author: CHARLES F. CLAIBORNE, JUDGE.

text:
    Charles F. Claiborne, Judge,
    WILKIN HALE STATE BANK VS A. S. TUCKER et al.
    No. 7872
    November 22d, 1920.
   WILKIN HALE STATE BANK VS A. S. TUCKER et al. Appellants.

No. 7872

Appeal from Civil District Court, Hon. E. K. Skinner, Judge.

CHARLES F. CLAIBORNE, JUDGE.

This is a suit upon three promissory notes of which the following is a copy:

"$500.00 Oklahoma City, Okla. Feby. 24, 1917.
On the 24 day of August 1917 for value received, I, we, or either of us promise to pay to the Order of Pruiett, Day & Sniggs at the State National Bank of Oklahoma City, Oklahoma, Five Hundred Dollars with interest at the rate of 10 per cent -per annum after maturity until paid, interest payable annually. In case this note is placed-in the hands of an attorney for collection, we agree to pay $25 additional attorney's fees. The endorsers, guarantors, and assignors, severally waive presentment for payment, protest, and notice of protest thereof for nonpayment of this note, and consent that time of payment may be extended without notice.
"Signed" A. S. Tucker
Joseph St.Mary
Endorsed:
Pay to the order of Wilkin Hale State Bank.
"Signed" Pruiett, Day & Sniggs
by Moman Pruiett

The second and third notes are payable on the 24th day of September, 1917 and 24th day of October, 1917, respectively, and are similar in other respects.

Plaintiff alleged that it was the holder for value in good faith before maturity of the above mentioned three notes; for the payment of which they had made amioable demand upon the defendants; and it prayed for judgnent against them in soljiáb for $1500 with ten per cent per annum interest from the maturity of the notes and $75 attorney's fees, and all costs of suit. •

The defendant Tucker admitted his signature to the three notes, but denied any indebtedness on said notes; he denied all the allegations of the plaintiff above set forth. He further alleged that at the request of Joseph St. Mary he nroceeded to Oklahoma City to engage counsel to defend a case in a criminal charge; that be engaged Pruiett, Day & Sniggs who, on February 34th, 1917, agreed to render all legal services in the case, and to pay all expenses incident thereto; that for said services and costs said firm charged $2500, of which $1000 was paid cash, and for the balance, say $1500, defendant signed the three notes aforesaid until they coOIld receive the signature of Josenh St. Mary; therefore he denies any individual liability as co-maker of said notes; he further adopts all the defendes urged by Joseph St.Mary in his answer; and in accordance therewith he denies that the plaintiff is an innocent holder for value before maturity within the meaning of the Negotiable Instrument Act.

Joseph St. Mary, like Tucker, admitted his signature to the three notes, but denied any indebtedness on the notes; he denied all plaintiff's allegations, but admitted amicable demand and refusal to pay. He repeated the occasion of the employment of Pruiett, Day and Sniggs, and the signing of the contract and of the three notes by A. S. Tucker, who acted as his agent; that he proceeded to Oklahoma City a few days before the trial of the case, when at the request of Moman Pruiett on Kay 26th, 1917, he advanced him $500 for the purposes of the case; that also at his request he again advanced Pruiett the following additional sums, viz:

On June 6th, 1917.17.50
" " " " 75.00
" * " " 212.50
" " " " 500.00
which with 600.00
made a total of $1405.00
and he advanced Yictor A.Sniggs 130.QQ
making a total of $1535.00;

that the above amount so advanced by defendant became legally applicable to the extinguishment of said notes, but that defendant did not. require their production to write the proper credits thereon, relying upon the integrity of the attorneys;

"that since said notes had been paid in their entirety, long before the maturity of any one of them, their negotiation, if in fact such had been made, was manifestly a fraud upon the rights of this respondent, and since such transfer was not legally possible, your respondent specially denies that plaintiff is a holder in due course of said notes".

The defendants prayed for a jury. There wa3 a verdict and judgment against them. From thi3 judgment they prayed for a new trial upon the following grounds, viz:

"lo That no proof was offered of the indorsement of the payees, Pruiett, Day & Sniggs, of the notes made payable to their order; that upon objection being made to admissibility of the notes, it devolved on the holder under the issue raised by the pleadings, to show title by proving the genuineness of the signatures of the indorsers, in order to obtain judgment against the makers;
2o That the plaintiff, Bank, according to the testimony of its two officers, acquired the notes sued on as collateral to secure the individual indebtedness of llorman Pruiett, a .member of the law firm of Pruiett, Day & Snigis, without any showing of authority in said Pruiett from his co-partners to consent to or acquiesce in a loan to said Prúiett, and which loan was placed by the bank to the credit of an oil and gas company in which plaintiff's witnesses testified the firm of Pruiett, Day & Sniggs had no interest or concern whatsoever;
3o That there is no implied authority in a member of a law firm to indorse the paper payable to the firm for his own use, so that even if it can be inferred from the testimony which however is denied, that Pruiett himself indorsed the paper sued on in the name of the firm, such indorsement could not pass title;
4o That the evidence adduced does not disclose that the plaintiff Bank was an innocent holder in due course of the notes 3ued on, without the meaning and intendment of the law relating thereto".

The new trial was refused and defendants have appealed.

■The three notes were dated February 34th, 1917; the first was payable August 24th, 1917 and the two others^ one and two months later; the plaintiff came in possession of them on March 12th, 1917; on that date no payment had been made on account of them; all payments are shown to have been.made later in May and June 1917 to Pruiett after he had parted with the possession of the notes and after they had gone in the possession of the plaintiff. The only circumstance to connect the plaintiff with the several payments made by St. Mary on those notes is the fact that all the paymmnts made by him were by drafts; a draft for $1000 to the order of Pruiett, Day & Sniggs to cover the cash payment^, and two drafts of$17.50 and $500 to the order of Morman Pruiett, all three of which were collected through the plaintiff bank.

This ms not sufficient to fasten upon the plaintiff knowledge that those last two payments were on account of the notes. The plaintiff had a right to presume that the defendants would have required any payments on account of tne notes to be credited thereon. Of course, none of those payments could affect the rights of the plaintiff, if the notes were endorsed in such a manner as legally to transfer them to the plaintiff. Ú.O.», 2145 (2141); 12 Ct. App., 266; 13 Ct.App., 221.

The defense therefore rests upon the first three propositions submitted by the defendants on their application for a new trial. They are that there was no proof of the indorsements of the three notes by the payees Pruiett, Day and Sniggs, nor of the authority of Pruiett to indorse for his partners Day and Smiggs, and consequently that the plaintiff, acquired no title to the notes' 2o that the three notes were pledged by Pruiett to secure his individual indebtedness to the plaintiff which he had no right to do, and 3o that one partner has no authority to endorse partnership notes for his own personal use without the authority dP his partners.

Morman Pruiett testified that he indorsed thEBe three notes and transferred them to the plaintiff.

Victor A. Sniggs, of the firm of Pruiett, Day and Sniggs, testifies as follows:

"I have heard the testimony of the witness, Morman Pruiett, and read his answer and that fully sets forth to my certain knowledge whit was done in this case, x x x Yes. Morman Pruiett of said firm did. (indorse and transfer to Wilkin Hale State Bank the promissory notes of Tucker and StMary). I v/as present when he answered his interrogatory in regard thereto and have read said answer,and it sets out fully . the occasion and circumstances under which the transfer of the notes in question were made".

Jean P.Day, also of the firm of Pruiett, Day and Sniggs, testified as follows: He was asked, as Pruiett and Sniggs had beax asked:

"Did the firm of Pruiett, Day and Sniggs or any members thereof indorse, transfer, or pledge to the Wilkin Hale State Bank-of Oklahoma City, one or more promissory notes executed and subscribed by A. S. Tucker and Joseph St.Mary?"

He answered:

"Yés. They were dated Babruary 34th, 1917 for $500 each due in 6, 7 and 8 months after date- Hr. Pruiett 'wanted some funds, personally, and I consented at his request to his negotiating the St. Mary notes at the Wilkin Hale State Bank".

This testimony cures the possible error of the trial Judge in admitting in evidence the notes before the proof of the indorsements.

This testimony also establishes conclusively that Pruiett, indorsed the notes, that he was authorized to mafte the indorsement, and to use the notes for his own personal use and benefit.

Any apprehension that the defendants might entertain that Day or Sniggs might in the future assert any claim against them by virtue of those notes is thus completely removed.

Besides, Day and Sniggs havirg testified in favor of'the plaintiff would be estopped from claiming hereafter any interest in said, notes.

25 A., 557; 18 A., 294; 45 A 571; 30 A., 50; 40 A., 780.

is true that the above testimony was given m answerj, to interrogatories 3n commission,returned and found in the record, though not specifically offered in evidence. But there is neither specific law nor jurisprudence requiring them to be so offered. The testimony of witnesses taken in open Court need not be offered in evidence; nor answers to interrogatories on facts and articles. But they are part of the record and either party may use them without formally offering them in evidence. 5 M., 272, 592; 5 N. S., 179; 9 R., 19; 19 A., 490.

But be that as it may, with the knowledge that the Court has acquired of the facts of this case as developed in that testimony not specifically offered in evidence, this Court would consider it its duty in furtherance of justice, to remand the case, to allow the plaintiff to offer the testimony. C.P., 905.^ TMs would eríail needless delay and expense which this Court thinks its duty to avoid by deciding the case as set forth in the record as it is.

It is therefore ordered that the judgment herein be affirmed.

November 22d, 1920


source: Caselaw Access Project

author: CHARLES F.CLAIBORNE, JUDGE .

license: Public Domain

text:
    FRANK T. MAHER VS N. O. GAS LIGHT CO., Appellant.
    No. 7873.
    December 20th, 1920.
   FRANK T. MAHER VS N. O. GAS LIGHT CO., Appellant.

No. 7873.

Appeal from Civil District Court, Hon. Fred.D. King, Judge.

CHARLES F.CLAIBORNE, JUDGE .

This is a damage suit for injury received by plaintiff upon the premises of defendant.

