text:
    Collin CALCOTE v. CENTURY INDEMNITY COMPANY et al.
    No. 4340.
    Court of Appeal of Louisiana. First Circuit.
    Feb. 4, 1957.
    Rehearing Denied March 25, 1957.

      Gist, Murchinson & Gist, Alexandria, Kay & Kay, De Ridder, for appellant.
    Wood & Jackson, Leesville, for appel-lees.
   LOTTINGER, Judge.

This is a workmen’s compensation proceeding wherein the plaintiff seeks to recover benefits for total permanent disability. It is alleged that on or about the 22nd day of March, 1955, plaintiff was in the employ of Conroe Creosoting Company and Garney McMullin as a laborer, cutting and felling logs in the hazardous employment of these defendants, logging and lumbering, and while in the course of and scope of that employment, and performing services incidental thereto, he suffered accidental injuries to his left leg and knee, totally and permanently disabling him from doing work of any reasonable character. The further allegation is made that in furtherance of its trade and business, Conroe Creosoting Company engaged and contracted with Garney Mc-Mullin to log and fell piling, and to haul and deliver the same in trucks. In addition to making Conroe and McMullin parties defendant, the plaintiff also joined the other defendant, Century Indemnity Company, alleging it to be the compensation insurance carrier of Conroe.

The latter first filed an exception to jurisdiction, ratione personae, which was tried and overruled with written reasons assigned.

The defendant Century Indemnity Company filed exceptions of no cause and no right of action. The former was overruled and the latter referred to the merits.

Each of the three defendants filed a separate answer. That of McMullin is in the nature of a general denial, except that he admitted the plaintiff’s employment and rate of pay and the type of business in which he was engaged. The answer of Conroe denies, generally, the allegations of the petition. It sets up the defense that it is a Texas corporation, not engaged in business in Louisiana and that McMullin was not its independent contractor, but rather that the relationship of buyer and seller existed between them. It is specifically denied that the policy of insurance with Century covered operations anywhere other than in the State of Texas. Century’s answer is also in the form of a general denial and specifically pleads that it is not liable, its policy as written covering only Conroe’s operations in Texas.

At the close of taking testimony, Con-roe and Century filed a joint exception of no right of action based on the premise that the pleadings and evidence failed to disclose same as to these defendants. This exception was referred to the merits.

Following trial on the merits in the Court below judgment was rendered sustaining the exception of no right of action filed by Century Indemnity Company and rejecting the plaintiff’s demands as to it. The exception of no right of action filed by Conroe Creosoting Company was overruled and judgment rendered against it and Garney McMullin in solido as prayed for (less a credit of four weekly installments). The judgment as rendered against Conroe was in turn rendered in its favor and against McMullin, and the matter is now before us on appeals taken by both. An appeal was also taken by the plaintiff as to that part of the judgment rendered in favor of the Century Indemnity Company.

In this Court the plaintiff has filed a motion to dismiss the appeal taken by Conroe on the following grounds: .

“1
“That judgment on the merits of this cause was signed in the District Court on February 10, 1956, in favor of Plaintiff, Collin Calcóte, and against Defendant, Conroe Creosoting Company.
“2
“That an order of suspensive appeal was granted Conroe Creosoting Company, Defendant and Appellant herein, returnable to the Plonorable Court of Appeal, First Circuit, State of Louisiana, on or before April 9, 1956; the bond for the suspensive appeal being fixed in the sum provided by law.
“3
“That a suspensive appeal bond for Con-roe Creosoting Company was filed on February 17, 1956.
“4
“That the transcript in this cause was not filed in this Honorable Court of Appeal by the return date of April 9, 1956, or within three (3) days thereafter; and that no extension of time for the filing of said transcript was ever obtained.
“5
“That the appeal, sought to be taken by Conroe Creosoting Company herein, is conclusively presumed to be abandoned, and must be dismissed.”

Conroe’s answer to the above is as follows :

“1
“That the allegations of fact contained in paragraph 1 of the plaintiff-appellee’s motion are admitted.
“2
“That the allegations of fact contained in paragraph 2 of the plaintiff-appellee’s motion are admitted.
“3
“That the allegations of fact contained in paragraph 3 of the plaintiff-appellee’s motion are admitted.
“4
“That except as hereinafter modified and explained the allegations of fact contained in paragraph 4 of the plaintiff-appellee’s motion are denied.
“5
“That the allegations of fact contained in paragraph 5 of the plaintiff-appellee’s motion are denied.
“Further answer the motion of the plaintiff-appellee the defendant-appellant with respect shows:
“6
“That after the orders of appeal were granted herein and the bond filed as set forth in the plaintiff’s motion the attorney for the defendant-appellant, Conroe Creosoting Company, wrote to the Clerk of Court of the Thirtieth Judicial District Court on March 14, 1956, and again on March 16, 1956, calling his attention to this appeal and requesting certain information of him regarding the return date and costs in connection with the said appeal; that copies of the said letters to Mr. Jack Had-not, Clerk of Court, are annexed hereto and made a part hereof by reference.
“7
“That the Clerk of Court of the Thirtieth Judicial District Court did not answer either of the letters written by the attorney for defendant-appellant but on the other hand by way of a statement dated March 22, 1956, sent to the attorney for the defendant-appellant his bill for $8.00 covering the costs of preparing the Court of Appeal record and the filing fee in the Court of Appeal; that the said bill is annexed hereto and made a part hereof by reference.
“8
“That by check dated March 26, 1956 the attorney for the defendant-appellant paid the amount of the statement received from the Clerk of Court to the Clerk of Court of the Thirtieth Judicial District and the same was deposited by him on March 31, 1956; that a photostatic copy of the said check both back and front is annexed hereto and made a part hereof.
“9
“That the defendant-appellant was never at any time notified by the Clerk of Court that an extension of time would be required in order to prepare and file the transcript in this case but on the other hand the first notice which the defendant-appellant had of the delay in filing the matter was on or about May 2, 1956 when the attorney for the defendant-appellant received a letter from the Clerk of the Court of Appeal for the first circuit stating that the matter was received and filed for appeal on the date of April 16, 1956; that the said information by the Clerk of Court of Appeal was obtained after the attorney for the defendant-appellant wrote the said Clerk of Court on or about April 26, 1956, requesting information as to when the appeal was filed.
“10
“That since the failure to timely file the appeal was due in no manner to the negligence or lack of action or fault of the defendant-appellant in this case but on the other hand was due to the fault, negligence or dereliction of duty of the Clerk of Court of the Thirtieth Judicial District, an automatic extension of time for the filing of the appeal was obtained by the defendant-appellant without the necessity of any motion therefor.
“11
“That the appeal by Conroe Creosoting Company in this case was timely filed in accordance with the laws of the State of Louisiana and therefore plaintiff’s motion should be dismissed.
“Wherefore, defendant-appellant prays that after due hearing hereof the motion to dismiss the appeal be rejected at plaintiff-appellee’s costs.”

From the above and foregoing it is apparent that failure to timely lodge the appeal was due, not to the fault of the appellant, but rather the Clerk of the District Court, and, that being the case, we follow the rule laid down by us in Succession of Bickham, La.App., 197 So. 924, 925, which is as follows:

“Where the appellant secures an order of appeal, files his bond and deposits the necessary filing fee for the appeal with the clerk of the district court from which the appeal is taken, it then becomes the duty of the clerk of the district court to transmit the original record in the case, together with a part of the filing fee, to the clerk of court of appeal, and in the absence of some showing to the effect that a failure to file the transcript in time is due to some fault on the part of the appellant or his attorney, the appeal will not be dismissed for a failure of the clerk of the district court to file the transcript on or before the return day of the appeal.

“As there is nothing to show that the failure to file the transcript on the return date in this case was due to any fault of the appellant or his attorney, in accordance with the above rule, we must and do hereby overrule the motion to dismiss the appeal in this case.”

The above rule has been consistently applied by us and was used as late as November 18, 1954, in the case of Hotel Donaldson Co., Inc., v. Anderson Hotels of Louisiana, Inc., La.App., 75 So.2d 884.

