text:
    231 La. 1026
    COBURN SUPPLY COMPANY, Inc. v. JAMES E. CALDWELL COMPANY et al.
    No. 42768.
    Supreme Court of Louisiana.
    Jan. 21, 1957.
    Rehearing Denied Feb. 25, 1957.

      Albin P. Lassiter, Monroe, for appellees-appellants.
    Deutsch, Kerrigan & Stiles, Gerald J. Gallinghouse, New Orleans, Gold & Hall, Alexandria, Hayes, Harkey & Smith, Monroe, for appellee.
   HAWTHORNE, Justice.

This litigation arose out of a contract to build a public school building and is a con-cursus proceeding instituted under the provisions of R.S. 38:2243 by one of the claimants, Coburn Supply Company, for materials sold to D. L. Johnson, a subcontractor. All claimants were made parties to the suit. After trial the district judge rendered an in solido judgment in favor of James E. Caldwell Company, the contractor, against D. L. Johnson, subcontractor for all plumbing, heating, and ventilating, and the surety on Johnson’s bond, Houston Fire & Casualty Insurance Company, in the sum of $6,-854.58, and dismissed the claim of D. L. Johnson against the contractor, Caldwell Company, and Caldwell’s surety, Continental Casualty Company. There was also an in solido judgment of $1,811.50 in favor of Minneapolis-Honeywell Regulator Company, a claimant, against D. L. Johnson and his surety and Caldwell and its surety, and a judgment for the same amount in favor of Caldwell and its surety on their call in warranty against Johnson and his surety. There was likewise an in solido judgment rendered in favor of Roy Yerby, a claimant, against Johnson, his surety, and the surety of Caldwell in the sum of $2,292.-98, and a judgment for the same amount in favor of Continental Casualty Company on its call in warranty against Johnson and his surety. From this judgment a suspen-sive and devolutive appeal was taken by Johnson and his surety, Houston. A like appeal was also taken by Caldwell and its surety, Continental.

In brief filed in this court Caldwell and Continental state that they have no complaint with the judgment as rendered, stating that they took a suspensive and devolu-tive appeal, however, to preclude execution by Minneapolis-Honeywell and Yerby on those portions of the judgment in their favor.

Attorneys for appellants Johnson and Houston, also inform us in brief that after the rendition of the judgment appealed from Houston, surety for Johnson, paid the claims of Johnson’s job creditors, Yerby and Minneapolis-Honeywell Regulator Company, in accordance with the judgment of the trial court, and obtained a receipt and subrogation from these parties. Since this receipt and subrogation is not in the record filed in this court, we cannot render any judgment on a claim based on it. Consequently the only remaining issue on this appeal is the correctness of the judgment as between Johnson and his surety and Caldwell and its surety.

In this court appellant Johnson contends that there is a balance due him by Caldwell of $4,068.91 under his subcontract, and that he should have judgment for this amount against Caldwell and its surety. Caldwell denies that it owes Johnson any sum, but on the contrary claims that because of Johnson’s default in his subcontract it was necessary for Caldwell to incur certain costs and expenses, and that as a result of these costs and expenses Johnson and his surety are indebted to Caldwell in the sum of $6,207.82

James E. Caldwell Company, a partnership composed of James E. Caldwell and Summa Caldwell, entered into a contract in January, 1951, with the Ouachita Parish School Board for the erection of a school in West’ Monroe for $1,445,941.20, with Continental Casualty Company as Caldwell’s surety. The contract and the bond were recorded. Caldwell in turn subcontracted certain portions of the work to others, one of whom was D. L. Johnson, who subcontracted for all plumbing, heating, and ventilating for $222,222.22. Houston Fire & Casualty Insurance Company as surety for Johnson executed a bond in favor of Caldwell for the faithful performance of the work and payment of all claims.

A short time after the school board’s acceptance of the work as completed, Co-burn Supply Company, which had a claim for materials sold to Johnson, filed this concursus proceeding. At about this time the clerk of court’s certificate revealed that 10 liens had been filed and recorded against the work, seven of which were the liens of job creditors of Johnson. At this time the school board was holding a large amount of Caldwell’s contract funds, and Caldwell likewise was retaining some of Johnson’s subcontract funds. Upon Johnson’s refusal to pay the claims, as evidenced by the liens filed against him, Caldwell bonded these claims under the provisions of R.S. 9:4941, whereupon the school board released all the contract funds to Caldwell and the job claimants. All claimants were paid in full except those for or .against whom judgment was later rendered by the- district court, and of these both Yerby and Minneapolis-Honeywell were paid after judgment was rendered below, as we have already stated. The issue is thus left between Caldwell and its surety and Johnson and his surety.

At or about "the time this suit was instituted, according to a Caldwell-Johnson statement of account filed in evidence as Caldwell Exhibit “B” (Tr. p. 104), Johnson had received from Caldwell in cash and credits, out of the $222,222.22 of his subcontract price, the sum of $194,513.25, leaving $27,708.97 as Johnson’s interest in the job. After institution of this suit but before judgment, Caldwell paid from this sum retained by him to. seven of Johnson’s job creditors, who had filed liens on the work, the amount of their respective claims aggregating $24,575.07, leaving, according to this statement, to Johnson an interest in the job of only $3,133.90.

We have condensed this itemized statement as follows:

Contract Price .$222,222.22
Payments by Check to Johnson .$191,123.58
Back Charges — Materials, Labor, Etc., Charged to This Account:
Cost of Louvers ...$2,214.83
Womack — Painting 1,162.57
Refrigerator Work 245.00
To Cover Ducts Rooms 204-206.... 67.80
Miscellaneous .... 257.68
$3,947.88... $ 3,947.88
$195,071.46... $195,071.46
$ 27,150.76
Credits Due Johnson.$ 558.21
$ 27,708.97
Payments by Caldwell to Johnson's Creditors .$ 24,575.07
Balance on Contract Price Retained by Caldwell . $ 3,133.90

Johnson objects to the item for painting, but we find it to be covered by his subcontract. He failed to do this work, and Caldwell had it done at its own expense. This work consisted of giving a coat of aluminum paint to all pipe that was covered by ceilings throughout the entire job, and its cost was a proper back charge, proven by Caldwell.

Johnson also says that the back charges for refrigerator work, painting, and covering ducts in Rooms 204 — 206 were not proper as they violated Section 5(1) of his contract. The provision of the subcontract relied on states that no claim for services or materials furnished the subcontractor by the contractor shall be valid unless written notice of it is given by the contractor to the subcontractor during the first 10 days of the calendar month following that in which the claim originated.

We do not think that this provision of the subcontract has any application to the facts of the instant case. We are convinced from the ■ evidence adduced in this case that Johnson was in default of' his subcontract, and that he failed to comply with the plans and specifications in many instances. His work was defective in numerous matters, and he failed to perform certain parts of the work which he was supposed to perform under the subcontract —all in spite of repeated demands by Caldwell, both verbal and written, for him to perform his subcontract according to its terms and provisions. Moreover, Johnson failed to pay his job creditors, who filed liens on the work. He was bound by his subcontract to perform the work contracted under it according to the plans and specifications, just as Caldwell was bound in the principal contract. Upon his failure to do the work which he had engaged himself to do, it became necessary for Caldwell to do this work or have it done pursuant to its contract and to see that the cost was paid. In the performance bond given by Johnson with Houston as his surety in favor of Caldwell, Johnson bound himself to perform and complete the work according to the plans and specifications and to indemnify and save harmless the contractor against all expenses and charges arising from any act, omission, or neglect on Johnson’s part in relation to the work and to complete the work ready for occupancy and free of all liens or claims for labor, materials, etc.

Accordingly we find that the account set out in Caldwell Exhibit “B” correctly shows a balance of $3,133.90 retained by Caldwell as Johnson’s interest in the job.

After the rendition of the above account, ■ Caldwell contends that because of Johnson’s default it incurred additional costs both in completing the work called for by Johnson’s subcontract which Johnson had not done or had not finished and also in correcting defects in the work which Johnson had performed. Caldwell itemizes these additional costs as follows:

1. Cost of correcting and/or completing
work covered by Johnson’s contract:
(a) Fans, damper, range hoods, starters, and motor .$1765.64
(b) Pre-rinse assembly in cafeteria kitchen . 125.00
(c) Temperature pressure relief valve on hot water tank. 298.54
(d) Framed operating instructions for boiler . 100.00
2. Unpaid balance of F. W. Womack’s $1312.57 claim for painting. 150.00
3. Installation of manholes. 878.44
Total . $3315.62

At the inception we might say that Caldwell has proven to our satisfaction that because of Johnson’s default it actually incurred and paid the items covered in the .above statement designated as Items 1(a), 1(c), 2, and 3, totaling $3,090.62.

It is Johnson’s contention, that in particular one of these items, the installation of manholes, was not covered by his subcontract. There is no merit to this contention, as this was a part of the plumbing which he subcontracted to do. Moreover, upon his failure to do this work he was called upon by Caldwell on numerous occasions in writing to do it, and so far as we can ascertain, he never at any time made the contention that this work was not included in his subcontract.

Johnson’s other contention is that the rest of the items have not been proven or that the proof is not sufficient for them to be allowed. As we have pointed out, Caldwell has proven certain of these items with legal certainty. Items 1(b) and 1(d), however, the pre-rinse assembly in the cafeteria kitchen amounting to $125 and the framed operating instructions for boiler amounting to $100, have not been proven with legal certainty and will be disallowed.