The plaintiff alleged that on January 14th, 1919 at nearly one o’clock in the morning he was in the employ of the Illinois Railroad Company as switchman; that in said capacity he had occasion to be on top of a freight car belonging to said Railroad, when the car was pulled into the yard of the defendant Company for the purpose of delivering to said company three tank cars and six box cars, over a strip of track whiih was constantly used by railroad trains to the knowledge and ¿invitation of th$ defendant and for its benefit; that while on the top of said car, his head came in contact with a pipe belonging to the defendant Company, extending over and across the track and connecting two buildings belonging to the defendant; that this occurred because there was not sufficient clearing space between the top of the car and the pipe to allow the passing-of the car with the plaintiff on top of it without coming in contact with the pipe; that the ni^ht was foggy and plaintiff could not see the pipe; that his head struck the pipe, and he was knocked off the car, and thrown to the ground; that thereby he suffered injuries for which he claims $500.

The defendant píeaded a general denial. Further answen*. ing mt avBrred that it was informed that a brakeman while riding on the top of a freight car then being for, resnondent in4* • /V. a shed used by it, came in contact with iron pipes used by respondent in the operation of its plant; that said pipes had been placed after a conference with the officials of the Illinois Railroad, and were placed at such height as to afford ample clearance for any one riding upon the top of the freight cars used by the said Illinois Railroad at that time; but that defendant believes that the car upon which the plaintiff was riding was higher than the car which had been theretofore used, and the defendant had no intimation of the use by said Railroad of cars of different dimensions, and did not know that the clearance between the cars and the pipes had been lessened, nor could it reasonably foresee that there was any danger to be apprehended from the pipes located as they were; that the plaintiff had many times before ridden upon the top of freight cars being placed in said shed and knew the location of the pipes and the danger of coming in contact with them; that the cause of olaintiff coming in contact with the pipe was his own careless and negligent conduct in failing to keep a lookout for the pipes, the location of which he knewy and for his failure to take such orecautions as were made necessary by the circumstances to avoid injury to himself.

There was judgment for plaintiff for $400 and the defendant has appealed.

There is no dispute about the amount of the judgment; the defendant admits that it is reasonable if plaintiff is entitled to judgment.

The .plaintiff testifies that in January 1919 he was switchman for the Illinois Railroad; that on January 14th, at 12:45 A. 1L, he wa3 placing cars for the Hew Orleans Gas Light Companj^thj* he was standing uo on top of the car passing signs with a lantern to the head man; that in the performance of his duty he must stand up so as to 3ee the engineer; that the night was foggy; he did not realize thrtfhe was so near to the pipe and he was hit by it; he is 25 years old; he had been a switchman three years and three months; he had frequently placed cars for the Gas Company; the car he was riding on was bigger than an ordinary box car; it was a furniture car; he had placed many of these large furniture cars; he knew the pipes were there, had passed under them about 25 times; there was a new man on top of the car with him; he told him to sit down in order to avoid coming in contact with the pipe; he could not sit down, because if he did, the engineer could not see him and he would come to a stoo; it was necessary for him to be on top of the car to do the sig-nalling; he did not observe the pipe on that occasion, because he could,not see ahead of him; he is exoected besides to look out for wagons ahead and to stop the engine if there is one; after his accident the pipe was raised four feet.

George Aikman sworn for the defendant says: he was foreman in charge of the yards of the Gas Company at the time of the accident; he was employed by the Gas Company, and was checking up the cars; the night was clear to his knowledge; he did not see the accident; the car on which the plaintiff-was, was a very large car called a furniture car, larger than the ordinary cars; on many prior occasions cars of the same size want into the yard of the Gas Company; he cannot say the night was foggy; possibly from the heat around the gas works it may be clear by the plant; he did not take particular notice whether it was foggy.

Another witness on behalf of defendant was examined; he is the private secretary of the manager; he made an examination of the premises where the accident occurred; the wipes were about 25 feet from the ground, judging by the eye; a freight car is about 15 or 16 feet high; the plaintiff is 5 feet, 8 inches; a furniture car is 16 feet high; he never measured a car nor the pipe; he does not know of his oto knowledge whether the pipe was moved after the accident; he heard some talk about it; he cannot explain how it is that the car being 16 feet hi$>, and the plaintiff 5 feet, 8 inches, making 21 feet, 8 inches high, the plaintiff's head struck the pipe that was 25 feet hi§i.

Defendant's answear that the car on which the accident occurred was

"higher than the cars which had been theretofore used, and it had no intimation of the use by said Railroad of cars of different dimensions"

is completely overcome by the testimony of the|4-own witness,, Aikman, who says that

"on many prior occasions cars of the same size (furniture cars) went into the yard of the Gas Company".

The only question oresented by the defense therefore are lo Is the defendant liable for the injury resulting iron the location of the cipe, and 2o can the plaintiff recover notwithstanding his previous knowledge of the dangerous location of the pioe?

lo It must be remembered that the plaintiff was neither a trespasser nor a licensee in defendant's yard. He was there by in.vi£ation of the defendant in the performance of a duty for tó». oenefit. An owner of premises guarantees persons invited by him thereon against avoidable perils caused by animals, traps, excavations, or other faulty distribution of the premises. The rule is thus broadly laid down by Thompson, Vol 1 p 890^938:

"On the contrary, the owner or occupier of'raal pro-party is under the duty oí exercising reasonable or ordinary care and prudence to the end of keening his premises safe for the benefit of those who come upon them by his invitation, express or implied; and if, through a neglect of this duty, they are, without negligence m* fault of their own, injured by reason of any negligent defect therein, he must pay damages". § 1239. —

The rule in 29 Oyc, 453 is stated as follows;

"The owner or occupant of premises who induces others to come upon it by invitation^express or implied^ owes to them the duty of using reasonable or ordinary care to keep the premises in a safe and suitable condition, so that they will not be unnecessarily or unreasonably exposed to danger" 46 A., 1180; 48 A., 487; 49 A., 86, 1264.

page 456:

"An employee who goes to deliver goods to the ownerj/ of the premises is thére by implied invitation".
"A coal company into whose yard a railway track is built so as to permit of the unloading of coal cars in the yard is bound in piling the coal beside the track to use such care as an ordinarily prudent person would have exercised to avoid injury to employees of the railway corr.nany running cara into the yard". 37 S. W., 359.
"The owners of pronerty adjoining a railroad, who construct h. side-track, so as to have cars set in to and removed from their premises, cannot construct anything thereon, for their own convenience, which may injure the employees of the comnany, using ordinary care, vihile setting in or removing cars". 8 Ohio S.& C. PI. Dec. 283.

A telegraoh company Í3 liable for wires placed so low as to injure firemen. 41 A., 1041; 1 Thouroson é 1238. —

2o Protection of persons invited by the owner uoon his premises is the duty imoosea^y the law; it cannot be evaded by answering that the oarty injured was aware of the danger;otherwise both the protection and the duty would cease; the party invited would be the innocent victim of his forgetfulness -and the owner would escape responsibility for his guilty negligence.

The party who has caused the injury must suffer the loss. This question has been the subject of much difference of opinion. But the Supreme Court of our State has indicated its views by mar-shalling a long line of decisions in the case of Erslew vs R.Bd., 49 A., 36. Many authorities are quoted sustaining the view that knowledge of danger precludes recovery. But 'it also mentions opinions taking an opposite view. It says:

"In the recent case of Simonds vs City, 67 N. W., 40, the Wisconsin Court Said: "Beach lays down the rule (Section 12) in effect, that where one knows the danger, but teuroorarily forgets it, and in consequence suffers an injury, his forgetfulness will not avail him as an excuse; that what he knows he must' remember at his peril; and that a failure to remember constitutes contributory negligence if it occasion injury". But this opinion is not.supported by reputable authorities anywhere, and has been, expressly repudiated by this Court". The doctrine announced by Mr. Beach is mainly grounded on an opinion of the Massachusetts Court in Gilman vs Inhabitants of Durfield, 13 Gray, 577, but the \7isconsin Court said in Wheeler vs Westport, Supra, that that Court had "carried the doctrine of forgetfulness" too far. And the Court proceeded to say in the Simonds cs.se : "in fact the rule of Gilman vs Inhabitants of Durfield has been so fenced in by subseauent decisions as to be practically overruled, citing four subsequent oases from Massachusetts, five cases from New York, two cases from'Wisconsin, and one from Missouri".
In Gusman vs Caffery, 49 A., 1264 (1270), the Court

said:

"While defendant's proposition is that "it is not negligence in a railroad conroany to construct or permit to be constructed overhanging bridges etc., over its tracks so low as not to permit a brakeman to stand upright on-the top of the box car" might be true in some special case under excáptional circumstances, it is certainly not true as a general proposition. On the other hand, were it true that if a brakeman knew or was presumed to know of the existence of suchaconstruetion, he would be held, as a general rule, to have 'assumed the risk therefrom; it is not true that the mere fact of such knowledge carries with it- necessarily and on all occasions, and under all circumstances, the cutting off of remády for injuries received by him from ouch construction" Also 141 La., 493; 4 Thompson § 4747 p 773; § 4752, 4753; and White's Supplement Vol.8 p 698,

We prefer to adopt the views expressed in the last opinions, as being more eonsonant with the general duties of owners of property and the rights of parties invited, whatever may be the law in relation to licenses and trespassers. We therefore hold that the plaintiff is entitled to judgment even if he knew of the dangerous position of the pipes and momentarily forgot to avoid them. His lack of memory did not relieve the owner of his duty towards him. The position of the pipe in that particular place was not essential to its use; its position was dangerous, and constituted negligence on the part of the defendant for which it must pay the plaintiff.

Judgment affirmed.

December 20th, 1920.


author: By his Honor John St.PAUL.

text:
    NO. 7874.
    DAVID BERNHARDT PAINT CO VS REASE B. HORNER, ET AL.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
   OPIHIOH,

By his Honor John St.PAUL.

Plaintiff alleges that, with the knowledge and consent of ^-the lessor, the lessee fwijh privilege of nurchasing) "made certain improvements" on the leased premises, the materials for :ioh said lessee purchased from plaintiff; that said premises were thereby improved to the full amount of the materials thus furnished. Wherefore plaintiff prays it he allowed a lien and privilege "on the buildings located on the property". Annexed to the petition is a bill showing that the materials furnished by plaintiff consisted of paints and oils, presumably used in painting the building on which a lien is claimed.

