text:
    KEYSTONE PAINT & DECORATING CO., Inc. v. WEST.
    No. 7203.
    Court of Appeal of Louisiana. Second Circuit.
    Nov. 24, 1948.

      Theus, Grisham, Davis & Leigh, of Monroe, for appellant.
    W. F. Pipes, of Monroe, for appellee.
   HARDY, Judge.

This is a suit in which plaintiff, a corporation engaged in the business of contract painting, seeks to recover the balance alleged to be due by defendant on the performance of a contract for painting the interior of defendant’s building. Defendant answered, denying liability under the alleged contract on the ground that the work performed was not satisfactory, and reconvened, praying for judgment in the sum of $1,850.00, representing the sum of $350.00 paid plaintiff and an additional sum of $1,500.00 alleged to represent the cost of repainting and refinis'hing. After trial there was judgment in favor of plaintiff as prayed for, and further judgment rejecting the reconventional demands of defendant, from which judgment defendant has appealed.

The testimony of the witnesses, as reflected by the record before us, is so contradictory as to be more confusing than helpful. However, we set' forth the following facts as having been established:

On or shortly before December 10, 1945, plaintiff was requested to submit a proposal for spraying defendant’s building with aluminum paint, and in response thereto the following offer was made:

“December 10, 1945.
“West Pontiac Co.,
Monroe, La.
“Gentlemen:
“We propose to furnish all labor, tools, material and insurance necessary for spraying one coat of aluminum paint to all skeleton ceiling, steel trusses and the roof for the sum of Eight Hundred Fifteen Dollars and Eighty Three Cents, ($815.-83).
“All work to be done in a first class workmanlike manner, using only first grade materials to your complete satisfaction.
“Yours very truly,
“Keystone Paint & Decorating Co.
“W. L. Cash”

Later, on the same date, plaintiff was requested to make a proposal including an alternative, making allowance for a deduction from the contract price on the basis of the omission of painting of the exterior of the roof of the building, in accordance with which the following proposal was made:

“December 10, 1945.
“Mr. Allen West,
West Pontiac Co.,.
Monroe, La.
“Dear Sir:
“We propose to furnish all labor, tools, material and insurance necessary for spraying one coat of aluminum paint on all skeleton ceiling and steel trusses on the interior of your new building under construction on Louisville Ave., Monroe, La. and one coat of aluminum on the exterior roof of the building for the sum of Eight Plundred Fifteen Dollars and Eighty Three Cents ($815.83).
“If the exterior of the roof is omitted or left off for the present the deduction for this work will be One Plundred Ten Dollars ($110.00).
“All work to be done in a first class workmanlike manner, using only first grade materials.
“Yours very truly,
“Keystone Paint & Decorating Co.
“W. L. Cash.”

It is definitely established that all negotiations leading to and including the submission of the above proposals were conducted by representatives of the plaintiff corporation with another painting contractor, one Lee Thompson, who at the time was engaged in the performance of some painting work, on the same building for the defendant, West. Never at any time was there any direct meeting, conversation or-agreement between plaintiff and defendant. Some time subsequent to the date of the offers above noted, plaintiff undertook the job of painting the interior of the building and completed the work on or about March 16, 1946. The exterior of the roof was not painted. On or about August 13, 1946, which date was about five months after completion of the work, defendant made a payment of $350.00 to plaintiff. Failing to receive payment of the balance alleged to be due, plaintiff filed this suit on February 24, 1948.

The first point of difference arises from the dispute between the parties as to which of the two proposals above set forth was actually accepted. Plaintiff contends that it proceeded to undertake and complete the work on the basis of the alternative proposal, which restated a total contract price of $815.83, but allowed a deduction therefrom in the amount of $110.00 on the basis of the omission of the painting of the exterior of the roof. On the other hand defendant contends that he accepted the first proposal for the complete painting job of both the interior and exterior, and that plaintiff has failed and refused to fulfill his contract to the extent of performing the exterior painting.

The second point urged by defendant is that the painting actually performed was thoroughly and completely unsatisfactory, by reason of the fact that, within a period of some 30 to 45 days after the completion of the work, the paint began to peel off the interior of the roof. Defendant claims that the scaling and peeling of the paint is due to circumstances without his knowledge 'but within the expert knowledge of the plaintiff, and, consequently, defendant alleged that the defective work resulted from the use of improper materials, poor workmanship or some other reason within the knowledge and control of plaintiff. In support of his reconventional demand defendant claims that the default of plaintiff ■has made necessary the expenditure of a substantial sum for the repainting and refinishing of the entire interior and for the painting of the exterior of the roof, for which expenditures he seeks reimbursement at the hands of plaintiff, in addition to the recovery of the sum of $350.00 already paid.

Consideration of the facts involved leads us to the definite conclusion that plaintiff 'has established performance of his contract obligations under the second proposal which omitted painting the exterior of the roof. Next, moving to a consideration of the defendant’s charges as to the use of inferior materials and workmanship, we find as a fact that he has failed to substantiate these points. On the contrary, we think the record conclusively justifies a finding that the materials used were of the best grade, and the workmanship was of a high order. These facts were established not only by plaintiff’s witnesses but were corroborated by witnesses for the defendant.

The next Issue concerns a finding as to which of the two proposals was accepted and acted upon. On this point the testimony is of such an unsatisfactory nature as to confuse and obscure the true facts. Our examination of the record convinces us that greater probative value is to be found in a consideration of the surrounding circumstances than in the vague and conflicting testimony of the witnesses. First, we are impressed with the fact that Lee Thompson, who, if not the agent for defendant, was undisputably the intermediary who conducted all negotiations, was not called as a witness. Apparently Thompson alone knew which of the proposals the defendant wanted to accept. Since this particular defense is affirmative in nature, unquestionably the burden rested upon defendant to establish the same by a preponderance of the evidence and hi-s failure to produce Thompson or to explain in any manner his failure to produce this witness, must be construed against his contention.

We think it is reasonably clear that plaintiff, in good faith, undertook the work on the basis of the second or alternative proposal with the understanding that the exterior painting was to be omitted. Against such a conclusion defendant urges the point that plaintiff’s journeyman painter left the job with the promise to return and complete the same. The painter in question testified positively that the only details left uncompleted, according to his instructions, involved the painting of some window frames which had not 'been installed. It is true that defendant made the effort to substantiate his own testimony on this point with that of an employee who claimed to have been present during a conversation in which the journeyman painter asserted that he would complete the work by painting the exterior of the roof. We are convinced that plaintiff never at any time indicated by word or act the assumption or recognition of any obligation to paint the exterior of the roof, and it cannot be bound by any promise or understanding on the part of an employee, who was clearly without authority.

Defendant testified that he signed and returned the original of the first proposal, retaining a copy thereof in his files, and explained his inability to produce the copy on the ground that it had been stolen, together with other papers, from his office. This testimony is refuted by the testimony of plaintiffs to the effect that, according to the custom of their business, they never prepared more than an original and one copy of a proposal. Plaintiff produced the copy, introduced the same in evidence and denied receipt of any signed original from the defendant.

In brief defendant attempts to assert a meeting of the minds and an acceptance of the first proposal without affirmatively establishing any direct negotiations or agreement as between himself and plaintiff. As against this contention it is noted that defendant made a substantial payment of $350.00, which was approximately one-half of the amount which was due under the second proposal, five months after the completion of the job, and four months after, according to his testimony, the painting had begun to deteriorate and peel. It is not only difficult but impossible for us to reconcile this course of action with defendant’s claim.

Finally, we come to a consideration of the question of liability on the part of plaintiff for the 'breaking down of the paint on the interior of the roof. There is a considerable amount of testimony in the record as to the reasons for this deterioration. Some of this testimony indicates that the condition was due to the fact that the galvanized metal of which the roof was constructed was not treated be-for the application of paint; some indi-ca-tes that the failure to paint the exterior, permitting a consequent conduction of intense heat from the sun, was the cause which affected the scaling and peeling of the paint on the interior of the roof. It is •contended on behalf of defendant that, whichever of these two reasons was responsible, the result was chargeable to plaintiff’s failure to take proper precautions or to inform defendant as to the possibilities of an unsatisfactory job. Under the circumstances we do not think this point is pertinent. If the negotiations had been conducted directly by defendant with plaintiff, this claim might be entitled to some considerable weight. But since defendant was content to leave the negotiations in the hands of a third party, who was himself a painting contractor, we cannot impose the asserted burden of responsibility upon plaintiff.

With further reference to this point we think defendant’s position would be more tenable if he had successfully established the acceptance under the original proposal which not only obligated plaintiff to use ■first-class materials and to perform the work in a first-class workmanlike manner, but unreservedly “to your complete satisfaction.” Whether with or without intent on the part of plaintiff, the words “to your complete satisfaction” were omitted from the second proposal, which limited the obligations assumed to the use of first grade materials and the performance of the work in a first-class, workmanlike manner.

This case involves purely a determination of facts, and, upon the basis of the reasons above set forth, we are unable to point out any manifest error in the findings of the learned judge of the district court. As a consequence the judgment appealed from should be, and is, herewith affirmed at appellant’s cost.

TALIAFERRO, KENNON, and HARDY, JJ., sitting.


source: Caselaw Access Project

author: KENNON, Judge.

license: Public Domain

text:
    HONEYCUTT v. NATIONAL AUTOMOBILE & CASUALTY INS. CO.
    No. 7207.
    Court of Appeal of Louisiana. Second Circuit.
    Nov. 24, 1948.
    Parker & Parker, of Jena, for appellant.
    Pludson, Potts, Bernstein & Davenport, of Monroe, for appellee.
   KENNON, Judge.

Plaintiff, individually and on behalf of his minor son, filed this suit for four hundred weeks compensation at the maximum rate.

Defendant filed an exception of no cause or right of action.

