintiff and its further performance has been preventod by the act of the defendant, the plaintiff may at his option either sue for the breach and recover damages or abandon the contract altogether and recover upon a general indebitatus assumpsit (Kostmayer vs Landry, 12 Crt of App. 385.)

The facts are these; Plaintiff is a practicing dentist and he engaged to make and place a piece of "bridge-work" for defendants wife. Pursuant to his agreement he removed some teejih, treated her mouth, took a oast thereof, constructed and shaped and put together the bridge.

When the rough work was about completed, but before it was finsihed, polished and adjusted, the lady asked plaintiff to put it temporarily in her mouth because she had some calls to make. With this unfinished unpolished and unadjusted work in her mouth, the lady found the bridge rough, unsteady and uncomfortable; and oonceivlng the idea that it would not fit, and was inferior and unsutable, she concluded that she would not accept it.

So thereupon she did not return to plaintiff but. "ant instead to another dentist to^whom she showed the bridge, which 3he still had in her mouth, apparently without informing him that it had ^Jt been put in only temporarily and at her speoial request.

This second dentist found, as well he might, that the bridge as he then saw it was not such as ought to be left in a lady's mouth; about which there are and cpuld be no two opinions. So he agreed to take it out and to construct a new bridge, -whi8& the lady also agreed; and this was done.

May 1919.

Meanwhile nothing was said to plaintiff; and when the lady did not return at the end of a month and plaintiff learned that she had gone elsewhere and did not intend to return at all (although she still Sept the gold bridgework and was not offering to pay for that or for the «tier wort in her mouth) plaintiff, after vain endeavors to obtain some sort of oompensat ion, brought this suit on quantum meruit for the value of his materials and servios up to the time when he was in effect discharged.

The above facts' are absolutely undisputed, and the only confliot is one between experts as to whether or not, viewing the bridge in its present unfinished condition, they thought it might or might not be completed as a first class piece of work.

Of course suoh testimony is always unsatisfactory and Inconclusive, and this oase presents no exception to the rule. But the burden of proof was clearly upon the defendant to establish affirmatively that when plaintiff was discharged his wort was predestined to failure, since it is only when that fact is made certain that plaintiff can be found to have breached his contract; in other words, only when it is made oertain that it was Impossible for plaintiff to perform his very part of the contract, And the evidence herein falls short of A discharging that burden.

lacking this proof the oase falls within the principle first stated, and is very similar to that of Payne vs Lyons Cypress Co, 7 Court of Appeal p. 325.

The trial judge thought plaintiff should recover and so do we.

The judgment appealed from is therefore affirmed.

Hew Orleans, La,


text:
    NO. 7536.
    ANTHONY PACIERA VS ILLINOIS CENTRAL R. R. CO.
    STATE OP LOUISIANA COURT OP APPEAL PARISH OP ORLEANS.

      May 1919.
   OPINION.

John St. Paul Judge.

Cl This la a suit for alleged damage to a oar of vegetables from City of Hew Orleans, first shipped to Mounds, Illinois, and thenco forwarded by plaintiffs order to New Yonk City.

Ihe charge in the petition is that the damage was caused by defendant's negligence "in not properly taking care of said oar of “vegetables during the course of transportation."

On the trial it was shown conclusively that the shipment was handled with all' due care; so that plaintiffs complaint now is that the shipment was unreasonably delayed in transit.

As no complaint was made of this delay in the petition, it should suffice to say that all evidence to support that contention should have bean excluded.

But in any event the evidence as admitted, whilst it seemB to have shown sime delay (due in part to plaintiff and his agent) falls wholly to establish the extent thereof, to to connect the condition of the vegetables with such delay.

Moreover the evidence fails to make it certain that the vegetables were damaged to any great extent, if at all; for they seem to have brought about the market price.

On the whole it seems to us that plaintiffs failure to receive satisfactory returns for his shipment is due more to the falling of the market than to the deterioration of his produce.