It is not alleged that the buildings were erected by, or belonged to, the lessee; nor that the lessor bound himself in any way for the cost of the improvements; wherefore the lessor filed an# exception of no cause of action which the trial court sustains®

Under C. C„ 3249, workman and furnishers of materials have a lien and privilege upon the buildings and the land on which they stand, providedjj the land belong to the person for whom the improvements are made. But if the improvements have been made for the lessee, then "the privilege shall exist only against the lease and shall not affect the owner."

Again under Act 329 of 1916, workman and furnishers of materials who have dealt with the owner of a tract of land or with "the trustees or sgent of such owner", have likewise a lien and privilege upon "the improvements and upon the lana belonging to such owner."

In Conroy vs Pine Belt Oil Co, 143 La 879, the Supreme Court held that these two .Statutes were not inconsistent and must ha read together; and accordingly that one who had furnished labor and materials to a lessee was entitled to a privilege upon the lease and upon the property of the lessee situated on the premises.

In Hearne vs Victoria Lumber Co, 131 La 646, the court held that where the lana belonged to one owner and the improvements to-another, the lien and privilege for labor and materials furnished should properly be recorded against the improvements and in the name of the owner thereof; and reiterated that “If the improvements are made by a lessee, the privilege exists against the lease and does not affect the owner." The decision was based squarely upon a the fact that in that case the improvements on which lien was claimed belonged to the lessee; thus "Croom (the lessor) oouild not acquire the property at the expense pf Munday (the lessee) who constructed the house with his consent." p. 661

In the case before us the lessee was not the owner of the house on which the improvements (paint) had been put; not had the lessor bound hitaself for the cost of the improvements merely because he know and consented that the lessee might make them. See Liebe vs Tranchina, 10 Orleans App. 315-316.

December 6th, 1920.

Saloy vs Dragon, 37 An 71, cited by plaintiff, holds only that work done on a sugar house and machinery gave no lion on the plantation crons. The remark that the workman must exercise his privilege against the building was purely obiter, since the court cited 0. C. 3249 denying such a privilege unless the person for whom the work was done be the owner of the building.

The judgment appealed from is therefore correct.

Judgment Affirmed.

Hew Orleans, 6a,


author: Dlnkelsplel. J. St Paul J.

text:
    Thomas E. Furlow. -vs- International Sulpher & Oil Co. Inc.
    No. 7875.
    Court of Appeal. Parish of Orleans.
    Dinkelspiel. J.
   Dlnkelsplel. J.

Plaintiff claims of defendant the sum of five hundred and eighty-two dollars with interest at the rate of 5$ per annum from December, 1st. 1915, until paid, for this to-wit;-

That he was acting in his capacity as Attorney at Law and Notary Public in New Orleans; that on 36th. Ootober, 1915, Claude D. Liedman and Louis P. Rice, proposed to purchase approximately 33 acres of land belonging to the Union Sulpher Co. in the Parish of Caloasieu, in this State, and subsequently to transfer it to a corporation which tney proposed to ox organize in full payment for the entire capital stock of said company, and to have it, the company, subdivide said lots into lots or tracts containg each 300 square feet and to sell them a* at such prices as to bring the corporation large returns and eventually to xk net to said Liedman and Rice handsome returns for their investments; that they employed plaintiff as Attorney and Notary agreeing to pay for his services the sum of $600.00.

Plaintiff then, as the Attorney and representative of the parties, Liedman and Rice, and in connection with Mr. Robert R. Stone, an Attorney at Lake Charles, to affeot and dispose of the lands recited, exarr.--ined the abstracts of title, gave written opinion and prepared articles of incorporation of defendant company, resolutions for itB Board of Directors which were adopted fixing the valuation of lands to be transferred, filed articles and resolutions of incorporation in the City of New Orleans, published same as required .by law and performed all duties required of him both as Lawyer and Notary Public.

That both Liedman and'Rice availing themselves of plaintiff's services j.n connection with the organiz ation and conduct of said corporation, and ratifying and confirming everything done in behalf of the corporation, and availing themselves of the services perfor -med by plaintiff previous to the. organization of the company, which were fully ratified and confirmed, also confirming the employment of plaintiff as its Attorney and promised repeatedly to pay him for his services.

That, subsequently, on December, 9th. 1915, plain -tiff sold and delivered to defendant company certain furniture of the value of $35.00.; that he rented one of the offices in the suite of offices rented by him from the Whitney Central national Bank in the City of Hew Orleans to defendant company, the lease being from month to month, at the rate of $30.00. per month and begining with the month of December, 1915; that said company occupied and used tlje office so rented td it from the month of December up to and including the month of August, 1916, altogether nine months, for which the company owe plaintiff $S70.00. for rent; and claiming'Other services in all the sum pf $903.26. and to which the company is entitled to a credit of $331.36., in accordance with the statement annexed to the petition and made part thereof. It being distinctly understood and -greed between the company and plaintiff and between said I . jdman and said Rice, that all payments were to be credited first on the cash items and rent charged by plaintiff against the company, so that the amount claimed for fees and professional services together for rents are for the amount sued for.

That the company appearantly ceased to do business in the month of September, 1916 and since then has done no business; that its assetts are in the hands of its officers, Louis P. Rice, Presidant, and C. D. Liedman, Secretary-Treasurer, who have and are jeopardizing the rights of oréditors of said corporation hy grossly mismanaging the corporations business and by wasting, misusing and misapplying the property of the corporation, and they have constantly xtsixiai. failed and refus 3d to transfer to the company in payment for the stock subscribed the lands hereinabove referred to having sold said lands to third parties on suoh terms and oohditions is suit them, without regard to the rights of creditors iithout in any wise paying for the stock, in payment of ffhioh they were obligated to transfer said lands to the corporation.

The officers of said corporation have abandoned it and refuse to serve as officers and there is no one autl orized to take charge of or oonduot its affairs.

The premises considered plaintiff paays that defend ant oompany be served with a copy and cited to answer thereto, and that there be judgment in favor of plaintiff dgainst defendant company in the full sum of $583. and prays fuither that the company be ordered to show cause at such time as may be designated by this Hon-orable Court why a Receiver should not be appointed to taje charge of its property and affairs, and that, aftei due proceedings had said rule be made absolute and a Receiver appointed to take charge of the property and the affairs of the corporation, and for general relief.

The petition being sworn to by plaintiff, the order of

Court reads; " The above and foregoing petition and affidavit considered, it is ordered that the defendant, National Sulpher & Oil Co.,Ino., do show cause at 11 o'clock, a. m. on Friday, 13th. April, 1918, why a Receiver should not be appointed to take charge of its affairs, business and property, as prayed for."

This order was rendered March, 37th. X9X7.

In answer to the order, Louis P. Rice, substantially declares; that he has no personal knowledge of the organixation of the so oalled company, that, if any charter or anyother document pertaining to said corporation bears his name, it was not signed by him or by his authority to the knowledge of defendant herein. Denies in reply to article 10; that he is the President of said corporation, and never was; that he never attended any meeting pertaining to the affairs of said company; that he never signed the charter or authorized anyone to do so for him, or did he ever sign any paper or document pertaining to the affairs of said corporation.

On the trial of the case, subsequently had, much contradictory evidence was introduced, all of which has been carefully read and considered and none of which is either satisfactory to us one way or the other.

Whilst it is evident that defendant, Rice, and others had some dealing with plaintiff in this case, both as Attorney and Notary, there is not sufficient evidence to establish that the corporation itself received the benefit of services claimed if the corporation ever existed.

This record , we consider, presents contradictory evidence bith of plaintiff and at times, in certain respects, of Mr. Rios. Whether he be President or not of the corporation, is a matter to be considered by the trial Court when this oase comes finally to be heard.

This record is in such a state that it is utterly impossible to decide equitably matters as presented, and we are of opinion that the interest 4>f justioe will be pre preserved, and equity and law better enforced by remanding tit this oase to the lower Court there to be tried according to 16m.

It is therefore orderred, adjudged and deoreed,that this case be remanded to the District Court there to be tried in aooprdanoe with the views herein expressed.

Costs of this appeal to be paid by appellant Thos.E Furlow and the other oosts to await final determination of the case.

Judgement reversed- Case Remanded.

St Paul J.

ooncurd in the remand. As the corporation made no appearance the judgment even in its favor is a nullity. Thei first thing that should be established is whether the corporation has been properly cited. If not,then a new citation should issue;at any rate an appearance on the part of the defendant or default after due citation is prerequisite to any valid judgment.


author: liy his Honor John St. Paul.

text:
    NO. 7876.
    CRESCENT FORWARDING & TRANSPORTATION CO. VS V. CAMPANELLA.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
   OPIHIOI.'.

liy his Honor John St. Paul.

a heavily loaded cotton float belonging to plaintiff and a This suit involves a claim and counter-elpim for damages resulting from a collision between two automobiles, to-wit, light delivery truck belonging to defendant. Each party lays the blame upon the other's driver; and the solution of the controversy depends upon which of these two is telling the truth. The trial judge believed thq account given by the driver of the float and our own appreciation of the evidence leads us to agree with him.

The driver of the float testifies that he was coming along Urania Street at slow speed and intends' to turn into Coliseum Street, which crosses it at right angles; that as he approached the corner he sounded his horn and slackened his speed still further; that as he intended to turn down Coliseum Street, which meant a turn to the left, he made a long turn (i. e. going arpund the center of the intersection) so as to keep to his right, that is, the river side of Coliseum Street; that defendant's truok was then coming up Coliseum Street at a rapid rate and was about 70 feet from the ;orner of Urania when he saw it; but that Instead of slowing down and keeping to the right, i. e. the wood side of the street, the truck swerved to the left in an attempt to pass in front of the float; that on seeing this he then instantly stopped the float which had^reached the center of the intersection and Just begun to turn; hut the driver of the truok becoming panic stricken when he saw a collision was imminent, jumped from the truok, which then crashed into the float.