The record contains the following entry in the Court minutes of March 11, 1948:

“The exception of no cause or right of action was called up for trial, tried and sustained. Plaintiff’s suit is dismissed at Plaintiff’s cost.
"On motion of Counsel for Plaintiff an order of devolutive appeal is granted returnable to the Court of Appeal, Second Circuit at Shreveport, Louisiana, on or before April S, 1948, bond for appeal fixed in the sum of $100.00.”

The defendant has filed in this Court a motion to dismiss the appeal on the ground that no judgment was signed by the District Court and filed as required 'by law.

The motion to dismiss is well founded. The Code of Practice, Article 546, provides that “The judge must sign all definitive or final judgments rendered by him * *

The record contains no judgment and counsel for plaintiff concedes that none was signed.

It is well settled in Louisiana that no appeal lies when there has been no judgment signed and equally well settled that this rule applies to a judgment dismissing a suit on an exception of no cause of action. See Vidrine v. Soileau et al., La.App., 33 So.2d 107, and cases there cited.

The appeal herein is dismissed, at appellant’s cost.


author: ICENNON, Judge.

text:
    TRANSO INVESTMENT CORPORATION v. OAKLEY et al.
    No. 7216.
    Court of Appeal of Louisiana. Second Circuit.
    Oct. 27, 1948.

      Hussey & Smith, of Shreveport, for plaintiff-appellant-appellee.
    Cook, Clark & Egan and Booth, Lockard & Jack, all of Shreveport, for defendants-appellees-appellants.
   ICENNON, Judge.

Plaintiff filed this suit and tendered for deposit in the registry of the Court with the petition the sum of $1743.75.

The petition set -forth that plaintiff had sold certain real estate in the City of Shreveport, Louisiana, upon which a real estate commission in the above amount was due. In paragraph 4 plaintiff alleged:

“Petitioner now shows that Josephine B. Oakley, a feme sole, Mrs. F. M. Talbot, wife of Dr. F. M. Talbot, Charles E. East-erwood and Carter Henderson, all residents of Caddo Parish, Louisiana, are claiming said sum of One Thousand Seven Hundred Forty-three and 75/100 ($1,743.-75) Dollars as commission due by petitioner in negotiating the aforesaid sales.”

The named defendants were from two separate real estate firms. Defendant, Mrs. Josephine B. Oakley, answered, making claim to the commission deposited in Court and in reconvention asked that plaintiff be condemned to pay the full sum deposited with interest and costs; asking that the amount deposited in Court be applied in credit against the judgment prayed for and in the alternative, asking that the Clerk pay her the said sum.

Defendants from the other firm answered, setting up a state of facts showing that it had earned a commission of $2125.00 for its services in connection with the sale described in plaintiff’s petition and praying for judgment in that amount with interest chnd costs. In the alternative, it prayed that it be awarded the amount deposited in Court.

Petitioner filed exceptions of no cause or right of action to the reconventional demands and reiterated that it had no interest in the fund deposited and requested that the Court award same to the defendants as their interest might be proven and without costs to plaintiff.

The District Court rendered judgment sustaining the exceptions of no cause or right of action and dismissed the plaintiff’s suit. The judgment further sustained the exceptions of no cause or right of action filed by plaintiff to the reconventional demand of all parties and ordered “according to the agreement of counsel” that the money on deposit remain in the custody of the .Cou'rt until final disposition of the case on appeal.

The right to file the interpleader action is a statutory one. Under these circumstances, the plaintiff, claiming benefit of the act, must allege with certainty the facts which bring his cause under the act’s provisions.

Since paragraph 6 of the act, Act No. 123 of 1922, relieves the depositor from the payment of any costs in the proceedings (save the costs of service and citation on persons who do not answer the demand and who do not make any claims upon the money deposited), it follows that the act was intended only to cover situations in which the depositor deposited in full all the money tha-t could be considered due by him to all the claimants under the facts alleged in the petition.

In the case before us, the petition does not affirmatively show that plaintiff has deposited all the money that might be due Under the facts alleged in the petition. The petition sets forth an involved real estate transaction which includes the exchange value as shown in the deeds of transfer, but does not show tha-t this value was agreed upon by the persons cited as claimants or that the value was set by disinterested and qualified persons. Oftentimes, parties who have agreed upon the exchange of property may — for reasons suiting their own purposes — mutually agree on a named value different from the actual market value of the properties exchanged. Hence the amount deposited by the plaintiff in the registry of the court may or may not represent the appropriate value for the purpose of fixing the real estate broker’s commission.

It might further be noted -that the purpose of the interpleader act is equitable in nature, meaning to protect a person finding himself in possession of money which is not his from having to referee the rights of rival claimants and risk paying same to the wrong party. In the case before us, plaintiff’s own action, by his employment of, or dealing with, the two defendants, gave rise to -the situation whereby two separate real estate firms are claiming a commission against plaintiff. The language of the petition does not indicate affirmatively that plaintiff did not so act in the proceedings as to owe a commission to both of the real estate firms which were concerned in the involved proceedings and negotiations leading to the final sale.

The purpose of the interpleader act was to avoid a multiplicity of actions. It follows then that if a case is such that the result of the interpleader action would be to leave unsettled the claims of all cited parties as against the depositor, no good purpose would be served.

In an opinion by Justice Higgins of the Supreme Court in the case of Hennington v. Petroleum Heat & Power Company of Louisiana, Inc., 194 La. 188, 193 So. 583, 586, the Court used the following language :

“In a concursus proceeding each claimant occupies a dual position of plaintiff and defendant with reference to the other claimants. Consequently, as the whole controversy is over 'the money deposited, none of the parties to the concursus proceedings would have the right to obtain a judgment against the debtor, contradictorily with him alone or with his consent only, recognizing his lien on the funds, when such judgment might be said to bind the other claimants as being the law of the case. This would only cau'se confusion and prolongation of the litigation, instead of simplifying and speedily ending the same.
“Of course, this is contrary to the purpose and spirit of Act No. 123 of 1922, under which the parties litigant have acted in presenting the respective issues in the concursus proceedings to the court. The Act was passed in order to avoid a multiplicity of suits and actions, and contemplates a proceeding leading to one judgment, which finally adjudicates all the issttes between all the parties.” (Italics ou'rs.)

There the point at issue was whether one of the claimants could obtain, contradictorily with the depositor a lien, and the Court declined to recognize a confession of judgment by the depositor in favor of one of the claimants and ordered this issue referred to the trial of the case, when the issue could be tried contradictorily with all claimants.

A reading of this opinion indicates that the Supreme Court interpreted the concursus proceeding as being one in which the depositor is not in fact a party to the issues in controversy, and the opinion supports ou'r holding here that the statute granting the right to deposit was passed to avoid a multiplicity of suits and actions and contemplates a proceeding in which the depositor is not at actual interest and one leading to one judgment finally adjudicating all the issues between all the parties.

The act contemplates a situation in which the applicant shall have come into possession of money or at least of a single sum certain of money, the only issue being, which of rival claimants — as between themselves — is entitled to the money deposited. The act does not cover a situation in which the party may owe a sum equal to the amount deposited to more than one person. The remedy afforded by the act is confined to that in which the issue to be settled is one in which the party beginning the action has no further financial interest- — -once he has deposited the funds in Court.

The exception to plaintiff’s petition was well founded.

We are confronted with the rather unusual proposition that only one of the cited rival claimants filed an exception of no cause or right of action and the question is presented as to whether the case should be dismissed in its entirety or left on the docket as to the named claimant who filed no exception. As a practical proposition, if the Cou'rt holds that plaintiff’s petition states no cause of action under the interpleader act, the order of dismissal should include the direction to the Clerk to return to plaintiff the money deposited in Court. The action partakes somewhat of an “in rem” proceeding, (Louisiana Oil Refining Corporation v. Williams, et al., 170 La. 218, 127 So. 606) and, once the petition is dismissed and the money returned, the res is no longer before the Court for division and the action to effect the distribution under Act No. 123 of 1922 is at an end for all parties and for all purposes. Cases have held that the depositor, under Act No. 123 of 1922, can himself assert no claim to the money deposited in court. This makes the contest in fact one between the rival claimants. We think it logically follows that the claimants cited under interpleader proceedings cannot reconvene against the depositor. Of course, the maintenance of the exceptions of no cause or right of action herein will preclude none of the cited claimants from pursuing whatever rights they may have against plaintiff herein in connection with the transaction upon which this suit is based.

The learned District Judge sustained the exception of no cause of action to plaintiff’s petition and ordered the suit dismissed. He likewise sustained the exception of no cause or right of action to the reconventional demand and ordered the money deposited in the registry of the court to remain on hand until final disposition of the case on appeal.

The judgment appealed from is affirmed and the Clerk of the First Judicial District Court is directed to return the fund deposited, less all costs of these proceedings, to the plaintiff.

TALIAFERRO, KENNON, and HARDY, JJ., sitting.


author: TALIAFERRO, Judge.

text:
    BROTHERS v. RUSSELL et al.
    No. 7274.
    Court of Appeal of Louisiana. Second Circuit.
    Nov. 24, 1948.
    Joseph S. Guerriero, of Monroe, for appellant.
    Theus, Grisham, Davis & Leigh, of Monroe, for appellees.
   TALIAFERRO, Judge.

Plaintiff appealed from judgment that sustained exceptions of no cause and no right of action and dismissed his suit. Pie sued to recover damages allegedly due for physical injuries sustained by him and for the destruction of his automobile, results of a collision between it and defendant’s bus, on the Monro e-Bastrop paved highway, in the Parish of Ouachita, in the night time. The suit is against Jack Russell, doing business as Monroe-Stcrlington Bus Line, and his insurer, Globe Indemnity Company.

As the exceptions have to stand or fall upon a construction of the well pleaded facts in the petition, we here quote or paraphrase those allegations, contended by the plaintiff to be adequate to repel the exceptions and which, on the other hand, defendants insist are insufficient in this case to disclose a right or a cause of action.