The trial judge thought the case was with the defendant, and and so do we.

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

New Orleans, La,


author: CHARLES E. CLAIBORNE, JUDGE

text:
    CHARLES F. CLAIRBORNE, JUDGE.
    NATIONAL BINDING MACHINE CO. VS. VINCENT S. DANTONI, APPELLANT.
    No. 7544.
    May 1st., 1919.
   CHARLES E. CLAIBORNE, JUDGE

On motion to revoke order authorizing the completion of the transcript

After the defendant and appellant had filed the trans cript in this Court, the plaintiff and appellee obtained the following order from the District Judge:

"On motion of Sol Weiss, attorney for the plaintiff herein, and on suggesting to the Court that in this cause, through inadvertence, the depositions of plaintiff's witnesses herein, duly received’herein, and duly offered in evidence on the trial of this cause, were inadvertently not f ormally .f fled herein, all of which will appear from the docket herein, and that petitioner and mover desires leave of Court to formally file the said deposition nunc pro tunc, as of the date of the submistion of the said case, as by law permitted: It is ordered by the Court that plaintiff herein be and he is hereby permitted and authorized to file munc pro tunc, as of the date of -the submission of this case, the depositions of the witnesses for plaintiff herein, offered in evidenoe • on the trial of this case".

The plaintiff then appeared in this Court and was granted the following order-:

"On motion of.Sol Weiss, attorney for the plaintiff and appellee herein, and on suggesting to the Court that the depositions of the.witnesses for plaintiff were received in due form by the Clerk of the Civil District Court, as will appear from the docket entries herein, and on suggesting to the Court that same were offered in evidence herein on'the trial of this cause, but that through inadvertence the said depositions were not formally filed herein, and on further suggesting to the Court that mover had obtained from the Honorable Division "B" of the Civil District Court an order permitting the filing of the said depositions nunc pro tunc as of the date of the submission of this cause in said Court, and on suggesting to the Court that the record and transcript herein should be completed by the bringing up and filing as a part of this record on appeal-the said depositions. It is ordered by the Court that the record and transcript herein oe completed oy flaking a part of the record and transcript the depositions of plaintiff's witnesses, as descrioed in the foregoing *notionM .

Thereupon the defendant and appellant filed in this Court the fol’oving motion;