The driver of the truok testifies that he was going up Coliseflm Street keeping to his right, 1. e. the wood side of that street; that he was making between three and eight miles an hour; that when he came within 20 or 30 feet of the corner of Urania Street the float came out of that street, mating a wide swing into Coliseum and then doubled

back in order to get on the wood side so as to make another long swing into the next cross street below; and "going 25 miles an hour whilst making the curve" bore down upon him "face to face"; wherefore he was obliged to turn to the left as the only possible means of avoiding a collision; that he heard no horn sounded, and did not jump from the truok. A friend who was with him testifies substantially as he doss.

But the version which they give is manifestly an impossible one; a long and heavily loaded float could not make the sharp turn which they describe even at slow speed, much less at the high rate of speed they claim. On the other hand the version given by the driver of the float is neither impossible nor improbable, and argues one of two things to-wit, either the driver''of the truok was inattentive and did not see the float until too late (his friend saying that when he got to the corner of Urania ‘".treat he "looked up" and saw the float); or else he was in a hurry, and seeing the slow moving float thought he could save time by "outting in front" of it, as the driver of the float says he attempted to do. '.Vhioh the latter view seems to have been the one taken by the trial judge, and apnears to us the more likely. In either case however the driver of the truok was cleraly at fault.

November 22nd, 1920.

The Judgment appealed from is therefore correct.

Judgment Affirmed.

Hew Orleans la,


author: Dinkelsriel- J

text:
    Bruno Mitchell- -vs- Dr. James R. Spears-
    No. 7878-
    Court of Appeal. Parish of Orleans.
    .Blnkelsnlel- J.
   Dinkelsriel- J

Plaintiff instituted this suit, claiming that on the 13th. day of May, 1911, he entered into a written contract of. lease with defendant, whereby he leased to him four lots of ground, in the Parish of St. James, for a term of five years, begining on the 19th. of December, 1911, with the prevelege of renewal for five years more, at a rental of $1.75. per month for eaoh lot or $7.00. per month for all. That the rent due by defendant for the month ending October, 19th. 1916 was not paid by defendant and has never been paid, and no rent has been paid from that time to the present time.

That there is now due plaintiff the sum of $196.00. being the rent from September, 19th. 1916 to January 19th. 1919.

That defendant continued in the actual occupancy of the property during the entire five years of said lease'; remained in possession and oocupanoy after the termination of said five years, thus renewing said lease for a like term and has remained in possession and occupancy ever since.

That defendant had erected buildings on said four lots of ground which are.still upon them, and that plaintiff has a lessors lein and privelege upon said buildings to secure the payment of said rent due him.

That plaintiff has good reasons to beleive that defendant will remove said buildings from said land and thus deprive plaintiff of hiB lein there on.

Upon making the necessary affidavit, he prayed that a writ of provisional seizure issue, seizing the property herein described for the amount claimed, with recognition and maintainanoe of his lessors lela and prívelaje upon tka property and effect» provisionally seized, and for judgment recognizing said claim.

Tke writ as prayed for issued and tke property in question was seized. Subsequently defendant caused tke property to be released upon executing bond according* to law..

On tke 17tk. of February, 1919, defendant filed kis answer, and whilst admitting articles 1, S, 3 and 4 of plaintiffs petition ke denied articles 5 and 6, and assuming the position of plaintiff in reconvention, claimed that plaintiff in suit was indebted to kim in tke full sum of $1.000.; that because plaintiff has caused to issue against kim tke writ of provisional seizure, and tkat tkereunder did seize, and cause to be seized, tke buildings and property and effects situated on said four lots of ground, leased by kim to defendant in suit, plaintiff in reoonvention.

Alleging further, that said issuance of said, writ of provisional seizure was maliciously and wrongfully obtained, and that tke facts alleged in tke petition in articles 3, 5 and 6, which are denied in the foregoinf answer are false and untrue and that the affidavit is also false and untrue, Wherefore, by reason of the malicious and wrongful provisional seizure and of the seizure made thereunder, and by the unlawful, malicious and wonton and unwareented proceedings and interference with the business of defendant in suit, and plaintiff in reconvention, he has suffered a loss and damage amounting to the sum of $1.000. , as follow»;-Attomeys fees, the sum of $150.00. - Expenses lnourred. In furnishing a forthcoming bond $35.00. Damage done to defendant in suit and plaintiff in reoonventlon hy reason of lose of tlme$ 50.00. and finally, damage done to defendant in suit and plaintiff in reoonventlon, hy reason of injury to hie feelings the sum of $775.00. And prayed for dlsalseal of plaintiff's suit and judgment for $1,000.00.

Subsequently on the 34th. March., 1919, through his Counsel, plaintiff in reoonventlon and defendant in suit, with leave of Court first had and obtained, filed a supplemental answer and petition in recon-vention in whioh he alleged, that on 19th. September, 1916, he defendant, entered into a written oontraot by whioh he advanced oertaln amounts to plaintiff, and was authorized to pay a oreditor of plaintiff certain amounts totaling the sum of $191.09, and it was agreed and understood that these sums thus advanoed, togother with interest thereon at the.rate of &fi per annum, from September, 19th. 1916, would be applied to the payment of rent at the rate of $7.00. per month, and finally, defendant plaintiff in re-oonvention, pleads payment and prays for judgment dismissing the suit and for all general relief.

The testimony, in this oass, was taken in the Clerks Office of the Court, not in the presence of the Judge. Amongst the witnesses there was drnirtTs wife introduced in his behalf, and after showing her various reoeipts and stubs, the ques-ion was asked her;-

*Q- I show you a stub of a receipt, Marked PI?
$A— This is Dr. Spears writing. Dr. Spears wrote " that stub and wrote out the receipt and after * writing the receipt I signed it.
"Q- What ia the amount?
"A- The amount on the stub shows Í183.00., and the "reo«lot was for ths same amount, and that amount "vaa paid me. Dr. Speara had paid nothing on the leae "lease alnoe that date. " -She save that she was the wife of plaintiff..
The next witness was the plaintiff kimaelf, and in answer to the question, when the receipt in question, shown him, was signed; he says, in May: 1916. And in answer to the question;-
"Q- Did he pay you any money"? Ho aais;-
”A- Dr. Spears did not pay me any money except that "settlement, I believe, it was about one hundred and "some odd dollars. I don't know how to rsad or write."

The next witness produoed was Lew D. Presoott. He was Interrogated as followe:-

”Q- Did you ever have any business with Bruno Mitoh-«-ell and his wife Josephine Mitchell, for which Dr. "Spears mid you for their account? -A- Yes, Sir."

At this point objection was made, that the evidenoe introduced or attempted to be introduced was illegal, on the ground, that it is an attempt to prove that the allegations of the supplemental answer changes ths issue of the original answer, and to the filing of whioh plaintiff has always objected. And, on the further ground that, the allegations of ths supplemental answer are too vagus and indefinate to admit of proof, not putting plaintiff upon his guard as to whom the alleged contract was entered into in favor of. - The Court overrruled the objections^ It was then agreed that objections of the same kind should apply to all evidenoe of the same character without the neoeseity of repetition.

The defendant, Dr. Speara, testifled;-

" Q- Wjien wa3 the last settlement you had witn Bruno Mitchell? -A- I think the la3t settlement we made was in 1915 or 1914. It was for an amount over one hundred dollars which is on the receipt which I gave him, which was in payment of professional services. In 1916, with a written agreement for some money I paid to Mr. Prescott amounting to $97.38. for things, and some other money which they had borrowed from me at different times".

He also testified, that Bruno Mitchell was present in all these transactions.

Next came various receipts and documents claimed to he due Dr. Spears by Mitchell, itemized, and particularly one, which was claimed to be a settlement in full between the parties, and signed by plaintiff's wife, Josephine Mitchell; the handwriting of the document being that of Dr. Spears. On this evidence, pro and con, the oase was submitted to the Court for adjudication.

The reasons assigned by the Judge a quo are found in the record. He maintains the plea of payment, dismisses plaintiff's suit, but without any damages, at plaintiff's cost.

The plea of payment necessarily commands the party making it to prove without a reasonable doubt that payment was made in manner setforth_. and it requires under the code and under the decisions, that that plea in order td be effective must be itemized, and when itemized proved and there must be no doubt about it, otherwise it will not hold. It has "been held;-

" The plea of payment, novation, or compensation I admit the existance of the debt whose continuante will be presumed; and plaintiff will have judgment unless defendant makes good his plea". 3 N. 8. 373. 13. La. 397. 14 La. 372. 18 La. 6. 14 Ann. 54.

In the oase of Terry vs. Heisen, et. als. 115 La. 1071-78.- "Where the dooterine announced has been maintained and numerous authorities in that case quoted to the effect as herein above stated by us.

In Segur -vs- Burguires, Executors,- 111 La. 1086, the Court goes on to say; " In any event, the law requires something more cogent to prove the payment of money than the mere probability, and as we find something less than that in this record, we conclude that the payment set up by the defendant has not been established".

On both sides of this controversy numerous authorities have been submitted which v/e have carefully examined. Whilst some of them are in point others are not and have no application whatsoever. We think that we have demonstrated, from our own view point, the authorities applicable, and which in our opinion control.

It is very singular that the defendant in suit and plaintiff in reconvention, when first filing his answer, claiming damages of all kinds and character, actual and punative, had not thought of alleging the fact of payment one way o.r the other, and we seriously doubt, whether under the allegations of the answei proof should have been admitted at all, but we have considered it nevertheless and have determined the while case, not^upon the law but upon tne evidence, and we find, that in our opinion there has been no payment of whatever kind or character made, except those prior and whioh have no bearing whatsoever on the payments claimed to have been made and settlement had from 1916 until this suit was tried.

For the reasons herein assigned, it is, ordered, adjudged and decreed that the judgment of the lower Court ’oe annulled,reversed and set aside, and, that there he judgment in favor of plaintiff, Bruno Mitchell and against defendant, Dr. James R. Spears, in the full sum of §196.00., with legal interest from judicial demand, with costs of hoth Courts and with lessors lein on the property provisionally seized.

-Judgment Reversed-


author: r lnkalsoiel., J.

text:
    Maison Blanche Company- -vs- Louisville & Nashville R. R. Co.
    No. 7880.
    -Court of Appeal. - Parish of Orleans.
    Dinkelspiel. J.
   r lnkalsoiel., J.