We consider the question of liability of each defendant separately. The trial judge rendered written reasons for judgment, and, with respect to the liability of McMul-lin, made the following observations and conclusions:

“Plaintiff testified, without contradiction, that he is 45 years old, with an 8th grade education, and all of his adult life he has been a common laborer, mostly in the logging business. On March 22, 1955, and for sometime prior thereto, he had been employed by McMullin, cutting and hauling piling and poles (logs) at an average da^y rate of pay in excess of $8.00 per day; that on the date mentioned, while engaged in his employment, he accidentally slipped his foot under a limb and sprained his knee. He immediately told his co-worker of the occurrence and on the same day notified his direct -employer, McMullin. He continued work for seven days, when the pain became so intense he had to quit, and, acting on the instructions of McMullin, went to see Dr. Strecker at DeRidder, Louisiana. Dr. Strecker, after examining and treating him, sent him to see Dr. Hatchette at Lake Charles. Neither Dr. Strecker nor Dr. Hatchette testified in the case. Plaintiff further testified that he has been unable to work since he quit seven days after the accident and was sent to see Dr. Strecker.
“Dr. Reid of DeRidder testified, in plaintiff’s behalf, that he saw plaintiff on September 22, 1955, at which time he found a condition that could be the result of the tearing of the muscle or split in the sheath covering the muscle back of the knee, resulting in constant pain and producing a totally disabling condition that would grow constantly worse, unless relieved by surgical operation. No operation was shown to have been offered.
“The defendant, McMullin, was responsible for plaintiff going to see Dr. Strecker, who sent him to see Dr. Hatch-ette. Since the testimony of these doctors was not produced by defendant and the record is silent as to any reason for failure to produce it, the Court must assume that they would both have testified as did Dr. Reid. In view of Dr. Reid’s and plaintiff’s uncontradicted testimony, it must be held that plaintiff is totally permanently disabled at this time.
“There was no contradiction of plaintiff’s testimony as to the happening of the accident and only defendant Conroe, in brief, seems to seriously contend that the evidence is insufficient to justify a holding that one did happen. The Court is of the opinion that such contention is without merit. Plaintiff, prior to the date he says he was injured, so far as there is proof or even intimation in the record, was not suffering from the disabling condition Dr. Reid found and which was consistent with the happening as related by plaintiff. It often happens, because of the nature of the work of logging, there is no one present to see an accident to an employee, other than the employee, himself, but the cases are many where the happening of the accident is considered proved by the testimony of the injured employee, plus the circumstance that he had a disabling condition after the time he says he was injured, that he did not have before.
“Defendant, McMullin, seemed to contend, and tried to develop that fact by cross .examination of plaintiff, that plaintiff did not intend to sue him, McMullin. The Court gathered that McMullin and plaintiff are good friends and plaintiff appeared to be reluctant to admit, in McMullin’s presence, that he wanted a judgment against McMullin. However, under questioning by the Court, he finally admitted that he knew he was suing McMullin and did want a judgment against him.
“Insofar as the liability of McMullin is concerned, it cannot be doubted. In fact, no serious effort was made to dispute it.”

The defenses of Conroe appear to be as follows: (a) Lack of jurisdiction rationae personae, (b) that the relationship between it and McMullin was that of buyer and seller rather than principal and independent contractor, and (c) that its operations in Louisiana were not hazardous within the meaning of the compensation statute. These were disposed of by the trial judge as follows:

“Conroe operates a creosoting plant at Conroe, Texas. According to the testimony of its agent or employee, Vaughn, it does not, itself, cut the timber and haul it to its plant, but buys those products, either delivered at its plant, or loaded on railroad cars. Vaughn was sent by his employer,' in Conroe’s automobile to Louisiana, for the purpose of buying peeled piling and poles' which would be shipped by rail to its plant at Conroe, Texas, where the process of manufacturing would be completed by ‘treating’ them, that is, creosoting those products. Mr. Vaughn contracted Mr. Jack Anderson, a representative of Anderson-Post Hardwood Lumber Company, and made arrangements to buy from that Company about $24,000.00 worth of timber, paying $1,000.00 cash, to Anderson, at the time the deal was made with him, and thereafter, from time to time, paying sufficient amounts to always keep the timber to be cut paid for in advance of its being cut, each tree, as it was cut, being the property of Conroe. There was first only one person engaged by Vaughn to fell, peel and haul the piling, namely, a Mr. West. After West had worked on the timber for sometime, Anderson suggested to Vaughn that McMullin was a good operator and asked Vaughn to let him cut some of the timber to which Vaughn agreed and told Anderson to tell McMullin to go to work, which he did. Vaughn was on the ground practically every day and helped Anderson mark the trees that were to be cut. According to Anderson the trees remained the property of Anderson-Post Company until cut, whereupon they became the property of Conroe, they having been paid for in advance by Conroe.
“Vaughn (Tr. 62) admitted paying the $1,000.00 in advance to Anderson, and thereafter continued to make such advance payments. It should here be borne in mind that at least the $1,000.00 was paid before either West or McMullin had been engaged to cut and haul the timber. He said V would advance him before the timber was cut.’ (Tr. 62.) At page 63: Q. ‘ * * * the purpose of your advancing the money to Mr. Anderson, was to acquire this piling timber he had?’ A. ‘That’s right.’ A. ‘That was the base for the stumpage.’ Q. ‘Of course, that was all you bought from Mr. Anderson, wasn’t it?’ A. ‘Yes, sir.’ (Emphasis added.) (Tr. 63.) At the same page the witness admitted that when a tree was cut down, its value was deducted from the amount Vaughn had made in advance. At 65, under questioning by the Court, and after a page of testimony evading Counsel’s questions as to whom the tree belonged when it was cut down, he finally admitted that he ‘supposed’ it belonged to Conroe and at the bottom of that page said, ‘Well, I figure it would be my tree,’ meaning as soon as it was cut down. Again, at page 67 he testified, after repeated attempts to evade direct answers to questions as follows : Q. ‘So the amount of money you paid Garney McMullin for cutting the trees down, for peeling the trees, and for hauling them to the railroad line, actually was the amount of labor that Garney McMullin had in the job wasn’t it?’ A. ‘I suppose so.’ At pages 68 and 69 he testified as follows:
“ ‘Q. Now the amount of money you paid Mr. McMullin for cutting this timber down, for peeling and for hauling it to the railroad line in trucks, was actually for labor that Mr. McMullin and his men had put in on that job, isn’t that true, sir? A. I just paid him for the poles, sir.
“‘Q. Why? A. For bringing them and delivering them and loading them in the car.
“ ‘Q. And cutting them too, sir, didn’t you? A. Well, they had to be cut.
“‘Q. That was included too, wasn’t it? A. Sir?
“‘Q. That was included too, wasn’t it? A. Well, they had to be cut.’
“Finally, at page 70, the Court becoming disgusted at the witness’s flagrant attempts to evade the direct answer to every question, the answer to which might tend to prove that Conroe owned the timber and McMullin was contracted .with to log it, told the examiner that the Court believed the examination along that line had gone far enough. If there had remained any doubt in the Court’s mind, after Mr. Anderson testified, that Vaughn bought timber for Conroe and contracted with McMullin to cut and haul it, that doubt would have been dispelled by the obvious attempts of Vaughn to evade answering questions, if not worse than evaded. Throughout his testimony, Vaughn attempted to make it appear that he ‘bought’ the poles from Mc-Mullin, delivered on the cars and that his so-called ‘advances’ to Anderson for the timber were made for McMullin. However, admittedly, McMullin knew nothing of Vaughn’s arrangement with Anderson, how much he, Vaughn, was paying Anderson for the timber, and, in fact, nothing whatever of Vaughn’s deal with Anderson. The only thing McMullin knew about the transaction, a9 far as he was concerned, was that he was to cut, peel, haul and load certain of the timber onto the railroad cars, for which Vaughn would pay him a certain specified amount per pole.
“In the Court’s opinion, Vaughn’s transaction with Anderson had all of the elements of a sale, namely, the thing, the price and consent. [LSA] CC 2439. Since Conroe owned the timber, having bought it from Anderson, it could not have thereafter bought the same timber from McMullin. [LSA] CC 2443. The sale is perfect between the parties, and the property is of right acquired by the purchaser, as soon as the agreement of sale is perfected. [LSA] CC 2456.
“The provisions of the Compensation Statute applying to the facts, as to the relationship, and the result of that relationship, as exising between Conroe and Mc-Mullin, are to be found in Section 6 of the Act, now [LSA] R.S. 23:1061, which reads as follows:
“ ‘Where any person (in this section referred to as principal) undertakes to execute any work, which is a part of his trade, business or occupation or which he had contracted, to perform, and contracts with any person (in this section referred to as contractor) for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal shall be liable to pay to any employee employed in the execution of the work or to his dependent, any compensation under this chapter which he would have been liable to pay if the employee had been immediately employed by him; and where compensation is claimed from, or proceedings are taken against, the principal, then, in the application of this chapter reference to the principal shall be substituted for reference to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the employee under the employer by whom he is immediately employed.
“ ‘Where the principal is liable to pay compensation under this Section, he shall be entitled to indemnity from any person who independently of this Section would have been liable to pay compensation to the employee or his dependent, and shall have a cause of action therefor.’
“Applying the quoted provisions of this Statute to the facts of this case, and in view of the jurisprudence of the State on the subject, the Court has not the slightest doubt that McMullin was Conroe’s independent contractor and that Conroe is liable for compensation to the employee of Mc-Mullin, for injuries received while in his employment in the doing of the work he contracted to do.
“Counsel for Conroe cites many cases in which the Court has denied compensation on the ground that a buyer and seller relationship existed between the employer and the one who acquired the timber, but the facts of those cases clearly make them in-apposite here. In each of those cases the alleged principal actually bought the product delivered at the mill, plant or cars. It did not, itself, own the timber, as in this case. The analogy of each of the cases would serve only to lengthen this opinion unreasonably.
“The purpose of the Statute making the principal liable for workmen’s compensation to the employees of a contractor injured while engaged in the principal’s trade or business is to prevent evasion of compensation by employer engaged in hazardous work, when the hazardous work let by contract is part of the regular business of the principal. Williams v. Consumers Ice Co. [La.App.] 68 So.2d 246; Malone’s Louisiana Compensation Law and Practice, Sections 121, 122, 124, 12S and 126.
“As this Court sees this case, particularly from the viewpoint of Vaughn’s testimony, it presents a clear cut attempt on the part of Conroe to evade the payment of compensation to employees who may be injured while engaged in the work of cutting and hauling its piling and poles.
“It appears, too, that by testifying that Conroe nowhere engages in the work of cutting, peeling, hauling and loading these products onto the cars, and only buys them when loaded, Vaughn hoped to make it appear that Conroe was not engaged in that hazardous business, and thus to remove its liability from under our compensation law. It could as well be argued that cutting and hauling logs is not a part of the trade or business of a saw mill, where it, by its own direct employees, does not produce, that is cut and haul the logs to the mill, but by such device as Vaughn would have the Court approve in this case, obtain the logs delivered at its mill, even though it actually had bought the standing tree. Such, of course, is not the law, as is shown by the jurisprudence of this State.
“The jurisprudence is replete with statements that the Courts will be alert to detect the use of the resale device as a means of avoiding compensation liability, by interposing an impecunious middleman between liability and the real owner or principal, whenever the middleman is in fact an employee, partner or a contractor acting for the defendant. Hatch v. Industrial Lumber Co. [La.App.], 199 So. 587; Perkins v. Hillyer Deutsch Edwards, Inc., La.App., 199 So. 590; Reed v. J. W. Jeffries Lumber Co. [La.App.], 9 So.2d 87. And such a sale will in effect be branded as a subterfuge. Carter v. Colfax Lumber & Creosoting Co. [9 La.App. 497], 121 So. 233. The facts of the last cited (Carter) case are almost on all-fours with the facts of the instant case, and the defendant was held liable under Section 6 of the Act. Also Belaire v. Elder [La.App.], 49 So.2d 508, when it was held:
“ ‘Where lumber company operated sawmills of its own, and employed an independent contractor to cut timber and deliver it to lumber company in a rough state, and lumber company thereafter dressed timber and sold it to retail outlets, independent contractor was employed to do work which was part of the “business, trade or occupation” of lumber company, so as to place employee of independent contractor under provisions of Workmen’s Compensation Act as an employee of lumber company. Act No. 20 of 1914, 6, subd. 1, as amended by Act No. 85 of 1926, § 1.’