Plaintiff alleges that after dark, the evening of December 6, 1947, he was driving his Plymouth sedan automobile on said highway, toward Bastrop or northeasterly, and overtook and passed another automobile; that immediately after passing said automobile, and “before he could see”, a bus of the defendant, Russell, operated by one of his drivers, in the discharge of the duties of his employment, was practically “at a standstill as it was beginning to stop to discharge a passenger”; that the bus had no lights on its back end and “therefore, could not be seen by your petitioner”, and, “naturally, under these circumstances, your petitioner ran into the back of the said bus and completely demolished” his Plymouth car. He also alleged that had the bus been equipped with rear lights, as required by law, it could have been seen when at stop for “a great distance”. The color of the bus is not disclosed in the petition.

Negligence in the following respects is charged to the defendant, Russell, and his driver, to wit: Not having proper lights on said bus as required by law; not giving proper signal of his intention to stop; totally disregarding the presence of the automobile to the rear of the bus and in failing to signal that car of his intention to stop at a time when his lights were not working.

The case brings up for consideration, and pivots upon the general rule that it is actionable negligence for, a motorist, in the night time, to operate his vehicle at such rate of speed that it cannot be stopped within the distance well illumined by its headlights. This general rule has been applied and enforced in many cases decided by this and the other courts of appeal ef the state and by the Supreme Court. The rule admits of exceptions, and plaintiff argues that his case falls within the realm of an exception. That there are exceptions to said general rule has been recognized in several cases. See Hogue v. Akin Truck Line et al., La.App., 16 So.2d 366, wherein exceptional cases were cited and discussed; and the very recent case of Rea v. Dow Motor Company, La.App., 36 So.2d 750, the facts of which, in the opinion of this court, eliminated it from the operative effect of the general rule above mentioned. The Supreme Court on November 8, 1948, declined to review judgment in that case.

The petition’s recitals warrant the conclusion that plaintiff’s car had completely passed the other car and had regained its right side of the road prior to the time of the collision. This being true, this other car must then have been immediately back of plaintiff’s and in the same lane of travel. We cannot perceive wherein the lights of the car at his rear could have, to any extent, interfered with his ability to discern the bus which presented to him a solid wall several feet high and several feet wide. The headlights of his own car, if functioning efficiently, ought to have revealed to him the bus’ rear end in ample time to avoid- running into it if his own speed had not then been excessive, all conditions being considered. . The fact that, as by him alleged, his car was demolished from the impact, speaks rather convincingly that his speed was excessive.

It will be observed that plaintiff does not allege that the bus stopped suddenly in front of him. He must have observed that it was preparing to stop because he alleged that it was “beginning to stop to discharge a passenger”. Therefore, the bus and its movements obviously were clearly seen by him prior to the collision. In view of all this we do not see how the absence of rear lights or the failure to give signal of the intent to stop, as by plaintiff alleged, should have any material influence in the case. Obviously, the collision would have occurred had the lights been burning and the signal been given.

The conclusion is readily deduicible from the petition’s contents that plaintiff, after regaining his side of the road, followed too closely to the bus and was going too fast to stop his own car before running into it, although he observed that it was slowing down preparatory to making a stop. Signal of the bus driver indicative of his purpose to bring it to a stop could not have been more significant to plaintiff than was the slowly reduced speed of the bus precedent to making the stop.

We experience no difficulty in reaching the conclusion that plaintiff’s own actions immediately preceding the collision amounted to negligence of such character as to bar recovery by him of the damages for which he has sued; and granting that the rear lights of the bus were not burning and that its driver failed to give signal of his intention to stop, these omissions of duty could not reasonably Pe construed to be the proximate cause of the accident.

Therefore, for the reasons herein assigned, the judgment from which appealed, is affirmed with costs.


author: HARDY, Judge.

text:
    HOOPER v. HARPER.
    No. 7220.
    Court of Appeal of Louisiana. Second Circuit.
    Nov. 24, 1948.
    G. P. Bullís, of Vidalia, for apellant.
    Smith & Taliaferro, of Harrisonburg, and Philip Watson, of St. Joseph, for apel-lee.
   HARDY, Judge.

This is an ejectment suit in which judgment was rendered in favor of plaintiff, and from which defendant has suspensively appealed.

Careful examination of the very imperfect and unsatisfactory record before us in this case fails to disclose any basis which would serve to fix appellate jurisdiction. The lease which is incorporated in the record, and which covers a tract of some 200 acres of land, more or less, located in Con-cordia Parish, Louisiana, contains the following provisions with respect to the payment of rent:

“In cash, or by certified or cashier’s check payable to the order of the Treasurer of the United States, at the office of the Farm Security Administration in Jones-ville, La., an amount equivalent to the market value of the shares of the agricultural commodities produced on the Property specified in the following table:

“25 percent of the 1946 cotton crop
“25 percent of the 1946 Corn crop
“25 percent of the 1946 Hay crop.”

It is well settled that the monthly or yearly rent paid under a lease is the test of jurisdiction. Cunningham v. Middleton, 4 La.App. 643; Tobias v. Schloss, 5 La. App. 234.

Since the record is devoid of any information as to the value of the crop rentals fixed in the lease, we have no guide for a determination as to whether the appeal properly lies before this or the Supreme Court.

Accordingly, it is ordered that this case be, and it is, remanded to the Plonorable Seventh Judicial District Court in and for the Parish of Concordia, State of Louisiana, for the purpose of taking testimony or the entering of a stipulation fixing the jurisdictional amount involved. Assessment of costs of appeal are to await final determination hereof.

TALIAFERRO, J., recused.


author: MOISE, Justice.

text:
    214 La. 273
    STATE v. TRIANGLE DRILLING CO., Inc.
    No. 38685.
    Supreme Court of Louisiana.
    Nov. 8, 1948.
    Eugene A. Conway and Stephen B. Rod!, both of Baton Rouge, and Irion & Switzer, of Shreveport, for plaintiff-appellant.
    Smitherman, Smitherman & Purcell, of Shreveport, for defendant-appellee.
   MOISE, Justice.

This suit involves a tax alleged to be due the State under the provisions of Act No. 25 of the Second Extra Session of 1935, as amended by Act No-. 5 of the Fourth Extra Session of 1935. The district court rejected the State’s demand and it has appealed.

After this appeal was lodged in this Court and upon motion duly filed here by counsel for both plaintiff and defendant, W. A. Cooper, Collector of Revenue, and A. J. Hodges Industries, Inc., were substituted as parties plaintiff and defendant, respectively.

The record contains an agreed stipulation of fact in which it is admitted that the defendant used in the conduct of its business during the months of August, September and October, 1944 certain mechanical equipment with a capacity of 362.08 horsepower, and that on November 1, 1944, the Standard Oil Company of Louisiana purchased from the defendant the equipment in question, used it in its business and paid the tax due thereon for the fiscal year ending July 31, 1945.

The issue involved is whether the defendant is liable to the State for a power tax because of the use of this equipment in its business during the months of August, September and October of the tax year 1945, even though the Standard Oil Company of Louisiana paid a power tax for the privilege of using the same equipment for the same tax year.

Section 3 of Act No. 25 of the Second Extra Session of 1935, as amended by Act No. 5 of the Fourth Extra Session of 1935, provides that in addition to all other taxes, every person, firm, or corporation engaged in business in -the State, which uses, in the conduct of such business, electrical or mechanical power of more than ten horsepower, shall be subject to the payment of a tax of fifty cents per annum for each horsepower of capacity of machinery operated by the said person, firm or corporation. Section 5 of this statute provides that the Collector of Revenue shall have power to make reasonable rules and regulations for the enforcement of the Act, which shall have the full force and effect of law. These regulations provide that the tax is not to be pro rated; that it is due at the yearly rate of fifty cents for each horsepower of capacity of all prime movers operated, whether the prime movers are operated for one day or three hundred sixty-five days during a year; and that the tax is due by every operator whether they own, rent, or borrow the equipment in question.

The defendant contests the legality of the tax and the reasonableness of the regulations. It argues that the regulations broaden the language used by the Legislature in Section 3 of the statute because the words per annum in the act show the legislative intent to impose only one annual tax; that when the statute uses the words “privilege tax of Fifty Cents (50c) per annum for each horsepower of capacity of the machinery”, this language manifests an intent that the payment of the tax should be for one year; that once the tax is paid by a user prior or subsequent users of the machine would not be liable to the State for an additional fifty cents per horsepower each, although each user might be under obligation to share the tax in proportion to the time used during the tax period, and that the imposition of a tax upon the defendant here constitutes double taxation. The defendant also argues that under the regulations ten or twelve different individuals or concerns might have to pay the tax on the same power machinery and that this is unreasonable and confiscatory.

The State, on the other hand, urges that the defendant owes the tax because it used the machinery in its trade or business; that the tax is a license or privilege tax as contradistinguished from a property tax; and that there is involved no question of double taxation.

We are in accord with the State’s conclusion. The term per annum is an effective restriction to prevent double taxation because, when a tax is paid, the user is protected for the full year. He cannot be taxed again for the use of the same subject. If the owner of the machinery does not use his property, he cannot be taxed under this act; if he does use the machinery, he is taxed; and if he disposes of it, the purchaser and user is liable for the tax on the basis of the horsepower capacity of the equipment. Where is double taxation? The defendant has paid no tax far the use of the equipment in 1945. Double taxation occurs when one person or any one subject of taxation shall directly contribute twice to the same burden, while other subjects of taxation belonging to the same class are required to contribute but once. See Cooley, The Law of Taxation, 4th Ed., Vol. 1, Sec. 225, p. 484. The Standard Oil Company of Louisiana made this contribution because it had exercised the privilege of using this machinery in its business. We find no merit in defendant’s contention of double taxation.