°laintiff in this case substantially plaice of 4s -defendant tne sum of ':413.60., with legal interest from judicial demand, alleging, that on or about September, 9th. 1S16, there was shipped from Mew lYork to plaintiff two certain cases of petticoats, securely and properly packed, marked, and consigned for delivery to plaintiff in the City of Hew Orleans. That said shipment was in good condition, duly delivered to and receipted for by the Ocean Pteamship Co. at Hew York City, for trans-shipment to New Orleans ’ey defendant oompany, and was delivered to the Company and was by it oarried to Hew Orleans. That upon the arrival of said shipment at New Orleans, defendant company issued it’s freight bills from point of origin to destination and collected from plaintiff the full amount of said freight charges, and, that about September 13th. lip.6, upon inspection by plaintiff of said petticoats/ they found same damaged, a part thereof ruined by water while in transit and immeadiately notified defendant company, who examined said shipment; checked same with plaintiff, agreed to the damage and injury thereto and assumed liability therefor, and that following September 33rd. 1916, defendant in keeping with said admission of liability, authorized plaintiff to turn over to defendant's agent, for disposition for defendant's account, the said shipment, which plaintiff accordingly did, and that said defendant through it's said agent took poeeession and control of said goods and removed tnem from plaintiff's premises and custody, and plaintiff was informed that the goods constituting said shipment were sold *y said agent to one Pascuala, an Auctioner, and the latter has, as instructed 'ay defendant, rendered his account of sales tc defendant.

Plaintiff .further avers, that the shipment consisted of petticoats of a total invoice value of $1.547.18; that 171 petticoats were damaged to the extent of £306.33, nett, and 53 of the petticoats were of cue value of ¡fálü.o?, wnicn were entirely ruined, and that the damaged to said shipment amounts to 5418.60.; that said injury, 1033 and damage occurred to said goods while in the care, custody and control of the defendant company, and that said loss, injury and damage vías entirely due to the negligent acts and ommission3 of said dsfandant, in violation of it’s duty to plaintiff and in violation df the duties imposed upon it by law.

Plaintiff further avers, that in any event defendant company hae assumed, adrr.itted and aoknow -ledged liability as herein above set forth, and further, that defendant by it!s actions has is estopped from denying or shifting liability in the premises and avering amicable demand áks for judgment as herein stated.

In it’s answer, defendant admits trial ix is a corporation and a common carrier carrying freight, carrying on an interstate business as such, doing business in the City of New Orleans, but denies tnat it is indebted unto plaintiff in the sum named or anyother sum.

Denies that the shipment was in good condition or properly delivered, when delivered to and reoei--ted for by the 0o3an Steamship Company at Hew York City, and avers that it was the last connecting carrier and that it did transport the said shipment over a portion of it's route, from Montgomery, Alabar. to destination, but beyond that denies all the other allegations of the petition.

Further answering, defendant admits that said shipment was delivered to it at Montgomery, Alabama, and by it transported to Hew Orleans, and if the words, "duly delivered", used is meant that said shipment was delivered to defendant in good condition, then denies that such shipment was delivered to is in good condition.

Further answering, admits, that in so far as defendant collecting freight in excsss of its proportion of the amount earne.d on the entire trip, then it .was acting for the benefit of its prior connecting carriers as is always customary in suoh matters.

Defendant denies the allegations in paragraph 16, of the petition and asserts, that on or about the date stated the shipment arried in this City, was delivered to plaintiff, was taken by plaintiff to its establishment and when opened certain damage was found to exist. Defendant aad already discovered the existance of some damage, as will be shown, advised plaintiff of the exietance thereof when delivery was made. As to the nature and amount of the damage defendant calls for strict proof, aid particularly denies that said damage occurred in transit on defendants line or while in defendant’s possession.

naifiÉf«»ditóHíáií!l¡isd43Mifc«j5lai!»*i££xi»w*Rd4»í83:X

Defendant admits that plaintiff immeadiately notified it, of the d.amage and with' it through a reppeeeiti&tiee examined said shipment, checked the damage with plaintiff.

Defendant shows, that this examination and checking was done in order to protect defendant aad or it's connecting carrier# in the event liability for the said damage should be found to rest with anyother of the d&vÚJU carriers; and ndmtts further, that it agreed to the amount of damage or injury determined by plaintiff and denies most emphatically that it assumed liability therefor or that liability on it's part existed.

Defendant further answering, denies that it ever made any admission of liabilty in the premises; denies that it authorized plaintiff to turn the damaged goods over to defendant for defendants acoount or otherwise, or the goods» was so turned over to defendant, asserting that by mutual agreement, but without any admission of liability on the part of defendant, certain of the goods were by plaintiff turned over to Mr. J^imuels, Auctioneer, for disposition for account of whom it may concern, except to the extent herein above set forth, otherwise allegation denied.

Answering further, paragraph 9, defendant admits, that oertain of the goods constituting the shipment was sold by Samuels, Auctioneer,and that said Samuels, has rendered acoount sales to defendant, and defendant denies that said Samuels was it's agent in the matter or that it instructed him what action to take.

Answering further, on information and belief, avers, that said Samuels rendered acoount sales to the plaintiff as well, the goods having been delivered to Samuels by plaintiff under the circumstances outlined in defendants answer, and defendant shows that said Samuels still retains the prooeeds of the sale of said goods.

Answering paragraph 11, defendant denies the allegati ons contained therein; shows that it delivered the shipment to consignee, at Hew Orleans, in the same condition in which it received it at Montgomery, Ala.

Answering paragraph 13, defendant denies that any loss, injury or damage, which the said goods may have sustains ed was due to the negligent acts or ommissions of the defendant; denies that defendant either did or failed to do anything in violation of it's duty to plaintiff or any violation of the duties imposed upon it hy law.

Answering paragraph 13, defendant denies that it ever assumed, admitted or acknowledged, any liability whatsoever in the premises, either as set forth in plaintiffs petition or otherwise; denies any liability on defendants part ever existed.

Answering paragraph 14, defendant denies the exista-noe of the actions set forth in plaintiffs petition or anyother action which oould in any wise be considered an admission of liability to any extent whatsoever; denies that suoh actions, even if they had existed would or oould constitute estoppal, or could or would prevent defendant from denying or shifting liability in the premises.

Defendant shows,that liability on it's part nevef existed, and that it would,impossible and illegal by such an admission to oreate liability, where liability did not in fact exist, as this would be oontroyry to the Interstate Commeroe Act of February, 4th. 1887.(34. Statutes at large, 3790 and,the various acts amendatory thirsdt thereof.

Answering paragraph 16, defendant shows, that it is herein sued as an Interstate carrier for an alleged damage to an Interstate shipment, and that the rights and liabilities in the premises are to ce determined 3slsly by ti.e provisions of tbs Interstate Commerce Act, ?»o above cited.

defendant further shews; that it is herein 3usd as the last connecting carrier participating in the transportation of the shipment from Hew York City to Savanah, Ga. by sea and from Havana», fa., -j rail, that as suoh it was and is only liable for damage caused by it and on it3 own line, that it handled the shipment in question only from Montgomery, Ala. to Hew Orleans, T,a., that during the time said shipment was in its possession it was carefully and properly handled, sustained no damage of any sort whatsoever; was delivered to consignee in asw Orleans in tne same condition in which it was received from its connection at Montgomery, Ala. j-that it received said shipment at Montgomery, in a sealed car whicn was not opened until it arrived at Mobile, Ala, that the appearance of the shipment indicated that it had sustained damage from water, which damage was, howeveg as above 3tated, not sustained while the shipment was in defendants possession, and was not caused or contributed to by defendant nor by anyone for whom defendant is or was responsible.

wherefore, defendant prays, that after due proceedings had, there be judgment in its favor, dismissing this suit, and for all costs and general relief.

The testimony of i'. E. Ramsey, I:. c-. neCx;inpau.5.‘ñ and J. Fi. Eavis, all residing in the City of ?'"obile, State of Alabama, ancl Joseph Martin and C. 3. Turnips-; eed, residing in the City of ’"ontgomery, State of Alabama, wa3 taken in this matter.

Mr. Ramsey, in answer to interrogatories propounded, to him says; that he is a freight Conductor of defendant company and that he handled the car in question from Mobile to New Orleans in Train 71, September 15th. 1916. The car came into his possession at 7.50 p. m. and on September, 15th. 1916, arrived at New Orleans at 5.08 in the morning. The car was sealed. Opened by him and all contents inspected him while it was in his custody.

In reply to the 13th. interrogatory he says, there was no possible ohanoe for its beooming damaged by being wet, while in my possession and under my control as the weather was clear during the entire trip. I handled this oar from Mobile to New Orleans in the same condition that it was received in Mobile and delivered it without exception.

J. S. Davis, says; that he is a Cooper of defendant in the freight department, and as such has to examine and fix up shipments. The oar in question was sealed. The car had been opened and he examined it and found it in a damaged condition, wet, throughout. The day was fair when the oar was unloaded.

H. S. Peokinpaugh, swears, that he is Chief Clerk of the Louisville & Nashville Railroad Freight Department; saw the shipment inspeoted and re-coopered by J. S. Davis, when handled from oar to transfer platform. Same arrived in Mobile September, 15th. 1‡16. Car being No. 3485, C. & I. & L. The car was proetected by seals; the seal was broken by Check Clerk, L. C. Krom, not then in the employ of defendant, but in the service of the U. S. Army in France, and the oar was entered by him, who disoovered a case of pettiooats packed in boxes needing re-ooopering. He called Mr. Davis who placed the package on the transfer platform to be examin -=d and re-cocperel. Ravis examined the petticoats i3-> opieoticn and found them to be damaged by water. The package 33emed to he wet for spmatime as the goods fit re wet throughout. It was a clear da£. The car showed no signs of having a leaking roof.

C. 10. Turrng.seed, testified, that he was employed by defendant company as engine foreman, and in the ^.onth of CcptOiiwor, 1213 was employed &y defendant company as Yard faster. On September, lath. 1216, at 7.10 a., m., the shipment in question came into possession cf defendant at its south and north yards in tne City of Montgomery, Ala., and was received in his custody. It came from the Central of Georgia Railroad Co.; was.sealed and was not opened while at Montgomery, and arrived in charge of a freight conductor employed by the Central of Georgia R» R. Co; the seals were not broker, while in Montgomery, and so far at he knew there was no opportunity for the contents cf said car to become damaged whilst at Montgomery, nor was there any chance of the contents of said car to become wet while in the yards of the company in rontggmery.