Caldwell sets up an additional claim as Item 4 for costs, expenses, and charges which it says it is entitled to recover under the provision of the surety bond given hy Johnson with Houston as surety that ■“ * * * said D. L. Johnson * * * shall pay all other expenses lawfully chargeable to said Contractor and/or Owner by reason of any fault or neglect or default of said D. L. Johnson in the relation of said agreement and said work assumed by said Subcontractor * * (Italics ours.) These costs and expenses, which are itemized, include attorney’s fees, photostats, telephone tolls, premium for Johnson’s claim bond, etc., and total $5,845.46.

Included in this total is an item designated as 10 trips of Caldwell from Abbeville to Monroe and return at $25 each, totaling $250. We find no proof in the record sufficient to allow this item. In fact, the attorney who testified as to these expenses stated that he had no personal knowledge of this charge.

As to the other items, Johnson states that they are not due because he was not in default, and he makes no contention that they are not properly chargeable if he was in default. In other words, his sole defense to the claim for these charges is that he was not at fault. As we have said, the record fully establishes that Johnson was in default in his subcontract, and this fact being established, these charges, with the exception of the item of $250, will be approved, totaling $5595.46.

Item 5 of Caldwell’s statement of charges sets up additional expenses totaling $180.64 incurred and paid by it. These expenses have been proven to our satisfaction and will be allowed.

Caldwell is therefore entitled to recover on its claims the following:

On Items 1(a), 1(c), 2, and 3.$30<>0.62
On Item 4. 5595.46
On Item 5... 180.64
$8866.72

From the above total must be deducted $3,133.90, the balance of contract funds retained by Caldwell as Johnson’s interest in the job.

Caldwell is therefore entitled to judgment against Johnson and his surety in the sum of $5,732.82.

In the pleadings it is alleged and admitted that James E. Caldwell Company is a partnership composed of James E. Caldwell and Summa Caldwell. After the appeal was taken to this court, Summa Caldwell died, and there has been filed in this court a certified copy of a judgment of the Fifteenth Judicial District Court for Vermilion Parish appointing Mrs. Beulah C. Peets testamentary executrix of the estate of the deceased. Mrs. Peets, the executrix or legal representative of the deceased partner, and James E. Caldwell, the surviving partner, have on their motion been made parties to these proceedings.

For the reasons assigned the judgment appealed from in favor of James E. Caldwell Company against D. L. Johnson and Houston Fire & Casualty Insurance Company is amended by reducing the amount of the award from $6,854.58 to $5,732.82, and as thus amended the judgment is affirmed. All costs of this appeal are to be paid by James E. Caldwell Company.

      . Yerby obtained an order of appeal but never perfected it. Minneapolis-Honeywell did not appeal.

      . The judgment in this case in favor of Caldwell and its surety and against Johnson and Ms surety was in the amount of $3,854.58, or $640.76 more than the amount sought by Caldwell in the lower court and in brief filed in this court.

      . This hack charge is conceded to he correct.

      . There is no dispute as to the cost of the items included in this back charge. They are made up almost entirely of the cost of concrete foundations and are conceded to be properly back charged.


source: Caselaw Access Project

author: HAMITER, Justice.

license: Public Domain

text:
    231 La. 1039
    SUN OIL COMPANY v. KINDER CANAL COMPANY, Inc.
    No. 42738.
    Supreme Court of Louisiana.
    Feb. 25, 1957.
    Carmouche & Martin, Lake Charles, for defendant-appellant.
    Bernard N. Marcantel, Jennings, for defendants-appellees.
   HAMITER, Justice.

In this concursus proceeding, provoked by the Sun Oil Company for the purpose of determining to whom payment is due of oil royalties derived from a well drilled by it, there is at issue the ownership of a strip of land 188 feet in width, being 94 feet on either side of a line commencing 100 feet north of the Northwest corner of the Southeast quarter, Section 25, Township 6 South, Range 5 West, and thence in a direct line to a point 100 feet north of the Northwest corner of the Southeast quarter of the Southeast quarter, Section 25, Township & South, Range 5 West. The strip, a part of a 40 acre operating unit established by Sun; Oil Company, is located in Allen. Parish' and contains approximately 7.44 acres.

The ownership dispute is between the Kinder Canal Company (known hereinafter' as Kinder Canal), on the one hand, and' Adelphine Chachere (along with certain purchasers of royalty interests from her) and the heirs of her deceased husband' Nolle Chachere (all of whom are referred’, to hereinafter as the Chacheres), on the-other hand. The district court resolved it in favor of the Chacheres, and Kinder Canal is appealing.

The strip in contest lies wholly within the West Half of the East Half of Section 25 of the mentioned township and range. To this 160 acre tract (more or less, and except seven acres sold and not involved herein) the Chacheres have a chain of title running back through Charles C. Hill to a patent issued by the United States Government.

Kinder Canal’s claim to the fee ownership of the strip is based on a warranty-deed (in its chain) from the said Charles-C. Hill to O. E. Moore which was executed and recorded in 1899, approximately six years prior to the conveyance by Hill to the--ancestor in title'of the'Cfaacheres. • However, the original of such deed was destroyed in 1910 when the Calcasieu Parish Courthouse burned (the land at that time was in Calcasieu Parish, although it' is now in Allen Parish), and the only written evidence of it is an abstract “take off" made by an abstracting company. This “take off”, relied on by Kinder Canal, states (among other things), that the instrument was a warranty deed executed for a con.sideration of “$1.00 and Benefits”. Further, it sets forth a description of the strip, following which is the notation “Said strip to revert to vendor or his vendors whenever it shall cease to be used for canal purposes.”

It is contended by Kinder Canal that such “take off” is of a deed which evidenced a transfer of the fee title to the strip, subject to a resolutory condition. In opposition, the Chacheres maintain that the instrument thus abstracted conveyed only a servitude for the passage of water (for canal purposes), the present existence-of which they recognize.

An almost identical situation was presented in Hunter Company, Inc., v. Ulrich, 200 La. 536, 8 So.2d 531, 535, the decision in which is clearly decisive of this controversy. The deed in question therein, executed in . 1900 in favor of the Houston Canal Company, Ltd. and affecting certain strips of land, was destroyed in the same Calcasieu Parish Courthouse fire. The court concluded, as testified to by an ab-stractor, that: “ * * * it was impossible to say with any degree of certainty whether the instrument referred to in the particular excerpt or take off was an instrument conveying a fee or an instrument conveying merely a right of way * * Further, " * * * in view of the method used by the Title Company in those years, the instrument itself might have been a warranty deed conveying a right of way, or it might have been a warranty deed conveying a fee title * * * ” to the strips of land.

Because of that uncertainty the court ■took into \ consideration various circumstances in determining the question of fact presented, which was whether the destroyed instrument conveyed merely a right of way (a servitude) dr the fee. Among these were: the-amount stated as the consideration — “$10.00 and other valuable considerations”; the fact that a subsequent deed recited that the property was sold subject to “the rights of the Houston River Canal Company, Limited * * ■ * in and to” the .various strips in dispute, and it did not .except or reserve from the sale the strips .of land themselves; the fact that for many years after the execution of the destroyed .instrument the canal company was not assessed (and it paid no taxes) respecting any of the sections in which the particular ■strips were located, whereas the entire .property- (without-excepting those particular .strips) continued to be assessed to the vendor; and that “it was not necessary for the Houston River Canal -Company to acquire the strips of land in fee, since the acquisition of- a right of way thereon was all that was necessary for its purpose.” After considering those -circumstances the court held that the deed conveyed only a .right of way, or the use of the strips of land for canal purposes, not a fee title.

Considering the instant case in the light of the Hunter Company decision it is noticed that the consideration given for the conveyance in 1899 was “$1.00 and Benefits” ; that after the sale the same vendor (Charles C. Hill) sold the entire property without any exception or exclusion of the strip; that when O. E. Moore (who had obtained the contested deed from Hill) sold his entire canal system to the Calcasieu River Irrigation Company, he referred to and conveyed the strip in question as a “canal right of way”, while in the same deed he transferred in fee certain other described properties; and that it was unnecessary for Kinder Canal to acquire the -strip in fee since a right of way or servitude was sufficient for its canal operations.

Kinder Canal urges that the Hunter Company case is distinguishable in that here it was assessed with and it paid taxes on the strip for many years, and it performed numerous other acts indicative of a fee ownership. We do not find from the record that Kinder Canal was assessed with or paid taxes on the strip of land itself. As is correctly pointed out by the trial judge in his detailed and thorough written analysis of the evidence, the tax receipts from 1908 to and including 1946 (excepting 1922) contained nothing “to indicate that Kinder Canal paid taxes on property located in Section 25-6-5, for that section is not listed in any of those receipts. The majority of those tax receipts describe certain specific quarter sections in other sections and conclude with language generally to this effect — ‘canals, right of ways, pumping plant complete’ ”. It was not until 1947 that the canal company was assessed with anything in Section 25, the assessment then describing “a R/W 188 ft wide through * * * 25-6-5”. On the other hand, the assessment sheets picked at random show that the Chacheres and their ancestors in title have all the while been assessed with (and they have paid taxes on) the entire West Half of East Half of Section 25 (except the seven acres sold in later years and which is not involved in this litigation) in which the strip wholly lies.

Kinder Canal’s other acts allegedly performed and indicative of fee ownership of the canal strip were mortgaging it (along with the entire canal and pumping systems), granting a right of passage to a company for operating a dredge boat, permitting Gulf States Utilities Company to erect and maintain high lines and poles, building and maintaining a bridge and a drainage pipe, cutting trees and brush and performing patrolling operations, allowing fishing but prohibiting seining, using the water for irrigation of rice, executing a lease to Sun Oil Company to explore for minerals, planting trees, and always possessing as fee owners.