See also Horrell v. Gulf & Valley Cotton Oil Co. [15 La.App. 603], 131 So. 709; Thibodaux v. Sun Oil Co., 218 La. 453, 49 So. 2d [852] 854.

“An able and enlightening Article on the principal’s liability for workmen’s compensation to employees of contractors and an analysis of the circumstances and facts in which such liability has been imposed, written by that imminent author, Professor Malone, is to be found in 10 La.L.R. at page 25. In that Article all of the cases up to the time of its publication, 1949, are discussed and analyzed. In the light of these cases and Mr. Malone’s analysis of each opinion and the facts upon which it is based, it cannot be doubted that, under the facts of the present case, the buyer and seller relationship did not exist between McMullin and Conroe, but that McMullin was undoubtedly Conroe’s independent contractor. This being true and it being also true that the operation of cutting and hauling the tree, or log, as a necessary precedent to its being treated with creosote, just as the same operation is a necessary precedent, in the sawmill business, of sawing the log into lumber, constitutes part of Conroe’s operations, and it being true that plaintiff was injured while ■ working for Conroe’s independent contractor, in such operation, it follows that Con-roe must be held liable to this plaintiff under the provisions of Section 6 of the Act, [LSA] R.S. 23:1061.”

The remaining question concerns the liability of the Century Indemnity Company. This was answered by the Trial Judge as follows:

“This brings us to a discussion of the question of liability of Century, Conroe’s compensation insurance carrier.
“Attached to the petition and filed in evidence by the plaintiff (Tr. 46) and marked ‘P-1’ is an insurance policy issued by Century to Conroe.
“It is Century’s contention that its liability is restricted to the coverage set out under the terms of the contract of insurance and that under those terms there is no coverage other than of its employees in Texas.
“That the policy is a Texas contract, executed at Houston, Texas, seems certain. The first page of the exhibit (P-1) is headed: ‘Application for Texas Standard Workmen’s Compensation and Employers Liability Policy.’ (Emphasis added.)
“Under Item three it appears that the location of all factories, or other work places of the insured is at Butlerburg switch 3 miles East of Conroe, Texas, and elsewhere in Texas.
“Counsel for plaintiff contend, in their brief, that under the following quoted provisions of the policy, Century is liable to this employee:
“ ‘The Century Indemnity Company, Hartford, Conn. (Herein called the Company)
“ ‘Does hereby agree with this Employer, named and described as such in the Declarations forming a part hereof, as respects personal injuries sustained by employees including death at any time resulting therefrom as follows:
“ 'One (a) To Pay Promptly to any person entitled thereto, under the Workmen’s Compensation Law and in the manner therein provided, the entire amount of any sum due, and all installments thereof as they become due,
“ '(1) To such person because of the obligation for compensation for any such injury imposed upon or accepted by this Employer under such of certain statutes, as may be applicable thereto, cited and described in an endorsement attached to this Policy, each of which statutes is herein referred to as the Workmen’s Compensation Law, and
“ ‘(2) For the benefit of such pepson the proper cost of whatever medical, surgical, nurse or hospital services, medical or surgical apparatus or appliances and medicines, or, in the event of fatal injury, whatever funeral expenses are required by the provisions of such Workmen’s Compensation Law. It is agreed that all of the provisions of each Workmen’s Compensation Law covered hereby shall be and remain a part of this contract as fully and completely as if written herein, so far as they apply to compensation or other benefits for any personal injury or death covered by this Policy, while this Policy shall remain in force. Nothing herein contained shall Operate to so extend this Policy as to include within its terms any Workmen’s Compensation Law, scheme or plan not cited in an endorsement hereto attached.
“‘One (b) To Indemnify this Employer against loss by reason of the liability imposed upon him by law for damages on account of such injuries to such of said employees as are legally employed wherever such injuries may be sustained, within the territorial limits of the United States of America or the Dominion of Canada. In the event of the bankruptcy or insolvency of this Employer the Company shall not be relieved from the payment of such indemnity hereunder as would have been payable but for such bankruptcy or insolvency. If, because of such bankruptcy or insolvency, an execution against this Employer is returned unsatisfied in an action brought by the injured, or by another person claiming by, through or under the injured, then an action may be maintained by the injured, or by such other person claiming by, through or under the injured, against the Company under the terms of this Policy for the amount of the judgment in said action not exceeding the amount of this Policy.
“ ‘Two: To serve this Employer (a) by the inspection of work places covered by the policy when and as deemed desirable by the Company and thereupon to suggest to this Employer such changes or improvements as may operate to reduce the number of severity of injuries during the work, and, (b) upon notice of such injuries, by investigation thereof and by settlement of any resulting claims in accordance with law.
“ ‘Three: To Defend, in the name and on behalf of this employer, any suits or other proceedings which may at any time be instituted against him on account of such injuries, including suits or other proceedings alleging such injuries and demanding damages or compensation therefor, although such suits, other proceedings, allegations or demands are wholly groundless, false or fraudulent.
“ ‘Four: To Pay all costs taxed against this Employer in any legal proceeding defended by the Company, all interests accruing after entry of judgment and all expenses incurred by the Company for investigation, negotiation or defense.
“'Five: This Agreement shall apply to such injuries sustained by any person or persons employed by this Employer whose entire remuneration shall be included in the total actual remuneration for which provision is hereinafter made, upon which remuneration the premium for this Policy is to be computed and adjusted, and, also to such injuries so sustained by the President, any Vice-President, Secretary or Treasurer of this Employer, if a corporation. The remuneration of any such designated officer shall not be subjected to a premium charge unless he is actually performing such duties as are ordinarily undertaken by a superintendent, foreman Or workman.
“‘Six: This Agreement shall Apply to such injuries so sustained by reason of the business operations described in said Declarations which, for the purpose of this insurance shall include all operations necessary, incident or appurtenant thereto, or connected therewith, whether such operations are conducted at the work places defined and described in said Declarations or elsewhere in connection with or in relation to, such work places.’ (Emphasis added.)
“This Court does not agree with Counsel’s interpretations of these quoted provisions of the policy, for the reason that the agreement to indemnify the insured for injuries to its employees, refers, in each instance, or means insured’s employees in Texas. Counsel particularly urge that that part of paragraph numbered six and quoted above, reading ‘Whether such operations are conducted at the work places defined and described in said declarations or elsewhere in connection with, or in relation to, such work places,’ were designed to and do cover such a situation as we have in this case. The Court believes that that provision would have to be said to be modified by the provisions of the declaration that the policy covered only Texas employees.
“The Court of Appeal, Second Circuit, in Johnson v. El Dorado Creosoting Co., 71 So.2d 613, decided that a very similar policy, written in Arkansas, did not cover a Louisiana employee, although in that case, it appears that the contract of employment was actually an Arkansas Contract.
“There is another reason, which the Court believes to be unanswerable, why this policy of insurance does not cover plaintiff’s injuries and that reason is this: It must be conceded that, in the absence of Section 6 of the Louisiana Compensation Statute ([LSA] R.S. 23:1061) the principal (Conroe in this case) would not be liable for compensation for injuries to employees of its contractor (McMullin in this case). Whether the Texas Compensation law has the same or a similar provision the Court does not know, since the Texas Statute was not offered in evidence and the Court cannot take notice of the Statutes of another state in the absence of proof of that law. It follows, therefore, that since plaintiff was not directly employed by Con-roe, but by the Contractor, McMullin, and only Conroe’s employees are covered by this insurance contract, that contract does not cover plaintiff’s injuries, sustained while in the contractor’s employ. Even if the policy had been a Louisiana contract, it would not have covered plaintiff’s injuries, except for the provisions of Section 6 of the Act.
“It follows, therefore, that the exception of no right of action filed by Century must be maintained and plaintiff’s demands, as to that defendant must be rejected. For the reasons assigned, the exception of no right of action filed by Conroe is overruled.”