In addition to this there is filed by defendant the monthly metriological summary cf the weather reports which shows that it rained in *?ew York on September, 7th. 8th. and 9th; that it rained ixi> Qavanah on September, 13th’.- 13th. and 14th,- 1916.

The deposition of Turnipseed shews, that the shipment was received by defendant at Montgomery from tr.s Central of Georgia Railroad Co. in car C. I. L. 3435, at 7.10 a. m. on September, 14th.; that' tne car was sealed with Ocean Hteamship Company’s seals, vn.ioh were not broken at Montgomery; that there was no opportunity .for damage at Montgomery, and that the goods in question left Montgomery in the same oar, with seals unbroken. The weather was olear on September 15th. at Mobile, and it arrived at Sew Orleans at 5.08, a. m., September, 16th^. that the weather was olear during the entire trip, and therefor there was no possibility for the goods to become damaged or wet.

And in view of the further facr, that according to the weather report of the U. S. Weather Bureau, offered in evidence as Li & H. 11, it appears that no rain whatsoever fell in Hew Orleans from September 13th. to September 35th. before which latter date it is unquestionable that the goods had been delivered especially as the freight bill offered by plaintiff as Exhibit 3, is dated September,18th.

In behalf of plaintiff Mr. Reilly and Mr. M. R. Saal testified affirmatively to the damaged goods; the condition in whioh they were received and to the faot, substantially, that they were placed by defendant company in possession of Mr. Samuels, Auctioneer, that a portion of t«« petticoats were sold by the company at oost to its employees.

There was the testimony, by commission, of Samuel Quinn, Shipping Clerk, with Tm. Eppstem of Hew York, who were the vendors of the petticoats in question sold to plaintiff, and he says, that ae packed the petticoats in seperate card board boxes and they were placed in two large wooden boxes; ifct that he nailed the oase.s up and delivered to the Trucking Company, that they were in good condition, this was done on September, 8th., between 9 and 13 o'clock in the morning.

The testimony of Ackley Cannon, taken.under commission in Sew York-City, Manager of Smith Eros. Trucking Company, says, that he supervised tie *ki shipment of the two cases of petticoats from Epp-stein Sc Bros., of New York City to plaintiff in New Orleans during September, 1916; that he receiv -ed the shipment on either the 8th. or 9th. of Sep tember; that same was in good condition; that the oases were securely clasped,nailed and everything about the shipment was in first class order; he took these oases to the Ocean Steamship Co. Pier 35, North River, and put the oases on board the Steamship City of Montgomery. That this shipment was exposed to no rain nor had there seen any wetting on said oases by rain water or any water up to the time they left the Trucking House, and that the distanoe fo the Steamship Co. from the Trucking Rouse would require a journey of about ten min -utes, but does not knew whether it rained on the {lays on wvici. ne uad possession of Sue goods in question.

Joseph Martin, another witness in behalf of defendant, whose deposition was taken at Montgomery, Ala,, under commission, testified, subs tan -tially; that he was employed by defendant company as a Freight Conductor during the month of September, 1916. He handled C. I. & 1. oar 3435 from Montgomery to Mobile, and handled the oar in question from Montgomery to Mobile on the 14th. of September, 1916 in train 73, that the oar came into his possession at 3.30. p. m. on September, 14th. 1916; left his custody at 13.30. a. m. September, 15th. 1916 at Mobile; the oar was sealed when reoei ved by him. The oar was not opened or it3 contents inspected whilst in his custody, there was no rough or unusual handling whilst in his custody.’.

It las been established in this case tnat the goods in question were not damaged while on defendants line and that the damage existed when defendant received the good at liontgomery. The record ¿.¡roves through the weather reporta of the D. S. Weather Bureau, both at .Hew York and Havanah, the manner in which the goods may have been damaged, hence there being no liability on the part of defendant resulting from handling of the goode therefor no liability was created by any connection of defendant there after and no liability could in euoh a way be created.

Under former decisions of the highest Court in this "tate, and'prior to the Interstate Commerce Act, under certain contingencies the last carrier, damages occuring, was held responsible. 7 Court Appeal. 26. 4 Ann. 563. 24 Ann. 185; 31 Ann. 363 18 Ann. 9. 15 Ann. 438. 11 Ann. 324. 10 Ann.414.. 7 La. 233. C. C. 2751. 36 Ann. 186.

The last citation of authority is to be found in Southern Reporter, September, lita. 1930, paje,635, Henderson vs. Kansas City Southern Railway Co., " The common law rule that the delivering carrier of an interstate shipment shall be liable for injury to freight delivered in a damaged condition on proof merely that the goods were delivered to the initial carrier, another railraod in another ■’tate, in good condition, and without proof that the damage or injury occurred on the line of the delivering carrier, has been superceedsd by the Carmack A — S—UtuSn w,

In the body of the opinion of this same caes, hi the .Judges of the Court of A.ppsal asked for instruc -tions on the following question; Have ti-3 Peieral ’tatutes regulating interstats ooii.ii.eroo, known as the Carmack Amendment, sugerceeded ana abolished tío rule, ¡teretefore prevailing in Louisiana, and in eosJ of the oosion la.v States, ti.at a delivering carrier of an interstate shipment c..all be liable for injury to freight delivered in a damaged condition, upon proof merely ti.at tie goods were delivered to tie initial carrier, another railroad in another State, in good condition, without proof tk&t the injury or damage occurred on the line of tie delivering carrier?

This Court held, in the ease of Duval vs. Louisi Western P. R. Co. 135 Ann. 185., tnat the Carmack Amendment, imposing liability on an initial c-vriar for 103S of goods, or damage to freight, souring anywhere on the through route, did not abrogate the rule of evidence, that freight recei -ved in good order by the initial carrier is presumed to have beer, received in like good order by the succeeding carrier, or.d tnat a delivery of freight by the terminal carrier in admagsd ds.fc.gad condition raises a presumption that the damage occurred on the delivering carrier'3 line.

Since that decision -was rendered, however, tne Supreme "curt of the United ’’titea has ruled otherwise .

In the case of "nariston, Western Carolina Railway Co. —vs— Varnville Furniture Co. 237 U. S. 595., it was held; Ti.at "ongress had, by the Car-maok Amendment, so far taken over the subject of a carrier'3 liability f..r dar:.age t.- interstate shipment as to invalidate the provisions cf t.is South Carolina Civil Code, in so far as those provisions >.acl undertaken to subject a terminal carrier to a penality for failure to pay promptly a claim for damans to an interstate shipment, no matter wlisre the loss had occurred, and unless the carier proved that the damage did not occur while the goods were in its possession, or succeeded within the forty days allowed ’ey the statute, in shifting the loss, by giving notice as to when, where, and ay which carrier the property was CX mj unoiÚ lu, nvOi'iü^ carrier, used due deligence, out was unable to discover ire the damage occurred.

The Court goes on to aayiThe legislature of this Stats, in the latest statute fixing the liability of public carriers for freight received and not delivered, or for damage occurring to freight in transit, has recognized that the author -it/ of Congress, wit- regard to interstate shipment is paramount, and that, when Congress exercises its authority upon ti.s subject the States authority ceased.

tot Co. 40 of lSli, p. 1S6, amending ar.d reenacting section 1 of act 1S3 of ISOS, which, in turn, had amended and re-enacted section 1 of act S3 of 1SSS, imposing liability upon public carriers doing Vu3ins33 in this "tate, for failure ¿se del to deliver freight received by ti.em, or for damage occurring to freight in transit, expressly exempts from the operation of the law, freight received in sealed car3 from other routes outside cf ti.s ~tate...

Ti.s statute beyond conferring jurisdiction upon the Court at ti.e place of delivery of freight, is merely an embodiment of the cooucn law rule or presumption, inj the express reservat;on or exception, v;it: ^egara freight received in stxxid sealed oars from “the* roads outside of this State, is a plain implication or recognition that the common law rule cannot prevail over the acts of Congress with regard to interstate ahipameit&x ship-ment."

"The defendant in this case cannot be held liable, on a presumption of law, or without proof as a fact, that the damage occurred while the freight was in defendants possession*n

This last expression of the highest Court of this S&ite, together with authorities therein cited, settles this case beyond question.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court, be, and the same i3 hereby, set aside and annuled, and that there now be judgment in favor of defendant, plaintiff to pay costs of both Courts.

-Judgment Reversed- Judgment for Defendant.


author: By his Honor John St. Paul,

text:
    NO. 7881.
    S. DI CRISPINA VS C. BUCCOLA.
    STATE OF LOUISIANA. COURT OF APPEAL PARISH OF ORLEANS.
   OPXWION,

By his Honor John St. Paul,

Plaintiff seeks to raoover damages for a false arrest ,nd malicious prosecution. Defendant pleads probable oause and want of malice.

Por a case of this nature the testimony is singularly free from oonfliots, and establishes indisputably the following state of facts.

Defendant leased from the HO 0. land Co. two squares of ground on the Horth side of Polk Avenue, a projected street 60 feet wide, but not open for traffic and hence not distinguishable from the surrounding territory; defendant was to clear and cultivate the land.

When the premises were pointed out to defendant the lessor marked the limits of the leased premises by making with knife or chisel a cross-mark on a wooden curbing at Orleans St; whioh runs at right angles to Polk Avenue and forms the Bastera boundary of the leased property. This mark is said by defendant to have been placed at the South side of Polk Avenue and thus to have included the whole width of that street in the land pointed out by the lessor.

Some months afterwards plaintiff leased from the same company three squares of ground ####$ on the South side of Polk Avenue, the limits of which being pointed out to-him by the same mark on the curbing; but plaintiff claims that the mark was opposite a small ditch along (say) the middle of Polk Avenue.

