text:
    PATIN v. T. L. JAMES & CO., Inc. et al.
    No. 3149.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 4, 1949.
    Ashton L. Stewart, Baton Rouge, for Horace Patin.
    Huckabay, Seale & Kelton, Baton Rouge, for T. L. James & Co., Inc. and others.
    Joseph W. Starring, Baton Rouge, for Sophie Braud Johnson.
   DORE, Judge.

This is a suit by Horace Patin for and on behalf of and as the natural tutor of Raymond Patin in which he seeks compensation at the rate of $20 per week for a period not exceeding 300 weeks, commencing on June 17, 1948, from defendants, T. L. James & Co., Inc., and its compensation insurer, the National Surety 'Corporation of New York.

He alleges that on June 17, 1948, Joe Johnson, while in the employ of the defendant, T. L. James & 'Co., Inc., as a common laborer, while performing work within the scope of his employment, was killed; that the said Joe Johnson was never married; that Joe Johnson and Mary Patin, divorced wife of Jonas Dangerfield, lived together, holding themselves out to the public as husband and wife, for many years prior to Oct. 6, 1936, and continued to so live from and after said date until the death of said Johnson.

Plaintiff further alleges that the said Raymond Patin was born on September 24, 1936, issue of the marriage of Angie Lee Williams and plaintiff; that said Angie Lee Williams died on or about October 15, 1936; that on or about October 6, 1936, Angie Lee Williams and himself each requested Mary Patin and the said Joe Johnson to take said Raymond Patin as their child and to rear and care for him as his adoptive parents; that the said Mary Patin and the said Joe Johnson, from and after on or about October 6, 1936, have had the said Raymond Patin in their home and have there reared him as their own child; that from and after the date of October 6, 1936, the said Mary Patin and Johnson, up to Johnson’s death, supported and maintained said child, Raymond Patin, a? a member of their family in their home as their adoptive child. Upon that theory and upon these allegations, plaintiff pursues this demand against the employer and its insurer under the Workmen’s Compensation Act of this State. Act No. 20 of 1914, as Amended.

Defendants filed exceptions to the procedural capacity of Horace Patin, and exceptions of no right or cause of action to the claim of Horace Patin. Letters of tutorship were filed and the exceptions of no cause or right of action were overruled. These exceptions appear to be abandoned as they are not urged in this court. Defendants thereafter filed their answer, in which they admit that Joe Johnson, on June 17, 1948, while in the employ of defendant James, as a common laborer, while performing work within the scope of his employment, was killed and they deny all the remainder of plaintiff’s allegations.

After the defendants answered, but before the case was fixed for trial, Sophie Braud Johnson intervened in the suit and alleged that the deceased Joe Johnson was her lawful son by her marriage to one Andrew Johnson; that the said Joe Johnson contributed to her support during his lifetime and that she was dependent upon this support so contributed for her livelihood; and that she alone was entitled to recover compensation from the defendants as the surviving parent in the sum of $20 a week for 300 weeks.

Upon these issues, the case was tried, resulting in a judgment in favor of inter-venor, Sophie Braud Johnson, and against the defendants, for the sum of $3 per week for a period of 300, commencing on June 17, 1948; and in further judgment in favor of the defendants and against the plaintiff, Horace Patin, Tutor of the minor, Raymond Patin, dismissing the suit of Horace Patin. Plaintiff, Horace Patin, has appealed. The defendants have appealed as to the claim of Sophie Braud Johnson.

This is a companion case to Patin v. T. L. James & Co., Inc., et al., 39 So.2d 177, decided by this court on March 7, 1949, and in which we refused a rehearing. In that case we held that Mary Patin, the admitted concubine of the deceased, Joe Johnson, was not entitled to claim compensation for Joe Johnson’s death.

It appears from the pleadings, the record and the arguments, both oral and in brief, the first question to be decided in this case is whether or not the intervenor, Sophie Braud Johnson, was married to Andrew Johnson, and therefore the lawful mother of Joe Johnson, decedent, who was the issue of the alleged marriage between the said Sophie Braud and Andrew Johnson. With regard to this question, we find a well considered written opinion by the trial court and from which we quote:

“I have carefully read the testimony bearing on this question, and while I am perfectly willing to concede that the evidence pertaining to the alleged marriage of Sophie Braud and Andrew Johnson is not entirely satisfactory, there is some evidence sustaining her allegation that she was actually married to the deceased, Andrew Johnson. This testimony consists of intervenor’s own testimony, that of Martha Jones and of her brother, Charlie Braud, all of whom testified that Sophie was married to Andrew Johnson at the Mount Bethel 'Church in the Parish of Iberville by the Rev. Frank Williams, pastor of said church. It was stipulated by counsel for all the parties in the suit, that if the Clerk of Court, Philip M. Castro of the Parish of Iberville, were called to ■testify as a witness here, he would testify that according to the records of the Parish of Iberville, no marriage license was issued to Sophie Braud (Breaux) (Blow) and Andrew Johnson.
“Learned counsel for plaintiff, Horace Patin, Tutor, in support of his argument that the evidence is insufficient -to prove a marriage between Andrew Johnson and Sophie Braud, has cited the case of Succession of Dotson et ux., 202 La. 77, 11 So.2d 488. This case however, is not entirely in point here for the reason that in that case it was shown that although the plaintiff who claimed to have been married and to have lived with the alleged deceased hu'sband for a number of years, before the death of the said alleged husband married another man without securing a divorce from her alleged husband and without making any claim for alimony. The court in that case properly held that the presumption of marriage should not prevail under such circumstances, and particularly for -the reason that no claim of marriage was ever made by the plaintiff until after the death of the deceased.
“There is abundant authority to the effect that marriage may be proved by any species of evidence not prohibited by law which does not presuppose a higher species of evidence within the party’s power, and it has been repeatedly held that even though no record or documentary evidence of a marriage is produced, evidence is admissible to show that a marriage was actually celebrated.
“In the case of Cameron v. Rowland [208 La. 663], 23 So.2d at pages 283, 285 it was stated: ‘No record or documentary evidence of a marriage was produced and no one testified to having witnessed one. But, over defendant’s objection, evidence aliunde was admitted on the authority of the cases cited below and the jurisprudence established by them, and others, that marriage, like other contracts, may be proved by any species of evidence not prohibited by law which does not presuppose a higher species of evidence within the power of the party. Holmes v. Holmes, 6 La. 463, 26 Am.Dec. 482; Philbrick [’s Heirs] v. Spangler, 15 La. Ann. 46; Blasini v. Blasini, 30 La.Ann. 1388; Succession of Curtis, 161 La. 1045, 109 So. 832; Succession of St. Ange, 161 La. 1085, 109 So. 909; Succession of Kneipp, 172 La. 411, 134 So. 376; Boykin v. Jenkins, 174 La. 335, 140 So. 495; Succession of Anderson, 176 La. 66, 145 So. 270; Succession of Gaudinse, 187 La. 844, 175 So. 595; Gray’s Succession, 201 La. 121, 9 So.2d 481.’
“In the case of Holmes v. Holmes, supra, the Court said: ‘Cohabitation as man and wife, furnishes presumptive, evidence of a preceding marriage. It is not to be presumed that those who held themselves out in society as man and wife, who are rearing a family of children at their domestic board, to whom the father gives his name, over whom he exercises a parent’s authority, and administers a parent’s protection and support, are living in open disregard of public morals, and that their common offspring are bastards; such a family is already in the possession of a civil condition or status, not to be questioned lightly and collaterally.’
“In many cases our Supreme Court has adhered to the proposition that the presumption in favor of marriage is one of the strongest known to the law where there has been a long period of cohabitation, and particularly where children have been born to the parties and these children carry the name of their father. It may be that this presumption, in view of the evidence offered in this case, is not applicable. However, being a workmen’s compensation suit and it appearing that the in-tervenor was to some extent dependent upon Joe Johnson, who admittedly was her son, I am inclined to the view that the presumption of marriage between the in-tervenor and Andrew Johnson should prevail. The only evidence offered here to disprove the alleged marriage was of a negative character, and in my opinion, insufficient to overcome the presumption of marriage.
“In my opinion, in these circumstances the claim of the intervenor should prevail. However, the evidence shows that the mother of the deceased Joe Johnson was only partially actually dependent upon the earnings of her deceased son at the time of his death. The most that can be said from the evidence offered on this point is that the support given intervenor by the deceased Joe Johnson averaged from $1.00 to $4.00 a week. Therefore, as was held in Dudley v. Martin [La.App.], 4 So.2d 102, in the absence of proof of any definite or regular amount by deceased’s employer to the dependent, the amount payable is the minimum rate of weekly compensation of $3.00, as fixed by the Act, and, in my opinion, this is the award that should be made to intervenor in this case.”

After a careful review of the record, and the citations relied upon by the trial court, we find ourselves in accord with his conclusion as therein stated. The next and very serious question presented is the effect of this conclusion upon the claim of the minor. It is the contention of the defendant that the claim of Horace Patin in behalf of his minor son, Raymond Patin, as a member of the family of Joe Johnson, should fall.

It is shown that Mary Patin and Raymond Patin were living with the decedent. The minor Raymond Patin was not the child of decedent; his claim is based solely on the fact that he is a member of the family of decedent, Joe Johnson.

In the case of Lunkin v. Triangle Farms, La.App., 24 So.2d 213, 215, we had under consideration the interpretation of Section 8, paragraph 2, subsection E., subparagraph 8, under very similar facts as in this case, and we stated: “Our understanding of this portion of the Workmen’s Compensation Act is that it lists dependents in the order of their right to recover compensation. * * * In our opinion, the statute means that if there is no widow, widower, child, parent or brother or sister entitled to claim compensation, then ‘other dependents’ have the right to claim it. Under our interpretation, persons falling under the classification of ‘other dependents’ have no right to claim compensation if there is a dependent parent entitled to compensation.”