The defendant also contends that the Standard Oil Company of Louisiana used the same machinery, that the tax paid by the Standard Oil Company of Louisiana was for one year, and was the only tax due. However, it is clear that if ten users exercise the privilege of use in the operation of their business, there must be ten taxes paid by these users. They are assessed alike. “The only person who is entitled to complain of a double assessment is the one who is made to bear more than his proportion of the burden of taxation. * * * ” Cooley, op. cit. supra, Sec. 227, p. 488.

The rule is one of equality and uniformity of right. The tax is levied upon all users and is measured by the amount of horsepower capacity of the machinery used. With equal capacity, equal taxes are paid. To make any other construction of the act would be the writing into the statute of an exemption which the Legislature did not give and certainly one which this court cannot grant.

For the reasons assigned, the judgment appealed from, insofar as it decrees that there is no additional power tax due by the defendant to the plaintiff for the tax year ended July 31, 1945, is reversed and set aside; and

It is now ordered that there be judgment herein in favor of plaintiff and against the defendant for additional power taxes for the year ended July 31, 1945, in the full sum of One Hundred Eighty-one and 04/100 ($181.04) Dollars, together with interest thereon at the rate of six per cent per annum from March 31, 1947, until paid, with an additional amount of ten per cent of said taxes and interest as attorney’s fees. In all other respects, the judgment of the district court is affirmed. The defendant to pay all costs.

O’NIELL, C. J., dissents.

HAMITER, J., takes no part.


text:
    214 La. 279
    MELERINE v. MELERINE.
    No. 39144.
    Supreme Court of Louisiana.
    Nov. 8, 1948.
    Raymond H. Kierr, of New Orleans, for relator.
    Chalin O. Perez, of New Orleans, for respondent.
   MOISE, Justice.

We issued a writ of certiorari in this case in order to review the judgment of the district court rendered herein.

Plaintiff brought suit against her husband for separation from bed and board, and prayed that “a writ of injunction issue” restraining and prohibiting the defendant from disposing of the community property, and for judgment “perpetuating the said injunction”. Attached to the petition was an order prepared for the court’s signature, providing for a temporary restraining order and a rule to show cause why a permanent injunction should not issue. This order was signed by the court. At the hearing on 'the rule, the defendant filed an exception urging that the petition disclosed no right or cause of action for the reason that it failed to apply for a preliminary injunction, as required by Sec. 2 of Act No. 29 of 1924. Plaintiff thereupon sought to amend the prayer of her petition so as to ask that she be granted a preliminary injunction. The district court sustained the exception of no right or cause of action and refused to allow the amendment. The district court then recalled the temporary restraining order and dismissed the rule for a permanent injunction.

The authorities cited by respondent are inapplicable to the facts as disclosed by the record. We therefore refrain from making any comment.

It is obvious that the sustained exception is not directed to the petition for a separation from bed and board nor to the prayer for relief in the petition, but against the order itself. The responsibility for that order is with the court, and the ends of justice require that the order be made to conform to the law so that a judgment may be rendered. We believe the amendment requested should have been granted because it does not change the matter nor the substance of the demand. Its denial, as a matter of fact, has made the right for injunctive relief to the wife a mere abstraction affording no real protection.

Article 149 of the Revised Civil Code grants to the wife an injunction to preserve her community property during the pendency of the suit. The court cannot refuse such an injunction when there is the factor of community property and the wife has filed a suit for separation from bed and board. When these facts are present, the injunction becomes a matter of right and the court has no discretion. Article 298 of the Code of Practice gives the wife a similar right in mandatory language.

For the reasons assigned, the writ heretofore issued by us in this case is perpetuated and made absolute, the judgment dismissing plaintiff’s application for injunction is recalled and set aside and the case is remanded to the lower court to be proceeded with according to law and consistent with the views herein expressed; all costs of this court to be paid by defendant and all other costs to await the final determination of this litigation.


text:
    BURKHARDT v. CITY OF MONROE.
    No. 7280.
    Court of Appeal of Louisiana. Second Circuit.
    Nov. 24, 1948.
    Redmond & Harkey, of Monroe, for appellant.
    Oliver & Digby and Hudson, Potts, Bernstein & Davenport all of Monroe, for appellee.
   TALIAFERRO, Judge.

Plaintiff, the widow of Ulrich Burk-hardt, deceased, instituted this suit against his employer, the City of Monroe, Louisiana, to recover workmen’s compensation. She alleged that her husband met death at the hands of William E. Harris, a fellow workman, the night of May 31, 1947, while performing the duties of his employment as pump operator on Bayou DeSiard; that deceased was shot and killed by said Harris without cause or provocation.

Defendant denies liability to plaintiff to any extent and resists the suit on these grounds, to-wit:

That the killing of Burkhardt by gun shots “did not arise in the course of his employment with the City of Monroe nor was it incidental to or connected with same for the reason that said injury was sustained in an altercation with the said William E. Harris in which the said Burkhardt was the aggressor, and that the blow or blows of the said Harris, which caused the death of the husband of plaintiff, were delivered in self defense. Appearer avers that the death of the said Ulrich Burk-hardt was caused by his wilful intention to injure another.”

There was judgment rejecting plaintiff’s demand and dismissing her suit, from which she appealed to this court.

The deceased and his slayer had worked at the pump house for several months pri- or to the tragedy. They had different shifts. At the hour of eight o’clock the evening of the tragedy, Burkhardt reported to relieve Harris who had been on duty for several hours. The pump house is near the shore of the bayou but several feet above the water thereof. It is connected with the levee that parallels the shore line by a three foot walk, referred to as the “cat-walk.” This walk leads directly into the door through which entrance is gained into the engine room of the pump house.

According to -the record there were five witnesses close enough to the scene to observe what was done and, to some extent, what was said by the two men over a period of several minutes prior to the shooting and at the time thereof. These were Mr. and Mrs. T. C. Robinson, Billy Ray Pruitt, age ten, nephew of Mr. Robinson, Miss Irene Hicks and her escort, Thomas A Sims. Miss Hicks and young Sims were in a car not over thirty feet from the spot where the killing occurred and we are constrained to believe were in a better position to observe what was done and to hear what was said than were the other three witnesses.

The testimony of the Robinsons and that of the Pruitt boy as to what each man did and said an instant before the first shot was fired, is in the main, diametrically opposed to that of Miss Hicks and young Sims. If the testimony of the former group should be accepted as reflecting the true facts, the killing was without legal excuse or justification, and, perforce, plaintiff should recover as against the contention that her husband was the aggressor. However, should the testimony of the latter two witnesses he taken at face value, the conclusion is inescapable that Burk-hardt was the aggressor in the difficulty that cost him his life; that he left the immediate scene of his employment, followed Harris to near the end of the walk, and there violently assaulted him with a large wrench; and that Harris shot him in defense of his own life. Of course, under such -state of facts plaintiff should not recover.

The trial judge accepted the testimony of Miss Hicks and young Sims as being the more reliable version of the facts attending the killing. The grand jury that investigated the case evidently did likewise as Plarris was not indicted.

It is certain that very soon after Burk-hardt went into the pump house after reporting for duty, something was said by one of them to renew an altercation that occurred between the parties the day before. Animated talk for several minutes ensued. And it is also -certain that when Harris left the pump house for the purpose of getting in his car and leaving the scene, Burkhardt followed him at a distance of a few feet along the “cat-walk.” Caustic remarks and replies were indulged in by both. The shooting occurred not over ten feet from where the walk’s end rests against the side of the levee.

The trial judge, in passing on application for rehearing, gave written reasons for his action denying the -same. These reasons, of course, controlled him in denying recovery to plaintiff. With approval, we here reproduce said reasons in full;

“The Court carefully considered the testimony in the case and reviewed same before rendering the original decision. In brief, the testimony in this case was to this effect: That the deceased employee and a fellow employee by the name of Harris worked at the City pump on Bayou De-Siard which supplies the water to the City of Monroe; that these two employees had difficulty of a personal nature, and the cause of this difficulty was the placing of some illegal fish traps in the Bayou adjacent to the pump station. In other words, the feeling which the testimony shows existed between these two people arose from the question of these fish traps. The testimony further shows that prior to the night on which Burkhardt was killed that there had been trouble between Harris and Burkhardt of a more or less serious nature, and one of the witnesses stated— testified in court — that Burkhardt had made threats as to what he was going to do to Harris on the night in question; that he was going to beat him up, and he had been prevented from doing that before because when they had the prior difficulty that Harris had been able to get a stick or some implement with which to defend himself and Burkhardt did not beat him up then. This witness testified that he went to Harris and cautioned him of the danger he was in and warned him of Burkhardt’s threat. The testimony shows that Harris went to the job on the night in question and was armed with a pistol, but the testimony shows that when Burk-hard't relieved him that Harris left the pump station and proceeded from the pump station down and across the end of the cat walk leading to the levee where Harris had his car parked, and the evidence clearly shows that he was leaving the place of employment to go to his car and go home, or somewhere away from the job.
“The testimony shows that Burkhardt left the pump station and followed Harris clear on out on to the cat walk. The testimony is not what you would call at variance, because the various witnesses were at different places, and the Court can understand how some witnesses could see things that others could not, but there is testimony in the record that Harris fired after Burkhardt had lunged towards him, and some witness said grabbed him, and that Burkhardt had a wrench in his hand, or some implement in his hand — big implement. There is testimony to that effect, and the testimony clearly shows that when they searched the scene after the trouble they found a big Stilson wrench just below the cat walk in the neighborhood of where this difficulty occurred, but all of the witnesses agreed that Burkhardt left his place of employment and followed Harris out, still pursuing this argument and trouble, and you have the statement of the witness that Burkhardt had previously stated he was going to beat Harris up at this time in question.
“I think that all the testimony clearly shows that Burkhardt was the aggressor; that he provoked this difficulty and that he comes under that exception in the compensation act where his heirs cannot recover. ^ ^

Paragraph 1 of Section 28 of the Workmen’s Compensation Law, Act 20 of 1914, in part, reads:

“That no compensation shall be allowed for an injury caused (1) by the injured employee’s wilful intention to injure himself or to injure another * *

In construing this provision the courts uniformly have held that if an employee, while in the discharge of his duties, is injured or killed in an attempt to injure or kill another person, he forfeits for himself and his widow and dependent children the beneficent benefits of the Workmen’s Compensation Law. This exception to the right to demand compensation of the employer is in its nature a penalty visited upon him who would wilfully take the law into his own hands. The rule is designed to promote a disposition on the part of employees to forbear acts of violence too often resorted to by men to even scores with those persons against whom ill feeling has been engendered, with or without just cause.