At the time of trialof this case (some six years after the arrest) this mark seems to have become obliterate^ and the actual location thereof is not fixed by the testimony But, be that as it may, it is certain that defendant who had entered the land at least a year before plaintiff, had taken actual possession of the whole width of Polk Avenue, and thereon had cultivated and 'gathered one crop and planted another. Which possession is hhown conclusively by a written complaint made by plaintiff to the common landlord after the planting of the second crop) to wit, that defendant was trespassing on his (plaintiff's) land.

i'he landlord having taken no notice of this complaint, plaintiff then took the law into his own hands; and going into that part of the street whioh he claimed as his, he tore up the vegitables which defendant had planted and began carting them off; possibly however, without intent to appropriate them to his wwn use, but simply to clear off the land (as he claims).

Whereupon, whilst plaintiff was in the very act of tearing up -the vegetables, defendant (whether out of prudence or out of respect for law, is immaterial) instead of opposing force to force, sought out a police officer to arrest plaintiff, whom he then charged with petty larceny.

Of this charge plaintiff was acquitted; and of oourse, with the merits of that acquittal as a criminal judgment, we are in no way concerned. But when in consequence thereof plaintiff# seeks to recover damages, then it behooves us to look into all the circumstances thereof in order to determine, not whether plaintiff were technically guilty of the specific charge against him (on which alone he could be convivted), bu£ whether there was suoh seemingly unlawful conduct on his part as justified defendant in causing his arrest; in other words, whether there was probable cause for some criminal proceeding. Sperier vs Ott, 6 Orleans App 527.

In this case it is clear that defendant wásip if not guilty of larceny, at least trespassing and inviting a breach of the peace. Indead if one in actual possession of land, and having property thereon, may not protect his possession and property by causing the arrest forthwith of a person in the very act of invading the one and oarrying off the other, then vain indeed are our oivil laws and the law of nature must re-assert itself.

Juris Gentiuu^est; Ut vim atque injuriam propulsemus^.

Dig. I.I.Z.

But the law# of this state is not so toid and inane. "An arrest may at times and under the necessity of the case he made without warrant"'; for instance to prevent a crime, or a breach the peace; or suppress a disturbance, even on private premises.

O'Malley vs Whitaker, 118 La 906 State vs Stouderman, 6 An 286 State vs Guy, 46 An 1441 Stoehr vs Payne, 132 La 213.

Moreover, even though an arrest be not strictly t/C~ justifiable, want of mailce in procur#ing^ (evident in this case) is a complete defense.

In Girot vs Graham, 41 An 511, the circumstances were almost identical with those here presented. In a dispute over the location of a party fence plaintiff undertook to locate it on the land in dispute, gefendant caused his immediate arrest without a warrant and charges followed.

Plaintiff was acquitted, but defendant was held not liable in damages because there was no malice, as defendant believed "in good faith" that he had a right to appeal to the law in that form (See p. p/ 512-513). And the court held that it was a matter involving the public interest that partías should, he tnoouragad to resort to law rather than take into their own handB to redress their supposed wrongs.

December 20th, 1920.

We are of opinion that defendant was actuated by no malioe whatever when he caused plaintiff's arrest, and did so only to protect his property, therein using (as it seems to us) the only effective means of doing so short of actual violence towards plaintiff.

The Judgment appealed from is therefore reversed, and it is now ordered that plaintiff's demand he rejeoted at his oost in both oourts.

Hew Orleans La,


author: Dinkelsniel- J.

text:
    John H. Murphy- -vs- John Barton Payne- Director General of Railroads.
    No. 7882.
    Court of Appeal. Parish of Orleans.
    Dinkelsplel. J.
   Dinkelsniel- J.

Plaintiff sues defendant, Director General of Railroads, and as suoh Director General of the Southern Pacifio Railroad Company, a corporation engaged in the business of transporting passengers and freight by steamship and otherwise, with a branch office in the City of Hew Orleans, being justly and truly indebted unto plaintiff in the full sum of $885.50., from April 17th. 1918, until paid, and also for legal interest in the sum of $5.000.00., from April 17th. 1918, until paid, for this, to-wit;

That on or about April, 15th., 1918, plaintiff delivered to said Southern Pacific Company at Hew Orleans, for loading on the Steamship Momus, owned and operated by said oompany, for shipment to New York, seven boilers, four thereof being eaoh 84 x 30- 350 H. P., and three thereof being 96 x 33 - 350 H. P.

That persuant to arrangement between plaintiff and the said Southern Paoific Company, said boiler» were delivered by said plaintiff to said Company at it's switch, situated at Elysianfields Street and the river front, in the City of Hew Orleans, and upon the delivery of said boilers said company took exclusive charge thereof, including their loading on to said steamship.

That after said boilers were delivered to said oompany, as above set forth, it was unable to load same on to said steamship with it's own derrick because of the fact, as plaintiff is advised, that it's derrick boat was ordered laid up for repairs on the day said loading was to be done.

That thereupon said company suggested to plaintiff that it would arrange with one Henry Peters to load said boilers on to said steamship, and accordingly said Peters proceeded to said loading, under exclusive direction and control of said Southern Pacific Company.

That during the course of the loading of said boilers on to said steamship, one of them 96 x 33- 350 H. P., was allowed to drop into the hild of said steamship as the result of the negligence of said company, it's employees and agents,including said Peters, and as a result thereof the biller was damaged to such an extent that plaintiff was obliged to expend the sum of $835.50., tit put it in the same condition in which it was before it was damaged, as per itemized statement annexed thereto, as part of the petition; that the damage to said boiler above set forth occurred on or about April, 17th. 1918.

Plaintiff further claims that in addition^done to said boiler it was prevented from delivering same to the party to whom it was sold, the Brandeo Company of Compos, Brazils, and that he has been unable to procure booking for Brazil or to dispose of said boiler, therefore has been deprived of the use of the purchase price agreed upon, to-wit, $5.000.00., since the date when said boiler was damagaed, April, 17th. 1918 — plaintiff is therefor entitled to recober from defendant legal interest on the sum of $5.000.00., from April, 17th. 1918, until paid, in addition to the sum of $835.50.

Plaintiff further shows, that said Peter3 was selected by the said Southern Pacific Company, and all of his work in connection with the loading of said boilers on to the steamship was under the exclusive control of the said Southern Pacific Company.

Plaintiff further shows, that after delivering said boilers to said Company at it's Elysianfields Street switch, as above setforth, he had no further oontrol of any kind over sala Doliera, but, on the oontrary, their further disposition, including the loading on to the steamship was subject to the exclusive oontrol,and direction of said oompany, and said Direotor General, defendant, is liable for all damages and loss sustained by him as the result of the negligence of said Southern Paoiflo Company, it's agents and emplo -yeas, including the said Peters,

Plaintiff further shows, at the time of the dam age to said boiler, that defendant was Direotor General of Railroads, and as suoh Direotor General of said Southern Paoifio Company, and the acts of said oompany, it's officers, agents and employees, were the acts of said Direotor General and he is responsible therefor to plaintiff.

Alleging amicable demand without avail, plaintiff prays for judgment in the amounts heretofore set forth.

Defendant, Direotor General of Railroads, for answer to plaintiff's petition says; He denies, that at the time stated plaintiff delivered to said Southern Paoifio Company at New Orleans, for loading on the steamship Momus, for shipment to New York, seven boilers or any part thereof.

Admits, that the stemship Momus was at the the time in question owned'by the Southern paoifio Co., but avers that said vessel was not operated by that oompany but by respondent.

Forther answering, denies the allegations in the petition, but asserts, the truth is, that ordinar-defendant ily sixiktii loads heavy shipments, suoh as the one now in question, aboard steamships by means of a Southern Pacific Derrick Boat, hut this loading is not a part of the transportation aertlce, is not covered hy a transportation charge, is not provided for in defendants tariff as a duty off the carrier, hut as a duty of the shipper, defendant when requested and is able to do so performs this duty for a shipper for an agreed compensation. TIhen the loading of this shipment was to he done, defendants Derrick Boat which is used for such service was out of commission, and defendant was therefor unable to perform such service for plaintiff, and defendant on behalf of plaintiff arranged with one Henry Peters to do the loading for plaintiff with a Derrick Boat belonging to said Peters, the arrangement with Peters being made for plaintiffs account; that plaintiff acknowledged and oonsented, defendant acting in this connection merely as plaintiff's agent in attending to the matter.

Farther shows, that under this arrangement x agreed to by all the parties, Peters acting for plaintiff had exclusive charge of the loading of said shipment aboard ship, and that delivery to defendant was to be made only upon proper loading of the said shipment aboard ship.

Further answering, to Paragraph 4, defendant says, six of said boilers were delivered to defendant at the time stated, but, that the seventh boiler was never delivered; that it is true that the carrier was unable to load said with it's own Derrick Boat because, the said Derrick Boat was, at the time in question, laid up for repairs.

Further answering to Paragraph 5, defendant desles the allegations therein contained, and asserts that the facts with regard to the arrangements are fully and accurately stated in Paragraph 3.; that the loading was actually done under the exclusive direction and control of the said Peters, acting, as above shown, as the agent of plaintiff.

Defendant denies that he had any control or direction whatsoever over the said loading, and therefor says, that the loading was done wholly and entirely with a Derrick Boat, appliances, slings, machinery, etc., none of furnished by Peters, and that sii the appliances, slings, chains or machinery used in loading belonged to or was furnished by defendant.

Defendant further answering to Paragraph 6, admits that during the course of loading of said boilers on the said steamship, one of them was allowed to drop into the hold of said ship, and was to some extent damaged. As to the amount or the extent of the damage, defendant has not information sufficient to justify a belief, and for that reason denies that*that the damage was anything like that set up by plaintiff or as shown on the statement annexed to the petition.

Defendant admits, thao the accident in question occurred on April, 17th. 1918, but, demies that said accident was caused or contributed to by the negligence of defendant, or of anyone for whose actions it could or would be held reposible.

Defendant denies, particularly, that the said ■Peters was in any wise a representative'or employee of defendant, and defendant shows, that whatever the said Peters might have done or did, was as the agent and representative of plaintiff.

Defendant admits that it refused to pay this olaim, and shows* that .¿wi/V *• :• . * •sixsaejl. was predicated on the fact that said demand was wholly unfou -ned in law or in equity.