In the case of Williams v. Jahncke Service, Inc., La.App., 38 So.2d 400, 403, our brethern, the Orleans Court of Appeal, had practically the same issue, and stated: “The statute provides for three different groups of dependents and makes the right of those in the second, or in the third group, dependent' upon whether or not there is in existence a claimant in one of the superior groups. Those groups are: (1) widows and children — (widowers in some instances); (2) dependent fathers and mothers; and (3) brothers and sisters or other members of the family. The right of the second group — mothers and fathers — come into existence only ‘if there be neither widow, widower nor child * * * ’ and the right of the third group, that is, brothers and sisters and other members of the family, comes into existence only ‘if there be neither widow, widower nor child, nor dependent parent entitled to compensation * * * ’ ”,

The Court held: “Now since the claim of the minor in the case at bar can be based only on the fact that she is- a member of the family and not on the fact that she is a child of the employee, it is evident that her claim depends upon whether or not there is any superior claimant, and it is shown that there is a legal widow, Stella Brown Cyprian.”

It is contended by the plaintiff that these decisions are erroneous and are not the law of Louisiana on this point. He relies on the cases of Hamilton v. Consolidated Underwriters, La.App., 21 So.2d 432, and Dangerfield v. Indemnity Ins. Co., 209 La. 195, 24 So.2d 375, which cases he contends are squarely in conflict with the Lunkin case, supra. He malees the observation that in the Lunkin case a rehearing had not been applied for nor an application made to the Supreme Court for a Writ of Certiorari while in the Hamilton case, a rehearing had been applied for and also a writ of -certiorari to the Supreme Court had been applied for and denied. We may say at this moment that a writ of certiorari was granted by the Supreme Court in the Williams case and the case is now pending in that Court.

In the Hamilton case, supra, Mrs. Bertha Hamilton, the mother of the decedent, individually and as natural tutrix of her three minor children, minor brothers- and sisters of the decedent, claimed from the defendant the maximum compensation under the law, alleging total dependency, individually and as tutrix, upon her son at the time of her death. The evidence showed that the decedent lived continuously in the family home except for a period of his service in 1941 in the Civilian Conservation Corps, and while employed in the latter part of 1942 and the early part of 1943, some two months, in the City of Monroe, the Court found that [21 So.2d 433] “The record is barren of any testimony that in the remotest degree negatives the contention of total dependency advanced by the plaintiff individually and as tutrix. On the contrary, the record affirmatively sustains that contention.”

In reference to defendant’s contention that a surviving parent precludes or bars the brothers and sister from claiming- compensation, the Court stated: “It is argued that the words ‘nor dependent parent entitled to compensation’ (as found in para-' graph 8, Division (E), subsection 2, Section 8 of the Employers’ Liability Act), when studied in the light of the context, have the effect of barring brothers and sisters from claiming compensation if there exists a dependent parent -entitled thereto. This construction of this portion of the statute is correct, and if there were no other provisions therein on the subject the mother’s right to compensation would undoubtedly exclude the dependent brothers and sisters from claiming any.”

It also said: “In the present case the deceased brother admittedly was a member of the family with whom he lived; in addition the claimants for compensation on account of his death are his mother, brothers and sister, blood relations. Therefore, all of them within the meaning of this provision (that portion of paragraph D, Subsection 2, of Section 8 of the Employers’ Liability Act) of -the statute may be denominated ‘legal dependants’ of the deceased if the facts warrant fixation of that status. We have so found.”

“In addition to being a member of the family, in reality the deceased son’s relation to, for all legal intents and purposes, was that of head. He was the bread winner and to him the mother, brothers and sister looked, not for luxuries, but for the necessities of life. He met the responsibility squarely and discharged it.”

The Court appears to have been influenced to a great extent by the decision in the case of Archibald v. Employers’ Liability Assurance Corp., 202 La. 89, 11 So.2d 492, 493, a case wherein it was held that under the general provisions of the Employers’ Liability Act the dependent father-in-law, mother-in-law, and two sisters-in-law, constituting the family of a deceased workman, could recover compensation on account of his death. In the Archibald case the court stated: “The plaintiffs’ right to recover compensation rests entirely upon whether or not they are dependent members of the family of the deceased employee within the meaning of the Act”, and then held as hereinabove stated.

These afe the only cases bearing directly on the question. There are other cases wherein it decided that certain claimants were members of the family such as the case of Thompson v. Vestal Lumber & Mfg. Co., 208 La. 83, 22 So.2d 842, wherein it was held that two illegitimate children of the decedent were members of his family, dependent upon the decedent’s earnings for support, and were entitled to claim compensation. It is to be noted, however, that in that case the children were illegitimate -children of decedent, and that it was the legal and moral duty of the father to support his illegitimate children. In this case, like in the other cases, it does not appear that the decedent had left a dependent as- listed in Paragraph “E” of Subsection 2 of Section 8 of the Act.

Since the Supreme Court refused a writ of certiorari in the Hamilton case and granted a writ of certiorari in the Williams case, it may be that we were wrong in our holding in the Lunkin case that persons falling under the classification of “other dependents” have no right to claim compensation if there is a dependent parent entitled to compensation. At the present time, we feel that we should follow the Hamilton case and consider the Lunkin case overruled. We now hold that the claim of the mother of decedent does not foreclose the claim of Raymond Patin, if he falls in the category of a dependent member of Joe Johnson’s family. We now pass to the question of whether or not the minor Raymond Patin can be considered as a member of decedent Joe Johnson’s family.

The pertinent parts of the provision of the Employers’ Liability Act are found in Section 8, Subsection 2(D), Act No. 242 of 1928, p. 359, and read as follows: “In all other cases, the question of legal and actual dependency in whole or in part, shall be determined in accordance with the facts- as they may be at the time of the accident and death; * * *. No person shall be considered a dependent, unless he is a member of the family of the deceased employee. * * * ”

In two recent cases the Supreme Court has construed the word “family” as used in the quoted part of the section, holding in the Archibald case, supra, that in the absence of blood relatives, a father-in-law, mother-in-law and sisters-in-law who lived with the deceased employee prior to his death and were actually dependent upon him and were entitled to recover compensation from his employer’s insurance carrier, and in the Thompson case, supra, that the children who are issue of a woman and a deceased employee who had never married, and who had lived with and were dependent upon him, likewise constituted his family and should recover under that provision of the statute. From these decisions, it safely can be said that the term “family” is used in a “more extensive sense, it comprehends all the individuals who live under the authority of another,” Rév.Civ. Code, art. 3556, subd. 12, or “All that is required is a family or household and the existence of the dependency of a member thereof as illustrated by the facts of the particular case.”

The facts show that Raymond Patin was the issue of the marriage of Angie Williams and Horace Patin, a brother of Mary Patin. Shortly after his birth, the mother of Raymond gave him to Mary Patin. Mary Patin, at that time, was living in open concubinage with Joe Johnson, at Baton Rouge. She took the child to her home at Baton Rouge. Thereafter, the mother of Raymond died. He has been with Mary Patin ever since, and with Joe Johnson until his death. She has provided him with food and clothing out of decedent’s and her wages ever since taking him as her own in her home. The father, Horace Patin, plaintiff herein, made an allotment to the child while he was in service in the U.S. Army for a period of five and a half months, and occasional contributions toward his child’s support. In other words, Raymond Patin, at the time of the death of Joe Johnson, was receiving partial support from three sources, Joe Johnson, the deceased employee; Mary Patin, his aunt and concubine of Joe Johnson; and Horace Patin, his father. Mary and Joe worked or were employed. Joe would give Mary his weekly earnings. The contributions made towards the support of Raymond by his father, Horace, was also received by Mary. With these moneys, including her personal earnings, Mary would pay all of the household expenses.

Under these facts, we conclude that the minor Raymond Patin comes under the meaning of the word “family” as set forth in the Archibald case, which meaning of the word was approved in the Thompson case, both supra, and that the said minor was partially dependent on the deceased Joe Johnson. However, the record does not show with certainty what was ■being contributed weekly by the decedent towards the minor’s maintenance and therefore, we shall allow the minimum, that is $3 per week, as provided for by the Act.

For these reasons, the judgment appealed from is affirmed in so far as it grants compensation to the intervenor, Sophie Braud Johnson, and it is reversed, annulled and set aside in so far as it rejects the demand of Horace Patin, tutor of the minor, Raymond Patin, for compensation. It is now ordered that there be judgment in favor of Horace Patin, as tutor of the minor, Raymand Patin, and against the defendants, T. L. James & Co., Inc., and National Surety Corporation of New York, in solidó, in the sum of $3 per week for a period of not exceeding 300 weeks, commencing on June 17, 1948, together with legal interest on each weekly payment from its due date, until paid; defendants to pay all costs.


source: Caselaw Access Project

author: LE BLANC, Judge.

license: Public Domain

text:
    FINANCE SECURITY CO., Inc. v. WILLIAMS et al.
    No. 3144.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 4, 1949.
    Ott & Richardson, Bogalusa, for appellant.
    Arthur V. Flotte, New Orleans, for ap-pellee.
   LE BLANC, Judge.

On February 3, 1947, one J. W. Williams executed a note in favor of H. F. Magee, secured by a chattel mortgage on a 1942' Plymouth automobile. This transaction took place in the Parish of Washington. Magee endorsed the note in blank and discounted it with the Finance Security Company, Inc., the plaintiff in this suit. Later on Williams traded the automobile to Smit and Dillard, a commercial partnership composed of John Smit and - Dillard, dealers in used cars in the City of New Orleans. Smit and Dillard, in trading the car with Williams, failed to procure the affidavit required by Section 8 of Act No. 172 of 1944 of the Revised Chattel Mortgage Law of this state which reads as follows : “It shall be unlawful for a resident of any parish to purchase the movable property described in Section 1 from any nonresident of such parish, without first obtaining an affidavit from the nonresident that there is no mortgage on the property nor any money due for the purchase price thereof; and the purchaser who shall buy the above referred to movable property, without having obtained the said affidavit, shall be personally liable to the creditor for the debt secured by the property.”