"On -notion of Vincent S. Dantoni defendant and appellant herein, through his counsel, U. Ilarinoni, Jr., and on showing to this Honorable Court that the transcript herein was properly and *i;!y filed in this Court containing all the documents tiled in the lower Court and certified to oy the Cleric thereof, end that move-” herein thereupon perfected his appeal herein; auu on further ■showing to this Court that on Aoril 3 7th, 1919, the dry of the trial of this case, a motion duly m*vie in this Court oy Hon. Sol. *Veiss, attorney for plaintiff and apnellee to heve -f:. e transcript consisted oj the ocin'.iaf; up and filing as « part of this record certain depositions ^iled in the Civ.il District Court on April Ifltfc, 1919 oeing plaintiff’s evidence (appellee) in ti* e Court oelow, not filed previously o** maie a part of this transcript when orouf-hirup; and on showing to the Court that said motion wfte duly entertained oy v-is Court, :*ni ii -ves so ordered; and on shoeing to this Court that said notion was improvidently granted oy this Court and should oe recfMled, lo Brcauve Hon. 3ol "Veisi is neither r/onellant or aooollae and tho motion should have been .nade in the name of his client, - see Voelkel vs. Succ'n. Aurich, 118 La., 525; - 2o That the record cannot be added to or changed or the transcript modified unless through faults occasioned'by the negligence of the. Clerk of Court in making up the transcript and that said trans-,, cript was complete ouoad this Court, as evidenced by the certificate of the Clerk of lower Court; 3o That the lower Court could not grant an order to file testimony lierein after the transcript was completed and appeal perfected, as it had no longer any jurisdiction herein quoad the introduction or filing of any testimony or enlargement of the transcript or record, as jurisdiction over the matters involved was vested in this Court, and this Court cannot enlarge a transcript by evidence not properly filed in the lower Court, and can only allow a subsequent transcript or enlargement of the record of evidence or documents properly filed before the appeal and inadvertently omitted; This Court is hereby moved by appearer that an order do issue herein cancelling and revoking the previous motion made this 17th. of April, 1919 by Sbl Weiss, attorney, to file herein certain depositions and documents as part of this record, and can-celling and revoking and annulling the order issued thereon and that thitf record and transcript be diminished by striking out therefrom the depositions and evidence of ■ plaintiff and appellee filed in the Civil District Court, Parish of Orleans,.-April 16'th, 1919, nunc pro tunc and ordered by this Court on April 17th, 1919 to form part of this record, the said previous order of this Court being thereby revoked,. annulled,and cancelled, and appearer moves that this Honorable Court do.30 order".
lo The motion in the District Court was mp.de by "Sol Weiss, attorney for the plaintiff" and "plaintiff was authorized" to, file the depositions. It is clear therefore that Weiss acted for the plaintiff. When the record leaves no reasonable doubt as to who is the party granted 'the appeal it will not be dismissed. 107 La., 242 (244). In Ansley vs. Stuart, 123 La., 330 (335), the Court said; "The contention that the appeal was granted to the attorneys and not to the defendant needs no discussion.Logically and grammatically, the defendant was the "mover" on the face of 12ie record. The attorneys appeared merely as his representatives". This decision practicallt overrules Voelkel vs. Aurich.

The Supreme Court will^not dismiss an appeal when the transcript has been filed without the necessary 'stamps; it will permit the subsequent stamping. 37 A., 573.

*7hen the transcript was completed before the case was submitted the appeal will not fee dismissed, 38 A., 837; 45 A., 935.

The transcript may be completed even after argument of the case. 42 A., 799.

Stamps may be affixed and documents offered in evidence, but not filed through inadvertence may be filed after judgment, and even after transcript is filed in Supreme Court and will be brough up by certiorari. The right of appeal is the rule and will be maintained unless the appellant has failed to comply with essential requirements. 43 A., 538, 833; 47 A., 346; 50 A., 113. act 229 of 1910-Oct 265 of 1918

3o Notwithstanding á suspensive appeal is perfected^ the trial £ourt has jurisdiction to pass upon all questions involving the validity and effect of the appeal and of the bond and to transmit a correct transcript to the Court of Appeal.

In State vs De Baillon, 113 La., 574, the Court said:

"It (the order of appeal) does not mean that in matters coming up after the ageal, and in no wise involved in it, the trial Court cannot make orders clearly necessary to afford a remedy where otherwise there would be none". 106 La., 719; 45 A., 1428; 34 A., 90.
"The jurisdiction of' the Appellate Court attaches as soon as the order of appeal is made and its terms are complied with. The lower Court then has no longer authority to take any steps hut such as may be necessary to transmit the record to the Supreme Court, or, by provisional and conservatory orders, to secure the ultimate execution of the appellate judgment". 6 N. S., 464; 4 L., 205; 7 L., 446; 9 L., 49; 10 La., 483; 1 H. D., 73, VII (3); 34 A., 103; 32 A., 816.

In Morrison vs. Lynch, 36 A., 612, the Court said:

"In the recent case of State ex rel Cass, 33 A., 422, this Court held that,although the jurisdiction of the lower Court abates the moment that the order of appeal is made and the bond under it furnished, the power of that Court over it3 clerk does not cease to have him to perform the duties imposed upon him,for the confection of a transcript of appeal. 14 Cal., 640. The lower court, when called upon, is bound to see that such transcript be made according to legal requirements, for, this Court can exercise itw jurisdiction only in so far as it shall have knowledge of the matters argued and contested below'' C. P., 895; 13 La., 182; 5 A., 602; 13 A., 479; 15 A., 63; 18 A., 146, 729; 21 A., 135; 23 A., 28; 25 A., 216". 36 A., 754; 37 A., 852; 20 A., 390, 580; 42 A., 1109.