Defendant avers, in answer to paragraph 13, that plaintiff's claim for damages alleged to have been sustained through an accident to a boiler which being 1 loaded aboard ship by one Henry Peters, plaintiff contending that said Peters was acting as defendant’s agent, while defendant contends that said Peters was acting as plaintiff's agent.

Finally, defendant calls Henry Peters into warranty, so that, if a judgment should be rendered against him, that a like judgment be rendered against Henry Peters, and prays finally for dismissal of plaintiff's suit and for general relief.

An exception of no privity of contract was filed by Henry Peters, called in warranty. The exception was maintained by his Honor, the Judge af the lower Court.

On the trial of the merits of the case plaintiff substantially testified in accordance with the allegatie ons of his petition. He maintains in his testimony that he had never employed Peters; that he was under no obligation to do so, and his arrangement with defendant was simply to put the boilers on their own boat, with their own derrick, and that was a part of the eontraot.; in other words, he asserts and testifies that his contract was not to put them aboard atall, but to deliver them free along side steamer; that the contract was had with the defendants simply to get them aboard, and that defendant was to furnish it's own derrick boat to take them aboard from the cars, and that Captain Withey told when him that he hsd delivered these oars to the te-the switch on Elysian Fields Street, or whatever switch it was, that he, the Captain, would take care .of them from that point.

He was ashed this question;-

Q- Who was to pay the expenses of loading on the Steamship?

A- The expenses would be charged to me for the loading, I expect for the use of the Southern Pacific Dooh, for the Southern Pacific Derrick I mean.

Q- Howm, were they loaded on to the Steamship by the defendant?

A- About the time I expected they were being loaded on the steamer Captain W. L. Withey rang me up and told me that the boat had to go on the dock, their derrick boat, for repairs, and that he could get Henry Peters derriok if I would pay the bill, so I told him X would have to agree to pay the bill, but, there was no stipulated amount made, and he got Henry Peters to handle the boilers and load them with his derriok boat, and load them on the steamer. In the mean time Capt. Dhitey would hare to move the cars over to the dock, you know so the derriok boat oould reach them, and in doing this loading, why, they let one of the boilers drop.

Q- Did you have any conversation or arrangement with Mr. Peters yourself?

A- Hone whatever; X never saw Mr. Peters. I never got a bill from Mr. Peters. I did not see the loading of the boilers by Mr. Peters. I was not present when they were loaded.

By the Court; Then I don't see any objection to Mr. Murphy answering the question.

A-(By plaintiff)- I disoussed the matter with Capt.

TOthey afterwards on the dock, about the accident of dropping the boiler, and he told me the oiroumstances of it. I then went down to inspect the boiler.

Q- When did youx oontrol over these hollers cease?

A- When X delivered the oars to the switch of the Southern Pacific my oontrol oeased there."

He repaired the boiler that was dropped and the bills, a part of this record, presents the actual amount without any profit whatsoever.

On Cross Examination, he was asked;

Q- What have the defendants to do with the switch on Elysian Fields Street?

A- I don't know. That, is the orders I got, to deliver t the cars there; they gave me the orders to deliver the cars there and I did a so.

Q- You were to pay the expenses of loading these boilers from the wharf to the ship, were you not?

A- That is the usual custom, but I had no contract in this case to load them.

Q- And according to the usual oustom that is always in addition to the ordinary transportation charge?

A- Yes, it is generally in addition to the ordinary transportation charges.

Q- That is, of course, true, regardless of whether the defendant here would do the loading itself, or whether t the loading would be done by someone else?

A- Yes.

Q- Were you to pay Peters bill when he did the loading? A- Yes, Sir.

Q- You agreed to pay it?

A- Yes, Sir.

Q- In spite of the fact that they called ypu up and asked whether it would be satisfactory to have Peters to do the loading and Peters was to bill you?

A- He said that he could get Peters to do the loading provided I would pay his bill. X told him that was alright, I would pay the bill»"

That alosas the testimony for plaintiff. For defendant; Bayley It. Clarice was the Commercial Agent of the Southern Faoiflo Steamship line, at New Orleans, representing the Director General after the government took oontrol, and it was in this oonneotion that this witness had dealings with plaintiff. This witness being asked generally;

Qr- Now, tell us what you know about this partloular matter? - Substantially answered; * We made all arrange ments and gave the word to plaintiff to let the boilers oome down; they were to be switohed at Elysolan Fields Atreet, the If. L. & T. traoks, where the derriok would hoist them off the oars to hoist them on the ship and they then were to be switched to the foot of Elsycian Fields Street at the river front; there is where the vessel was located, that is St. Ann St. Q- Tell me what you did and what Mr. Murphy, said? A- Mr. Murphy was informed that the derriok was out of commission, and in order to load the boilers on to the Momus, it woftld be necessary to get Peters derriok, and Ahiwiwv we did not want to do anything without Pete«e,consent,-fr for the simple reason it would cost him, Murphy, more money. Mr. Murphy told me, in the presence of witnesses, in my offioe, to go ahead, get Mr. Peters derrick, and send him the bill for the charges; that he wanted to get these boilers to New York, as he had freight room engaged out of there, and he would have to pay dead freight; he said, he did'nt oare how the boilers got in the Momus; ' get them there'.

Q- What is the usual oourse of proceedure with regscd to the steamship company? Does it's transportation oover the loading of heavy articles into the vessel?

A- Yes, it is shown as derriok charges.

ft- Now, In your conversation and agreement with Mr.

Kurphy, for whom was Peters engaged?

A- For Mr. Murphy.

ft- To whom was Peters to send his bill?

A- To Murphy.

ft- Stats the fats with regcad to that from that conversation; not your understanding of it, but what the fact was?

A- To employ Pet .rs for account of Murphy.

George E. Bays, testified, that he was present at a conversation between Mr. Clarke and Mr. Murphy, which ooi>-versation took plaoe April, 15th. 1918, at Clarkes office, and he substantially says, that our derriok boat was out of commission and it would become necessary if the boilers were to be moved that somebody else do the work.

Capt. Withey asked Mr. Clarke to get in touoh with Mr. Murphy to let Murphy know the real situation whioh Mr. Clarke did. And then it was agreed between Clarke and Murphy that Peters derriok was to do the work and this was for the aooount of Murphy, and Mr. Murphy was to pay Peters bill.

James Swan, Asistant Stebedore, for defendant, operating southern Paoiflo under Cap. W&tley, substantially testified, that all the slings, appliances and derriok used in this transaction belonged to Peters; we had nothing, ft- State whether anything used was furnished by the defendant?

A- Nothing that I know of outside of Peters derriok, that is his wire slings and his purchases.

Capt. L. H. Withey, testified as follows;

ft- You are the Capt. Withey referred to by Mr. Clarke in his testimony just now?

A- Yes, Sir.

Q- You are the Port Captain of the defendant?

A- Yes, Sir.

Q- You were the Port Captain during 1918?

A- Yes, Sir.

Q- You are familiar with this transaction, are you not?

A- Yes, Sir.

Q- Did you state you would have Peters do the work?

A- Yes, Sir.

Q- Did you state for whom Peters wojild act in doing it?

A- Yes, Sir.

Q- For whom did you say?

A- Mr. Murphy.

Q- What did he say?

A- He said alright.

He goes on further, substantially, to sate, that in a conversation with Peters that Peters said that he was doing the work entirely for John H. Murphy, and was to bill Murphy for it.

<}- Will you state, whether or not, the arrangements you finally concluded with Peters were in line with the conversation you had with Mr. Murphy?

A- Yes; on the ship before the job started, I had it distinctly understood with Peters that he was to bill Mr. Murphy, and he was working for Mr. Murphy.

Or What control did you have over the loading of the boilers on to the ship?

A- Ho more than to instruct where it should be plaoed in the ship, and that I left to my Stevedore, Mr. Swan. Q- And that is the information that you transmitted to Mr. Murphy?

A- Yes; of oourse; that implies the fact that I was not doing the job. I had nothing to do with manipulating the derrick boat or handling the boilers.

Q- Let me ask you this, if after the S. P. derrick boat went out of commission, if you had wanted Peters to do the work for you, and not for Mr. Murphy, would it have been necessary for you to take up any question with Mr. Murphy?

A- No, Sir.

A careful reading of all the testimony in this record oonvinoes us beyond a reasonable doubt, that the employment of Mr. Peters was made know to plaintiff. That, he, plaintiff, agreed to the employment of Mr. Peters and agreed to pay Mr. Peters bill; agreed that Mr. Peters do the work in question at his, plaintiff's, responsibility, and, that therefore, when one of the boilers involved in this case was for a time put out of commission, had to be repaired and was repaired by Mr. Murphy, for which he claims $835.50., from defendant, that legally nor morally was defendant liable or responsible, and that plaintiff, and that he alone was the only party for whom the work was done and for whose account there can be no liability on the part of the defendant.

For the reasons herein assigned, it is ordered, adjudged and decreed, that the judgment of the lower Court, be and the same is hereby annulled, avoided and reversed, and that there now be judgment in favor of defendant with his costs in both Courts.

Judgment Reversed- Judgment for Defendant.


author: By hia Honor John St. Paul.

text:
    NO. 7887.
    SUCCESSION OF JOSEPHINE PORTER
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.

      October 1920.
   OPIHIOH.

By hia Honor John St. Paul.

This is an appeal hy alleged creditors of the deceased from a judgment denying their right to participate in the distribution of the estate. It is urged that they are "without interest

in the matter, as the funds are specially exempted from liability for debt by Act 88 of 1916;" said funds being the proceeds of life Insurance Polioies payable to the estate of the deceased and collected by the executor.

How it may (or may not) be that the provisions of Act 88 of 1916 apply to the funds which the executor proposes to distribute; but it is manifest that any creditor of the deceased has a right to have the question passed upon. And Binoe that issue was decided by the court below adversely to these appellants, it is equally manifest that a reversal of the judgment would inure to their benefit.

Hence it follows that appellants are not without interest in seeking the reversal of the judgment rendered below. Por an appellant may be said to have no interest in his appeal only when he could not benefit by any change in the judgment from which he apeeala.

She motion to dismiss is not well founded.

Motion Denied.

Hew Orleans la,