After Smit and Dillard had bought the automobile from Williams they sold it to a party named Leander August Griffin who, apparently was a resident of Lafourche Parish. This transaction was financed by Central Finance Company, which later repossessed the car under a consignment agreement with Griffin and sold the same for his account.

In the meantime, the note held by the plaintiff, Finance Security Company, Inc., with a balance remaining due of $421.19, with 8 per cent interest from October 13, 1947, had never been reduced by any more payments and accordingly it filed this suit, first against J. W. Williams and Smit and Dillard, and attempted to have the automobile sequestered in the hands of Leander August Griffin. The suit was instituted in the Parish of Washington because J. W. Williams was alleged to be -a resident of that Parish. Smit and Dillard were im-pleaded as parties defendant in the suit in that jurisdiction on the theory that they were solidary obligors with Williams.

In a supplemental petition, Central Finance Company of Orleans Parish was also made a party defendant and further attempts were made to sequester the automobile but all without avail. The prayer of the petition was that the car be seized and sold to satisfy the note and that the proceeds derived from the sale 'be credited thereon pro tanto. It might be mentioned at this point that the automobile seems to have disappeared from the scene of operations, nobody seems to know what happened to it and as far as we can see, the sequestration is no longer an issue in the case. Plaintiff seems to be relying at this time on a personal judgment against Smit and Dillard in order to have the balance due on the note paid.

There were some calls in warranty made by Smit and Dillard and by Central Finance Company on H. F. Magee, but the real contest now seems to be between the plaintiff and the defendants, Smit and Dillard in which there are two definite and distinct issues drawn. The first is whether or not the district court of Washington Parish is vested with jurisdiction against those defendants, and the second, depending upon the question of jurisdiction being decided against them, whether they are bound on a note that is secured by a mortgage which they contend is invalid.

Smit and Dillard both being residents of the Parish of Orleans, it was necessary, in order for them to be impleaded in the Parish of Washington, that the suit come within the exception to the general rule that a defendant must be sued at his domicile, Code of Practice, Article 162, which exception appears in Article 16S of that code. Among the many exceptions listed under the latter article, is the one to the effect that a plaintiff may sue several defendants who are solidary obligors in the domicile of any of them..

The first contention made by Smit and Dillard is that J. W. Williams himself, the principal obligor, was not a resident of the Parish of Washington. Based on that ground, the plea required the taking of testimony and after a hearing on that point, the trial judge came to the conclusion that he was and that he had been properly sued in that parish. The second contention under that plea, and which seems to be the principal one, was that Smit and Dillard are not solidary obligors with Williams. On this point the trial judge ruled against them, held that they were and, accordingly, he overruled the plea to the jurisdiction of the court.

In defense of the merits of the case Smit and Dillard urged that the act of chattel mortgage by which this note had been secured was not a legal and valid authentic act having such effect as to hold innocent third parties, without notice. The act was attacked on several grounds. The trial judge sustained only one, which was all that was necessary. That ground was that the act of chattel mortgage failed to comply with the provisions of Article 2234 of the Revised Civil Code to the effect that a notarial act purporting to be an authentic act, in order to affect third persons without notice, must be one which is executed and signed by the mortgagor before a Notary Public, who also signs, and two attesting witnesses. The trial judge held that inasmuch as the evidence showed that the two attesting witnesses were not actually present and did not see the mortgagor actually sign the notarial act, there was a failure of compliance with the law and the mortgage did not affect third persons without notice, such as were Smit and Dillard in this case. He accordingly rendered judgment dismissing the plaintiff’s suit. We might mention here that the defendant Williams was never found and on whatever service was made as to him, judgment was rendered by default. As far as we can see he has passed out of the case.

From the judgment so rendered the plaintiff has taken this appeal and the defendants, Smit and Dillard, have answered urging that the judgment rendered on the merits be affirmed, by reserving to them all their rights to contest the rulings of the court on the exception to the jurisdiction of the district court of Washington Parish.

In taking up the various points involved in the appeal, we naturally will dispose first of the ruling of the lower court on the jurisdictional plea, for if the defendants, Smit and Dillard, are correct in their contentions and the court of Washington Parish was not vested with jurisdiction as to them, that would end the case as far as they are concerned.

We are of the opinion, however, that the trial judge was correct in overruling the plea. By the specific provisions of Section 8 of Act No. 172 of 1944, Smit and Dillard, in purchasing the automobile from Williams had to procure an affidavit from him that (1) there was no mortgage bearing on it, (2) nor was there any money due on its purchase price. This, they failed to do and they thereby, under the further specific provisions of the same law, became liable to Williams’ creditor, Finance Security Co., Inc., for the debt secured by the automobile. By the very terms of this law, they 'became liable for the same thing that Williams was liable, that is the whole debt that was due Finance Security Co. Inc., by Williams. Each of them, Williams, Smit and Dillard could be made to pay that whole debt and payment by anyone would exonerate the others. With the facts which we have before us and under the legal situation that exists, we are satisfied that a solidary obligation resulted for Article 2091 of the Civil Code provides that “There is an obligation in solido, on the part of the debtors, when they are all obliged to the same thing, so that each may be compelled for the whole, and when the payment which is made by one of them, exonerates the others toward the creditor." (Italics ours.)

But it is argued that in dealing with this question, Article 2093 of the Civil Code must also be taken into consideration. That article provides that “-an obligation in solido is not presumed; it must be expressly stipulated. This rule ceases to prevail only in cases where an obligation in solido takes place of right by virtue of some provisions of the law.” From that provision, it is strenuously contended that -as the section of the Chattel Mortgage Law in this case, which renders Smit and Dillard liable, does not expressly stipulate a solidary liability, there is no provision of law making them so liable and the obligation is not in solido, as it is not to be so presumed.

In connection with this contention of the defendants, the following which is quoted from the case of Cline v. Crescent City R. Co., 41 La.Ann. 1031, 6 So. 851, 854, strikes us as being strongly pertinent and very significant: “It has been held that ‘solidarity may be perfect or imperfect,’ and that ‘it is imperfect when they [obligors] bind themselves to the same thing by different acts or -at different times.’ Gay & Company v. Blanchard, 32 La.Ann. [497], 500; Jacobs v. Williams, 12 Rob. 183; McCalop v. Newcomb, 2 La.Ann. 332; Hickman v. Stafford, 2 La.Ann. 792; Corning v. Wood, 15 La.Ann. 168; 4 Marcade, 509. And the rule announced in Rev.Civil Code, art. 2093, is supplemented by another, which is contained in article 2107 which declares that ‘There are many contracts in which the obligation is declared by law to be in solido, without any express stipulation to that effect; these will be found in the different chapters which treat of such contracts.’ ”

Any obligation which contains the requirements or fulfills the definition of Article 2091 of the Revised Civil Code is in solido, and the law which creates the obligation such as the chattel mortgage act in question need not state that the liability is in solido. It need only make the debtors all obligated for the same thing, that is, for the whole debt, so that each will be compelled for the whole and so that each maybe sued for the whole, and when the payment is made by one of them, it exonerates all the others.

It seems to us that' the case of Hiller Company, Ltd., v. Hotel Grunewald Company, 138 La. 305, 70 So. 234, 237, is apposite to the present case. In that case, the plaintiff furnished materials to a contractor for the construction of the concrete foundation of a hotel. The defendant failed to record its contract with the contractor, together with the bond and security required by law, and the plaintiff therefore contended that the defendant was totally liable to it. The liability of the defendant was imposed by certain provisions of Act No. 180 of 1894 which stated that “any person who makes a contract * * * with a builder of contractor or undertaker, to repair, reconstruct, build or construct a building, shall require of the builder, contractor - or undertaker good and solvent security to the full amount of the contract for the payment of * * * all those who furnish materials and supplies * * *, and should the owner fail to require of the contract-tor such good and solvent security and to record the contract with the bond and security * * * within one week after contract is signed -and before the work is commenced, such ozmer shall be personally liable for all balances due * * (Italics ours.)

It is to be noted that the liability imposed by the statute there under consideration for failure to comply with its requirements was exactly the same as is imposed by Section 8 of Act No. 172 of 1944 and the court held it to be in solido, stating: “Obligations are created by the operation of law or by consent of the parties. C.C. 1760. The case before us discloses both kinds of obligations — one binding the owner by operation of law, and the other binding the contractor by agreement, to pay a certain balance due by the latter to the fur-nisher of materials. The case falls squarely within the definition of a solidary obligation as given in C.C. Art. 2091, as follows: ‘There is an obligation in solido on the part of the debtors, when they are all obliged to the -same thing, so that each -may be compelled for the whole and when the payment which is made by one of them, exonerates the others towards the creditor.’ ”

The defense of Smit and Dillard on the merits is based solely on their alleged invalidity of the act of chattel mortgage by which the note sued on is secured. But the liability herein sought to be imposed on them does not arise out of the -act of mortgage itself. Their liability, if any, is purely statutory and came into existence by virtue of the provisions of Section 8 of Act No. 172 of 1944 which required them, in purchasing the automobile from Williams, to obtain an affidavit from him that (1) there was no mortgage on it and (2) no money due for its purchase price. Had they procured such an affidavit they would have been protected and would have incurred no liability that may have resulted from their having purchased mortgaged movable property. They failed to obtain the required affidavit and under the law they became liable. Their counsel virtually concedes this because in his brief he states: “Plaintiff’s action against J. W. Williams is based on a contract, viz., promissory note and chattel mortgage, plaintiff’s action against defendant, Smit and Dillard, is based on the failure of your defendant to obtain an affidavit as required by the Chattel Mortgage Law.”