This exception was interposed as a de- . fense and upheld in the following cases, to-wit: Gross v. Great Atlantic & Pacific Tea Co., La.App., 25 So.2d 837; Morvant v. Aetna Casualty & Surety Co., La. App., 181 So. 595; Toney v. George A. Fuller Company et al., La.App., 143 So. 541; Fisher v. Sherrill Hardwood Lumber Company, Inc., 3 La.App. 595.

Whether or not the deceased was the aggressor in the difficulty, is a question of fact; and since the trial judge who saw and heard the witnesses testify, and the grand jury that investigated the case, resolved this issue against the plaintiffs contentions, unusually strong reasons would have to appear, to warrant a decision for the plaintiff. Surely, no manifest error appears.

Having held that plaintiff is barred from recovery on the ground above discussed, obviates the necessity of passing on the defense that he was not killed while in the course of his employment.

For the reasons herein assigned, the judgment from which appealed is affirmed at plaintiff’s cost.


text:
    STANDARD OIL CO. OF NEW JERSEY v. EVANS et al.
    No. 7233.
    Court of Appeal of Louisiana. Second Circuit.
    Nov. 24, 1948.
    Tucker, Bronson & Martin, of Shreveport, and Coenen & Coenen, of Rayville, for appellants.
    Breazeale, Sachse & Wilson and Cecil Morgan, all of Baton Rouge, and Powell A. Casey and John P. Everett, both of Shreveport, for appellees.
   KENNON, Judge.

Alleging that The Mengel Company, George W. Evans and Reagan J. Caraway, were all claimants to one-half of a one-eighth royalty interest covering the SW% of SWJ4, Section 26, Township 17 North, Range 8 East in Richland Parish, Louisiana, and that it had purchased oil produced from this property, plaintiff, the- Standard Oil Company of New Jersey, deposited $387 (an additional $256.63 was deposited by supplemental petition) in the registry of court and prayed that the above named claimants be impleaded under Act 123 of 1922 and that judgment be rendered making distribution of the funds and relieving the petitioner from further liability to the persons cited.

The Mengel Company answered, claiming ownership of the entire Vieth royalty interest described in plaintiff’s petition. The other two defendants answered, each claiming a one-half of the %6th interest claimed by The Mengel Company.

On the day set for trial, the parties by stipulation introduced in evidence various instruments affecting the land, including a stipulation that the producing oil well on the property in controversy was a flowing well and that “the royalty interest in contest between the parties and pursuant to which the funds were deposited in Court is worth at the time of this suit in excess of $2000.-00.”

The District Court rendered judgment ordering the amount deposited with the Clerk to be paid to The Mengel Company and further, “all other payments be made by Standard Oil Company of New Jersey to said Mengel Company.”

The case is before us on appeal by the other defendants from that judgment.

Paragraph 10 of Article 7 of the Constitution provides that the appellate jurisdiction of the Supreme Court shall extend to civil suits where the amount in dispute or the fund to be distributed shall exceed $2,-000 (except in suits for personal injuries and in suits for workmen’s compensation).

The issue to be determined in this case is the ownership of the Vi6th mineral interest, all of which is claimed by defendant Mengel Company against the contention of the other two defendants that they are the owners (one-half each) of the same JÍ6th interest. The record shows that the net value of Jisth of the oil produced was $387 for the eight months preceding the filing of suit and $256.63 for the succeeding seven months. Of course, there is nothing in the record to show how much additional is due by the Standard Oil Company of New Jersey for oil purchased since the filing of its supplemental petition. As shown above, the value of royalty interest itself was, by stipulation of all parties, fixed as being in excess of $2,000.

The judgment in this case would necessarily determine not only the distribution of the money deposited in Court along with the original and supplemental petitions, but also the disposition of such additional money as may become due to the owner of this Vxeth royalty interest before the final determination of the litigation, and in addition, the judgment in this case would determine the ownership of the royalty interest itself.

Under these circumstances, it is obvious that the amount in dispute between The Mengel Company and its codefendants is well in excess of $2,000. Since the suit is not one involving personal injury or compensation, the Supreme Court, under the Constitution, has jurisdiction of the appeal.

Therefore, in accordance with Act 19 of 1912, it is ordered that the appeal in this case be transferred to the Supreme Court of Louisiana; that the appellants are hereby granted a period of sixty days from the date this decree becomes final to file the necessary transcript and perfect their appeal, and should they fail to do so within this sixty day period, the appeal is to stand dismissed. Appellants to pay the costs of this appeal; all other costs to await the final outcome of the litigation.


author: REGAN, Judge.

text:
    CONTINENTAL INS. CO. v. HIMBERT.
    No. 18935.
    Court of Appeal of Louisiana. Orleans.
    Nov. 29, 1948.

      Theodore H. McGiehan and Michael H. Bagot, both of New Orleans, for appellant.
    Lemle, Moreno & Lemle and Pat F. Bass, all of New Orleans, for appellee.
   REGAN, Judge.

The plaintiff, Continental Insurance Company, insurers of Roland Brierre, brought this suit against the defendant, Oliver J. Himbert, Jr., for damages to Brierre’s automobile in the sum of $211.97, caused as a result of the theft of the said automobile from the parking lot of defendant. From a judgment in favor of plaintiff in the amount of $186.97, defendant prosecutes this appeal.

Prior to the trial of this cause, counsel entered into' an agreement relative to the pertinent facts of the case, which “stipulation” reads in part as follows:

“(1) That the Continental Insurance Company is a -corporation organized under the laws of the State of New York, authorized to do and doing business in the State of Louisiana.
“(2) That on July 27, 1943, the Continental Insurance Company was engaged in the insurance business and had in full force and effect a certain policy of theft insurance on an automobile owned by Roland Brierre and, under the terms of said policy, the Continental Insurance Company was bound to indemnify Roland Brierre for any loss or damage to his automobile caused by theft.
“(3) That Oliver J. Himbert, Jr. on July 27, 1943, operated a parking lot located at 536 Camp Street in the City of New Orleans known as the Federal Parking lot.
“(4) That as of July 27, 1943, Oliver J. Himbert, Jr. had an agreement with a-11 of his customers, including Roland Brierre, that the said parking lot was operated only between the hours of 8:00 A.M. and 5 :30 P.M. Monday through Saturday and was closed on Sundays and holidays.
“(5) That Oliver J. Himbert, Jr. also had an agreement with all of his customers, including Roland Brierre, that his employees left said parking lot at 5 :30 P.M. and, when they left, they would place the keys of each automobile either under the mat in the front of the automobile near the drivers’ seat or on the back of the sun visor above the drivers’ seat in the front of the automobile.
“(6) That on the morning of July 27, 1943, Roland Brierre parked his said automobile on the Federal Parking Lot and -it was subsequently stolen and later recovered in Richmond, Virginia in a damaged condition.
“(7) That the Continental Insurance Company was called upon to pay under the terms of their theft .policy and did pay to said Roland Brierre the sum of Two Hundred Eleven Dollars and Ninety-Seven cents ($211.97) as a result of the theft of his automobile and, upon .payment, the Continental Insurance Company became subro-gated of any and all rights of Roland Bri-erre against Oliver Himbert, Jr., in the amount of payment aforementioned.”

At the termination of the trial counsel for plaintiff waived an item of damage in the amount of $25, representing the loss of the use of the car to Brierre, thereby reducing plaintiff’s claim for damages from $211.97 to $186.97.

'Counsel for plaintiff and defendant agree that if Brierre returned to defendant’s parking lot after 5:30 P.M. on July 27, 1943, for his automobile, no liability for the theft can attach to defendant; conversely if Brierre returned to the parking lot prior to 5:30 P.M. on the day in question, and there were no attendants present, and the car was missing, then, in that event, defendant is liable. Therefore, the sole 'question presented is whether Brierre called at the parking lot for his automobile before or after 5:30 P.M. on July 27, 1943.

The operator of a parking lot is a compensated depositary. Munson v. Blaise, La.App., 12 So.2d 623. Revised Civil Code, Articles 2937 and 2938. The responsibility of a depositary is that of an ordinary prudent man using “the same diligence in preserving the deposit that he uses in .preserving his own property.” Kaiser v. Poche, La. App., 194 So. 464, 466; Revised Civil Code Article 2937. The contract between defendant and Brierre was a limited obligation as to the time of performance. Revised Civil Code, Articles 1996 and 2048. Defendant, for a consideration, undertook the safekeeping of automobiles, particularly Brierre’s, between the hours enumerated — 8:00 A.M. to 5:30 P.M. After 5:30 P.M. the obligation of defendant, as a compensated depositary, ceased because of the nature of the contract, however, he was still required by law to exercise reasonable care in the delivery of the automobiles to his customers and in leaving the cars for those customers who had not called for them by 5 :30 P.M. The repeated practice of leaving the keys to the cars either under the floor mats or within the confines of the sun visors after 5 :30 P.M., was so well understood and had been done so often with all of the customers including Brierre as to constitute a custom. Upon the termination of the contract for the safekeeping of a compensated deposit, there was a constructive delivery of the automobile to the owner thereof.

In the record we find two uncontradicted written statements emanating from defendant’s employees, Melvin Gaines and Curtis Ross, to the effect that they left the parking lot after 5:30 P.M. Gaines’ statement further emphasized that Brierre’s car was still in the parking lot when he left after 5:30 P.M.