Now with reference to the exception of jurisdiction ratione personae which was filed on behalf of defendant Conroe Creosoting Company and which the Lower Court overruled upon written reasons, we quote part of same as follows:

“Upon the filing of the petition, citation was issued, addressed to Conroe, the Sheriff’s returns upon which showed that no service could be made because no' officer, agent or employee of defendant could be found in the State. It was then ordered that service be made on the Secretary of State, under the provisions of [LSA] R.S. 13:3471, subdivision 5(d).
“The defendant, Conroe, excepted to- the Court’s jurisdiction, ratione personae, on the ground, as set out in the exception, that it is a citizen and resident of and domiciled in the State of Texas and conducts no operations in Louisiana that could be considered as doing business in this State. It is this exception that is now before the Court for decision, it having been submitted on oral arguments supplemented by briefs, the last of which the Court received on October 31, 1955.
“The facts, as stipulated on the trial of the exception, are as follows:
“Prior to March 22, 1954, Conroe purchased a tract of timber in Vernon Parish,, and engaged McMullin as an independent contractor to cut and deliver it to a point on the railroad in that Parish. Conroe inspected the timber after it was cut and peeled by an agent in the Parish, and the poles were then shipped to Conroe’s plant in Texas; that Conroe had no plant or equipment in Vernon Parish, nor to the knowledge of the parties, in the State of Louisiana; that Conroe is a Texas Corporation, domiciled at Conroe, in said State.
“The stipulated facts were supplemented by the testimony of the plaintiff, as follows:
“He was injured while working on the job on March 22, 1954; a Mr. Vaughn, an employee of Conroe inspected and ‘took-up’ the logs for Conroe; plaintiff was paid by McMullin, who owned the equipment and Conroe had none, SO' far as plaintiff knew; they worked on the job about three weeks; Conroe paid the severance tax; Conroe bought the timber and contracted with Mc-Mullin to cut it and haul it for Conroe.
“While the briefs filed by able counsel on both sides go, at length, into an enlightening discussion of jurisprudence as to what constitutes due process, as regards the service of process upon nonresidents and the obtaining of personal judgments against them under substituted services, the question to be decided by the Court is ‘has the Defendant Conroe, engaged in business activities in the State through acts performed by its employees or agents-in this State,’ within the meaning of that phrase, as it is used in subdivision 5(d) of [LSA] R.S. 13:3471 which, for convenience, in reference, is quoted as follows:
“'(d) If the corporation is not one required by law to appoint an agent for service of process but has engaged in business activities in this state through acts performed by its employees or agents in this state, service of process in any proceeding on a cause of action resulting from or relating to such acts performed in this State or any taxes or other obligations arising therefrom may be made on any employee or agent of the corporation, over eighteen years old, found in this state, or in the event such employees or agents are no longer in this state or cannot be found, the officer charged with the duty of making the service, after diligent effort, shall make return to the court, stating the efforts made by him to secure service, and the reasons for his failure so to do, and thereafter, the judge, or in the event of his absence from the parish, the clerk, shall order service to be made on the Secretary of State, whose duty it shall be forthwith to ascertain the domiciliary post office address and send, by registered mail with return receipt requested, addressed to the ■corporation at said address, the originals of the papers served upon him, retaining in his office true copies thereof, upon which he shall note the date, the manner and other particulars of the service, and of the disposition of the originals.’
“Exceptor’s counsel strongly relied, in his oral argument, and, perhaps, to a lesser •extent in his brief, on the case of Johnson v. El Dorado Creosoting Co., decided by the Court of Appeal, Second Circuit, in 1954, the cause having arisen in 1951, and reported in 71 So.2d 613. We agree with counsel that that case is, in some respects, similar to the one here under ■consideration, but we believe is easily distinguishable from this case: In the Johnson case, the defendant owned timber in Louisiana, and through independent contractors logged it into Arkansas. Both Johnson and the defendant were citizens of Arkansas, where the contract was entered into. The Court, in that case, seemed to base its opinion, largely, on the extent, or lack of extent, of the business the defendant transacted in this State. The Court of Appeal, in the Johnson case, evidently did not have called to its attention, since it made no mention thereof in its opinion, the fact that the purpose of Act 21 of 1950, amending [LSA] R.S. 13:3471, was to permit Louisiana to capitalize on the full potential of International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95, 161 A.L.R. 1057, and permit the Courts of this State to entertain jurisdiction in suits against foreign corporations actually doing some business in the state, even though such business would not have subjected the corporation to the taxing power of the State, or forced it to apply for a license here, as pointed out by Dr. McMahon in his comments under [LSA] R.S. 13:3235, Vol. 7, Page 11. And perhaps, it was because of the Court’s failure to take notice of the amendment, that the Supreme Court granted writs in the Johnson case.
“Under subdivision 5(d) of [LSA] R.S. 13:3471, as the provisions of that section are now written, where the foreign corporation is one not required to appoint an agent for service of process, but has engaged in business activities in the State, through acts performed by its employees or agents in the State, service in ‘any cause of action resulting from or relating to such acts performed in this State * * * or other obligation arising therefrom’ may be made on the Secretary of State, where no employee or agent may be found upon whom service can be made.
“It is not denied, and it cannot be, that plaintiff has alleged a cause of action as against Conroe. How did that cause of action arise? The answer must be, out of acts performed in this State by Con-roe’s independent contractor, McMullin, who the record shows to be a resident of this State, the contract being a Louisiana contract, admittedly made by Conroe, necessarily through its agent, since a corporation being a ficticious being, may act only through, some human agency.
“When Conroe, through its agent, came into the State and contracted with McMul-lin, as an independent contractor, to execute the work of cutting and hauling the timber, it was charged in law with knowledge that if an employee of McMullin’s should be injured in doing the work, it, Conroe, would be liable under Section 6 of the Compensation Act as amended, and as now appears as [LSA] R.S. 23:1061, page 376 of Vol. 16, L.S.A. Therefore, the obligation imposed by that Section arose out of business activities performed by the agents or employees of Conroe in this State, when plaintiff received accidental personal injuries while in the employ of the independent contractor in the performance of the hazardous work he contracted to perform for Conroe.
“It is hardly necessary to discuss the constitutionality of [LSA] R.S. 13:3471, particularly since that question is not directly raised. Suffice it to say that the Statute, providing for such substituted service may said to be analogous to [LSA] R.S. 13:3474, the automobile accident service Statute. The principle upon which the Courts have repeatedly held that such substituted service does not violate the due process clause of the Federal Constitution, is that foreigners who come into the State and engage in activities in the State, and receive the benefit and protection of its laws (in this case, the compensation law particularly) subject themselves to the jurisdiction of its courts to determine causes of action arising out of such activities and consent to its statutes designating an official (Secretary of State) upon whom service of process may be had.”