It strikes us, therefore, that the validity vel non of the act of chattel mortgage is no concern of theirs. In the case of Southland Securities Co., Inc., v. Thieme, La.App., 142 So. 375, the defendant was sued under a provision of the chattel mortgage law in existence at the time, Act N-o. 198 of 1918, similar to .the provision of the present statute under which Smit and Dillard are sought to be held. The defendant in that case sought to escape liability because of the fact that the mortgage bearing on the car which he had bought without having first obtained the required affidavit, had been executed under an assumed name, but the court held that that was immaterial and the defendant could not take advantage of it. Likewise in the present case, any of the facts alleged by Smit and Dillard in their attack on the act of mortgage are immaterial and cannot be taken advantage of by them.

The views expressed dispose of the case on the merits and necessarily lead to a reversal of the judgment of the lower court.

Under the conclusion we have reached with regard to the liability of Smit and Dillard we find no merit in their call in warranty on J. F. Magee, endorser of the note signed by Williams. Smit and Dillard did not endorse the note and their liability does not arise out of any endorsement which may have been guaranteed or warranted by a previous endorsement. Their liability, as we have held, is purely statutory and against which there was no warranty arising on the part of J. F. Magee.

For the reasons stated it is ordered that the judgment appealed from in so far as it overruled the plea to the jurisdiction be and the same is hereby affirmed and in so far as it dismissed plaintiffs suit against Smit and Dillard, on the merits, it is hereby reversed, set aside and annulled and it is now further ordered, adjudged and decreed that there be judgment in favor of the said plaintiff, Finance Security Company, Inc., and against the said defendants, the commercial partnership of Smit and Dillard and the individual members thereof, John Smit and- Dillard, in the full and entire sum of $421.19 with interest at the rate of 8 per cent per annum from October 13, 1947, together with IS per cent additional on the aggregate amount of said principal and interest, as attorney’s fees, together with all costs of these proceedings.


author: LeBLAN'C, Judge.

text:
    CUTRER v. SOUTHDOWN SUGARS, Inc., et al.
    No. 3147.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 4, 1949.

      Stewart & Taylor, Baton Rouge, for appellant.
    Taylor, Porter, Brooks & Fuller, Baton Rouge, for appellees.
   LeBLAN'C, Judge.

This suit is brought on behalf of a minor, by his tutor, to recover workmen’s compensation or, in the alternative, damages in tort for personal injuries arising out of an accident, which happened while the minor was engaged on a painting job at the South-down sugar factory of the defendant, Southdown Sugars, Inc., on May 29, 1947. The minor, Merlin A. Cutrer, was born on March 7, 1930 and consequently on the day of the accident, was 17 years, 2 months and 22 days old. At the time that this painting job was going on, the name of the owner of the sugar factory was Realty Operators, Inc., which was subsequently changed to Southdown Sugars, Inc., which was made the proper party defendant in the suit.

In the petition it is alleged that the Traveler’s Insurance Company carried workmen’s compensation insurance and also liability insurance for negligence or tort for the Southdown Sugars, Inc., and it too, is made a party defendant. The demand for workmen’s compensation is for the maximum amount allowed under the law at that time, that is $20.00 per week for 400 weeks, plus $500.00 medical expenses, and the demand in tort is for the sum of $18,363.00.

The demand for workmen’s compensation is based on the ground that this minor was working under a contract of employment with the defendant, Southdown Sugars, Inc., through its alleged agent, James W. Duncan, with whom it had contracted to do this painting job. The job was being done by spray painting and the demand in tort is based on the proposition that the defendant Southdown Sugars, Inc., “suffered and permitted” a minor under the statutory age, to be employed in an occupation which is prohibited, that is spray painting, under the provisions of Act No. 301 of 1908 as amended by Act No. 210 of 1944 and known as the Child Labor Law of Louisiana. As a third proposition it is contended that in the event the minor’s immediate employer, James W. Duncan, would be held to have been an independent contractor with the Southdown Sugars, Inc., then under Section 6 of the Workmen’s Compensation Law, Act No. 20 of 1914 and its amendments, Southdown Sugars, Inc., 'is nevertheless liable for his compensation because the work he was engaged in, that is keeping the buildings of the company painted, was part of its trade, business or occupation, all as is provided under that section.

Those are the three points in the case which require our consideration. In a short statement filed in the record, the district judge seems to have disposed of all the questions involved on the conclusion which he had reached that this minor was working for an independent contractor and had no employment relation in any way whatever with the Southdown Sugars, Inc., that company not even knowing that he was working on the painting job, and therefore, he held that it could not be liable under any possible demand arising out of the injuries he sustained in the accident. Counsel for plaintiff complains that the trial judge did not give any consideration to many of the various points raised by him. Our reaction to the whole case is that most probably the trial judge was correct in his disposition of the case as the evidence is overwhelmingly in favor of the defendant on the point that James W. Duncan, who was the immediate employer of the minor, was an independent contractor and that Southdown Sugars, Inc., at no time had anything to do with his employment and in fact knew nothing about it as he was injured only three hours after he had come to work on the day of the accident. On the demand in tort, counsel devoted a great deal of time and discussion to what is said to have been the negligence of Southdown Sugars, Inc., in having covered that part of the roof of its sugar factory through which the minor fell, with a composition roof as compared to a metal roof which covers all the rest of the buildings; that this composition roof was very brittle, thus creating a hazard to anyone stepping on it and therefore it was negligent in having failed to warn the minor of the danger he might incur by having to walk on it. That might be a very interesting point to consider and pass on if it could be shown that the South-down Sugars, Inc., had any obligation towards the minor in that respect. Such an obligation, of course, would only arise in the event that some connection between that defendant and the minor could have been shown in relation to his employment. But, as we have said, no such relation ever existed and therefore we find no necessity for going into a discussion of that question at all.

The defense of course is that this minor was employed by an independent contractor and that the defendant Southdown Sugars, Inc., and its compensation insurance carrier, cannot be held liable for compensation, and on the point that the Southdown Sugars, Inc., permitted this minor to be engaged in a prohibited occupation under the Child Labor Law, it is urged first that it had nothing to do with his employment and secondly, assuming that it had, that he was not injured as a result of working in the prohibited occupation of spray painting in so far as the law prohibits that particular occupation.

As already indicated the trial judge rejected the demands made on behalf of the minor and dismissed the suit and this appeal was taken.

The evidence shows that Southdown Sugars, Inc., is engaged in the manufacture of sugar from sugar cane and also refining raw sugar at its factory known as Southdown near the City of Houma. Its factory is a tremendous building covering approximately three acres of ground. Photographs of the building introduced in the record accentuate that fact. The factory, as it stands, was built in 1939 and consists of a metal building covered with a corrugated iron roof with the exception of this small portion which is lower than the rest and which is covered with a corrugated asbestos or composition material.

The proof is that this building, in its entirety, had never been painted before and we think it may be fairly stated, from the testimony in the record, that sugar factories in the sugar area of Louisiana, which for the most part are built of metal, are seldom, if ever, painted. The reason why they were not painted before is because the cost involved in painting them by hand brush was prohibitive. Within a few years since spray painting has been introduced as a means of painting large industrial buildings, it has become possible to have these sugar factories painted at a greatly reduced cost. That is why the Southdown Company undertook to have its building painted in this manner.

Early in March, 1947, James W. Duncan, a resident of the Parish of East Baton Rouge, presented himself at the office of the Southdown Company at Houma and so-licitcd the job of spray painting its buildings. His proposition was to furnish all equipment and the necessary labor and do the job in a workmanlike and satisfactory manner for the price of $1.00 per square. Southdown Company had enough paint on hand which could be used in the event they would undertake to 'have the work done. The gentleman he spoke to, Mr. William McCollam, figured with him on the job hut informed him that as it involved a larger expenditure than he was authorized to contract for, he would have to take the matter up with the president of the company at its office in New Orleans. This was done in a short time and resulted in Mr. Duncan being given the job of painting the factory. Accordingly, he moved in right away with his out-fit which consisted of a compressor with motor to run it, all of his hose and spray-guns as well as necessary ladders and part of the rigging. The company permitted him to use some of its wire cable and blocks when they were not using that kind of equipment itself.

When the contract was being discussed between Duncan and McCullam, the latter asked Duncan if he carried workmen’s compensation insurance on his laborers whereupon Duncan exhibited his certificate which showed that he was insured for workmen’s compensation by the Keystone Mutual Casualty Company, Pittsburg, Pennsylvania.

Duncan then brought his men on the job under his foreman, J. W. Brown. Soon after the work had started, he realized that he could not do the job at the price he had agreed on because of the extra labor involved in painting around the openings of the building. Pie discussed this matter with McCullam and as it appeared that he had a just and reasonable demand, McCullam agreed to pay him at the rate of $1.50 per opening. Duncan says that it was $1.80, but that is not material to the issues in the case.

The evidence clearly shows that outside of the few things mentioned with respect to what the Southdown Company was to do, this job was to be done entirely by Duncan and he was to do it in his own way, in a manner that was satisfactory to the Southdown Company. The company maintained no supervision whatever over him, knew nothing about his laborers, who they were or how many 'he had, and in fact the only interest it had in the job was to see that it was done to its satisfaction. To that end, one of the assistant superintendents, Louis Nelson, went around from time to time to satisfy himself that the job was being well done. ■ He also measured the number of squares painted in order to figure out the payments which were made weekly

It might be stated here that during the course of the job Duncan received notice that his compensation insurance companj had been placed in receivership and therefore his policy was no longer in effect. He later showed his concern and worry over that by transferring the remainder of his contract'to his foreman, J. W. Brown, who had similar equipment to his, and apparent ly Brown finished the job. Duncan testified that he informed McCullam of the fact that his insurance company had been placed in the hands of a receiver, but Mr. McCul-lam disputes this. We do not think that it is of any moment whether McCullam had that information or not. The impression we get is that when McCullam informed himself on the matter of workmen’s compensation insurance he did that to empha size the fact that this was Duncan’s job and that Southdown Company would not be responsible for any workmen’s compensation demands arising out of it.