Brierre, himself, is most uncertain as to the time at which he arrived at the parking lot. In fact, his testimony was conflicting concerning this vital point.

Opposed to this equivocal testimony is that of defendant’s two employees. Since Brierre knew and had agreed that after 5 :30 P.M. his car would be left with the keys, either under the floor mat or within the confines of the sun visor, he had empowered defendant to make constructive delivery of the automobile to him. A deposit is completed with the return of the thing deposited. Revised Civil Code, Article 2930. Thus defendant’s liability ceased at 5 :30 P. M. on July 27, 1943, with the return of the deposit.

We are fully cognizant of the well accepted premise that on questions of fact a judgment of a lower court will not be disturbed unless manifestly erroneous, however, -in this case, we are impressed by the dubious testimony of Brierre relative to the time that he arrived at the parking lot as opposed to the accepted and uncontradicted statements of both defendant’s witnesses, which, in our opinion, distinctly turned the scales in defendant’s favor.

We are, therefore, of the opinion that plaintiff has failed to prove its case.

For the reasons assigned the judgment appealed from is annulled, avoided and reversed and it is now ordered that there be judgment herein in favor of the defendant dismissing plaintiff’s suit at its cost.

Reversed.


author: PER CURIAM.

text:
    DOLL v. DEARIE et al.
    No. 19087.
    Court of Appeal of Louisiana. Orleans.
    Nov. 29, 1948.
    Rehearing Denied Jan. 10, 1949.
    Marion G. Seeber and Delvaille H. The-ard, both of New Orleans, for plaintiff-ap-pellee.
    Fred G. Veith, of New Orleans, for defendants-appellants.
   PER CURIAM.

This court previously denied a motion of plaintiff-appellee to dismiss the appeal ■of defendants from a judgment taxing the amount of court costs to be paid by them. See 37 So.2d 61.

Appellee has filed a second motion to ■dismiss the appeal, which is now before us. The basis of the present motion to ■dismiss is that defendants confessed or acquiesced in the judgment, and that they therefore had no right of appeal.

Article 567, Code Practice declares:

“The party against whom judgment has been rendered can not appeal:
“1. If such judgment have been confessed by him, or if he have acquiesced in the same, by executing it voluntarily.
“2. If he has suffered the time prescribed by law for appealing to elapse. ”

When the matter was called for trial in the lower court, the issue of the amount of the costs to be taxed having been presented by a rule taken by plaintiff, the following admission was dictated into the re-ord by appellants’ counsel: “It is admitted that the total cost expended by the plaintiff in these proceedings is $61.30.”

The trial court then remarked: "The rule will be made absolute, fixing the amount of cost covered by the prior judgment at the amount stipulated. Since the judgment already provided for costs and condemned the defendant to pay the cost, and the judgment is final, this court cannot change the judgment whether it is right or wrong.”

The original judgment which condemned defendants to liability for costs is now executory, defendants having prosecuted only a devolutive appeal therefrom. The motion to dismiss presents no other issue save and except the question whether counsel’s quoted admission in the lower court constitutes a confession of judgment. We think it does. The admission of the amount of the costs due was unequivocal and unqualified. Plaintiff produced no proof and relied upon the admission, and the court, evidently being of the opinion that $61.30 was the correct amount of the costs, rendered judgment on the rule accordingly.

In Skinner v. Dameron, 5 Rob. 447, cited with approval in Sample v. Wheless, 159 La. 844, 106 So. 325, 326, the Supreme Court said: “We are not aware that under our laws any particular form is required in confessing judgment. Any admission of the debt sued for, which is such that it leaves no issue to be tried, is, in fact, a confession of judgment.”

See also Greater New Orleans Homestead Ass'n v. Korner, 14 La.App. 282, 128 So. 49.

A motion to dismiss an appeal, grounded on the want of a legal right to the appeal, may be made at any time. Sample v. Wheless, supra, and cases therein cited.

The motion to dismiss is sustained, and appellants’ appeal from the judgment taxing costs' is dismissed.

Motion sustained.


author: REGAN, Judge. McBRIDE, Judge

text:
    PITTMAN v. ROBINSON.
    No. 18811.
    Court of Appeal of Louisiana. Orleans.
    Nov. 29, 1948.
    Rehearing Denied Jan. 10, 1949.
    Writ of Certiorari Granted Feb. 14, 1949.
    Pat F. Bass and Lemle, Moreno & Lem-le, all of New Orleans, for. appellant.
    Joseph V. Bologna; of New Orleans, for appellee.
   REGAN, Judge.

This is a suit instituted by Lloyd E. Pittman, .plaintiff, against the defendant, Mrs. Margaret E. Moustier doing business as the Dixie Stove Works, and brought under the provisions of the Louisiana Workmen’s Compensation Act, Act No. 20 of 1914, as amended. Plaintiff alleges that on July 11th, 1945, while in the employ of .the defendant as a stove mechanic, he delivered a Heavy Duty Vulcan Stove to Brous-sard’s Restaurant, in 819 Conti Street, in the City of New Orleans, and that while in the act of unloading the said stove, it slipped and as a result thereof he suffered an inguinal hernia. He. further alleges that this injury prevents him from performing work of any reasonable character and, therefore,’ he is entitled to compensation on the basis of total and permanent disability. He prays for compensation at the rate of $20.00 per week for a period not exceeding four hundred weeks or a total of $8,000.00, less a credit of forty weeks.

Defendant answered admitting the plaintiff’s employment but denying the remaining allegations of the petition. Upon the conclusion of the testimony defendant entered a plea of prescription based on the fact that the accident, if there was one, occurred more than one year prior to the institution of this suit and not on July 11th, 1945, as alleged by plaintiff.

The trial court overruled this plea of prescription and rendered a judgment in favor of plaintiff as prayed for. Defendant has appealed.

Section 31 of Act No. 20 of 1914, as amended, Act No. 29 of 1934, provides:

“In case of personal injury * * * all claims for payments shall be forever barred unless within one year after the accident * * * proceedings have been begun as provided in Sections 17 and 18”.

Plaintiff testified that the accident occurred and the injury manifested itself on July 11th, 1945, at approximately 8:30 a.m. Plaintiff himself does not recall the date, but fixes it on the basis of his visit to Dr. Salatich, which he stated was on Monday, July 16th, 194S, which was the Monday after the Wednesday of the alleged injury, and, on the further fact, that Broussard’s Restaurant was closed every Wednesday during the year 194S. He maintains that he delivered two stoves and a salamander to Broussard’s during the year 1945, one stove sometime during February or March and the other on July 11th, at which time he was injured, and the salamander during the interval between -the deliveries of the first and second stove. He contends that he started work on July 11th, at 8:00 a. m., was injured at 8:30 a. m. and almost immediately thereafter he returned to the defendant’s place of business, informed Mr. Moustier of the accident and then went home. Plaintiff further testified that he returned to work on July 16th, 1945 and worked for defendant until April 20th, 1946, at which time he was discharged because defendant had ascertained that he was going into a similar business in competition with defendant. The record discloses that plaintiff and Vincent Montal-bano, who was also employed by defendant, did actually establish a business in competition with defendant.

Thomas Milner Migaud, Sr., a former employee of' the defendant, corroborated the plaintiff’s testimony as to the date of the injury and that two stoves were delivered to Broussard’s Restaurant during the year 1945.

Plaintiff’s wife also testified that the injury occurred on July 11th, 1945.

Defendant testified that the Dixie Stove Works, at the time of the alleged accident, was being managed by her husband and that, since that date, Mr. Moustier has suffered a cerebral hemorrhage and remembers nothing concerning the business prior to his illness. She further testified that since the date of. her husband’s illness, she has actively -managed the business.

Counsel for defendant offered in evidence a Social Security Time Book, which included the week ending ’July 14th, 1945. It indicated that the plaintiff worked the entire -day of July 11th, and was actually paid overtime for that .particular day. Plaintiff, however, is positive in his testimony that he worked only -from one to one and one-half hours on the day in question. He further testified that he did not work on July 12th, 13th, and 14th, 1945, whereas the time book reflects that he worked the entire week ending July 14th, and was actually paid for working 6-% days at the rate of $8.00 per day. This is in direct conflict with plaintiff’s testimony that he worked only -on Monday and Tuesday and from an 'hour to an hour and one-half on Wednesday, July 11th, 1945. Plaintiff further testified that he returned to work on Monday, July 16th, 1945, and worked from 8:00 in the morning until two o’clock in the afternoon, at which time he went to Dr. Salatich’s office for an examination, and that after the examination, he immediately returned to work and finished the day. Referring again to the Social Security Time- Book for the week ending July 21st, 1945, it shows that plaintiff did not work on July 16th, 1945, as plaintiff contends, and that he actually was not paid for working on that particular day.

If we accept -this social security time book as evidence of the fact that plaintiff worked -on the date in question, July 11th, then it would have been most improbable that plaintiff sustained the injury, which he alleges occurred on that day, for the reason that Dr. Salatich testified as follows :-

“Q. You say that the pain is very intense when you have an acute hernia ? “A. Yes, sir.
“Q. Would it be possible to do any type ■of work while you had this pain? * * *
“A. * * * No, not very well, because any form of labor — you see, when you stand, your abdominal pressure is greater than when you lie down * *

Plaintiff’s counsel, in his cross-examination of defendant, produced five pay envelopes, which were later identified by the plaintiff, and interrogated her as to whether or not she could identify the handwriting appearing thereon. She stated that the handwriting on the envelopes to-wit: the name of the employee, number of days that he worked and the various deductions of income tax and Federal Old Age tax, was that of Mr. Moustier; in fact, everything on that envelope with the exception of the date, was in the handwriting- of her husband. Subsequently, it was brought out that plaintiff himself had placed the dates on the envelopes, apparently for his own convenience. Plaintiff’s counsel requested defendant to choose at random any envelope among the five and compare the amount received with the corresponding amount in the Social Security Time Book, in order to ascertain whether the dates on the envelopes corresponded to the dates in the time hook. Defendant examined three of the envelopes and they all corresponded. The remaining two did not correspond and we are impressed by the fact that these envelopes were for the weeks ending July 14th, 1945 and July 21st, 1945, respectively, and that the dates thereon bear strong evidence of having been altered. Actually we believe that the envelope which plaintiff contends was his pay envelope for the week ending July 14th, 1945, was his pay envelope for the week ending July 21st,, 1945, and that the envelope which he contends was for the week ending July 21st, was his pay envelope -for the week ending July 14th, 1945. As we said hereinabove plaintiff admits -that he dated the envelopes.