But it is immaterial whether the Judge of the District Court had jurisdiction to grant the order to file the testimony nunc pro tunc. The plaintiff, having offered the testimony had the right to have it filed at any time. The only question was, did the appellee have the right to an order from this Court making this testimony a part of the transcript. The .Supreme Court has said that he had and that is our guide.

The motion of appellant is thereby denied.

May 1st, 1919.


author: By his Honor John St. Paul.

text:
    NO. 7544
    NATIONAL BINDING MACHINE CO VS VINCENT S. DANTONI.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.

      May 1919.
   OPIHIOH.

By his Honor John St. Paul.

This is a suit for the prioe of certain "binding tape" sold d delivered by plaintiff to defendant.

The sole defense is that the tape was purchased for the pnrpoBe of advertising a certain brand of Olive Oil known by the trade name of "Italian Beauty", and for that purpose was to bear not only the printed name but also the ploture of an Italian girl in oharaoterlstlo costume and pose, according to a type furnished by defendant; but that plaintiff did not follow said type but on the contrary so far deviated therefrom that the printed picture reaebbles a Russian girl rather than an Italian, and therefore does not answer the special purpose for which said tape was purchased and of which plaintiff was well and particularly informed.

Passing by the question whether there be any substantial difference between the type furnished by defendant and the printed pioture on the tape (whloh is by ne means clear) the evidence established conclusively that before printing the tape, plaintiff furnished to defendant a sketch of the design which ^purposed to use, which sketoh was approved by defendant, and thereafter plaintiff made a "out" or stereotype of the very print itself as it would appear on said tape; of which it also furnished a proof or impression for defendant'8 inspection, which was again approved by defendant; ♦hereupon plaintiff then printed the tape and delivered it to defendant.

Under the oiroumstances it is clear that the eannot prevail. If defendant found the sketoh and proof unsatisfactory he should have said so before plaintiff proceeded with the printing of the tape; and having failed to do so then, he is estppfd from doing so now.

The judgment appealed from is therefore affirmed.

New Orleans La,


author: Dinkelson J.

text:
    No. 7546
    Court of Appeal Rarish of Orleans.
    John Roehrig -vs-Maryland Casualty Company of Baltimore
   Dinkelson J.

This action is brought-under the Horkingraens Compensation Aot of 1914 - 16, by the father, of. John Roehrig, who alleges that his son Edward J.' Roehrig, a young man of twenty-five years of age single and employed, by the John H. Hurphy Iron Vtorks of this City as Boiler Uekei and Helper, v;..s so employed in the month of August 1918; thal on the 34th. of August of the same year, between the hours of: four and five o'clock in the afternoon whilst his son. in due course of hie employment was helping in revétlng a Crystalizer Tank whioh was being constructed by the ITurphy Iron '.'.'erke v.’as touched by an electric wire which waa used at the time to furnish electric light and power to the workmen inside of said Crystalizer to -whom he waa * helper,, and he as the wire touched him was shocked, eleotriouted. and killed ’ey the powerful and deadly electrical current with which the said wire was charged at the time; that he is a -widower, old and infirm, and was entirely and absolu-tely dependent upon his said 30n for his daily wants and necessities of life; that at the dajie of the accident which. • caused the death of his said son, he waa poor and without. means, and under ths previsions of the línployers liability Aot of this State he is entitled to receive -s co:.tar.s-'.tion twenty-five per cent of the wages earned and paid to his deceased son by his employer at the date of the accident upon which day he was hilled; said payments to be weeicly from August 34th, 1918, and to continue from week to reek for three hundred weeks. Further alejes, that as his son at the date of his death and prior thereto was earning nineteen dollars per week as wages which -,vc.s ¿,,-id to him by his employer that plaintiff is entitled to receive il5.33. per week, as a compensation due him from August 34th. 1818, for three hundred woek3 and there is past, due him from that date to November 1918 the sum of ÍÍ46.98.