It was while the work was going on that Duncan employed this young man Cutrer, who is his nephew. The boy had had a year’s experience in spray painting and Duncan classes him as being very good at that kind of work. He went to work at noon on May 29, 1947, worked on top of a high roof and after finishing there intended to go to work on that portion of the building covered by this composition roof, and, ■so he says, after he had lowered himself on this latter roof, it gave way under him and he fell through to the ground several feet below and hurt himself rather severefy by having fractured the middle third of the humerus of his left arm.

Those, we believe, are all the facts that have to be stated in order to show the relationship betwéen this young man and Southdown Sugars, Inc., with respect to whether he was in any way its employee. They are not disputed as far as we can see and certainly we can’t understand under what theory it could be held that Duncan was the agent of the Southdown Company and through him this young man was its employee and entitled to recover compensation. The point is stressed by counsel for plaintiff that the matter may rest on the question of the right of the company to have terminated the contract at its own free will and he refers to some testimony which, he says, indicates that it could. This, however, we don’t find to be so. The only possible way by which the company could have stopped Duncan from carrying out his contract would have been on the ground that he wasn’t doing the job in a manner that was satisfactory to it, and that is a question which never arose between them.

If ever there was a case in which a person became an independent contractor within the definition and the meaning of that term as used in our workmen’s compensation statute, we think that this is it. Section 3 of Act No. 20 of 1914, as amended by Act No. 85 of 1926, provides that: “the term ‘independent contractor’ shall be considered to mean, for the purpose of this act, any person who renders service, other than manual labor, for a specified recompense for a specified result either as a unit or a whole, under the control of his principal as to results of his work only, and not as to the means by which such result is accomplished.” Duncan, the contractor in this case, was a person who rendered services, other than manual labor because he is shown to have two other j obs .besides this one, all three of which he was superintending; his recompense was for a specified result as a unit, that being $1.00 per square and $1.80 per opening, and the only control which Southdown Company, his principal, had, was as to the result of his work only and it was not at all interested as to the means by which he obtained that result. In other words, all that Southdown was concerned with was that he did the job in a manner satisfactory to it and for which it was to pay him at the specified amount agreed upon. We think it is useless to discuss the point any further.

We will now take up the other •point on which counsel for plaintiff would hold Southdown Company, Inc., liable under workmen’s compensation and that is because this job of painting its sugar factory was part of its trade, business or occupation. Under Section 6 of the Workmen’s Compensation Act, it is provided that where any person who is a principal, undertakes to execute any work “which is a part of his trade, business or occupation or which he had contracted to perform,” he is liable to pay to any employee engaged in the execution of that work, any such compensation for which he would have been liable to him if that employee had been engaged directly by him. The important and controlling words of that section which make the employer liable under such circumstances are those which we have emphasized and which make it plain that the work involved must have been a part of the principal’s trade, business or occupation.

It is urged that in this case, the work of keeping its factory in proper repair, getting it ready for the grinding operations of the winter-time, making it comfortable or convenient for its employees, involved keeping it properly painted and therefore when it engaged Duncan to do this job it was only carrying out what was a part of its trade, business or occupation. Whilst there is some testimony to show that in its operations of preparing and repairing the factory and having it ready for grinding operations, the company did some small amount of painting through its own employees, that painting was limited to inside work and was done by hand brush. In no sense of the words, as used however, can we take the testimony to mean that the job which this company contracted with Duncan to do was any part of its business, trade or occupation. As a matter of fact, it was most unusual as it was the first time the whole building had been painted and the job of painting it was undertaken only because this new system of spray painting made it possible to have it done at a reasonable figure. Besides, the testimony shows that the local superintendent who had authority to have all the repair and up-keep work done in and around the factory, would not assume the responsibility of contracting for this job, because, as he says, it was something out of the ordinary and the amount was such that he -thought it should -be referred to the president of the company in New Orleans. All of this disposes of the contention that is made on this point.

The last contention is the one that Southdown -Company, Inc., should be held liable in tort because it “suffered and permitted” this minor to be engaged in an occupation that is prohibited by the Child Labor Law of Louisiana. The pertinent provision of the Child Labor Act reads as follows: “No minor under 18 years of age * * * shall .be employed, permitted, or suffered to work * * * (12) in spray painting or in occupations involving exposure to lead or its compounds or to dangerous or poisonous dyes or chemicals.”

Assuming, for the sake of the argument, that this child was permitted or suffered by the Southdown Company, to be engaged in the work he was performing, there would still be no liability on the part of the South-down Company -because the injury sustained by him was not the result of spray painting. He was hurt because he fell through the roof of part of the building and not because he was in any manner whatever exposed to whatever injurious compounds may have been contained in the paint that was being used in the spray-gun. In other words there was no causal connection at all between the spray painting he was doing and the injury he received. The act prohibiting a minor’s employment in spray painting prohibits such work because of the danger involved in lead poisoning or in being exposed to dangerous or poisonous dyes or chemicals. It does not prohibit the employment because the child may become injured in some other manner. The violation -of a provision of the -Child Labor statute itself does not constitute negligence per se and in order for one to recover on behalf of a child who has become injured, it must be shown that there was some causal connection or relation between such negligence and the damage he sustained. See Picou v. J. B. Luke’s Sons, 204 La. 881, 16 So.2d 466 and also Cropper v. Mills, La.App., 27 So.2d 764. Aside from all of this, however, it seems to us as though it would be stretching the provisions of that law to hold in this case, and under the evidence as we appreciate it, that this child was “suffered or permitted” to be employed by the Southdown Company in the prohibited occupation of spray painting. As we have stressed the point before, no one connected with this company was even aware that he was working on this job.

We. hold that the judgment appealed from is correct and it is therefore affirmed at the co-sts -of the plaintiff, appellant.


author: DORE, Judge.

text:
    NEAL et al. v. FARM DEVELOPMENT CORPORATION et al.
    No. 3143.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 4, 1949.

      Reid & Reid, Hammond, Benj. W. Miller, Bogalusa, for appellants.
    Ponder &' Ponder, Amite, for appellees.
   DORE, Judge.

This is a possessory action brought by Mrs. Willie C. Neal, Howell Neal and Mrs. Pauline Neal Planno, being the surviving spouse and sole and only heirs of W. C. Neal, deceased, against the Farm Development Corporation and James J. LaSalle, alleging the disturbance of their possession of a tract of land containing 10.27 acres of land in Section 14, Township 5 South of Range 9 East, in Tangipahoa Parish. They allege all of the essential allegations for the possessory action. The alleged acts of disturbance of their possession consist of the defendants going on the property, of ■having cut down the growing trees, of having uprooted the stumps and of claiming the property as their own. They also seek damages in the sum of $1950.00, divided as follows: $1000.00 for the unlawful entry and trespass, $450.00 for value of timber removed and $500.00 for young pine trees destroyed.

Defendants, for answer, denied all of the allegations of plaintiffs’ petition. In their answer, they set forth that they claim the ownership of the property in question by purchase from the Lake Superior Piling Co., Inc., and called that corporation in warranty. Lake Superior Piling Co., Inc., answered the call in warranty and it in turn generally denied the allegations of plaintiffs’ petition. In its answer, it set forth that in case of judgment against the original defendants, then that in such case it be restricted only to the return of the purchase price of the property in question.

The case was tried, resulting in a judgment being rendered in favor of plaintiffs and against the defendants, Farm Development Corporation and James J. La-Salle, recognizing and maintaining plaintiffs as owners of and possessors of the property in dispute. There was further judgment in favor of plaintiffs and against the defendants, in solido, enjoining and restraining them from interfering or disturbing plaintiffs’ possession or free use and enjoyment of the said property. There was further judgment in favor of the plaintiffs and against said defendants, in solido, in the sum of $450.00 as damages to timber and possessory rights, with legal interest thereon from judicial demand until paid and costs.

Defendants Farm Development Corporation and James J. LaSalle have appealed. Plaintiffs have answered the appeal, praying that the amount awarded as damages be increased to the sum of $1950.00, the amount originally prayed for, and as thus amended the judgment be affirmed.

In a possessory action the plaintiff is entitled to a judgment on proving that he had real and actual possession of the property at the instant when the disturbance occurred and had had such possession quietly and without interruption as owner for more than a year previous to being disturbed, and that the action was brought within one year after the disturbance took place. Code of Practice, Article 49.

The property in question appears to be cut-over pine land and unenclosed. In order to meet the requirement of possession of the property in dispute, the plaintiffs rely upon the rule of law that possession acquired by entering upon and occupying a portion of a tract of land with intention of possessing the entire tract included within its boundaries is sufficient to support a possessory action. Collins v. McLemore, La.App., 177 So. 502.

The facts as disclosed by this record show that W. C. Neal, the husband in community and father of the plaintiffs during his lifetime, purchased, by authentic^ act, which act was duly recorded in the conveyance records of the Parish of Tangipahoa, on Jan. 3, 1939, from William Neal, the following described property: “Sixty (60.00) acres of land in the extreme northern portion of the south half of the northeast quarter of Section Fourteen (14), T-5-S, R-9-E, St. Helena Maridian.” The said W. C. Neal, immediately after his purchase, moved on the said property with his wife and family and continued to live thereon and cultivated a portion thereof until he died. His widow, one of the plaintiffs herein, continued to live in the house on the property and was living and cultivating a portion of the property up to the alleged disturbance of her possession by defendant.