Conceding that all of the mentioned acts were performed as alleged, it appears that they, except for the last three,- were not inconsistent with the exercise of an existing servitude which the Chacheres have recognized. Furthermore, those acts were not necessarily prejudicial to the fee ownership claim urged by the Chacheres and others.

Of course, the execution of the mineral lease did indicate that Kinder Canal was asserting a fee title. But that did not occur until April, 1952, and then at the request of the Sun Oil Company and over the protests of the Chacheres. On the other hand in 1926, 1935 and 1951 W. J. Unkel, president and general manager of Kinder Canal, negotiated and obtained mineral leases executed by the Chacheres on the entire 160 acre tract (none excepted or excluded the strip in question), on each occasion he serving as a subscribing witness and making no claim on behalf of his company to fee ownership of the canal strip.

The planting of trees in the canal likewise belatedly occurred in 1952. Moreover, Kinder Canal did not always hold possession as fee owner. Rather, as the trial judge points out, “ * * * the Chacheres bought, mortgaged, fenced, paid taxes, leased, grazed cattle, and generally did every act of possession they could do on the disputed tract without interfering with Kinder Canal’s servitude.”

We agree, therefore, with the district judge that the fee ownership of the strip in question is in the Chacheres,. subject to the servitude in favor of Kinder Canal. Incidentally, pending this appeal Adelphin'e Chachere died, and her heirs have been made parties to the suit.

Counsel for Kinder Canal have cited, and they rely on, Askew v. Vicksburg, S. & P. Railway Company, 171 La. 947, 132 So. 510, Arkansas Improvement Company v. Kansas City Southern Railway Company, 189 La. 921, 181 So. 445, and Sun Oil Company v. Stout, La.App., 46 So.2d 151. But these decisions are not controlling here, for none, involves an abstractor’s deed “take off” such as that presently under consideration.

Pleas of. acquisitive prescription of ten and thirty years were filed in the district court on behalf of Kinder Canal. However, in oral argument here its counsel conceded that such pleas are without merit if we conclude (as we have concluded) ■that the contested deed conveyed merely a servitude.-

For the reasons assigned the judgment .appealed from is affirmed.


author: HAWTHORNE, Justice.

text:
    231 La. 1048
    STATE of Louisiana v. Cornelia NEAL.
    No. 43151.
    Supreme Court of Louisiana.
    Jan. 21, 1957.
    Rehearing ¿Denied Feb. 25, 1957.

      Sam J. D’Amico, Baton Rouge, Leon A. Picou, Jr.', St. Francisville, for defendant-appellant.
    Jack P. F. Gremillion, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Richard Kil-bourne, Dist. Atty., Clinton, for appellee.
   HAWTHORNE, Justice.

Defendant Cornelia Neal, a Negro woman, was charged with the crime of attempted murder, tried, convicted of attempted manslaughter, and sentenced to serve six years at hard labor in the state penitentiary. She has appealed. •

The first bill of exception upon which appellant relies for á reversal of the conviction was taken to a remark made by the district attorney in his opening statement to the jury to the effect that he would show that the accused was apprehended in California, where she had fled while out on bond pending trial. Defense counsel objected to this remark on the ground that such evidence was inadmissible because it would be prejudicial to the accused and amounted to evidence of another crime.

There is no merit in this bill. Evidence to show that the accused fled the jurisdiction after the commission of the crime is admissible to show consciousness' of guilt, and it is immaterial whether the flight occurs before formal charges are-filed, before arrest, after arrest and admission to bail, or after arrest and escape from: jail or from the custody of an officer. See State v. Wingfield, 34 La.Ann. 1200; Wharton’s Criminal Evidence, vol. 1, p. 414,, sec. 205 (12th Ed.1955); Marr’s Criminal! Jurisprudence of Louisiana, vol. II, pp. 866-867 (2d Ed.1923). Jumping bail is a crime denounced by Article 110.1 of the Criminal Code, and evidence of that offense is, as counsel state, evidence of another crime. Nevertheless, under the authorities cited above, evidence .of appellant’s flight from the jurisdiction after being charged with attempted murder and admitted to bail on that charge is admissible on her trial on that charge.

The next bill on which appellant, relies was taken to. the overruling of her motion to quash the indictment. The indictment names the defendant as “Cornelia-Neal, alias Cornelia Mack, alias Cornelia. Holland, .alias Cissy Holland”. It is appellant’s contention that by so naming her the State, in effect, introduced evidence of her bad character which was inadmissible-in the absence ,of any, evidence..adduced by-her of her good character. In the. motion to quash appellant alleges that her name is Cornelia Henley because some few months before the date of the , offense charged she married David Henley.

The trial judge in his per curiam 'informs us that in the framing of 'the indictment the aliases were used to designate the defendant by the names by Which she was known and nothing else — or, as wé take it, for the purpose .of identifying the -'accused. She signed her appearance bond by the name of Cornelia Neal, evidently making no contention at that time that her married name was Cornelia Henley.

Under the provisions of Article 241 of the Code of Criminal Procedure, “In any indictment it is sufficient for the purpose of identifying the accused to state his true name, to state the name, appellation or nickname by which he has been or is known, to state a fictitious name, or to describe him as a' person whose name is unknown or to describe him in any other manner. In stating the true name or the name by which the accused has been or is known or a fictitious name, it is sufficient to state a surname, a surname and one or more given name or names, or a surname and one or more abbreviations or initials of a given natne. or names. * * * ”

In this case there is no question of the identity of the accused as the person charged with the commission of the crime, and under this fact pursuant to the provisions of the above cited article of the Code of Criminal Procedure, if her true name was disclosed by the evidence, on motion of the accused it became the duty of the trial judge to insert her true name in the indictment, and the court could on its own motion have caused the true name of the accused to be inserted if her true name was disclosed by the evidence. Here, however, the accused does not seek by motion to have the name “Cornelia .Henley” inserted in the ‘ indictment and has filed no motion to this effect, but instead is seeking to have the indictment quashed.

We are of the view that under the circumstances surrounding this bill the accused is not entitled to have the indictment quashed or set aside, and since the trial judge informs us that the nanjes used in it were merely for the purpose of identifying the accused, we do. not think that the State by charging her as was done here introduced any evidence of her bad character, for, according to Black’s Law Dictionary (Deluxe Ed.1944), the term “alias dictus”, or its shorter and more usual form “alias”,' “ * * * when placed between two names in a pleading or other paper indicates that the same person is known by both those names * * *

Appellant next contends that the trial judge erred in overruling her motion for a new trial. In this motion appellant for the first time makes objection to an alleged remark of the district attorney in his closing argument to the jury to the effect that he and the sheriff of the parish were not going to stand for any Mississippi Negroes coming to Louisiana and terrorizing the community in these juke joints. It is appellant’s contention that this remark was an appeal to race prejudice and as such entitles her to a new trial.

Under Article 381 of the Code of Criminal Procedure, “Counsel may argue to the jury both the law and the evidence of the case, but must confine themselves to matters as to which evidence has been received, or of which judicial cognizance is taken, and to the law applicable to the evidence; and counsel shall refrain from any appeal to prejudice”.

The accused, as stated above, did not object to the remarks of the district attorney at the time they were made, and according to our law the objection and exception to the remarks must be taken when the remarks are made and not after conviction in a motion for a new trial. State v. Spurling, 115 La. 789, 40 So. 167; State v. Digilormo, 200 La. 895, 9 So.2d 221; State v. Wilson, 217 La. 470, 46 So.2d 738.

The Code of Criminal Procedure of this state provides that no error not patent on the face of the record can be availed of after verdict unless objection has been made at the time of the happening and unless at the time of the ruling on the objection a bill of exception shall have been reserved to such adverse ruling. The Code provides also that to avail as a ground for a new trjal any irregularity in the proceedings not patent on the face of the record must be objected to at the time of its occurrence and a bill of exception reserved to the adverse ruling of the court to such objection, and failure to reserve a bill at the time of the ruling operates as a waiver of the objection and as an acquiescence in the ruling. Arts. 502, 510.

Under the express provisions of these articles appellant has no cause for complaint. However, the serious question here is whether the remarks of the district attorney, if they are considered as an appeal to race prejudice, are so prejudicial as to entitle the accused to a new trial in spite of the provisions of these articles of our Code.

It is well settled that in general an appeal to race prejudice cannot be cured by a charge of the judge to disregard and is reversible error. The question then is whether appellant’s failure to object at the time the remarks were made operates as a waiver of her objection to them.

If the remarks made in this case are considered as an appeal to race prejudice, the accused by objecting would have been entitled under the jurisprudence to a mistrial. However, she elected not to make any objection to the remarks. In other words, she chose to remain silent and take the chance of a favorable verdict, and after an unfavorable verdict she urges the objectionable remarks as a ground for reversal for the first time in a motion for a new trial. This she cannot do, for by remaining silent she waived any objection she might have made to the prejudicial remarks. If this were not so, in all cases when such remarks are made, counsel for the defendant would not object, and in the event of an adverse verdict he then could obtain a new trial by making his first objection to the remarks on motion for a new trial.