In support of its exception to the jurisdiction, defendant, Conroe, lays great stress on the case of Johnson v. El Dorado Creosoting Co., supra, but it is our information and understanding of the case that the Court of Appeal, Second Circuit, reversed the judgment of the Lower Court and that reversal was based on the volume or lack of volume of business done in the state by the foreign corporation. In doing this the Court of Appeal apparently disregarded the clear verbiage and provisions of Section 5(d), LSA-R.S. 13:3471 and held that the amount of business done by the foreign corporation was the determining factor. Be that as it may nevertheless, the Supreme Court of Louisiana granted a writ of certiorari in order to examine the correctness of this Court of Appeal judgment. It is apparent that the Supreme Court questioned the correctness of the judgment of the Court of Appeal or the writ would not have been granted. It is our understanding and appreciation that this particular case was compromised and will never be passed upon by the Supreme Court. If a non-resident motorist by the operation of a motor vehicle on the highways of our state shall be deemed equivalent to an appointment by such non-resident of the Secretary of the State of Louisiana as his true and lawful attorney for the service of process under LSA-R.S. 13:3474, we are likewise of the opinion in view of Section 5(d), LSA-R.S. 13:3471, that when a non-resident or foreign corporation comes into the state and buys a large tract of timber and engages a contractor to cut, peel and haul said timber to the railroad for shipment to the domicile of the foreign corporation, that the foreign corporation is engaged in business activities in this state through its agents and should be amenable to our jurisdiction particularly as a defendant in a workmen’s compensation claim under LSA-R.S. 23:1061. If we followed defendant’s contention and theory in this case, it would just be another mode whereby a foreign corporation could come into the State of Louisiana and do business through an impecunious agent and possibly avoid liability. We are therefore of the opinion that the exception was properly overruled.

All of the above quoted findings of fact are amply supported by the record and are also correct legally. Finding no manifest error in the judgment appealed from, the same is hereby affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: ELLIS, Judge.

license: Public Domain

text:
    Willie LA FLEUR et al. v. Alida Stagg FONTENOT et al.
    No. 4322.
    Court of Appeal of Louisiana. First Circuit.
    Feb. 4, 1957.
    Rebearing Denied March 25, 1957.

      H. Garland Pavy, Robt. F. Dejean, Ope-lousas, for appellants.
    A. Veazie Pavy, Opelousas, J. W. Pucheu, Ville Platte, Jacque B. Pucheu, Eunice, for appellees.
   ELLIS, Judge.

This is a petitory action in which the plaintiffs, as the children and grandchildren of Jessey LaFleur and Augustine Collins, are claiming a one-half interest in a 44 arpent tract of land in St. Landry Parish, Louisiana. The defendants as the children and/or grandchildren of Alfred Fon-tenot filed a plea of ten years good faith acquisitive prescription based upon the acquisition of the property in question by Alfred Fontenot in 1933 from Jessey La-Fleur. The plea of prescription was tried and sustained by the District Court and the plaintiff-appellants have appealed.

It is only necessary to decide in this case whether the requisites of the acquisitive prescription of ten years as outlined in Article 3479 of our LSA-Civil Code have been complied with as revealed by the facts in the case. This Article states:

“To acquire the ownership of im-movables by the species of prescription which forms the subject of the present paragraph, four conditions must concur:
“1. Good faith on the part of the possessor.
“2. A title which shall be legal, and sufficient to transfer the property.
“3. Possession during the time required by law, which possession must be accompanied by the incidents hereafter required.
“4. And finally an object which may be acquired by prescription.”

The only requisite at issue in this case is No. 1. “Good faith on the part of the possessor.” It is necessary that the facts be discussed in detail in order to arrive at a conclusion.

The record discloses that Jessey LaFleur and Gustin Collins were married on the 3rd day of November, 1868 and seven children, four girls and three boys, were born of this marriage. On the date of the trial, May 11, 1956, Emily, the oldest, was approximately 84 or 85 years of age, which it is shown would have been approximately the age of Alfred Fontenot, and the youngest child would have been approximately 69 years of age.

Jessey LaFleur farmed the land in question and raised his family there and traded at the store of Alfred Fontenot, some two or three miles from the property. Jessey LaFleur, as well as his wife, during her lifetime and the children, visited the store of Alfred Fontenot, and at times were waited upon by him personally.

The marriage of Jessey LaFleur and Gustine Collins is not seriously disputed other than the defendants call attention to the fact that the priest of Opelousas, La., who married them- has given the name of Jessey LaFleur as Jeofe LaFleur. Apparently this certificate was signed in the same manner, however, when Jessey La-Fleur signed the deed to Alfred Fontenot he made his mark. The original was not introduced. The license was issued in the name of Jessey LaFleur and Gustine Collins and the bond was given in the name of Jessey LaFleur and signed by him by mark. It is apparent that if the certificate referred to is correct that it refers to Jes-sey LaFleur.

The property in question was acquired by Jessey LaFleur on the 21st of November 1884 at which time his wife was living and residing with him as the youngest child was born approximately three years later. There is not a scintilla of evidence that anyone ever thought that Jessey LaFleur and Gustine Collins were not man and wife. They were recognized as such generally in the community.

The plaintiffs-appellants are Negroes while the defendants are white people. Mr. Alfred Fontenot ran a general store in the community and did a credit business whereby he advanced the farmers from year to year, and Jessey LaFleur was one of his long-time customers. Although the defendants objected to the introduction of direct evidence to show that the consideration stated in the act of sale of $453.92 from Jessey LaFleur to Alfred Fon-tenot was, in fact, for the payment of his past due account, the conclusion is inescapable that such is a fact.

There is no question but that Alfred Fontenot knew the entire LaFleur family well and he is described as an enterprising, smart business man who acquired quite a bit of land during his business career. Knowing the LaFleur family as he did and from the facts in the record, he had knowledge of the approximate time the property was purchased by Jessey LaFleur, which was some 29 years prior to the deed of his acquisition from Jessey LaFleur. It is also shown from the record that Mr. Fontenot knew Jessey LaFleur’s wife personally, as she came in the store and that he knew that she died subsequent to the purchase of the property by Jessey LaFleur and prior to his own acquisition in 1933, leaving her husband, Jessey LaFleur, and forced heirs.

The deed executed on the 12th day of June 1933 by Jessey LaFleur to Alfred Fontenot states:

“* * * Jessey LaFleur, a colored man, whose wife before death was Auguste Collins, and who is a resident of the Grand Prairie section of the Parish of St. Landry, State of Louisiana, and the said Jessey LaFleur has not remarried * * * Alfred B. Fontenot * * * here present, accepting for himself heirs and assigns, and acknowledging delivery and possession thereof, the following described property to-wit:
“A certain tract of land with all the buildings and improvements thereon situated in the Grand Prairie Section of the Parish of St. Landry, State of Louisiana containing Forty Arpents (40) more or less and being bounded as follows, to-wit: on the North by lands of Alex Comeau and others, South by lands of L. A. Joubert and Louis Van-right, East by lands of L. A. Joubert, West by lands of Louis Vanright. This being the same property acquired by Jessey LaFleur from Jean Pierre L. Fontenot as per act passed before M. Robert, Notary Public, on the 21st day of November, in the year 1884.” (Emphasis added.)