T. A. Tycer, a civil engineer and survey- or, testified that he made a survey of the locus in quo on October 17 and Í8, 1946, and made a map or plat of the survey, and this map or plat was filed in evidence. This map or plat shows, among other things, the center line of the Northeast Quarter of Section 14, T-5-S, R-9-E, a residence, cultivated lands to the north and northeast of the residence, and the center line of the said section. According to his testimony, he surveyed and sketched or mapped the whole tract covered by the Neal deed, shown on the map by the shaded area. According to his testimony and his map or plat, the 10.27 acre tract in dispute is enclosed in the description of the property in the Neal deed and is located in the southwest corner of the sixty acre tract, and he has marked it off for identification.

We may say at this time that the deed and the map or plat were offered not for the purpose of showing ownership hut merely to show possession.

The testimony of this witness and that of Mrs. Neal and others, establishes to our satisfaction that plaintiffs were in possession of the land claimed by them as owners and undisturbed for more than a year prior to defendants disturbing possession thereof, and that they brought this suit within one year after such disturbance.

We would stop without further comment if defendants had not contended in their brief that the description in the deed was not 'sufficient as a basis to apply the rule that possession of a part is possession of the whole, contending that the description in the deed must be certain and not indefinite and it must cover a tract of land the extent of which could be determined upon examination of the records alone.

We fully agree with them that the general rule is that “in order to furnish a basis for possession of the part the description contained in the title to the whole must be susceptible to determination within the four corners of the deed itself.” Applying that rule to the case at bar, we are of the opinion that the deed fully describes the property purchased by Mr. Neal. The governmental description of the South half of NEj4 of Section 14, T-S-S, R-9-E, is very definite and can be definitely located by any competent civil engineer and the sixty acres in the extreme northern portion thereof can be so located. In fact, Mr. Tycer had no trouble in locating the sixty acres. The deed cannot be interpreted in any other way. It is absolutely definite. The center line of the Northeast Quarter of that section is the northern line. The description in the deed definitely identified it as the northern sixty acres of the South •half of the said section. Ordinarily, a quarter section of land contains 160 acres; therefore, the south half of a section contains 80 acres. Sixty acres thereof would be three-fourths of the south half. A description of the land as being the North three-fourths of the South half of Section 14 would not be a better description. One of the definitions of the word “extreme” as given by Funk & Wagnalls Desk Standard dictionary is “farthest; outermost; final.” So we say that under no stretch of the imagination can it be said that the description as given is not definite and that it does not mean the north sixty acres of the south half of Section 14. We find no merit in defendants’ contention.

We therefore find that the judgment appealed from is correct in so far as it recognizes and maintains the possession of the plaintiffs and orders the defendants to cease in further disturbing of their possession. However, it is erroneous in so far as it seeks to declare the plaintiffs to be the owners of the property in that the ownership of the property is not at issue. The judgment will be amended or recast accordingly.

.It is well established that damages are recoverable in a possessory action. However, the amount to be awarded is to be determined by the particular facts of the case. We find the facts, in relation thereof, to be: Sam Lee, an employee of defendant Farm Development Corporation, was instructed to go upon the land with a bulldozer and push down such standing timber and push out such stumps thereon. The land was cutover land, not under fence, and the boundaries were not marked by any natural features. It had been purchased among other lands adjoining thereto by the Farm Development Corporation from Lake Superior Piling Co., Inc., and had been surveyed and the operation by Lee over the land did not go beyond the lines established by the surveyor. There is no evidence to show that defendant corporation had any knowledge that plaintiffs were claiming possession of this open cutover land prior to the time of the trespass complained of. In fáct, the operation was completed before the corporation was informed of any adverse interest in the property. There is therefore no bad faith shown to exist on the part of the employee of the corporation, an essential element to consider in the fixation of the quantum of damages. We must conclude therefore that the corporation was in good faith.

The operation of Lee in pushing down such timber and the pulling out of such stumps on the property was entirely completed in a forenoon. This fact indicates that there could not have been many trees standing nor many stumps to be removed. According to the testimony of Mrs. Neal, there were eighteen trees of the length of sixty or more feet, which could be converted into pilings, and she places a value on these trees at the sum of $25.00 each. These trees however remained on the property. According to the testimony of Mr. LaSalle, the Sec.-Treas. of the corporation, 40-foot pilings which had been removed from adjacent lands were sold by the corporation at $2.00 per piling. He further testified that the trees lying on the disputed tract were similar to those on the adjacent tract which tends to contradict Mrs. Neal’s testimony on the length of the trees. Considering the fact that these trees at the trial of the suit were still on the property, we feel that a valuation of not more than $4.00 per tree should be assessed as damages, making the sum of $76.00. There is evidence that some 270 stumps were pulled out. However, there is no valuation placed on these stumps. Furthermore, we are of the opinion that the pulling out of these stumps was beneficial to the property and to plaintiffs in the clearing of the property and no award should be made therefor. We do not find any other element of damage upon which an award can be made. It appears from the judgment rendered that the lower court evidently came to the conclusion that defendant corporation was not guilty of bad faith and assessed the amount of damages solely on the eighteen trees pushed down, and accepted the value placed thereon by Mrs. Neal; in that, we are of the opinion that he erred and the award should he reduced from $450.00 to $76.00.

We are of the opinion that he should not have cast Mr. LaSalle, in solido, with the corporation. Mr. LaSalle is the Secretary-Treasurer of the said corporation. He did not commit any trespass. It was Lee, the employee of the corporation, who committed the trespass, and consequently the corporation alone is responsible for such trespass.

The judgment is silent as to the call in warranty of defendant corporation against the Lake Superior Piling Co., Inc. Since the judgment is silent thereto, it stands as a rejection of the call in warranty. The defendant corporation complains of its rejection. We are of the opinion that the rejection of its demand is correct. This is a possessory action coupled with a demand in damages. The award of damages in this case is brought about solely by the action of the employee of the defendant corporation in committing the trespass. The action is not one involving the title to the property and it thus appears to us that the call in warranty was improvidently issued unless we hold that the defendant corporation was attempting to hold possession of the property. The defendant corporation was not evicted of the possession of the property; it is being kept from obtaining the possession.

For these reasons assigned the judgment appealed from is hereby recast in the folio vring manner:

It is ordered, adjudged and decreed that there be judgment in favor of Mrs. Willie Neal, Howell Neal and Mrs. Pauline Neal Hanno, and against the defendant, Farm Development Corporation, decreeing the plaintiffs to be the possessors of the following described property, to-wit: “10.27 acres of land in Section 14, Township 5, South Range 9 East beginning at a point 332.5 feet North of the center line of Section 14; thence North 341 feet to a pipe; thence East 1320 feet to a pipe stake; thence South 337 feet; thence West to a point of beginning and as is more particularly set forth in map hereto annexed as plaintiffs’ exhibit No. 1 being marked thereon newly-cleared”, and maintaining and quieting them in their possession thereof.

It is further decreed that the judgment be amended by reducing the award from the' sum of $450.00 to the sum of $76.00.

The judgment is further amended by discharging defendant James J. LaSalle from any and all liability.

As thus recast and amended the judgment is affirmed. The plaintiffs-appellees to pay the costs of this appeal and all other costs to be paid by defendant corporation.


author: ELLIS, Judge.

text:
    COLLINS v. PERMANENTE METALS CORPORATION et al.

      No. 3148.
    Oourt of Appeal of Louisiana. First Circuit.
    Oct. 4, 1949.
    Major & Sanders, Baton Rouge, for appellant.
    Breazeale, Sachse & Wilson, Baton Rouge, for appellees.
   ELLIS, Judge.

The plaintiff, Willie Collins, during the month of March, 1948 was employed as a common laborer by the defendant, Per-manente Metals Corporation, and alleged that while so employed on April 1, 1948 he suffered an accident which rendered him totally and permanently disabled to do work of any reasonable character as a result of his accident and injury; plaintiff alleged that the accident occurred at about ten o’clock a. m. on the first day of April, 1948 when he lifted the handles of a wheelbarrow loaded with dirt, and in so doing, strained his right side causing what he later discovered to be a right inguinal hernia. He prayed for judgment against defendant and its insurer, Fireman’s Fund Indemnity Company, awarding him compensation at the rate of $26.06 per week for a period of 400 weeks from April 1, 1948, with the usual interest from due date until paid and for medical expenses not to exceed $500, and all costs.

Plaintiff asked that his rate of compensation be fixed in accordance with Act 175 of 1948 although the alleged accident and injury occurred prior to the effective date of this act. He stated in his brief that the proper compensation would be $20 per week from April 1, 1948, the date of the alleged accident, to July 28, 1948, the effective date of Act 175 of 1948, and thereafter at the rate of $26.06 for a period not exceeding 400 weeks.

The defendant denied all material allegations of plaintiff’s petition. In the alternative, the defendants plead unconstitutionality of Act 175 of 1948, should the Court conclude that it is applicable to the alleged accident.

The case was duly tried by the District Court, and it rendered judgment in favor of the defendants and against the plaintiff, dismissing his suit at plaintiff’s cost. The District Judge in his reason stated that although he recognized that in some cases the testimony of the plaintiff alone, to the effect that he sustained an accident during the course of his employment, would suffice, provided there were sufficient corroborating circumstances to justify the conclusion that in fact an accident.did occur, in his opinion, such corroborating circumstances did not appear in this case and for him to say that the plaintiff suffered an accident as alleged would be merely a guess. The main question in this case is whether the plaintiff has proven that he suffered an accident while in the employ of the defendant which caused the alleged hernia.