In State v. Johnson, 127 La. 458, 53 So. 702, 703, the defendant was charged with the crime of assault with intent to kill. In closing argument to the jury the district attorney said: “‘Gentlemen of the jury, I do not ask you to convict the accused because he is a negro and the prosecutrix a white lady. I ask you to treat him as any other person being tried here, though I think that is a very good reason why he should be convicted.’ ” In affirming the conviction this court, with Justice Monroe-as its organ, said: “It does not appear that the trial judge was asked to take any action in the matter, or that any action was taken, or that any bill was taken to such nonaction * * *. We are of opinion that the remark was uncalled for and should have been omitted. We are also of opinion that counsel for defendant, if he attached serious importance to it, should have requested the trial judge to rule upon his objection and have incorporated the ruling in his bill. State v. Johnson & Butler, 48 La.Ann. [87] 89, 19 So. 213; State v. Johnson, 119 La. 130, 43 So. 981. * * * ”

That holding in the above cited case is controlling here.

The conviction and sentence are affirmed.'


author: WALTER D. HAMLIN, Judge ad hoc. JANVIER, Judge.

text:
    Albert D. COULON v. ANTHONY HAMLIN, Inc., Anthony W. Hamlin and Marquette Casualty Co.
    No. 20896.
    Court of Appeal of Louisiana. Orleans.
    Feb. 4, 1957.
    Rehearing Denied March 25, 1957.
    Writ of Certiorari Granted May 7, 1957.

      William M. Lucas, Jr., New Orleans, and George J. Ginsberg, Alexandria, for plaintiff-appellant.
    James J. Morrison, Morrison & Newell, New Orleans, for defendants-appellees.
   WALTER D. HAMLIN, Judge ad hoc.

On April 4, 1955, plaintiff, Albert D. Cou-lon, instituted this suit against defendants, Anthony Hamlin, Inc., Anthony W. Hamlin, and their insurer, Marquette Casualty Company, endeavoring to recover workmen’s compensation in the sum of $30 per week for a period of four hundred weeks, for injuries alleged to have been sustained by him while acting in the scope of his employment on April 8, 1954, almost one year before the filing of the original petition.

In his original petition plaintiff alleged that on or about April 8, 1954, while working as a painter on a steel structure in or near Avondale, Louisiana, in the Parish of Jefferson, he “was injured in the course of moving a large board which was being used to stand on to do the painting work, when his right hand became caught between one end of the board and a steel beam on which petitioner was sitting, with the result that petitioner suddenly jerked his hand backwards to remove it from between the board and the beam and in so doing his hand struck one of the steel columns of the steel structure on which the painting work was being done.” That as a result he suffered injuries to his right hand.

Defendants answered denying that the accident suffered by plaintiff was severe and disabling and averring that plaintiff received treatment therefor and continued at work until his injuries were completely healed and that he was discharged as cured on June 4, 1954.

On June 14, 1955, plaintiff filed a supplemental and amended petition in which he alleged that:

“ * * * while working as a painter on a steel structure in or near Avon-dale, Louisiana, in the Parish of Jefferson (he) was injured in the course of moving a large board which was being used to stand or sit on to do the painting work, the accident occurring in the following manner:
“Petitioner was sitting a-straddle a board resting on steel beams petitioner being at one end of the board and another painter at the opposite end; both men attempted to turn the board around a steel column and while doing so the board became overbalanced threatening to hit petitioner’s right hand and causing petitioner to draw his hand back in an effort to grab hold of a cross beam but instead his hand struck a steel column. Meanwhile the man at the opposite end of the board from petitioner released the end he was holding and the weight of the board which petitioner was holding to keep it from falling on other workers below tended to overbalance him from his straddle position and caused his entire weight together with the board to be supported only by his right wrist and arm which became caught in a V-joint brace of one of the steel columns.”

Plaintiff then asserted that as a result of this accident he also suffered injuries to his right arm and shoulder consisting of a stretch type injury to the lower portion of the right brachial plexus, resulting in a nerve route injury and manifesting itself in a limited use and function of the right hand and the entire right arm.

Defendants answered the supplemental and amended petition denying the allegations thereof, and alleging that the allegations of plaintiff’s original petition are in conflict with plaintiff’s amended petition.

From a judgment in favor of defendants, dismissing plaintiff’s suit, he has prosecuted this appeal.

Harry J. Coulon, the first witness for plaintiff, testified that he saw plaintiff jerk his hand back and hit the steel column. He says nothing about plaintiff’s wrist and arm being caught in a V-joint brace of one of the steel columns, as alleged by plaintiff in his supplemental and amended petition.

Albert D. Coulon, plaintiff, testified that, in grabbing at the brace he missed and his hand went beyond the brace and “kind of hung” in a fork and gave him a good hold; it gave him a “pretty hard jerk” because the board was heavy. He generally described the occurrence as alleged in his supplemental and amended petition. He also testified that he sustained a previous injury to the thumb of his right hand.

Drs. John D. Andrews, David A. Freedman, Irvin Cahen and John A. Colclough all testified that when plaintiff spoke to them he did not describe the occurrence as set forth in his supplemental and amended petition.

Arthur A. Carmody, a witness for the de-fpndant, testified that plaintiff told him his right hand was caught under a board and a steel beam and in pulling his hand out he hit it against another steel beam; that plaintiff made no. reference to being overbalanced.

Plaintiff called as his medical witnesses Drs. Raeburn C. Llewellyn, David A. Freedman, Thomas Lee Duncan and Irvin Cahen, all of whom, except Dr. Cahen, examined plaintiff after this suit was filed, and more than one year after the accident, Dr. Cahen being the first to examine plaintiff on March 29, 1955.

Defendants called Drs. John D. Andrews, Nathan H. Polmer and John A. Colclough.

There was a stipulation as to the testimony of Dr. George Berkett and Drs. All-dridge and Riordan.

None of the physicians produced by plaintiff testified with certainty that plaintiff’s physical condition is the result of the occurrence.

Dr. Llewellyn, when asked whether he could say that the type of occurrence could cause the condition that he found to exist in plaintiff’s arm, replied:

“I don’t feel that the injury or the appearance of the man’s hand now could be attributed to any specific type of injury, specific nerve injury, or specific bone injury.”

However, he testified that it could be.

Dr. Freedman testified as follows:—
“In my conclusion, the history I got was quite relevant. The reason why I am here is that Mr. Lucas later presented me with another history which was radically different from the one that I obtained from the patient and which made a radically different evaluation of what I found.
“That is the history I obtained, the letter I wrote to Mr. Lucas was on the basis of what I obtained, I could not see any possibility of a relation between the findings of this man'ánd this man’s complaint and the injury he described.
“He gave a radically different history and in response to a request of Mr. Lucas, what he obtained, I had to say this on the basis of this new history it was a possibility. I had to admit of a possibility, there was a possibility. I had to admit of a possibility that there was a connection.”

Generally, the testimony of Dr. Freedman was to the effect that on the basis of the history the plaintiff gave him, he could not explain plaintiff’s trouble.

Dr. Freedman testified further:

“I got a phone call from Mr, Lucas in October telling me about a re-examination of this man by Dr. Llewellyn in the course of which Dr. Llewellyn had elicited a new history.
“Mr. Lucas asked me whether I would be willing to see him again and also wrote to me along the same lines and I indicated that so far as my findings were concerned, I was satisfied. That it didn’t seem to me to be particularly relevant to examine the man again, but if there is a different history, all right.
“Then, maybe my opinion as to the relation to his symptoms and whatever happened may be different. That would be because on the basis of the history. If there would be a new history I would be willing to accept Dr. Llewellyn’s history as the valid one.
“On that basis, Mr. Lucas sent me a copy of Dr. Llewellyn’s report to him and a letter. I read the report and I had to conclude and I found the findings Dr. Llewellyn reported were not significantly different from the ones that I had elicited when I examined' Mr. Coulon and I returned a letter to him saying in effect that I reviewed Dr. Llewellyn’s report concerning Mr. Coulon and discussed the problem with Dr. Llewellyn.
“I am certainly prepared to accept the possibility in view of the history obtained that Mr. Coulon’s symptoms may be secondary to his accident. Whether it would serve any useful purpose to me to see the man again is another question. It wasn’t on the basis of any examination.”

Dr. Freedman also testified that there is a possibility that plaintiff has osteoarthritis of the spine; that there could have been other kinds of local injury; that plaintiff might have wrenched his neck in a minor automobile accident; that he could have stretched his muscles some place other than on the particular job he was performing on April 8, 1954; that plaintiff has a deformity of his right thumb, and that it is conceivable that deformity may account for his present condition.

Dr. Duncan testified:

“Q. The condition that you found, are you in a position to say that was the result of this history of the accident described in the history? A. I felt then and now that the condition I found him in at my initial examination and that my subsequent examination was more due to his favoring the extremity and not using it than to any definite injury he might have sustained at the time of his almost falling from the scaffold.”

Dr. Cahen testified:

“I examined the man from an orthopedic standpoint and in my examination I determined I could find no disability relative to his elbow area and whatever injury he may have had at the original time, I found no evidence to indicate residual.”

Dr. Cahen also stated that from an orthopedic standpoint he found no residual to the fracture of the bone or any residual disability relative to his fracture or to his hand. The only conclusion he reached on his second interpretation was to the effect that from an orthopedic standpoint he found no residual disability relative to plaintiff’s fracture or to his hand.

Dr. John D. Andrews, a witness for defendants, examined plaintiff on April 8, 1954, and treated him; he discharged plaintiff June 4, 1954, as being able to return to the work he performed at the time of the injury.

Dr. Nathan H. Polmer examined plaintiff on February 2 and 6, 1956. He made an electro-diagnostic test on plaintiff and plaintiff responded to the test.

Dr. John A. Colclough examined plaintiff February 1, 1956, and testified that he does not believe that the condition he found is referable to the accident described by plaintiff to him.

Considering the evidence as a whole, we are forced to conclude that it preponderates to the effect that plaintiff’s physical disability is not attributable to the occurrence which took place on April 8, 1954.