The petition goes on further to state, that the "uryland Casualty Company of Baltimore, the defendant, issued ijs policy of insurance to the said John Kurphy Iron ’forks, the employdr of the deceased son of plaintiff, by wrhich the insurer agrees and binds kixsslf itself to promptly pay compensation to the person who may be entitled thereto, and'plaintiff has a right of action against the said insurer to enforas payment to him of the ■ compensation past due him and to become due to him as above set forth. That hu.vinw failed to agree upon his claim for the payment of the compensation which is due as a dependant upon his deceased son, hence he pracys for Judgment for the amount of his demands.

The Surety Combary ad. .its there is r.o cyues-tion of 1..'.' involved in t'is ease; that it is simply a suit for oom^snuátion v.t ■irr its acts as herein cited; that the aot provides for injuries resulting ir. disability or death; that it does not dispute the status of the plaintiff nor the amount recoverable if t.:e evidence Jus-tifies a Jud_„.ont.

As ib all such cases witnesses in their testimony differ and draw their own conclusions e,3 to the .result of accident or death as the case may ar.d this case presents the same difficulties on ciuestions of fact as possibly nine tenths of similiar cases.

The father testifies, substantially , the death of his son, his employment with the Hurphy Iron Work, that he was living with the fathers family and had been all the time during his entire life up to the time of his death which occurred as stated in the petition; that he was a healthy robust man, hard worker and the 30le and only support of his father and far.ily, that his mother tras dead and two younger brothers living, never had been sick, '.ras a big, strong healthy boy, he loaded irons and there was no better boy and he could throw anything.

The next witness was J. T. Henderson, who at the date this boy died was at work in the "urphy Iron works, that this young man was sent to him by the foreman to assist him in driving rivets or. the angle iron on the back of the' Crystalizer- 7/S rivets, the foreman was a ”r. Tl-.itaker, and he was instructed tc be sure to get the rivets up at the head, he so instructed tht deceased, the heads had to be reamed and on account of breaming the ho {L hole ir made holes? a little kind of oblong and one side of the rivet did’nt come up so he instructed the boy twice about that. At this tiiie he was sitting, or. the inside. There had been a boiler maker just ahead of him caulking and he had a light in there. This light fell down and he had a wire wrapped around there with a globe,just above the globe the wire was wrapped ar.i the insulators were up, he had this hanging up in there, it dropped down and •the glob'e bursted. He was on a board and triere was a hole in there, a RÍ3 man hols.that you go ia» the hoard was kept from slipping down, that is all I could do to hold one of these big guns and I was holding the gun , the rivet was not up and there waa the 7/8 rivet in the rear end of the Crys'telizer, and so when he (the" witness) looked up he saw the deceased and he looked up at him, and I laid my gun right in my lap. X was sitting right on the hoard, had my feet under me on this hoard to keep from slipping down, so I looked up and the deoeaaed had run his arm through the hile and signalled me to, stop, * and then I noticed as his arm struck the Crystalizer he fell hack. At the time of this happening his face was as clear as any that I ever saw in a man; he looked at me as if to say stop and wait a till I can drive the rivet and then fell hack dead. He goes on to illustrate his state of feelings at the time that thi3 occurred and amongst other things says; " the deoeased must have gotten a shook ", just as the witness did. He ran around to see just what ccourred and he found that the deoeased was standing in a hole of water; several of the men helped the witness to pick up the deoeased. He then related what occurred at the time, amongst other things, that they had gotten water, poured it on the deoeased and tried to make him drink 3ome, hut he was ¿one and they carried him into the office of the company. He could not drink the water and his attitude and his entire appear-ance was that of a corpse which he wa3. He describes the hoy in this manner; " He was a healthy guey,.stout hoy; me and him was just talking, I talked to him two or three time3, he was as healthy as I ever saw anybody-* It seemed to me like there was nothing seemed to he the trouble with him one ?;ay or t •ther.” He had been working with this witness for i. two hours, he had not ^Complained of being sick; lie had- spoken to the deceased three or four minutes before this aooident occurred. The Crystelizer was about twelve feet long, and he gave him the instructions as heretofore stated. He was of a cheerful disposition, laughing1 and joking and everything as nice as could be.