The testimony reveals that the plaintiff was first employed during March, 1948 by the defendant and that he took a pre-employment physical examination given by Dr. Charles McVea, who at that time found the plaintiff fit for employment with no disabling physical findings. Dr. McVea specifically stated that he had no hernia at that time. The plaintiff on April 1st, together with a co-laborer, Willie Parker, was given the assignment of moving some dirt from the front of what was known as the Administration Building, as the defendant company was beautifying its grounds and wished to clean out its flower beds by raking rocks therefrom and thereafter to move some dirt into a hole in the parking lot. The plaintiff and Willie Parker were each furnished with a shovel and a wheelbarrow. Plaintiff said that he raised the handles of a wheelbarrow full of dirt about ten o’clock a. m. and he “felt my right side strain during the time I was rolling the wheelbarrow, I felt my right side strain but I didn’t take it serious. I stopped for about ten minutes ánd then I went back to work.” He stated that he did not have any pain at the time, only felt kind of sick. He did not report the occurrence to the company officials or anyone at the plant but he states that he told his mother about it when he went home that afternoon at approximately four o’clock. Pie came back to the defendant company’s plant on April 2nd and voluntarily quit work, not because of any injury but because he was dissatisfied with the work time given him for he thought that the company owed him for more hours than he was paid. He was unemployed after April 2, 1948 but during the last part of May, 1948 he applied for another job with the Dixie Electric Company and was required to submit to a preemployment physical examination which was made on May 25, 1948 by Dr. James R. Godfrey of Baton Rouge, who discovered that the plaintiff had a small right inguinal hernia and was, therefore, rejected for employment. He immediately contacted his present counsel and upon a refusal of his demands for compensation, the present suit was instituted.

It is shown that on April 1st the plaintiff had his duties outlined to him by a Mr. B. V. Bannister, Jr., who was the Safety Supervisor of the defendant company, and that the plaintiff had reported to him at around seven thirty a. m. and after the shovels and wheelbarrows had been obtained, which was approximately eight o’clock, Bannister showed the plaintiff and his fellow laborer, Willie Parker, what he wanted them to do and they began to rake rocks from the rose beds; that about eight thirty or a quarter of nine Collins left his work and went to Bannister with a complaint that he was two days short in his pay check. Bannister said that he discussed the matter with him and then sent him to a Mr. Mervin Lowden, who is the paymaster for the company, and that he did not see Collins again until about a quarter of twelve when he reported back to him for work, and the plaintiff told him at that time that he had been down to Mr. C. F. Woods’ office, who occupied the position of Clerk and Production, and also to Mr. Vernon Hud-dleston, who was dock superintendent, and to the paymaster, Mr. Lowden, in an effort to check on his time which he claimed was short. Bannister said that the employees had thirty minutes for lunch and that Collins worked on the flower beds that afternoon until sometime shortly after three p. m., when he came in to resign as he felt he had been “shorted” two day’s pay, but that as it was too late in the afternoon to get a termination, according to the rules of the company, Bannister asked the plaintiff to come back the next morning in order to fix up his termination. Bannister stated that he- recalled all of these incidents so well because on that day Collins was working directly for him ot? this particular project which he was superintending and that Parker and Collins did not move any of the dirt; in fact, they just got the rocks out of the flower beds. He is positive that Collins never loaded a wheelbarrow with any dirt that day, nor did he load any rocks. It is his positive testimony that he had the dirt moved the next day. Bannister checked the job twice during the afternoon and was positive that there was no dirt hauled as he had to have two men move it the next day. The defendant also offered the testimony of Mervin W. Lowden who was employed in the payroll department, Mr. C. F. Woods who was employed in the Production Superintendent’s office, and also Vernon Hud-dleston, dock foreman, all of whom testified that the plaintiff came to see them on the date of his alleged accident, in an attempt to straighten out his complaint about his time being short. Lowden said that he last saw the plaintiff between 9:15 and 9:30 a. m. Woods testified that .he came to his office between 9:00 and 9:15; that he sent him to the payroll office and that he returned fifteen or twenty minutes, possibly half an hour, later, which would be at approximately 9:30. He sent him to see Mr. Huddleston, the dock superintendent, and plaintiff, after seeing the dock superintendent, returned to his office between 10:30 and quarter of eleven o’clock. Taking the defendant’s testimony, from a quarter of eleven to a quarter of twelve the plaintiff’s actions were unaccounted for, as he reported for work at approximately a quarter of twelve. The plaintiff made no complaint to any of the various officials he saw that morning as to having suffered any accident or felt any strain. Willie Parker, who was assigned to the same duty as the plaintiff on April 1, 1948, testified that the plaintiff started to work separating “some gravel from some dirt” but that shortly after he had started to work he told Parker that he had to go down to Mr. Woods’ office to see about his time and that he was gone “about an hour or so.” He said that Willie 'Collins did not have an accident of any kind that he knew of that day, nor did he complain at all to him about straining himself; however, Parker did testify that he and Willie Collins hauled dirt in the wheelbarrow on that day. He stated that Collins hauled the dirt after he came back from checking on his time. Parker did not see the plaintiff sit down and rest for ten minutes at any time during that day, and he was working within eight feet of him. Parker further stated that the plaintiff had returned from seeing Mr. Woods and was working with him at about ten o’clock, which is the time plaintiff claims to have strained himself. Parker is evidently mistaken in his testimony that the plaintiff returned to work at approximately ten o’clock, for we have the positive testimony of the three responsible employees of the defendant company which definitely established that the plaintiff left his work between eight thirty and a quarter of nine and traveled back and forth between various offices until approximately a quarter of eleven and finally returned to this work at approximately a quarter of twelve. Taking into consideration the number of trips and estimated distances between the various offices that Collins visited, beginning at eight thirty or a quarter of nine A.M. on April 1st, we believe these facts are corroborative of the testimony of Bannister, Lowden, Woods and Huddleston. In addition to this testimony, the record reveals that the plaintiff on April 2nd, when he was going through the formality of resigning, in response to a question of an employee of the defendant company as to whether he had had any accident while working for the defendant company or suffered any injuries, stated that he had had none.

Plaintiff offered the testimony of his mother, Emma J. Collins, who testified that when the plaintiff came home at about four o’clock he told her that he had “over strained his side” and that it still hurt him after he got home; that he was kind of sick at the stomach and the next day he said his side was sore and that he had complained right along with his side and had, even up to the date of the trial on November 24, 1948. The plaintiff’s mother also testified that he went to bed that night; whereas the plaintiff himself positively-testified that he went to a picture show.

The plaintiff's father testified on direct examination that his son did not complain to him about an accident, but that he told his mother and his mother told him. On cross examination he changed his testimony and stated that plaintiff told him how he strained himself.

In addition to these witnesses, the plaintiff places great faith in the testimony of Dr. James R. Godfrey who testified that he examined the plaintiff on May 25th, 1948 and discovered a small hernia and that out of curiosity he asked plaintiff when he had developed this hernia and plaintiff stated “that the only time he knew of when he might have received it was a number of weeks before when he had been straining at a wheelbarrow and felt a pain in his right side, but he thought no more of it as the pain passed off after some few days and he ignored the incident.”

Counsel for plaintiff contended that although there is no witness other than the plaintiff to the accident, there are sufficient corroborating circumstances to justify judgment in favor of the plaintiff. As we view the case, the defendant has practically proven that the plaintiff did not suffer any accident at ten a. m, on April 1st as he claimed, for he was not working at that hour, and that he did not suffer any accident at all as a result of moving any dirt in a wheelbarrow, as we believe the testimony of Bannister that he did not move any dirt, despite the testimony of Willie Parker to the contrary. Furthermore, the defendants have proven and the plaintiff admitted that he made no complaint to any employee of the defendant that he had suffered an accident, and when he stopped working for the defendant on the following morning he stated that he had suffered no accidents nor injuries while in the employ of the defendant. We also have the positive testimony of Willie Parker, who was working close to the plaintiff on that day, that if he suffered an accident he knew nothing about it. In other words, the plaintiff exhibited no signs of having suffered an accident and made no statement to him that he had strained himself or that he felt sick and, in fact, Parker testified that he did not remember plaintiff sitting down and resting for ten minutes as plaintiff said he did. The plaintiff attempted to escape the effect of these damaging facts and circumstances by saying that he did not think that his injury was serious. Dr. Godfrey testified that the symptoms of a hernia which is received abruptly are usually pain in the region, sometimes nausea, and if it was a very small hernia that can be all, and that a strain causing the kind of hernia which the plaintiff had when he examined him, he would have expected him to have felt the usual nausea and pain attendant to such a hernia. He stated that the nausea usually passes off in a matter of a few hours, if it is present at all, and that sometimes it is not present and the pain will pass off anywhere from two or three days to around two weeks.

Dr. McVea testified that he thought it was probable that an individual who sustained a strain or injury severe enough to cause a hernia would be aware of something wrong with him immediately following such a strain, but that he did not know whether the symptoms of a hernia resulting from a strain would have subsided within a ten minute period after the incident occurred, as that would depend on how much tearing of tissue was associated with the strain and how much pain the man experienced at the time. He did positively state, however, that in his opinion if a man had an injury severe enough to produce a hernia which could be found on an examination where no hernia existed before, he believed the man would have considerable pain and distress which probably would last several hours or a day or so. Therefore, it is difficult for us to believe that the plaintiff injured himself as he contended.

Counsel for plaintiff contended that there were corroborating circumstances which sustained plaintiff’s testimony and entitled him to recover. We believe that even if this be true, the weight and preponderance of the testimony is to the effect that plaintiff did not suffer an accident on the date alleged and, therefore, any corroborating circumstances are not sufficient in the face of direct evidence to the contrary.