Since plaintiff was paid a gratuity by defendants, and not for any serious work performed, we believe that this is equivalent to his having received compensation between April 8, 1954 and the date of his discharge by Mr. Andrews on June 4, 1954.

The trial judge saw and heard the witnesses, and came to the conclusion that plaintiff was not entitled to recover; we do not believe that he committed error and his judgment should not be disturbed.

For the reasons assigned the judgment appealed from is affirmed at the cost of plaintiff.

Affirmed.

REGAN, J., absent, takes no part.

On Application for Rehearing

JANVIER, Judge.

In an application for rehearing counsel for plaintiffs, among other complaints at our opinion and' decree, suggest that we were manifestly in error in affirming the judgment appealed from at least insofar as it required plaintiff to pay costs and that we should have reversed the judgment to that extent since the suit was filed in forma pauperis under authority of Section 1 of Act 156 of 1912, as amended by Act 260 of 1918 and by Act 421 of 1938, now LSA-R.S. 13:4525.

It is true that in many decisions in this State, and particularly in the case of Causey v. Opelousas-St. Landry Securities Co., Inc., 192 La. 677, 188 So. 739, and in Hicks v. Royal Indemnity Company, 229 La. 536, 86 So.2d 183, decisions of our Supreme Court, it has been said that it is erroneous to tax costs against an unsuccessful plaintiff who has brought his suit under the “Pauper Act.” In fact, in many cases appellate courts first did what we have done in this case, that is, assessed costs against the unsuccessful plaintiff, and then, on application for rehearing, or spontaneously, said that they were in error in doing so. For instance, the Supreme Court, in the Causey case, having dismissed the suit of the plaintiff who appeared in forma pauperis and having taxed the costs against the plaintiff, on-considering an application for rehearing said [192 La. 677, 188 So. 739]:

“In our original decree we inadvertently cast plaintiff in costs. The record discloses that plaintiff instituted the suit in forma pauperis; hence the plaintiff should not be condemned to pay the costs. Our decree is accordingly amended by striking therefrom the requirement that plaintiff pay all costs.”

And very recently, in Hicks v. Royal Indemnity Company, supra, in which we had held that the unsuccessful pauper plaintiff should pay costs, 80 So.2d 553, the Supreme Court granted a writ of certiorari, and, finding no error in our opinion and decree except in that we had condemned the plaintiff to pay costs, said [229 La. 536, 86 So.2d 184]:

“We necessarily conclude that the Orleans Circuit Court of Appeal was in error, and we therefore amend the judgment rendered by it so as to relieve the plaintiff from the payment of costs.”

In Stringer v. Brown Paper Mill Co., Inc., 224 La. 964, 71 So.2d 343, 344, though the Supreme Court did not ultimately pass upon the question, it made the following statement:

“We granted certiorari primarily because it appeared that the Court of Appeal erred in awarding a judgment against plaintiff for all costs notwithstanding that he had sued in forma pauperis.”

In Williams v. Continental Life Insurance Co., La.App., 149 So. 150, 151, the Court said:

“ * * * This suit was filed under the statute (Act No. 156 of 1912, as amended by Act No. 260 of 1918), authorizing the filing and prosecution of suits in forma pauperis, and plaintiff therefore cannot be adjudged to pay the costs of court.”

In Seaux v. G. B. Zigler Co., La.App., 183 So. 564, 567, the Court noted “that the judgment imposes the costs on the plaintiff although it appears that under an order previously granted he had been permitted to prosecute his suit under the benefit of the pauper act,” and the Court said:

“To that extent, the judgment may be said to be in error, and it is therefore amended by eliminating .the costs with which the plaintiff was cast; * * ”

In Fryou v. T. Aucoin & Sons, La.App., 5 So.2d 193, 195, the Court found that:

“The judgment also erroneously taxed the plaintiff with one-half of the court costs as he had been granted an order to prosecute his suit in forma pauperis under the provisions of Act No. 156 of 1912, as amended by Act No. 260 of 1918, and he is prosecuting this appeal under the benefit of the same provisions of law.”

In Baker v. Travelers Insurance Co., La. App., 13 So.2d 758, 759, the Court held that the unsuccessful plaintiff should not have been cast for costs saying:

“We agree with the contention of plaintiff that our judgment should not have provided for the payment of costs by plaintiff, for the reason that the suit is one in forma pauperis, but it is not necessary to grant a rehearing on this, as it is now hereby ordered that our judgment be amended by striking out that part which condemns plaintiff to pay costs.”

In Gordon v. Pittman, 61 So.2d 609, 613, the appellate court reversed a judgment which had been in favor of plaintiff and dismissed the suit at the cost of plaintiff. Then, on application for rehearing, the Court said :

“The plaintiff, in his application, has called to our attention the fact that this suit was filed ‘in forma pauperis’, and that we erroneously dismissed his suit at his cost. Our decree is amended by striking out the phrase ‘at his cost.’ ”

In Husser v. Butler, La.App., 71 So.2d 405, 408, we find the following statement:

“The plaintiffs having obtained an order after trial of the case to prosecute it in forma pauperis, as well as to prosecute the appeal in this court without the payment of costs, the judgment will be amended to relieve the plaintiffs of payment of costs in the case.”

In Cook v. Scarborough, La.App., 72 So. 2d 560, 562, the Court said:

“ * * * The suit having been filed and prosecuted in forma pauperis, no costs are-assessed.”

In Hicks v. Continental Casualty Company, La.App., 75 So.2d 522, 523 appears the following:

“ * * * Since plaintiff’s action was prosecuted in forma pauperis, it is proper that this inadvertent error should be corrected on appeal, and, accordingly, it is ordered that the judgment be amended by eliminating the judgment for costs, and, as amended the same is affirmed.”

In Hollinquest v. Illinois Central Railroad Company, La.App., 76 So.2d 568, 572, the Court, citing Causey v. Opelousas-St. Landry Securities Co., Inc., supra, said:

“The suit having been instituted, filed and prosecuted pursuant to LSA-R.S. 13:4525, relieving the plaintiffs from the payment of costs or furnishing security therefor, the judgment condemning them for costs will necessarily have to be set aside. Causey v. Opelousas-St. Landry Securities Co., Inc., 192 La. 677, 188 So. 739.”

See also Green v. A. C. Campbell Const. Co., La.App., 78 So.2d 54; Bigham v. Swift & Co., La.App., 81 So.2d 28; Wade v. Calcasieu Paper Co., La.App., 82 So. 2d 117; Hammer v. Lazarone, La.App., 87 So.2d 765; and Williams v. Travelers Insurance Co., La.App., 88 So.2d 727.

In spite of these many decisions and with all deference to the Supreme Court, we timidly suggest that unless we have completely overlooked some controlling decision to the contrary or some possible amendment to Section 4 of the Forma Pauperis Statute, Act 156 of 1912, as amended, LSA-R.S. 13:4528, there is no authority for holding that a plaintiff who is unsuccessful in a suit filed in forma pauperis must be relieved from liability for costs, which liability is usually placed upon the shoulders of the unsuccessful party.

Section 4 of the statute of 1912, which has not been amended by either of the two statutes which amended section 1, Act 260 of 1918 and Act 421 of 1938, reads as follows:

“If the litigant exercising the privilege granted by R.S. 13:4525 through 13 :4529 is cast, he shall be condemned to pay the costs incurred by him and the costs recoverable by the other parties to the action.”

We find that the Supreme Court itself fourteen years before its decision in the Causey case, in White v. Walker, 136 La. 464, 67 So. 332, 333, in considering the constitutionality vel non of the statute of 1912 referred to section 4, saying:

“ * * * The fourth section of the act provides that, if judgment be rendered against a litigant who has availed himself of the privilege granted by the act, he shall be condemned to pay the costs incurred by him and recoverable by the other parties to the suit.”

In Fulton Bag & Cotton Mills v. Fernandez, 165 So. 476, 477 we discussed the statute, No. 156 of 1912, and quoted what we had previously said in Singleton v. First National Life Ins. Co., 157 So. 620, as follows:

“It must be borne in mind that the statute does not entirely relieve the payment of costs, but only postpones payment until final determination of the cause. It is a moratorium. In White v. Walker, 136 La. 464, 67 So. 332, 333, the court said:
“ ‘This statute does not relieve a pauper citizen of this state of the obligation to pay costs. The fourth section of the act provides that, if judgment be rendered against a litigant who has availed himself of the privilege granted by the act, he shall be condemned to pay the costs incurred by him and recoverable by the other parties to the suit.
“ ‘Hence the statute only relieves pauper citizens of this state of the obligation of paying court costs in advance or as they accrue or furnishing bond and security for such costs..’ ”

Strangely enough the Supreme Court itself, in Jackson v. Hart, 192 La. 1068, 190 So. 220, 223, called attention to Section 4 of the statute of 1912 and stated that the act as a whole created an exception in favor of a pauper litigant to the usual rule requiring the payment of costs in that it permitted him to litigate without the prior or current payment of costs, but direct attention to the proviso “that should he be cast he shall be condemned for costs.”

We think it interesting to note that even section 1 of the statute, now LSA-R.S. 13:4525, does not permanently relieve the plaintiff in forma pauperis from liability for costs but merely provides that the plaintiff in forma pauperis may prosecute the action “without previous or current payment of costs.” (Emphasis ours.) This language, even without section 4, which is LSA-R.S. 13:4528, would make it doubtful that the Legislature intended to do more than temporarily relieve the pauper plaintiff from paying the costs, that is, previously or currently, and, by implication, would necessarily mean that at the termination of the case the unsuccessful party, even if a pauper plaintiff, might he required to pay costs.