The only.fact missing in order-to make a perfect case for the plaintiffs’ recovery is proof that Alfred Fontenot actually had personal knowledge of the issuance of the marriage license and the celebration of the marriage between Jessey LaFleur and Gustine Collins. The defendants argue, and correctly so, that good faith is presumed and that the plaintiffs in this case are obliged to prove bad faith on the part of Alfred Fontenot, LSA-Civil Code, Article 3481, and they further contend that under the case of Johnson v. Sugar, 163 La. 785, 112 So. 721, 722, the statement that “Lucy Ann Bradley was the surviving widow of Carrol Bradley, deceased,” was not “sufficient in law to impute to Sugar knowledge of want of ownership in the seller and to put him in legal bad faith.” The facts in that case are different from those in the case at bar. Knowledge of only the fact that the seller was a widower or that his wife was deceased is quite different from knowledge of that fact in addition to personal acquaintance and knowledge as disclosed by the facts in this record.

Defendants also cite the case of Nethery v. Louisiana Central Lumber Co, 175 La. 753, 144 So. 486, 487. The facts in that case are inapposite in that the representative of the defendant company was “a newcomer in Louisiana and was not acquainted with the people of the parish,” and while he knew that the seller had grown children, she and her son represented that the land was the personal property of the mother. A lawyer was employed to prepare and furnish an abstract of title covering the property which disclosed that the property stood upon the public records in the name of the seller and “No intimation was given Mr. Slagle by any one that the children of Mrs. Nethery had any interest in the land.”

This fact is entirely different from the case at bar for Mr. Alfred Fontenot upon the death of his wife acquired the interest of his children in the community property inherited by them. He was, therefore, well acquainted with the community property law. Further, in the cited case the attorney who prepared the abstract advised the representative of the defendant company that the title was valid.

Defendants also rely upon Scott v. Dickson, 148 La. 967, 88 So. 235. That case is also inapposite due to the difference in facts. In that case the Court stated:

“ * * * The evidence shows that . defendant was aware, when she acquired the mortgage note, that plaintiffs’ mother had died leaving minor children; but it also appears that defendant did not know that the mortgaged property belonged to the marital community theretofore existing between plaintiffs’ father and mother. On the contrary, defendant had been informed and believed that the property had been acquired by plaintiffs’ father by inheritance from his father. Under these circumstances, there is no reason to doubt that the defendant was in good faith when she acquired the mortgage on the property and when she bought it at the sheriff’s sale.”

Defendant in supplemental brief also argue that the contention of plaintiffs that “because the sale wherein Fred Fontenot purchased from Jessey LaFleur stated that the property sold was the same property acquired by Jessey LaFleur from Jean P. Fontenot on November 21, 1884, that this was sufficient to place Mr. Fontenot on notice that the property was community property and thereby place Fred Fontenot in bad faith.” In the cases of Fletcher v. Cavelier, 4 La. 267 and Morand’s Heirs v. Mayor, etc., of New Orleans, 5 La. 226, 242, the Court held that such a recital in a sale is not such notice of a title defect as to destroy the presumption of good faith. The Court also stated that the means indicated of obtaining knowledge of facts is not equivalent to actual knowledge.

As previously commented upon, knowledge of one fact alone would not be sufficient but in the present case Alfred Fonte-not knew the LaFleurs, owned land adjoining the property in question, knew that they were recognized throughout the community as man and wife, knew that they had raised a large family, knew that Jessey LaFleur and his wife lived together on the property for many years until her death, was personally acquainted with Jessey LaFleur, his wife and family, and in addition, approximately one year after the transfer of the property to him by Jessey LaFleur he attempted to purchase the interest of the children, so that the cases relied upon by the defendants are not controlling.

The law applicable in this case has been reviewed thoroughly in the case of Dinwiddie v. Cox, La.App., 9 So.2d 68, 71 as well as a citation and discussion of the jurisprudence, and we take the liberty of quoting rather fully from this case as follows:

“Under the title ‘Of the Prescription of Ten Years’ appears Article 3479 of the [LSA] Civil Code, which reads as follows:
“ ‘To acquire the ownership of im-movables by the species of prescription which forms the subject of the present paragraph, four conditions must concur:
“ ‘1. Good faith on the part of the possessor.
“ ‘2. A title which shall be legal, and sufficient to transfer the property.
“ ‘3. Possession during the time required by law, which possession must be accompanied by the incidents hereafter required.
“ ‘4. And finally an obj ect which may be acquired by prescription.’
“The last three of these essential prerequisites are present in Mr. Nance’s case, but the first one is absent. It is indispensable that all four coexist in order to form the basis of the prescription of ten years acquirendi causa.
“Article 3451 of the [LSA] Civil Code defines the good faith possessor to be: ‘ * * * he who has just reason to believe himself the master of the thing which he possesses, although he may not be in fact, as happens to him who buys a thing which he supposes to belong to the person selling it to him, but which, in fact, belongs to another.’
“Article 3452 defines the bad faith possessor. It reads: ‘The possessor in bad faith is he who possesses as master, but who assumes this quality, when he well knows that he has no title to the thing, or that his title is vicious and defective.’
“The third paragraph of Article 1846 of the [LSA] Civil Code reads as follows: ‘Error of law can never be alleged as a means of acquiring, though it may be invoked as the means of preventing loss or of recovering what has been given or paid under such error. The error, under which a possessor may be as to the legality of his title, shall not give him a right to prescribe under it.’
“For over one hundred years the courts of this state when construing the Articles of the Civil Code relative to good faith possessors have accorded to this paragraph the influence it was designed to have. It has uniformly been held that regardless of the moral good faith of the purchaser, if he purchased and possessed under error of law, he thereby became a possessor in bad faith and prescription was not available to him. It is not sufficient always to characterize a possessor as being in good faith simply because he thinks or believes he is acquiring good title.
“It is true, as contended, no one is required to examine the public records to determine the validity of title to real property he contemplates purchasing as a condition precedent to good faith. He may purchase without any investigation of the title and if the four named essentials exist, he is protected by the prescription of ten years. But if he is not satisfied with the title offered by the seller and institutes an investigation into its validity, from which facts and conditions áre revealed which should put a reasonably prudent person on inquiry, it then devolves upon him to pursue- every lead and ferret out all of the facts to the end that he may not purchase until he has complete information before him. If he does not do this, but purchases upon erroneous assumptions and. conclusions, he does so at his own risk and peril.
“Mr. Nance made a good beginning in his inquiry into the family history of Lucinda Thomas’ heirs, but he quit too soon. He overlooked the fact that although the original heirs, save Will, were dead they might have left de--scendents who would stand, as regards the land, in the shoes of their father or mother.
“In National Park Bank v. Concordia Land and Timber Company, 159 La. 86, 100, 105 So. 234, 239, it is said: ‘“Notice of facts which ought to excite inquiry, and which, if purchased, would lead to- knowledge of other facts operates as notice thereof.” ’
“This principle was adopted in Harrill v. Pitts, 194 La. 123, 142, 193 So. 562, as being applicable to persons who contemplate the purchase of land and who fail to thoroughly investigate the title facts and history after acquiring knowledge thereof sufficient to put him on inquiry.
“It was held by this court in Blunson v. Knighton, La.App., 140 So. 302, 307: ‘ “One is not a possessor in good faith who has cause to inquire and fails to avail himself of the means and facilities at hand to inform himself of the true facts and yet acted at his peril.” ’
“This pronouncement is expressly affirmed by the Supreme Court in Harrill v. Pitts, supra.
“Tyson v. Spearman, 190 La. 871, 183 So. 201, was a petitory action. Concerning the notice herein discussed, ■the court, with emphasis and approval, quoted the rule laid down in 20 R.C.L., page 346, § 7, which is as follows: ‘Whatever fairly puts a person on inquiry is sufficient notice, where the means of knowledge are at hand; and if he omits to inquire, he is then chargeable with all the facts which, by a proper inquiry, he might have ascertained. This, in effect, means that notice of facts which would lead an ordinarily prudent man to malee an examination which, if made, would disclose the existence of other facts is sufficient notice of such other facts.’
“In the eyes of the law, Nance, after learning that Lucinda Thomas had other children besides Will, for his own protection, at least, should have more thoroughly investigated the facts and family history, and failing to do so, he is held to have known that which such investigation would have revealed. It is said in Breaux-Renoudet Cypress-Lumber Company v. Shadel, 52 La.Ann. 2094, 28 So. 292: ‘He who is thus put in inquiry, and does not avail himself of the means and facilities at hand to inform himself of the true facts, can claim no greater consideration than can they who knew the true facts, and yet acted to their peril.’
"The facts of Laroux v. Myers, La. App., 144 So. 117, decided by this court, are similar to those of the present case. As disclosed from the syllabus, it was therein held: ‘As regards ten years’ prescription, collateral relative who, knowing deceased left neither ascendants nor descendants, purchased from widow deceased’s property acquired before marriage held not good faith possessor ([LSA] Civ.Code, art. 1846, subd. 3).’
“Paragraph one of the syllabus in Knight v. Berwiek Lumber Company, 130 La. 233, 57 So. 900, fits the facts of the present case and succinctly declares the law applicable thereto. We here quote it: ‘Good faith; to support the prescription of 10 years acquirendi causa, is based on the honest and positive belief of the possessor, founded on just reasons, that he is purchasing from the real owner. Doubt as to the title of the vendor or as to his right to alienate is fatal to a claim of good faith. A doubt sufficient to induce the possessor to make an investigation of the title of his vendor is presumed to have continued down to the sale, in the absence of evidence tending to show its removal by adequate information derived from the records or other trustworthy sources.’
“The case of Roberson v. Reed, La. App., 190 So. 153, decided by this court recently, is analogous. There the defendant purchased from one heir, believing him to be the sole heir of his father, whereas there were children of a pre-deceased child as in the present case. The purchaser honestly believed he was acquiring all of the interest of the deceased father and grandfather. He had knowledge of the family history and was held to be in legal bad faith.”