It is therefore ordered that the judgment of the District Court he affirmed.


text:
    MILLER v. AMERICAN MUT. LIABILITY INS. CO. et al.
    No. 3153.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 4, 1949.

      Barnett & Couvillon, Baton Rouge, Jos. A. Loret, Baton Rouge, for appellants.
    , J. Elton Huckabay, Baton Rouge, Brum-field, Hebert & Rush, Baton Rouge, for appellees.
   DORE, Judge.

On Nov. 16, 1942, Mrs. Justine C. Miller instituted this suit against the Paramount-Richards Theatres, Inc., and its public liability insurer, American Mutual Liability Insurance Company, for damages for personal injuries suffered by her as the result of an alleged accident caused by negligence of Paramount-Richards Theatres, Inc., on Nov. 23, 1941, and medical expenses and other expenses as a result thereof. In her petition she sued for $12,000 for the injuries she received, the pain and suffering, mental anguish, discomfort, inconvenience and permanent physical incapacity, without any itemization, plus $785.02 for expenses, the latter being itemized.

On December 9, 1942, the defendants filed an exception of vagueness on the grounds that plaintiff, in her petition, had demanded damages in the amount of $12,-000, in globo, and contending she should itemize each item of damages.

On July 24, 1943, Mrs. Justine C. Miller died intestate.

On June 11, 1945, the exception of vagueness was sustained and the plaintiff was ordered to amend her original petition so as to itemize the damages as prayed for in the exception of vagueness. The court allowed counsel for plaintiff ten days within which to amend her petition; and upon failure to amend within that time, the court stated that plaintiff’s suit would be dismissed on motion.

On November 26, 1945, the present plaintiffs, Mrs. Louise Miller Heavey and Mrs. Irma Miller Barton, alleging that they are the daughters and sole heirs at law of the original plaintiff, Mrs. Justine C. Miller, and that she had died intestate on July 24, 1943, filed a supplemental,and amended petition with the necessary allegations, substituting themselves as parties plaintiff and' ■complying with the court’s order which sustained the exception. In their supplemental and amended petition, the substituted plaintiffs claim the sum of $12,000 for each of the items; in other words, increasing the sum from $12,000 to $84,000. This supplemental and amended petition was met by a motion to dismiss the suit for the reason that it sought to augment the demand, changing the issue and not being in compliance with the order of court. This motion was overruled. Defendants then filed a plea of prescription for all such sums in excess of the amount originally claimed. This plea was als.o overruled.

On April 3, 1945, the defendants filed their answer; in which they denied all the essential allegations of plaintiffs’ petition, and, in the alternative, set up the plea of contributory negligence of Mrs. Miller in. bar of recovery.

On June 28, 1948, defendants filed a plea-of prescription of one year against the demands of the substituted parties plaintiff.. This plea was sustained and plaintiffs’ suit was dismissed. Plaintiffs have appealed.

In oral argument and in brief, the-plaintiffs devoted a large part of their argument relative to the correctness of the-lower court’s ruling on the exception of vagueness. We are not called upon to pass-on that ruling at this time. The ruling was made by a minute entry; it was an. interlocutory decree from which plaintiffs, ■cannot appeal. Had the plaintiffs desired an appeal, they could have refused to> amend and then have a written judgment, signed dismissing their suit. Then they could have appealed.

Therefore, the only question, vel.non, before this court is whether the plea filed by' the defendants was correctly sustained. In determining that question, the pertinent facts as divulged by the pleadings are:. Mrs. Justine C. Miller, the original plaintiff, was injured on November 23, 1941.. She filed her suit on November 16, 1942, within the year. She died on July 24,. 1943. Her two major daughters substituted themselves as plaintiffs in the suit on November 26, 194S, more than two years after the death of their mother. The plea is based on Civil Code Article 2315. The pertinent part of' that Article provides:

“Every act whatever of man that causes damages to another, obliges him by whose fault it happened to repair it; the right of this action shall survive in case of death in favor of the children * * * of the deceased * * * for the space of one year from the death; * * *.” (Italics ours.) Article 2294 of the Civil Code of 1825 contained only the first sentence of the present article 2315. Under that Article, no action lay for the wrongful death of another. The right of action for damages was personal, and if the party injured died, the action died with him whether he had filed suit or not. The action did not survive in favor of anyone. By Act No. 223 of 1855, the article was amended by the addition of the second sentence, or as quoted .supra, so that the right of action survived in favor of certain designated relatives of the decedent for a certain period of time. The jurisprudence under this article, as amended by the Act of 1855, is to the effect that the right of action survives whether or not a suit was filed by the injured party. As so amended, Article 2294 of the Civil Code of 1825 became Article 2315 of the 1870 Code. There have been other amendments to the Article under consideration but they are not material in deciding the issue presented.

Although the attorneys for the litigants and the trial judge treat the plea as one of the prescription, it is our view that the limitation of one year fixed by the quoted Article is one of peremption rather than one of prescription. The difference between the nature and effect of these two pleas are succinctly stated in the footnote, 13 Tulane Law Review, page 39 as follows: “A period of peremption admits of no interruption or suspensions. The performance of the required act must be accomplished within the specified time at the peril of the party whose duty it is to perform such act. A period of prescription differs in that it may be suspended or interrupted for various reasons. The institution of suit interrupts prescription. La. Act No. 39 of 1932, McCoy v. Arkansas Natural Gas Co., 1936, 184 La. 101, 165 So. 632. But it does not affect peremption. McElrath v. Dupuy, 1847, 2 La.Ann. 520; Hyde v. Bennett, 1847, 2 La.Ann. 799; Murff v. Ratcliff, 19 La.App. 109, 138 So. 908 supra note, 93.”

Again, in the case of Guillory et al. v. Avoyelles Ry. Co. et al., 104 La. 11, at page 15, 28 So. 899, at page 901, the Supreme Court of this State, stated: “When a statute creates a right of action, and stipulates the delay within which that right is to be executed, the delay thus fixed is not, properly speaking, one of prescription, but is one of peremption. Statutes of prescription simply bar the remedy. Statutes of peremption destroy the cause of action itself. That is to say, after the limit of time expires the cause of action no longer exists ; it is lost.”

It is the contention of the plaintiffs that they are not prosecuting an action of their own but are merely continuing an action instituted by their mother which action survived unto them; that their substitution as parties plaintiff is not the bringing of a new suit; that “a pending suit on an action is a continuous interruption of prescription against the action as long as the suit is pending” and “that prescription cannot run against an action as long as a suit is thereon pending.”

The plaintiffs in their argument lose sight of the fact that both at common law and at civil law a right of action for damages for personal injuries does not survive in case of death. It died with the death of the injured party, whether suit was filed or not. Such right of action only survives by statute. When such right is survived by statute, it is in derogation of common or civil right and the statute must always be strictly construed.

We grant that there are no decisions bearing directly on the question. In all cases cited, it is stated that the beneficiary had filed the suit or had made himself party plaintiff within the year of the death of the injured party. The reason which we see for no cases on point is that the Codal Article appears to he clear and unambiguous. If the language of the article means anything, it means that the right of action is to exist or survive for the space of one year after the death of the party injured in favor of a person or persons named in the article and if such party entitled to claim such right does not do so within the one year period, then the right of action which formerly existed in the injured person shall be considered dead, abated or lost. It seems clear to us, therefore, that the right conferred is a purely personal one, which, if not reduced to possession dies or expires at the end of one year after the death of the injured party.

Although the case of Thompson v. New Orleans Ry. & Light Co., 145 La. 805, 806, 83 So. 19, is not conclusive as to this case, in that the opinion does not state that the beneficiary named in the Codal Article had had herself substituted as party plaintiff within the year after the original plaintiff’s death, nevertheless that case clearly sets forth that the cause of action under the Codal Article, supra, survived or continued to live, to exist in force or operation after the death of the original plaintiff in favor of his statutory beneficiary for one year after the death of the party injured.

This case was followed as late as the case of Thompson v. Travelers Insurance Company, 182 So. 356, 361. In that case, Mr. & Mrs. Thompson had sued to recover damages sustained in an automobile accident. Some seventeen months after the accident and after the suit was tried but before judgment, Mr. Thompson died. Mrs. Thompson was substituted party plaintiff to Mr. Thompson’s right and cause of action by a supplemental petition. The court stated: “Furthermore, the widow’s statutory claim was asserted and prosecuted • within one year from the date of her husband’s death.”

From these two cases, it is logical to infer that had the beneficiaries not taken any action to have had themselves substituted as parties plaintiff within one year from the death of the party injured, the right of action would have been lost.

We find no merit whatever in plaintiffs’ contention that they are not asserting any new right of action. Prior to Mrs. Miller’s death, they had no right of action against the defendants for Mrs. Miller’s injuries. The Codal Article, supra, continued Mrs. Miller’s right of action in the suit for the space of one year from her death. In other words, to avoid the abatement of Mrs. Miller’s right of action in the suit and avail themselves of Mrs. Miller’s right of action they were bound under the statute to intervene and make themselves parties plaintiff within the year afforded them.

We grant that a pending suit on an action is a continuous interruption of prescription against the action as long as the suit is pending as a general proposition but that theory of law is inapposite to this case. This is a statutory right. The original suit interrupted the running of prescription as to Mrs. Miller but did not and could not interrupt the peremption period as to a right in favor of these substituted parties plaintiffs which was at that time non-existent. The only way that the limitation of time given by the article could be toll is the filing of a suit by the plaintiffs or by the making themselves parties plaintiff in the original suit within the period of one year from their mother’s death.

We are of the opinion that it was necessary for Mrs. Miller’s daughters, the substituted plaintiffs, to avail themselves of the right granted them by the Codal Article, supra, to comply fully with the strict letter of the statutory right granted them and having failed to do so within the time provided, they have forever lost this right.

For these reasons, the judgment appealed from is affirmed.