But if the meaning of section 1 could be said to be ambiguous the ambiguity is entirely removed when we read ' section 4 which unequivocally provides that, if the pauper plaintiff is unsuccessful, he shall be condemned to pay the costs.

In 1 Louisiana Law Review, at page 795, in an article entitled “Civil Suits in Forma Pauperis”, the author, often quoting section 4 of the Act of 1912, says:

“In several cases the courts have inferred that the unsuccessful litigant in forma pauperis is liable for the costs. A literal reading of section 4 would seem to indicate that these decisions are correct.”

We repeat that the doctrine, that an unsuccessful plaintiff in forma pauperis may not be required to pay costs either in advance or ever, seems to be so well established that we hesitate to express the view that that doctrine is not well founded, and we repeat also that we experience tremendous timidity in suggesting that in all of those cases and particularly in the Causey case, Hicks v. Royal Indemnity Company, supra, and Stringer v. Brown Paper Mill Co., Inc., supra, section 4 of the act was overlooked. Nevertheless, we think that it has been overlooked and we feel that its application requires that such a plaintiff should be required to pay his own costs and the “costs recoverable by the other parties to the action.”

Our conclusion that heretofore Section 4 of the act of 1912 has been so often overlooked is largely based on the fact that in not one of the fourteen cited decisions of Courts of Appeal in which it was held that a pauper plaintiff could not be condemned for costs, was Section 4 even referred to, whereas in the four cases cited, White v. Walker, 136 La. 464, 67 So. 332, Singleton v. First National Life Insurance Co., La. App., 157 So. 620, Fulton Bag & Cotton Mills v. Fernandez, La.App., 165 So. 476, and Jackson v. Hart, 192 La. 1068, 190 So. 220, in which Section 4 was referred to, it was held that, as a result of that section, an unsuccessful pauper plaintiff must be condemned for costs.

Just how a successful defendant and others to whom costs may be due shall collect those costs from an unsuccessful “pauper” plaintiff is a problem which we are not required to solve. The author of the article just referred to in Louisiana Law Review recognizes this problem and says:

“Just what procedure is used to enforce this obligation on the part of the pauper and how long it would endure have never been discussed in a reported case.”

The rehearing applied for is refused.

Rehearing refused.


author: McBRIDE, Judge. PER CURIAM.

text:
    STATE of Louisiana ex rel. Dr. F. L. JOHNSON et al. v. The KEYSTONE LIFE INSURANCE COMPANY et al.
    No. 20796.
    Court of Appeal of Louisiana. Orleans.
    Feb. 18, 1957.
    Rehearing Denied March 25, 1957.
    Writ of Certiorari Denied May 7, 1957.

      Benjamin E. Smith and Rudolph R. Schoemann, New Orleans, for relators and appellants.
    John T. Charbonnet, New Orleans, of counsel, for Keystone Life Ins. Co.
    William J. Wegmann and Racivitch, Johnson, Wegmann & Mouledoux, New Orleans, of counsel, for U. W. Pryce, J. A. Phillips, M. D., and E. H. Stanley.
   McBRIDE, Judge.

This is a suit for mandamus and as a prelude to stating the case we mention certain pertinent facts.

The Keystone Life Insurance Company, a Louisiana corporation domiciled in New Orleans, is engaged in the business of industrial life insurance and has approximately eighty-seven stockholders. At the close of the fiscal years 1952 and 1954 substantial impairments to capital were required by the Secretary of State to be made good under authority of LSA-R.S. 22:77.

On April 9, 1955, certain of the shareholders by notarial act organized a ten-year voting trust which they styled “Keystone Shareholders Protective Association,” under which Dr. Leo S. Butler, Dr. W. R. Adams and C. L. Speaker were appointed trustees. This particular trust will be sometimes hereafter referred to as the “Keystone Trust” for the purpose of brevity.

On April 22, 1955, Dr. F. L. Johnson, who owned 140 shares of the capital stock of Keystone Life Insurance Company, as evidenced by stock certificate No. 312 which stood in his name, joined the Keystone Trust, but he continued to retain possession of his stock certificate and it does not appear there was ever any demand made upon him by the trustees for the delivery or surrender of the stock certificate. It is an odd circumstance that notwithstanding that the trustees of the Keystone Trust were never possessed of Johnson’s stock certificate, they issued to him Trust Certificate No. 57 in the Keystone Shareholders Protective Association for 140 shares of stock bearing the date April 22, 1955.

Through October 7, 1955, an apparent majority of the stockholders had subscribed to the Keystone Trust, but it is a conceded fact that a duplicate thereof had not, up to the date of the trial in the lower court, been filed in the registered office of the corporation. All that was ever filed in the corporate office was a photostatic copy of the agreement; this filing took place about ten minutes before noon on October 8, 1955, which was the date after which the corporate books were to be closed prior to the election of officers to be held ten days later by the corporation.

On August 23, 1955, certain other stockholders of Keystone Life Insurance Company, among whom were Ulric W. Pryce, Dr. Julius A. Phillips and Emmett H. Stanley (these three being, officers of the corporation) formed another voting trust for a term- of ten years, and for the purpose of identification we shall refer to it as “Trust No. 2.” Pryce, Phillips and Stanley were designated therein as trustees. On August 25, 1955, Pryce and Stanley went to Crowley, Louisiana, and called on Dr. Johnson importuning him to place in Trust No. 2 the voting rights to his 140 shares of stock in Keystone Life Insurance Company represented by the Certificate No. 312. Johnson ultimately saw fit to sign the agreement and two days afterward sent by mail his Certificate No. 312 for the 140 shares to the trustees of Trust No. 2. A certificate for 140 shares in Trust No. 2 was thereupon sent Johnson; this certificate bears the date August 23, 1955; Johnson exhibited it at the trial.

As would be the case, the 140 shares of stock of Keystone Life Insurance Company represented by Certificate No. 312 which stood in Johnson’s name constituted the balance of voting power in the corporation, and whichever of the two rival factions has control of the voting privileges of these shares will have undisputed control of the management of the corporation.

It goes without saying that because John■son cast his lot with each group and received voting trust certificates from both, this was certain to breed litigation which came in the form of the present mandamus suit.

The relators are Johnson, individually, and Butler, Adams and Speaker, “Trustees of a voting trust known as Keystone Shareholders Protective Association.” They allege:

“ * * * about August 25, 1955, respondents Emmett H. Stanley and Ulric W. Pryce, who had full knowledge of the existence of the Keystone Shareholders Protective Association and that Dr. F, L. Johnson was a member thereof, approached Dr. Johnson and conjoled, tricked, and/or coerced him into signing the new voting trust composed of themselves and Julius A. Phillips as trustees, despite Dr. Johnson’s protestations, assertations, and insistences that he had previously obligated himself by joining the Keystone Shareholders Protective' Association. In spite of this knowledge, respondent trustees obtained from Dr. Johnson Certificate No. 312 representing 140 shares of stock owned by relator Johnson in the Keystone Life Insurance Company.”

The petition for mandamus further alleges that Pryce and Phillips, President and Secretary of the corporation, respectively, were “previously put on notice” that Dr. Johnson • had subscribed to the Keystone Shareholders Protective Association and they were in bad faith in cancelling Certificate No. 312 and in issuing a new stock certificate containing said 140 shares to themselves and Emmett H. Stanley, as trustees of Trust No. 2. It is further averred that Trust No. 2 had no right to receive or retain Johnson’s 140 shares of stock.

Relators pray that the respondent-trustees, Pryce, Phillips and Stanley, be mandated to surrender Certificate No. 404 of the Keystone Life Insurance Company “properly endorsed” to Phillips as Secretary of the corporation for cancellation and compelling Pryce, President, and Phillips, Secretary, to issue a new certificate representing 140 shares of stock of the Keystone Life Insurance Company to the relator-trustees.

Johnson prays, in the alternative, that Pryce, Phillips and Stanley be commanded to surrender Certificate 404 of the Keystone Life Insurance Company, properly endorsed, to Phillips, 'as Secretary of the corporation, and that Pryce, President, and Phillips, Secretary, be compelled to issue a ’ new certificate representing 140 shares of the stock of the corporation to him.

The respondents interposed several exceptions which were overruled, and' then they made answer to the petition in which they specifically assert that the Keystone Trust does not “comply with the provisions of the Louisiana Statutes [Annotated] 12:-33.” The answer further sets forth:

“That by an instrument dated August 23, 1955, Dr. F. L. Johnson and other stockholders of the Keystone Life Insurance Company,.executed a voting, trust, complying with all the requirements of L.S.A. 12:33 and named your defendants, ,U. W. Pryce, J. A. Phillips, M. D., and E. H. Stanley, as Trustees and agreed to forthwith endorse, assign and deliver to said trustees' the certificates of the shares of stock owned by them in said company and to do all things necessary 'for the transfer of their said stock to said trustees on the books of said company, as . will more fully appear by reference to said voting trust,.a ■ copy of-which is annexed hereto and made a part hereof.”

Respondents then aver that after Johnson had signed Voting Trust No. 2, he made delivery of the certificate representing his 140 shares of stock to the trustees; that on or about September 9, 1955, a duplicate copy of Trust No. 2 was filed in the registered office of the Keystone Life Insurance Company; that Johnson’s Certificate No. 312 for 140 shares as well as the stock certificates of the other subscribers to Trust No. 2 were delivered to Keystone Life Insurance Company for cancellation, and on October 7, 1955, Certificate No. 404 for 2369 (the aggregate number of shares placed in trust) was issued in the names of respondent-trustees and delivered to them; that respondents at all times acted in good faith. Their prayer is that the demands of rela-tors be dismissed.