Thus we see it is well settled that if Alfred Fontenot was suffering from an error or law rather than of fact as to the legality of his title he could not prescribe under it. Also applying the well-settled law that notice of facts which ought to excite inquiry and which if pursued would lead to knowledge of other facts operates as notice thereof, and where one who has sufficient knowledge of the facts to put him on inquiry and fails to inquire, or one who has cause to inquire and fails to avail himself of the means and facilities at hand to inform himself of the true facts is chargeable with all the facts which by a proper inquiry he might have ascertained.

Counsel for defendants argues that the Dinwiddie case, supra, and cases therein cited are not apposite for there is no testimony that Fontenot doubted his title. It is not a question of whether Fontenot doubted his title in the present case but whether he should have doubted his title from the facts and conditions and information of which he had actual knowledge as shown by the record, and it must be answered in the affirmative. In the Dinwiddie case it is true that the court said if one is not satisfied with the title offered by the seller and institutes an investigation into its validity from which facts and conditions are revealed which should put a reasonably prudent person on inquiry, it then devolves upon him to pursue every lead and ferret out all the facts to< the end that he may not purchase until he has complete information before him, and if he does not do this but purchases upon erroneous assumptions and conclusions, he does so at his own risk and peril, yet, the case at bar is even stronger, as it was not necessary for Fontenot to be dissatisfied with his title and institute an investigation for he was in full possession of the facts and conditions which should have put him not only on inquiry but was sufficient knowledge for any reasonably prudent man to assume that the property was community property and that these plaintiffs were the owners of their mother’s half. If he doubted the plaintiffs’ ownership it could only have been because he did not think or did not actually know that a legal marriage existed betwen the mother and father. Having a full knowledge of all other facts it was Up to Fontenot if he so desired to make inquiry.

In Juneau v. Laborde, 219 La. 921, 54 So.2d 325, 329, the court stated:

“However, it being true that defendant was informed (contrary to his testimony) by Dewey Dauzat of the defectiveness of the title, and further in view of his close acquaintanceship and friendship with the Juneau family and of the fact that he knew positively of Mrs. Juneau’s death in 1928, it cannot be held that he had just reason to be-Heve that he was acquiring a title free of defects. With the information that he possessed, which was certainly sufficient to excite inquiry, a duty devolved upon him to investigate the title before purchasing. If he had made the investigation, actual knowledge of the outstanding interest would have been acquired. Having failed in that duty, he is in law chargeable with the knowledge. National Park Bank v. Concordia Land & Timber Co. 159 La. 86, 105 So. 234; Tyson v. Spearman, 190 La. 871, 183 So. 201; Harrill v. Pitts, 194 La. 123, 193 So. 562; Blunson v. Knighton, La.App., 140 So. 302; Dinwiddie v. Cox, La.App., 9 So.2d 68.
“Chargeable with such knowledge, defendant was not a possessor in good faith; and he took the deed at his own' risk, subject to the claim of plaintiffs. Victoria Lumber Co., Ltd. v. Dawson, 159 La. 848, 106 So. 327.”

It is true that there is no testimony that Fontenot was informed that the title was defective but he was well acquainted with the LaFleur family and had actual knowledge of facts which on their face if accepted as true would legally entitle the plaintiffs to the ownership of an undivided one-half interest in the property, when he took title to the property he was chargeable with such knowledge and was not a possessor in good faith, and, as in the Juneau case, “he took the deed at his own risk, subject to the claim of plaintiffs.”

Much is made of the fact that these plaintiffs waited so long to bring their suit. This is understandable as they are Negroes and frankly stated that they did not quite know how to go about it. However, their silence for so many years cannot deprive them of rights accorded them by law under the facts of this case.

After a careful consideration of the record in this case it would appear that Fonte-not took title to this property for the debt that Jessey LaFleur owed him, knowing full well that Jessey LaFleur had acquired the property while holding himself out as being married to Gustine Collins and while they were living together as man and wife and raising a family, and with full knowledge of the existence of the forced heirs and of the death of Gustine Collins prior to his acquisition, with the hope that he would acquire the interest of these heirs later as he attempted to do approximately one year after his acquisition.

Under the facts and law, Alfred Fontenot was not in good faith and the plea of ten years prescription is hereby overruled.

The judgment of the district court is hereby reversed and the case remanded to the District Court for trial on the merits, costs to be paid by defendants appellees.

Judgment reversed.


author: LOTTINGER, Judge.

text:
    Hazel TERRILL v. ICT INSURANCE CO. et al.
    No. 4354.
    Court of Appeal of Louisiana. First Circuit.
    Feb. 4, 1957.
    Rehearing Denied March 25, 1957.

      H. Alva Brumfield, Baton Rouge, Alfred R. Ryder, Oberlin, for appellant.
    T. C. McLure, Jr., Alexandria, Alva Jones, Oakdale, for appellees.
   LOTTINGER, Judge.

This is a suit for damages resulting from an intersectional collision between an automobile driven-by petitioner’s son, in which petitioner was a passenger and a truck driven by David F. Monk. The defendants are ICT Insurance Co., the liability insurer of the vehicle in which petitioner was riding, David F. Monk, the operator of the other vehicle, the City of Oakdale, Louisiana and Central Louisiana Electric Company. The last two named defendants were joined into the suit by virtue of the fact that petitioner claims that “the traffic signal light at said intersection was not operating and showed neither red nor green as the car driven by young Terrill approached the intersection.” Plaintiff further alleges as follows:

“7.
“That the automobile in which petitioner was riding as a guest passenger proceeded into said intersection, at which time David F. Monk, who was traveling in an easterly direction on 7th street, drove his 1949 Ford Pickup truck into the intersection directly in front of the car owned by James E. Terrill and driven by his son.”
“8.
“That the collision between the two vehicles above referred to was due to the contributing and concurrent negligence of John E. Terrill, David F. Monk, the City of Oakdale and the Central Louisiana Electric Company, Inc.”
“11.
“That both the City of Oakdale and Central Louisiana Electric Company, Inc., were grossly negligent in that they and each of them failed to properly install and failed to maintain and keep in repair and operating order an effective traffic signal light at an inherently dangerous intersection which necessarily required an effective signal light that was in proper operating condition.”
“12.
“That both the City of Oakdale and the Central Louisiana Electric Company, Inc., were further grossly negligent in that they and each of them failed to properly inspect and service said traffic signal light in order to assure its proper operation at all times.”
“13.
“That pursuant to and in conformity with Ordinance No. 470 of the City of Oakdale, Louisiana, together with Ordinance No. 692 amending and re-enacting Section ‘8’ of Ordinance 470, and the agreement between the City of Oakdale and the Louisiana Public Utilities Company, Inc., and its successor corporation, Central Louisiana Electric Company, Inc.; it was the duty and responsibility of Central Louisiana Electric Company, Inc., to erect and maintain during the existence of its franchise, all signal traffic lights in the City of Oakdale.”

The City of Oakdale filed an exception of no cause or right of action. The Central Louisiana Electric Company first filed an exception to the citation and, after corrective measures had been taken, similarly filed an exception of no cause or right of action. After hearing the exception the Lower Court sustained said exceptions on behalf of both the City of Oakdale and the Central Louisiana Electric Company. The petitioner has taken this appeal.