The cross examination of this witness did not in any way, in our opinion, change any of the material statements made on the direct examination.

The next witness was a man by the name of F. E. Swan. He testified, that hé was present and working at the Murphy Iron tforks on the 24th. of August 1918, when Edwaad Roehrig was killed1. He was on one side of the shop and the deceased was on the other side; that he saw when they were bringing him across the shop; he was a big healthy loot-ing boy, very strong, he was as strong as any boy I ever saw of his age and size; he seemed to be in perfect health. He goes on in answer to questions, as follows

Ci- Dp you know anything about the electricity on that day; the condition of the electric wires around the Crystelizer ? A- No, Sir; not around the Crystelizer, but I did get a shook that morning pioking up the generator. I had to move the generator where ever I went, and I had to take that to a crane from one plaoe to another to weld, and that morning and several other tcEa?n/' k®1^1 a shock in pioking up on the chain. The aksin would get to a certain place and the pully in it would shock me.
Q- Was it commonly known in the shop that the insula-tion was dead and that there Would be a great many crane/ pieces of machinery as well as your charged with electricity? -A~ Tes, Sir.
Q- Do you know of any accident that occurred on the Crystalizer on the Friday of the accident. Do you know Ed-ward Roehrig? -A- Yea, Sir.
Q- Did you see Roehrig after they carried him in to the office? -A- I don't remember v/hsther I saw him after they carried him in thete. I was talking to him but don't remember anything he told me. - He never spoke to the boy after he got the shook.
Q- Did the deoeased ever regain consciousness? -A- Hot'to my knowledge,
William Schaeffer testified; that he was working at the Murphy Iron Works on August 34th., 1818. His busin -ess was that of helper.,
Q- Will you tell us what,happened aa briefly as you oan?
-A- 1 was -bucking up stave bolts or holding on them. This man the deoeased was holding on rivets on the end of the Crystalizer. I got a shock and it knocked the bar out of my hand and X kind of staggered back and ran around to tell the men in the tank that.it was oharged and when I got out I looked back and X saw the deoeased falling and we ran and picked him up and put him in some- iron. I went, and tried to give him sons water, he could'nt drink. The boss said, Whats the matter? and Ianswered, I don't know. We then brought, him into the office. I don't know.whether he was living or' dead. I had him by the head, laiij. him down, walked out, he did'nt seem to move,.but I don't know whether he was dead or not. I never went back to the office again. •

.The cross examination did not, in our opinion. in any manner weaken the main statements of this witness,,

The oontention of the defendant as stated' at the outset was, that plaintiff had not made his.oase certain, and it was not the duty of the defendant to call witnesses or' 'td ctovpújjHfry. because no case having teen ’\ '* *\ t*' mads^cut-. there .waonriothins, for the defendant to answer. Re are of the opinion thivt the Judge a <juo properly ruled out the Certificate cf the Coroner which v/us only produced as rera ipsaa. . There -./-s no inquest and nothing else developed save -nd eaoept what has been set fotth hers.The Rorkmens Compensation acts covers this case.

It has often been held: " 'There a case hint's on the credibility of witnesses the findin_s of the trial judge or. this quoction will not be disturbed."