After a trial on the merits of the case, the trial court rendered judgment recalling the alternative writ of mandamus and dismissing the relators’ demands. They have appealed.

The first inquiry to be made is whether the trustees of the Keystone Shareholders Protective Association have any right or interest to assert the demands set forth in their petition for mandamus.

'Under the provisions of Art. 15, C.P.( an action can only be brought by one having a real and actual interest which he pursues, and the absence of a real and actual interest may be taken advantage of at any time during the trial of the suit. C.P. art. 346. In their answer the respondents make the special and specific plea that the Keystone Trust was never legally constituted.

The law of Louisiana concerning the creation of voting trusts and the powers vested in the trustees thereof is to be found in LSA-R.S. 12:33, the pertinent portions of which read as follows:

“A. Two or more shareholders of a corporation, pursuant to an agreement in writing, may transfer their shares to any person or corporation having authority to act as trustee, for the purpose of vesting in the transferee, as trustee, for a period not exceeding ten years and upon the terms and conditions stated in the agreement, all voting or other rights pertaining to such shares. This voting trust agreement may stipulate that the time of said agreement may be extended, under the same terms and conditions, for an additional period, not to exceed ten years from the date of expiration of the original agreement. * * *
“B. A duplicate copy of such agreement shall be filed in the registered office of the corporation and shall be open daily during business hours to the inspection of any shareholder or any depositor under said agreement, or the attorney of any shareholder or depositor.
“C. Whether or not the agreement so provides, every other shareholder may at any time transfer his shares to the same trustee or trustees upon the terms and conditions stated in said agreement, and thereupon shall be bound by, and shall have the benefits of all the provisions of said agreement.
“D. The certificates of shares transferred to a trustee shall be surrendered and cancelled, and ■ new certificates therefor issued to such person or corporation as trustee. In the new certificates it shall appear that they are issued pursuant to said agreement. In the entry of transfer on the books of the corporation it shall be noted that the transfer is made pursuant to said agreement.
“E. The trustee shall execute and deliver to the transferors voting trust certificates. Such voting trust certificates shall be transferable in the same manner and with the same effect as certificates of stock under the provisions of Part II of Chapter Six of this. Title.
“F. The trustee or trustees shall possess all voting and other rights pertaining to the shares so transferred and registered in his or their names, subject to the terms and conditions of, and for the period specified in said agreement.”

Paragraph B of LSA-R.S. 12:33, it will be noticed, provides that a duplicate copy of the agreement shall be filed in the registered office of the corporation for inspection by any shareholder or any depositor under said agreement or the attorney of any shareholder or depositor. It is clear that it was the legislative intent in making such requirement to give an opportunity to stockholders and depositors to inspect the document itself so as to ascertain the terms thereof and to verify the names of those stockholders who had become subscribers, and to subscribe thereto themselves, if they deemed it wise to do so, by affixing their signatures to the duplicate. In such case the right to view the actual signatures of the subscribing stockholders is of no little importance. We stated above that a duplicate copy of the agreement under which it is contended by the relator-trustees they have the right to hold Johnson’s stock was never filed in the registered office of the Keystone Life Insurance Company, but instead only a photostat of the agreement was placed of record with the corporation. This type of copy does not contain the signatures of the subscribers nor does it afford others the opportunity to sign, and our opinion is that it does not have the legal effect and validity of a duplicate and does not satisfy the requirements of LSA-R.S. 12:33.

The word “duplicate” ordinarily embodies primarily the idea of exact identity, being the same as an original and having all of the legal effect and validity of an original. Nickle v. Lewis, Iowa, 272 N.W. 525; Wright v. Michigan Cent. R. Co., 6 Cir., 130 F. 843, 846, 65 C.C.A. 327. In the case last mentioned the court said:

“ * * * The meaning of the word (duplicate) in legal phraseology is the same as that in its use among business men. It is tersely and correctly stated in 10 Am. & Eng. Encycl. of Law, 318, as follows: ‘“Duplicate” is defined as a document which is the same in all respects as some other instrument, from which it is indistinguishable in its essence and operation.’ And many authorities are there cited in confirmation. A substantially like definition is given of the word in all the law dictionaries in common use. In Burrill’s Dictionary, verbum ‘Duplicate,’ is given the following ample definition:
“ ‘A duplicate is sometimes defined to be a copy of a thing, but, though generally a copy, a duplicate differs from a mere copy, in having all the validity of an original. Nor, it seems, need it be an exact copy. Defined also to be the counterpart of an instrument; but in indentures there is a distinction between counterparts executed by the several parties, respectively, each party affixing his or her seal to only one counterpart, and duplicate originals, each executed by all the parties.’ ”

It was pointed out by Dale E. Bennett in 2 La.Law Rev. 597 that there has been considerable conflict, at least in the verbiage of the decided cases, concerning the validity of voting trust argeements and that some courts have held them void on the theory that participating shareholders breached their duty to other owners of stock by stripping themselves of the power to exercise their voting prerogative, but:

“ * * * The modern and better view is that such agreements are valid where the purpose is proper. * * *
“ * * * The requirements that the agreement among the shareholders (which is essential in a voting trust) shall be in writing and filed in the registered office of the corporation, must be strictly complied with if a valid trust is to be created. * * * ”

In one instance our Supreme Court held void and unenforceable a contract between certain stockholders and directors of a corporation in which they agreed that a person would be employed to manage the affairs of the corporation for three years by electing him President and retaining him in office for such term in view of provisions of the charter of the corporation which provided that the directors could not elect a president for a term longer than one year. Williams v. Fredericks, 187 La. 987, 175 So. 642.

In Davidson v. American Paper Mfg. Co., Inc., 188 La. 69, 175 So. 753, 763, 114 A.L.R. 1044, it was held that the admin-istratrix of a succession which owned stock in a corporation was, for two reasons, not precluded from voting the stock although the decedent had acquired the stock from a person who had previously signed a voting trust agreement:

“ * * * One reason is that the law relating'to voting trust agreements (Act No. 250 of 1928, § 33) was not complied with, and another reason is that subsequent to the date on which the parties signed that agreement they sold their stock and the transfers were made on the books of the corporation.”

While the printed report in Davidson v. American Paper Manufacturing Co., Inc., supra, does not mention the particulars in which the law pertaining to voting trusts had not been complied with, our examination of the record in the case shows, among other things, that a duplicate of such agreement was never filed in the registered office of the corporation.

In De Marco v. Paramount Ice Corp., Sup., 102 N.Y.S.2d 692, 696, the Supreme Court of New York wa§ concerned with the effect of a voting trust which had never been filed and reached the conclusion that the trust was inoperative until such time as the statute has been complied with by the filing- of the agreement. The Court said:

“As is to be noted, the statute is silent as to the time within which the voting trust is to be filed and does not provide for the legal effect of noncompliance. Though the opinion in Re Morse states that ‘No voting trust not within the terms of the statute is legal’, in my opinion, the failure to file merely means that the trust agreement is not invalid but merely inoperative to permit the trustees to exercise the voting-rights granted thereby until it is so filed. It may well be that after securing the signatures of 51% of the shareholders the trustees may desire to obtain additional signatures. It is not incumbent upon them immediately upon obtaining the signatures of the owners of 51% of the issued stock to file the agreement, nor is it requisite that the agreement be filed instanter after having secured the first signature. The non-filing does not render the agreement void ab initio. To hold otherwise would mean that in the interval between the execution by stockholders owning some of the shares pending solicitation of and participation by additional stockholdex-s an agreement would be rendered void and could not become validated and free from future attack, even though ultimately joined in by the majority or even all of the stockholders. Such a result would be incongruous and absurd. Where possible a statute will not be construed so as to lead to an incongruous or absurd situation, East v. Brooklyn Heights Railroad Co., 195 N.Y. 409, 88 N.E. 751, 23 L.R.A.,N.S., 513; Schmidt v. Wolf Contracting Co., 269 App.Div. 201, 55 N.Y.S.2d 162. Courts have the duty ‘to give effect to statutes as they are written and that we may not limit or extend the scope of the statute as written unless literal construction of the statute would produce a result which the Legislature plainly did not intend.’ Russo v. Valentine, 294 N.Y. 338, at page 342, 62 N.E.2d 221, at page 222.
“A reasonable construction of Section 50 requires a finding that it was the intention of the legislature that a voting trust will merely be inoperative until such time as the statute has been complied with by the filing of the agreement so that all stockholders are afforded an opportunity to transfer their stock to the same trustees. Nor does the statute require that all stockholders be afforded like opportunity to participate therein prior to its filing nor that the contents of the agreement be made known prior to that time.”

The inevitable conclusion must be that the Keystone Trust has no legal standing and, therefore, the relator-trustees have not the real and actual interest contemplated by C.P. art. 15 to institute and prosecute the present litigation.

This brings us to the individual prayer ■of Johnson made in the alternative that the respondent-trustees be commanded to surrender Certificate No. 404 of the Keystone Life Insurance Company, properly endorsed, to the Secretary of the corporation, and that Pryce, President, and Phillips, Secretary, be compelled to issue and deliver another certificate for 140 shares of stock to him. First, let us say that we do not think that it took any “cajoling, trickery and/or coercion” on the part of Pryce and Stanley to secure Johnson’s signature on Voting Trust No. 2, as it is apparent that the real reason why Johnson gave the voting rights of his stock to the trustees of Trust No. 2 was that he thought they would elect him a member of the Board of Directors of the corporation. He testified this assurance was given by Pryce and Stanley.