A careful examination of the envelope dated July 21st, 1945, will reveal that the date originally placed thereon has been partially erased and another date written over it. We believe that this original date was July 14th. The figure “14” appears to have been partially erased and the figure “21” written over it.

With respect to the envelope dated July 14th, 1945, a careful examination will reveal that above the date written in ink at the top of the envelope, will be seen the impression of another date — that of July 21st, which, in our opinion, was originally written in pencil and thereafter erased.

We are impressed by this evidence and we are, therefore, of the opinion that ■the dates which were originally placed on these envelopes have been altered. “The burden of proof rests upon a party, relying ■upon a written instrument, to account satisfactorily for any alterations operating as a substantial change in the effect of the instrument.” Owens v. Felder, La.App., 35 So.2d 671, 672.

In addition to the foregoing evidence, defendant testified from the cash book of the Dixie Stove Works that only one Heavy Duty Vulcan Stove -had been sold and delivered to Broussard’s Restaurant during the year 1945, and that on March 7th, 1945, and that it was paid for on March 27th, 1945. She also produced and identified the Accounts Receivable Ledger of the Dixie Stove Works and'more particularly Broussard’s account which reflects all sales made to Broussard’s during the year. It shows only two entries during the year 1945, one on March 7th, 1945, for the Vulcan Stove, and one on May 21st, 1945, for a salamander. It is our opinion that if any other stove had been sold and delivered by the defendant to Broussard’s that the ledger would have reflected this fact.

Plaintiff and his witness, Migaud, testified that they did deliver a Heavy Duty Vulcan Stove to Broussard’s Restaurant. Since the only stove which was sold to Broussard’s during the year 1945, was delivered on March 7th, 1945, and not on July 11th, 1945, we conclude that the accident and resulting injury, if there actually was an accident, occurred on March 7th, 1945. It is interesting to note that plaintiff and his witness, Migaud, testified that the stove in question was delivered on a Wednesday, -as Broussard’s was closed on Wednesdays and it was the only day of the week that deliveries could be made. Referring to the calender for the year 1945, we find that March 7th, was also a Wednesday, and a reference to' the time book shows that plaintiff worked the entire day of March 7th, 1945.

Plaintiff testified that as soon as he received his injury, he reported to the office of defendant and then went home and remained in bed with an ice pack on his abdomen until July 16th, 1945. On cross-examination he stated that though he was in agony from the pain he did not call upon his family physician, Dr. Salatich, who testified that he had been plaintiff’s physician since birth, until six days later. It seems improbable to us that a man suffering such excruciating pain, as plaintiff contends he was experiencing, would have remained away from his physician for a period of six days. It will further be noted that when plaintiff did call upon Dr. Salatich, he informed the doctor that he was suffering intense pain and that though he was advised to go home and remain in bed, he returned to his .work. Dr. Salatich’s testimony indicates that if the plaintiff was suffering from an acute hernia on July 16th, 1945, then he would not have been able to perform any work as the pain, which he evidenced, was too great. Of course, we are fully cognizant of the fact that no physician can determine the intensity of pain that a person may suffer, because it is well established psychologically that “pain” is purely subjective rather than objective.

In addition to the above, it is to be observed that the plaintiff made no written report of this accident to Mr. Moustier and that he never visited a doctor of the insurance carrier of the defendant, although he knew that the defendant was covered by-workmen’s compensation. It is further observed that no claim for compensation was made upon defendant until June 28th, 1946, over eleven months after the alleged accident and resulting injury.

The trial court drew an unfavorable inference against the defendant because defendant had subpoenaed Mr. Broussard of Broussard’s Restaurant, and had not permitted him to -testify. We are cognizant of the fact that there are several decisions which hold that a litigant’s failure to place a witness on the stand raises the presumption that had the witness testified, his testimony would ■ -have been adverse to the 'litigant’s cause. However, admitting the tenableness of this argument, we are unwilling to concede that the effect of this inference or presumption would have balanced or turned the scales in favor of plaintiff. Mr. Broussard was present in court and his testimony was available to plaintiff and if his testimony would have strengthened plaintiff’s position, he could have been sworn in his behalf.

A summary of the evidence indicates that the only question with which we are presently concerned is whether or not the plaintiff brought this suit within a year from the date of the alleged accident. We are of the opinion this accident did not occur on July 11th, 1945, as alleged by the plaintiff, but that, it it occurred at all, it was on March 7th, 1945, when the only Heavy Duty Vulcan Stove, sold by the defendant to Broussard’s Restaurant was delivered.

We are of the opinion that the plea of prescription is well founded and should have been sustained.

As stated in Owens v. Felder, supra:

“We are reluctant to reverse the finding of a trial court based primarily on questions of fact, but in a case, such as we are presently analyzing, it is a self evident principle that it is occasionally easier to perceive fallacies and inconsistencies contained in the record by a comparison of the various portions of the transcribed record with other pertinent portions than it is to accurately observe and catalogue them while listening to the oral evidence of the various witnesses who testified during the course of the trial.”

For the reasons assigned the judgment appealed from is annulled, avoided and reversed and it is now ordered that the plea of prescription be sustained and plaintiff's suit dismissed at his cost.

Reversed.

McBRIDE, Judge

(dissenting).

I find myself unable to agree with my colleagues that the exception of prescription or peremption should be sustained.

Plaintiff and his fellow worker, Migaud, testified that plaintiff’s injury occurred whilst a large" stove was being delivered to Broussard’s Restaurant on Wednesday, July 11, 1945. Both stated that Pittman rested alongside the building for about forty-five minutes, after which he drove the truck back to the Dixie' Stove Works, leaving Migaud -to finish the job at the restaurant. Pittman says he reported the accident to Mr. Moustier (defendant’s husband) and then went home and remained in bed with an ice pack on his abdomen until Monday, July 16, 1945, when he returned to work. During the day of the 16th, Pittman called at the office of Dr. Salatich and was examined by the physician. Mrs. Pittman testified that her husband returned home from his work on July 11, 1945, "and said he had got hurt,” and that he remained at home until July 16.

Dr. Salatich verified plaintiff’s visit to his office on July 16, and that he examined plaintiff and found that he had a traumatic left inguinal hernia of recent date. Miss Stella Crillet, a nurse employed by Dr. Salatich, testified that the office records establish the said visit of plaintiff, and that the record was written by her from Dr. Salatich’s dictation at the time of the examination of plaintiff. A photostatic copy of the office report is in the record, and shows the personal history of plaintiff and the physician’s diagnosis.

The only evidence produced by defendant in her effort to show that an accident did not occur on the alleged date is composed of certain social security time books, a cash book, and copies of two invoices, all of which were written by Mr. Moustier, who acted as bookkeeper of the Dixie Stove Works, and who, at the time of the trial, was ill and could not testify. The only proof establishing the verity of the Dixie Stove Works’ records is the testimony of Mrs. Moustier, who says that her husband made them during the course of business.

The majority opinion states: “If we accept this social security time book as evidence of the fact that plaintiff worked on the date in question, July 11th, then it would ■ have been most improbable that plaintiff sustained the injury, * *

The books and invoices stand alone, and I am not willing to say that they should prevail over the testimony of plaintiff and his three witnesses. Defendant relied upon the plea of prescription, and carried the burden of making good that plea. While I believe the admission of the documents into evidence was proper, fespecially under the relaxed rules of evidence obtaining in compensation cases, whatever probative value they have while standing alone is insufficient to overcome the testimony of the four witnesses. To my mind, the documents would have been useful, not to establish the defense of prescription, but to corroborate such other evidence as defendant may have produced.

Defendant could have .produced other and available evidence. Mr. Broussard was summoned as a witness by defendant’s counsel, and was present in the lower court when the case was tried. He was not placed on the witness stand, and the .reason for not utilizing his testimony is unexplained. Mr. Broussard held the key to the whole situation. He most certainly could have, testified whether a stove was delivered to his place on July 11; and whether a stove was delivered on that date is a salient point in the case. It is well established that a litigant’s failure to produce a witness raises the presumption that had the witness testified, his testimony would have been unfavorable to the litigant. Under the circumstances of the instant case, I believe -tha-t a strong inference should be drawn from the failure to have Mr. Broussard testify, particularly in view of the fact that defendant had summoned him and he was present in court. I cannot agree that it was plaintiff’s duty to have placed the witness on the stand when defendant failed to do so.

The trial court gave written reasons for -judgment. He believed plaintiff and his witnesses. The judge had the opportunity of hearing and seeing them, and was in the better position to evaluate their sincerity and veracity. I cannot accept the bare recitals of the books and invoices and say,that the judge erred in accepting the testimony of the witnesses. There is testimony in the record regarding, penciled dates on two of plaintiff’s pay envelopes, but I do not attach much importance thereto. Perhaps the dates are right, and the books are wrong — at least the books have never been shown to be correct.

My humble opinion is that the plea of prescription should have been overruled, and the case determined on its merits.