The Judge a quo, i*ble, inteligente learned in the lav/, long on the bench saw and hoard the witnesses. Re ■.;«3 of the opinion that plaintiff.had fully made out his case and v;e concur in that opinon.

For the reasons assigned in this opinion the the judgment of the lower ce~rt is afflmed.

Judgment Affirmed


author: CHARLES E. CLAIBORNE, J-JDGE.

text:
    CHARLES E. CLAIBORNE, JUDGE.
    J. J. GROFF vs. H. A. OTIS AND NICHOLAS HICHARME.
    No. 7547.
    May 15th, 1919.
   CHARLES E. CLAIBORNE, J-JDGE.

This is a suit for the price of materials sold and delivered, upon the following oid and acceptance:

"Bedell Structural Steel Works,
Hew Orleans, La.,Sept. 25th, 1917.
Hr. H. A. Otis.
Dear Sir:
Por the sum of §1200.00 we propose to furnish, faoricate, and deliver, to Gretna hank, material as follows, for the account of H. Bicharme (here follow measurements, etc.) . . . Payment to be made 45 days from date of order. Kindly sign one of these copies to complete our files as we have no acceptance of the above as yet.
"Signed" Bedell S. S. Wks.
per Chas. Bedell.
Accepted:
"Signed" HJUOtis,"

Ri chame appeared in proper person and denied all the allegations of the petition, and alleged "that in all the transactions, dealings, and matters contained in plaintiffs petition, defendant acted solely and only as the agent and manager of his son A. C. Riehame, who held a contract with the Board of Commissioners of the Lafourche Basin Levee District to do certain revetment work in or near Gretna, Louisiana", all of which was well known to the plaintiff, and that therefore he is not liable..

H. A. Otis likewise filed a general denial; and he'averred that he "acted solely and only for and in oehalf of N. Richarme, agent for A. C. Rieharme, and in no manner whatsoever did he in-, tend to make himself liable individually for th-e cost of said material i:c."

There was judgment for the plaintiff and against both defendant¿ i olí {o.

H. A. Otis Vías appealed.

Charles Bedell, manager for plaintiff, testifies that after the work was done He called on Mr. Otis to collect the bill and Mr. Otis gave him his check for $600, and promised to pay the balance, which he failed to do notwithstanding numerous demands; N. Richarme had asked him to furnish the materials which he refused to do unless he furnished»a surety; he did not know that it was A. C. Richarme who had the contract with the Levee Board, nor did Ü. Richarme tell him that he was acting as agent for his son A. C. Richarme; never heard of it till now; neither did Mr. Otis tell him anything of the kind.

Joseph J. Groff, the plaintiff, says he knew nothing about A. C. Richarme having a contract with the Levee Board.

Nicholas Richarme testifies that he has been out of dusíness eight years on account of ill-health; that he was -succeeded by hi3 son A. C. Richarme; the work for the Levee was awarded to A. C. Richarme; he was manager for A. C. Richarme; Bedell never told him he would not give him credit; he owes plaintiff nothing; there was no question of surety; Otis was his son’s surety on the Job required*by the Levee Board; told Bedell it was his son’s contract and that Otis was his surety; has been acting as his son’s manager for the last eignt years; he does not remember now whether he told Bedell that the contract had been awarded to his son and that he was acting for him; he never saw and never knew of the bid addressed to H. A. Otis and accepted by him; this is the first time he saw it.

H. A, Otis was surety for A. C. Richarme on the Levee Board contract; he signed the acceptance of plaintiff’s bid dated September 25th, 1917; the check of $600 was issued for account of A. C. Richarme’s work; he does not know whether it was hie check or that of Geier Bros.

It is evident that plaintiff dealth with Nicholas Richarme and accepted H. A. Otis as his surety. He never knew. A. C. Richarme in the transaction. The bid speaks nore reliaoly than the testimony of any witness.

One who alleges that he was acting as agent in making a

/ The judgment appears to us correct and it is affirmlSv-

?lay 15th, 1919.