Johnson, as the record fully reflects, is an intelligent and educated man, and no one could seriously doubt that he well knew what he was about when he subscribed to Trust No. 2 and he must have understood well that he was then deserting Keystone Shareholders Protective Association. The promises of reward were evidently so appealing that he completely overlooked the moral obligation he, perhaps, was under to Butler, Adams, Speaker and their associates. But regardless of any such obligation he owed them, he still had possession of his stock certificate and the stock stood on the corporation’s books in his name and so far as it affected his interests, he could legally transfer the stock to a third person. Davidson v. American Paper Mfg. Co., Inc., supra. Fletcher’s Cyclopedia of Corporations, Vol. 5, Sec. 2092, page 413, sets forth this rule:

“The voting power passes from the stockholder depositing his stock to the trustee or trustees of the voting trust to whom the stock is transferred * *. If, however, the stock remained standing on the corporate books in the name of the depositing stockholder, he would have the right to vote the shares, notwithstanding a power of attorney or proxy of the trustee.”

Johnson contends that even though he made the surrender of his stock certificate to the trustees of Trust No. 2, there was, after all, no valid transfer because he has never endorsed the certificate. Counsel call our attention to the fact that Trust No. 2 provides that “the subscribers shall forthwith indorse in blank and assign and deliver to the trustees the certificate of the shares of stock owned by them,” and the argument follows that without Johnson’s endorsement the stock certificate could not have legally passed to the respondent-trustees. Johnson and the trustees had the unqualified right, if they chose, to waive the provision of the agreement calling for the endorsement of the stock and that upon Johnson’s delivery of his certificate he in effect waived such condition.

The Uniform Stock Transfer Act, LSA-R.S. 12:524, provides in part:

“A. Title to a certificate and to the shares represented thereby can be transferred only:
“(1) By delivery of the certificate indorsed either in blank or to a specified person by the person appearing by the certificate to be the owner of the shares represented thereby, or
“(2) By delivery of the certificate and a separate document containing a written assignment of the certificate or a power of attorney to sell, assign, or transfer the same or the shares represented thereby, signed by the person appearing by the certificate to be the owner of the shares represented thereby. Such assignment or power of attorney may be either in blank or to a specified person.”

We believe that the agreement establishing Trust No. 2 is sufficient in verbiage to constitute “a separate document containing a written assignment of the certificate” as contemplated by paragraph (2) in the above section, and that the passing of the certificate to the trustees, even though the certificate contained no endorsement, was a complete transfer by force of the law. The No. 2 Trust Agreement provides :

“3. The trustees shall hold the said shares of stock so transferred to them for the common benefit of the subscribers, under the terms and conditions hereinafter set forth.
“4. The trustees shall surrender to the proper officers of the said company for cancellation all certificates of stock which shall be assigned and delivered to them hereinbefore provided, and in their stead shall procure new certificates to be issued to them as trustees under this agreement.
“5. The trustees shall issue to each of the subscribers a trust certificate for the number of shares represented by the certificates of stock by him transferred to the trustees. Each such trust certificate shall state that it is issued under this agreement, and shall set forth the nature and proportional amount of the beneficial interest thereunder of the person to whom it is issued and shall be assignable after the manner of certificates of stock on books to be kept by the trustees. The trustees shall keep a list of the shares of stock transferred to them, and shall also keep a record of all trust certificates issued or transferred on their books, which record shall contain the names and addresses of the trust certificate holders and the number of shares represented by each such certificate. Such list and record shall be open at all reasonable times to the inspection of the trust certificate holders. Upon the transfer upon the books of the trustees of any trust certificate the transferee shall succeed to all the rights hereunder of the transferror.”

The facts show that the respondents, as they alleged in their answer, transferred all the certificates they received from the subscribing stockholders which aggregated 2,369 shares of stock, inclusive of Certificate No. 321 for the 140 shares standing in Johnson’s name, and that they delivered the same to the corporation which made cancellation thereof on the books and issued in-lieu thereof to the trustees of Trust No. 2 one certificate (No. 404) for 2,369 shares. This procedure was strictly in accordance with both the provisions of the trust agreement and the terms of the statute.

Even if it could be said that the respondents had not the right to have transferred on the books of the corporation the unen-dorsed certificate, then we believe that Johnson’s right to register objection would •be foreclosed by the unambiguous provisions of LSA-R.S. 12:532 which read:

“The delivery of a certificate by the person appearing by the certificate to be the owner thereof without the in-dorsement requisite for the transfer of the certificate and the shares rcpre-sented thereby, but with intent to transfer such certificate or shares shall impose an obligation, in the absence of an agreement to the contrary, upon the person so delivering, to complete the transfer by making the necessary in-dorsement. The transfer shall take effect as of the time when the indorsement is actually made.
“This obligation may be specifically enforced.”

The case was correctly decided below.

For the reasons assigned, the judgment appealed from is affirmed.

Affirmed.

On Application for Rehearing

PER CURIAM.

Appellants have applied for a rehearing on several grounds. One of their contentions is that we erred in holding that the photostatic copy of the Keystone. Voting Trust Agreement is not a duplicate copy within the meaning of LSA-R.S. 12:33, subd. B.

Appellants call our attention to LSA-R.S. 13:3733, Act 337 of 1952. This section of the Revised Statutes provides that business records are authorized to be reproduced by photographic, photostatic or miniature photographic process, and that any such copy or reproduction shall be deemed an original record for all purposes and shall be so treated in all courts or administrative agencies for the purpose of its admissibility in evidence.

We do not think that LSA-R.S. 13:3733 has any application in the instant case. We are dealing with a photostatic copy of a private contract, to-wit, the voting trust agreement, and we know of no law which authorizes the filing of a photostatic copy thereof in the office of the corporation in lieu of a duplicate. It seems to us that when LSA-R.S. 12:33, subd. B provides that a “duplicate copy of such agreement shall be filed in the registered office of the corporation,” the purpose of such provision was to allow any stockholder of the corporation to examine the voting trust agreement and to join the same by affixing his signature thereto if he so desired. He could not do this if only a photostatic copy of the agreement were filed in the corporate office. Even if we be in error in saying this, we cannot believe that LSA-R.S. 12:33, subd. B authorizes the filing of merely a photostatic copy of the signatures on the voting trust agreement. This would not afford a nonmember stockholder a sufficient opportunity to examine into the genuineness of the voting trust.

The application for a rehearing is denied.

Rehearing denied. ■


author: PER CURIAM.

text:
    Gladys M. BOWMAN and Lawrence F. Bowman, Appellants, v. S. S. JACOBS COMPANY, a Florida corporation, and Robert Law Weed, d/b/a Robert Law Weed Associates, Appellees.
    Supreme Court of Florida, Division B.
    March 13, 1957.
    Donald F. Frost, Miami, for appellants.
    Dixon, Dejarnette, Bradford & Williams and John J. Quinn, Miami, for appellees.
   PER CURIAM.

The order of dismissal entered in this cause is hereby affirmed with directions, however, that appellants be granted leave to amend to bring their case if they can within one of the exceptions to the general rule that where the work of an independent contractor has been completed, turned over to, and accepted by the owner, the contractor is not liable to third persons for damages.

Affirmed with directions.

TERRELL, C. J., and HOBSON, DREW and O’CONNELL, JJ., concur.


text:
    Rose BOTWINIK, Appellant, v. Simon BOTWINIK, Appellee.
    Supreme Court of Florida, Division B.
    March 13, 1957.
    L. J. Cushman, Miami, for appellant.
    Malvin Englander and Moie J. L. Tend-rich, Miami Beach, for appellee.
   PER CURIAM.

This cause came on to be heard on the motion of appellee to affirm the judgment appealed from pursuant to 31 F.S.A.Rule 38 of the rules of this court and it appearing to the court from an examination of the record that said motion is appropriate and seasonably made and that it is manifest that the questions raised on appeal are without substantial merit and need no further argument;

It is accordingly ordered, adjudged and decreed that the motion to affirm the judgment appealed from be, and the same is, hereby granted, and the judgment is

Affirmed on authority of Kearley v. Hunter, Fla., 16 So.2d 728, 152 A.L.R. 185.

TERRELL, C. J., and PIOBSON, DREW and O’CONNELL, JJ., concur.


text:
    Robert J. LEAS, a minor, by his next friend, Jean V. Leas, and John L. Leas, Appellants, v. Jack YOUNG and George Fricke, Appellees.
    Supreme Court of Florida, Division B.
    March 13, 1957.
    William T. Moore and Harold Biesemeier, Daytona Beach, for appellant.
    Hull, Landis, Graham & French, Daytona Beach, for appellees.
   PER CURIAM.

Affirmed. See Preger v. Gomory, Fla., 55 So.2d 541, and the case cited with approval therein, Powers v. Standard Oil Co., 98 N.J.L. 730, 119 A. 273; affirmed 98 N.J.L. 893, 121 A. 926.

TERRELL, C. J., and HOBSON, DREW and O’CONNELL, JJ., concur.


text:
    Cecil BARNARD, Appellant, v. Joe GERTLER and Frank Walton, Appellees.
    Supreme Court of Florida, Division B.
    March 15, 1957.
    Von Zamft & Kravitz, Miami, for appellant.
    J. Ben Watkins of Truett & Watkins, Tallahassee, and Roland W. Granat, Miami Beach, for appellee.
   PER CURIAM.

Affirmed. See Miami Roofing & Sheet Metal Co., Inc., v. Kindt, Fla., 48 So.2d 840.

TERRELL, C. J., and HOBSON, DREW and O’CONNELL, JJ., concur.