I respectfully dissent.


text:
    THOMPSON v. WALKER.
    No. 7076.
    Court of Appeal of Louisiana. Second Circuit.
    Nov. 24, 1948.
    Sholars & Gunby and Kent Breard, all of Monroe, for appellant.
    Hudson, Potts, Bernstein Davenport, of Monroe, and Herold, Cousin & Herold, of Shreveport, for appellee.
   HARDY, Judge.

This is a suit for the liquidation and accounting of a partnership alleged to have existed between plaintiff and defendant. The judgment in the record decrees the liquidation of the partnership, orders an accounting by both parties, the taking of an inventory, and taxes costs incurred up to the date of signing of the judgment against the defendant. The case comes before us on an appeal perfected by the defendant in which his only complaint is with respect to that part of the judgment taxing costs. Plaintiff has filed a motion to dismiss on the ground that'the amount in controversy exceeds the sum of $2,000.00, and, alternatively, he prays that the appeal be transferred to the Supreme Court.

In view of the fact that the appeal is directed solely and exclusively to that portion of the judgment taxing costs against the defendant, and in further consideration of the fact that we find nothing in the record which would establish the amount of the costs incurred to date of the judgment, we have no basis upon which to predicate a judgment of dismissal or transfer.

Plowever, there can be no question as to the fact that the judgment appealed from is interlocutory in character. It is well established that, with rare exceptions, interlocutory decrees are not appealable, and this case does not come within any such exceptions. The following quotation from the opinion of the Supreme Court in Cotton v. Wright, 214 La. 169, 36 So.2d 713, is determinative of the proper disposition of this appeal:

“A judgment ordering an accounting is not a final or definitive judgment. It is an interlocutory order or judgment and such as would work no irreparable injury. Benham Ziegler & Co., Inc. v. Mouledoux, 175 La. 711, 144 So. 428.
“A motion to dismiss an appeal founded on the want of a legal right to the appeal may be made at any time. Such appeal may be dismissed by the court ex proprio motui. Sample v. Wheless, 159 La. 844, 106 So. 325; Mercadel v. Mercadel, 179 La. 895, 155 So. 391.”

For the reasons assigned, and on the basis of the authorities cited, i-t is now ordered that this appeal be dismissed at appellant’s cost.


author: JANVIER, Judge.

text:
    SPANJA v. THIBODAUX BOILER WORKS, Inc., et al.
    No. 18640.
    Court of Appeal of Louisiana. Orleans.
    Nov. 29, 1948.
    For original opinion, see 33 So.2d 146.
    .Oliver S. Livaudais and Frank Wm. Hart, both of New Orleans, for plaintiff and appellant.
    St. Clair Adams & Son, of New Orleans (P. A. Bienvenue, of counsel), for defendant and appellee Thibodaux Boiler Works, Inc.
    Monroe & Lemann and Walter J. Suthon, Jr., all of New Orleans, for defendant and appellant The Texas Company.
   JANVIER, Judge.

Having been persuaded that we may have been in error in the conclusion reached on the first hearing in this matter ((33 So. 2d 146), we granted a rehearing and now again undertake a discussion of the question whether, in a suit under the Louisiana Compensation Laws, one who is sued as a solidary obligor may appeal from a judgment- sustaining an exception of no cause of action filed by the other defendant sued solidarity and dismissing the suit insofar as the other alleged solidary obligor is concerned.

When we studied the question originally, we persuaded ourselves that a determination thereof hinged upon the further question of whether or not, in a compensation suit, there might be two defendants who could be held solidarity liable. We now think that the question posed by the motion to dismiss the appeal does not depend for its answer upon whether or not there may be solidary liability in compensation in two defendants.

Until July, 1933, when the Supreme Court decided Quatray v. Wicker, 178 La. 289, 151 So. 208, there was no doubt that where a solidary judgment was sought against two defendants neither had any rights as against the other and, therefore, neither could appeal from a judgment dismissing the suit as against the other. The general rule was stated in Appalachian Corporation v. Brooklyn Cooperage Co., 151 La. 41, 91 So. 539, 541, as follows:

“It is undoubtedly .the general rule of law and jurisprudence that where two or more parties, acting in- concert, or are legally held to have acted in concert, commit a wrongful act from which damages result to a third party, the -party who is compelled to respond and to pay for the injury can have no action for indemnity against the other party or parties to the wrongful act. The rule has its foundation in public policy, tha-t no one can allege his own turpitude or claim an advantage for his own wrong. The courts in such a case will leave the parties in the position in which they have placed themselves, and will not undertake to adjust equities between them, nor to inquire into the comparative or relative culpability as between them.”

We recognized this rule in Rumpf v. Callo, 16 La.App. 12, 132 So. 763, 764, wherein we said:

“ * * * Solidary liability rests on joint tort-feasors. Each, if guilty of negligence proximately contributing to an accident, is liable for the whole damage. An injured party may sue either or both and neither has any right as against the other.”

In Thalheim v. Suhren, 18 La.App. 46, 137 So. 874, we said:

“ * * * If there is any liability in more than one defendant, that liability is solidary, since it results from the acts of joint tort-feasors. The appeal by one joint tort-feasor cannot have any effect as against other joint tort-feasors who, by the judgment in the court below, were absolved from liability.”

In Reid v. Monticello, La.App., 33 So.2d 760, which was decided long after Quatray v. Wicker, supra, our Brothers of the First Circuit held that one defendant sued solidarity had no right to appeal from a judgment dismissing the other defendant.

However, in Quatray v. Wicker, supra, the Supreme Court held that if two defendants are cast solidarity and one of them pays the judgment, that one is entitled to demand contribution from the other.

It was this decision which caused us, in our original opinion on this motion to dismiss the appeal, to conclude that one soli-dary obligor has a right to insist that the other be retained in the case as a party defendant, and to go further and hold that because, as we then felt, there could be no solidary liability in the two defendants, the one could not by appeal insist that the other be retained in the case as a defendant. In other words, we concluded that the question depended solely upon whether or not two defendants might be held solidarity liable, and we said that as a result of the decision in Quatray v. Wicker, supra, if there might be two defendants who could be solidarity cast, then one might appeal from a judgment dismissing the other, but if there could not be two defendants who could be held solidarity then one did not have the right to appeal from a judgment dismissing the other.

We feel that we should not have concluded at this stage of the litigation that under no circumstances might there be a solidary judgment against two defendants in compensation. That, as we now view the matter, is one of the questions to be considered if and when the case comes 'before us on its merits. Until that time we should not decide such a question.

But the fact that there may be a legal possibility that the two defendants may be held liable solidarity does not make it necessary that we hold that one may appeal from the judgment which, on exception of no cause of action filed by the other, sustained that exception and dismissed the suit as to that other. As we now interpret the decision in Quatray v. Wicker, supra, it does not alter the general rule that one defendant sued solidarity has no rights whatever as against another defendant unless and until there is a final judgment in which both are held solidarity liable.

We think that the Supreme Court clearly showed that the situation which exists where a final judgment is rendered against two solidary obligors is entirely different from that which exists where prior to the finality of a judgment against two such solidary obligors one attempts to assert any rights as against the other.

In that decision (Quatray v. Wicker), the Court considered the case of Sincer v. Heirs of Bell, 47 La.Ann. 1548, 18 So. 755, in which one defendant, prior to judgment, made a compromise settlement with the plaintiff. The other defendant was ultimately held liable to plaintiff and, having paid the judgment, brought suit against the other party who had previously made a compromise with the plaintiff, and in that suit demanded contribution. The Supreme Court held that in such case contribution could not be demanded. In Quatray v. Wicker, supra, the Supreme Court pointed out the distinction between that case and Sincer v. Bell, supra, and said that the opinion in the latter case contained an inference that if the judgment had been rendered against both, the one who paid it could have demanded contribution from the other, but that since' one had been eliminated from the case and the judgment had been rendered only against the other, no rights came into existence as between those two parties who had been originally sued solidarily.

We repeat then that Quatray v. Wicker, supra, did not change the long established rule that one solidary obligor has no rights as against another which permits the one to demand by appeal that the other be held in the case as a party defendant, and we conclude that under the well established rule The Texas Company had no right of appeal from the judgment which, on exception of no cause of action, dismissed the suit as to the Thibodaux Boiler Works, Inc.

Counsel for The Texas Company argue that, in the event we conclude that that company, as a joint defendant sued solidarily, has no right to appeal from the judgment insofar as it dismisses the other defendant, still it should be permitted to appeal because of the effect, of Article 571 of our Code of Practice. That article reads as follows:

“The right of appeal is given, not only to those who were parties to the cause in which a judgment has been rendered against them, but also to third persons not parties to such suit, when such third persons allege that they have been aggrieved by the judgment.”

Counsel say that if a third person not a party to the suit is permitted to appeal from a judgment on a mere showing that such third person is aggrieved by the judgment, surely a party litigant “should not be subjected to a more stringent requirement * * The answer we think lies in the fact that in order for a person to be aggrieved by a judgment, it must appear that a legal -right has been affected thereby. And it is evident from the cases to which we have referred that there is no legal right in one defendant to have the other defendant remain as a party to the litigation. While it is true that if the other defendant remains a party and is ultimately solidarily cast then a right to demand contribution comes into being, still it is clear ■that -at no time prior to the finality of the ultimate decree has the one defendant any rights as against the other.

If one defendant in such situation has no right to appeal, then to permit it to appeal would be to permit it to champion the rights of the plaintiff.

We think it would be illogical to hold that though as a party to the litigation the appellant has no rights as agai'nst the other defendant, nevertheless because of the effect of Article 571 the appellant here could be treated as a third party aggrieved and permitted to appeal.

Since the plaintiff has appealed from the judgment even insofar as it dismisses the suit as against the Thibodaux Boiler Works, Inc., The Texas Company will be protected if and when a final decree is-rendered against the two defendants soli-darily. Until that time it has no right to-itself appeal as against the Thibodaux Boiler Works, Inc.

Our original decree is reinstated and' made final.

Original decree reinstated; appeal dismissed.