The Lower Court correctly maintained the exception of the City of Oak-dale under the theory that the erection and maintenance of traffic lights is a governmental function as distinguished from a propriatory function, and a municipality cannot be held accountable or liable for any damages resulting therefrom. This theory has been maintained in Floyes, for Use and Benefit of Floyes v. City of Monroe, La. App., 194 So. 102; Howard v. City of New Orleans, 159 La. 443, 105 So. 443; Prunty v. City of Shreveport, 223 La. 475, 66 So. 2d 3, as well as many other cases. See also Tolliver v. City of Newark, 145 Ohio St. 517, 62 N.E.2d 357, 161 A.L.R. 1391; Auslander v. City of St. Louis, 332 Mo. 145, 56 S.W.2d 778; Kirk v. City of Muskogee, 183 Okl. 536, 83 P.2d 594.

Central Louisiana Electric Company was joined as a defendant by virtue of Ordinance No. 470, and the amending Ordinance No. 692 of the City of Oakdale which provide in substance that the Central Louisiana Electric Company shall furnish and install at its own expense, all lamp renewals for traffic signals. There is nothing in the ordinance to indicate whether the city or the Power Company is to make inspection to determine when replacements should be made.

The Lower Court also maintained the exception of the Central Louisiana Electric Company under the theory that as the city could not assume liability for the operation or non-operation of the traffic signals, she could not hire others to do it for her. In other words, our appreciation of the Lower Court’s holding is to the effect that because the city was not responsible for the faulty operation of a governmental function, this same defense is available to the Power Company. The Lower Court based its holding on Allen & Currey Mfg. Co. v. Shreveport Waterworks Co., 113 La. 1091, 37 So. 980, 68 L.R.A. 650.

We feel that the said defense of not being liable for damages resulting from a governmental function is a personal defense and may be asserted only by the city itself. This defense is not available to the Power Company and we feel that the Lower Court erred in so holding. That the defense of immunity is personal to the city was held in Rome v. London & Lancashire Indemnity Co., La.App., 156 So. 64; Id., La.App., 169 So. 132.

We feel that the petition shows clearly that the damage resulting to petitioner were not proximately caused by the failure or defect of the traffic light. It is generally recognized by all legal authorities that a party is not responsible for his negligence unless it is the proximate cause of the accident. It is generally held that for an act to be the proximate cause of an injury it must appear that the injury was the direct result of the negligence and that there was no independent intervening act of a third person which caused the injury to occur. As is stated in 65 C.J.S., Negligence, § 111 d:

“A prior and remote cause cannot be made the basis of an action if such remote cause did nothing more than furnish the condition or give rise to the occasion by which the injury was made possible, if there intervened between such prior or remote cause and the injury a distinct, successive, unrelated, and efficient cause of the injury, even though the injury would not have occurred but for such condition or occasion.”

In Green v. State of Louisiana Through Department of Institutions, La.App., 91 So. 2d 153, 155, we held as follows:

“For the breach of the duty to be a proximate cause of the injury for which recovery is sought, the injury received should be one for the prevention of which the duty exists.”

We do not feel that the failure of the light constituted a proximate cause of the accident. As petitioner’s vehicle approached the intersection, the driver thereof noticed that the light was not working in his direction. It may be that the light had been turned off, or it could be that the light bulb facing petitioner’s vehicle burnt out. Be that as it may, upon noticing the non-operation of the light it became incumbent upon the driver to exercise precaution before entering the intersection. The proximate cause of the accident was obviously the failure of one or both of the drivers to exercise precaution, and the failure of the traffic light at most was a remote cause of the accident. We feel that the Lower Court should have based its decision upon this - ground, however, its action in dismissing the suit against the Power Company was correct.

For the reasons hereinabove assigned, the judgment of the Lower Court will be affirmed, all costs of this appeal to be paid by the petitioner.

Judgment affirmed.


text:
    TENNESSEE GAS TRANSMISSION CO. v. Clovis L. BAILEY and Barbara Wilder Bailey.
    No. 4355.
    Court of Appeal of Louisiana. First Circuit.
    Feb. 4, 1957.
    Rehearing Denied March 25, 1957.
    Landry, Watkins, Cousin & Landry, New Iberia, for appellants.
    Walter C. Peters, Jennings, for appellee.
   ELLIS, Judge.

This is an expropriation suit in which the plaintiff was granted a right of way and easement for its gas line 75 feet in width across a portion of the rear of a two and one-half acre tract of land situated in Acadia Parish, Louisiana, belonging to defendants. The land embraced in the right of way was .14 of an acre for which the District Court awarded $70, and this portion of the judgment was not contested by the plaintiff. The trial court also awarded the defendants the sum of $620 for damages to the adjoining land of the defendants occasioned by the right of way, and this amount is the only subject of this appeal.

Defendants’ property is 234 feet by a depth of 400 feet, together with certain improvements, viz., the home, which was located on the property at the time the suit was filed. At the time of the filing of the suit there was a fence that separated the improved portion from the cultivated area in the rear across which the right of way was granted. This right of way goes across the southwest corner of defendant’s property. It is also shown that some time previous thereto another gas line had been located within approximately fifty feet of the rear line of defendants’ property for which defendants had been paid $50, we assume for damages to his property. The new gas line would cross the southwest corner of defendants’ property for a distance of about 80 feet and would be located 198 feet from the nearest point of the residence, and would be buried approximately 30 inches from the top of the pipe to the level of the ground and would carry 800 pounds pressure per square inch, which is considered a high-pressure line. While this small piece of property had been used for rice land or for agricultural purposes, as found by the District Judge it is shown that it has a value for future home sites. The property was rural and was being used for rent purposes. The value of the land which was in contest was fixed at $1,000 and the improvements at $5,200, making a total of $6,200. Based upon this amount the District Court awarded for the depreciation in value of the remaining property and improvements as a home site or rent property the sum of 10% of the total value of $6,200, or $620.

It is not necessary that the testimony of the defendants’ witnesses as to these damages be detailed as we do not feel that the District Court used their testimony in arriving at his award, for they fixed it from 25% to 50%, which has no sound basis in that the witnesses could not give any reasons.

The District Court in its oral reasons which are transcribed and in the record, states that these greater percentages are based on the argument that there is a danger and fear existing which results from the location of the pipe line, however, there is no evidence that these lines have been known to blow up. Furthermore, the case of Texas Pipe Line Co. v. Barbe, 229 La. 191, 85 So.2d 260, in which it was stated that the line in that case was potentially dangerous and leaks are expected to occur in the line from time to time and when they do occur explosions do result, is a case in which the line was carrying high octane gasoline. Mr. Parker, an expert witness on behalf of the plaintiff, testified that he had lived in Acadia Parish forty years and was in the real estate business fifteen years and was familiar with the prices of property in the parish, and that he could foresee no other value for the property in question than as a home site, and that although it is shown the defendants paid $750 for the property, he valued the land and improvements at the time of the trial at $6,000. This witness under cross-examination stated that in his opinion there would not be any difference in the value of the property after a pipe line was laid across it than there was before: “unless it was for a subdivision or for homes, something like that, but in a field like it is out there I can’t see that it would affect the value of it at all.” He thought the pipe line was so far from the house that it would have no effect upon the value of the property as presently constituted.

The other expert who testified for the defendants was apparently eminently qualified by training and experience and we feel the District Court relied to a great extent upon his testimony in arriving at his award. This witness when qualified by counsel for plaintiffs gave the following testimony:

“By Mr. Cousin:
“Q. I would like to inquire something with reference to this new point you brought out. When you spoke of this depreciation in the value of the property, what is the cause for that depreciation? A. Well, first of all there is a right of way across the property on which you have an easement or the Tennessee Gas Transmission Company has a right of use, and there are—
“Q. What you are speaking of — is what you are speaking of a difference in overall value of the whole tract? A. That is correct.
“Q. In other words, if the tract has a value of $1000.00 now without the right of way, you mean it would have a value of 5% less than $1,000.00, is that what you mean? A. In my opinion, yes; that is what I mean, and my opinion, that is what I base it on.”

Counsel for plaintiffs contends that this witness was referring only to the property expropriated or the .14 of an acre. It seems clear from his testimony that he was taking the value of the entire tract and depreciating it 5%, in this case 5% of $6,200 or $310. The District Court awarded 10% which it would appear is not manifestly erroneous. Counsel for plaintiff seems to be disturbed because he argues that fixing the amount at 10% would be establishing a dangerous rule or precedent for arriving -at damages to the adjoining property. We are not establishing any definite rule or precedent to be followed in any other case of this nature involving the same question. Each case must stand on its own facts with regard to the amount of damages to the adjoining property.

For the reasons given, the’judgment is affirmed.